author: PRESIDING JUSTICE McCULLOUGH JUSTICE STOUDER,

text:
    THE CITY OF SPRINGFIELD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Robert Pokora, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—92—0274WC
    Argued December 15,1992.
    Opinion filed May 6,1993.—
    Rehearing denied June 14,1993.
    STOUDER, J., dissenting.
    James K. Zerkle and Peggy J. Witt (argued), Corporation Counsel, of Springfield, for appellant.
    Richard G. Leiser (argued), of Warren E. Danz, P.C., of Peoria, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, a police officer, was injured in a traffic accident returning to the station house after eating lunch. The Industrial Commission (Commission) awarded benefits and the circuit court confirmed the award. Respondent appeals, contending the Commission’s determination that the injury arose out of the employment is against the manifest weight of the evidence. We affirm.

The facts are not in dispute. Claimant was a sergeant with the detective bureau of the Springfield police department (department). He was assigned an unmarked squad card for his use 24 hours a day. A department directive required that the police radio in the automobile be activated at all times and that claimant respond to any calls he received, even when off duty.

Claimant testified that he drove the car home to eat lunch almost every day. On March 29, 1988, while returning to the station after lunch, his car was struck broadside at an intersection by a vehicle whose driver ran a stop sign. Claimant suffered injuries to his head, neck, and back.

In addition to the police radio in the vehicle, claimant had a beeper with him 24 hours a day to permit him to respond to calls. He was also told by supervisors that police vehicles were assigned to officers for their use around the clock because of the benefit the city derived in maintaining heightened visibility on the street which would act as a deterrent to crime. Claimant conceded that he was free to do whatever he wanted on his lunch break and could choose when and where to go to eat lunch. He also agreed that at the time of the accident he was not responding to a call or emergency situation but was simply driving back to work.

The arbitrator awarded temporary total disability benefits, finding claimant was in the course of employment because he was on call as a police officer at the time of the accident. The Commission affirmed the arbitrator and the circuit court confirmed the Commission.

Respondent contends that claimant’s injuries did not arise out of the course of his employment because claimant was not performing any employment duties at the time of the accident and was not subject to any greater risk than other citizens in driving an automobile on city streets. Claimant counters that because there was no dispute that he was “on call” 24 hours a day and his police radio was activated at the time the accident occurred, the injuries arose in the course of employment.

The issue for this court is whether the Commission finding of compensability is contrary to the manifest weight of the evidence. (Ealy v. Industrial Comm’n (1989), 189 Ill. App. 3d 76, 78, 544 N.E.2d 1159, 1160-61.) Concerning lunch or dinner breaks, this court has stated that the guiding principle as to whether the injury is compensable is “whether ‘the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the intervals can be deemed to have retained authority over the employee ***.’” (Lynch Special Services v. Industrial Comm’n (1979), 76 Ill. 2d 81, 90, 389 N.E.2d 1146, 1149, quoting 1 A. Larson, Workmen’s Compensation §15.54 (1978).) It has also been stated that to the limited extent that generalities are appropriate, it can fairly be said that lunch-time injuries suffered away from the employer’s premises by employees with fixed hours and places of employment and unpaid lunches, and who are not engaged in employer errand running or other employment-related activity, are not compensable. In a general way, such injuries can be characterized as governed by the rules applicable to injuries suffered while going to or from work. Lynch, 76 Ill. 2d at 87, 389 N.E.2d at 1148.

In this case, it is undisputed that claimant was entirely free to go to lunch when and where he chose. The fact that he was driving an unmarked squad car is not significant (see Village of Mark v. Industrial Comm’n (1957), 12 Ill. 2d 168, 145 N.E.2d 617), since there is no suggestion that the vehicle contributed to the accident. Likewise, the fact that claimant was or might have been paid for the time he spent on his lunch break is also not determinative. Lynch, 76 Ill. 2d at 87, 389 N.E.2d at 1148.

Claimant rests his argument, as did the arbitrator, on the fact that he was “on call” 24 hours a day and actually had his radio on during the trip to the station pursuant to department directive. The supreme court has stated that being “on call” 24 hours a day is not always determinative since it “does not necessarily follow that every injury suffered by a peace officer is compensable.” (Siens v. Industrial Comm’n (1981), 84 Ill. 2d 361, 364, 418 N.E.2d 749, 750.) An injury must still be incidental to one’s employment as a police officer.

The subject of police officer injuries has been addressed by Professor Larson:

“Police officers who are ‘on call’ at all times have sometimes been brought within the rules just discussed as to on-call employees generally. But in other cases it has been recognized that policemen are ‘on call’ in a special sense. That is, while the usual on-call employee is subject to the possibility of a specific summons emanating directly from his employer, the policeman may be at any moment ‘called’ into duty by events taking place in his presence, whether or not he is technically off duty. Awards have accordingly been made to policemen in the course of an ordinary going or coming journey.” (1 A. Larson, Workmen’s Compensation §16.17, at 4-208.44 through 4-208.48 (1990).)

In this case, although claimant was not responding to any particular call or emergency, he had his police radio activated pursuant to department directive at the time the accident occurred. This serves to distinguish this case from those cited by respondent.

In Siens, a village marshall placed a shotgun from his police vehicle into his personal automobile and was subsequently injured when the gun discharged after he shoved it aside with his leg. At the time, claimant was preparing to embark upon a hunting trip. Compensation was denied because, despite the fact the officer was “on call” 24 hours a day, he was not performing any act incidental to his employment but was preparing to pursue a personal diversion unrelated to his job.

Likewise, in Woolland v. Industrial Comm’n (1982), 91 Ill. 2d 58, 434 N.E.2d 1132, a police officer shot himself accidentally at a party several hours after his shift ended. Compensation was denied because he was not performing any job-related duties at the time of the accident.

In this case, claimant was returning to duty after lunch and was not only subject to being “on call”; he had his radio turned on and was “on call” to the extent he would have responded in the normal course to any request for assistance or emergency he encountered.

In this sense, claimant was not acting outside his employment-related duties or engaged in a purely personal diversion or enterprise. The principal issue, as we have indicated, was whether the employer, under all the circumstances, can be deemed to have retained authority over the employee. Actively monitoring the police radio during the course of claimant’s return trip to the station is sufficient evidence upon which the Commission could draw the conclusion that the employer intended to retain authority over claimant at the time his injuries arose. Accordingly, the Commission’s decision is not against the manifest weight of the evidence. For this reason, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

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

JUSTICE STOUDER,

dissenting:

Because I do not view the claimant’s injuries as having arisen out of his employment, I dissent from the majority’s decision. I also have some doubts as to whether it was in the course of his employment, but I need not reach that issue.

It is axiomatic that a claimant’s injury is not compensable under the Workers’ Compensation Act (Act) unless it arises out of and in the course of the claimant’s employment. (Ill. Rev. Stat. 1987, ch. 48, par. 138.2; Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033.) “[I]n the course of” employment refers to the time, place, and circumstances under which the injury is received. (Scheffler Greenhouses, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 361, 366, 362 N.E.2d 325, 327.) “Arising out of” refers to the causal connection between the employment and the injury: a connection demonstrated if the claimant establishes that the injury’s origin lies in some risk related to the employment. (Brady v. Louis Ruffolo & Sons Construction Co. (1991), 143 Ill. 2d 542, 548, 578 N.E.2d 921, 923.) In addition, an injury may be said to arise out of the employment if the conditions or nature of the employment increase the claimant’s risk of harm beyond that to which the general public is exposed. (Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 541 N.E.2d 665.) The claimant has the burden of establishing the necessary causal relationship between the employment and the injury. Rosenbaum v. Industrial Comm’n (1982), 93 Ill. 2d 381, 444 N.E.2d 122.

The mere fact that the claimant was present at the place of injury because of his employment duties will not by itself suffice to establish that the injury arose out of the employment. (Brady, 143 Ill. 2d 542, 578 N.E.2d 921.) Rather, a claimant must demonstrate that his risk of the injury sustained is peculiar to his employment, or that it is increased as a consequence of the work. (Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.) If an industrial accident is caused by a risk unrelated to the nature of the employment, or is not fairly traceable to the workplace environment, but results instead from a hazard to which the claimant would have been equally exposed apart from his work, the injury cannot be said to arise out of the employment. Brady, 143 Ill. 2d 542, 578 N.E.2d 921.

In the instant case, the claimant was a sergeant in the detective division of the Springfield police department. He worked basically out of the police station and was not assigned to patrol duty. At the time of the collision, the claimant was returning to work from his lunch break. He was not responding to an emergency call, or on his way to a crime scene or investigation. His travel at the time was no different than any other person returning to work. He was exposed to no greater risk than that faced by any other member of the general public.

I find the majority’s reliance on the fact that at the time of the collision the claimant had his police radio activated pursuant to a department directive, and was “on call,” most unconvincing. He was not performing any duties incidental to his employment at the time he was injured. Simply having the radio on surely does not suffice. He was not conducting any police-related activity at the time. He was just driving. Under the majority’s rationale, had the claimant slipped and fallen in the shower while listening to his police radio, the resulting injury would be covered by the Act.

In sum, the claimant was involved in a traffic mishap, which was unrelated to his employment as a police detective. The claimant’s injuries did not arise out of his employment. The claimant failed to prove a causal connection between his injury and his employment. Workers’ compensation is not a general all-encompassing health and accident insurance policy. The facts in this case should not be construed in such a way as to make it so.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    JOHN E. FICK et al., Plaintiffs-Appellees and Cross-Appellants, v. JOYCE WEEDON et al., Defendants-Appellants and Cross-Appellees.
    Fourth District
    No. 4 — 92—0744
    Argued April 14,1993.
    Opinion filed May 6,1993.
    Rehearing denied June 7, 1993.

      Harold F. Tenney (argued) and Carl J. Tenney, both of Decatur, for appellants.
    John E. Fick (argued), of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendants, Joyce and Ray Weedon, appeal from the entry of summary judgment in favor of plaintiffs, John E. and Norma J. Fick, enjoining them from using their residence as a bed and breakfast establishment. We affirm.

On November 8, 1977, plaintiffs conveyed their residence at 919 West Williams Street, Decatur, Illinois, by warranty deed, which was recorded. The deed contained a restrictive clause providing, “said property shall be used for a private dwelling for one family only, for twenty-five (25) years from the date hereof.” On August 28, 1990, defendants acquired the property by warranty deed and began operating a bed and breakfast establishment at the residence. Thereafter, plaintiffs sought to enjoin defendants and their successors from using the residence for any purpose other than as a private dwelling until the expiration of the 25-year restriction. Defendants responded to the complaint and admitted “since some time in April of 1992 they have used two bedrooms and some common areas of the subject premises for a ‘bed and breakfast’ while they used the property for a private dwelling for one family only.” Plaintiffs then filed a motion for summary judgment.

In response to plaintiffs’ motion, defendants submitted several affidavits. One such affidavit was from Joyce Weedon. In her affidavit, she stated:

“Since February 14, 1992 [,we] have used the premises for a bed and breakfast establishment while we used the property for a private dwelling for our family only. [(5.)] Two bedrooms on the premises have been used as sleeping rooms for guests. These rooms were intended to serve no more than two transient guests per night, although occasionally such a room has also been used by a baby of the other guests. On two occasions to accomodate unusual situations, [we] allowed a third couple to use our bedroom and we slept in a bedroom on the third floor. Otherwise, no part of the premises [was] used as a sleeping room for any guest. Except as otherwise stated ***, the number of guests [did] not [exceed] four.”

Defendants had one “temporary resident” in their home from February 17, 1992, through May 28, 1992. She paid defendants approximately $160 per week. Normally, defendants only had guests on weekends, although they did have one guest from Sunday to Thursday each week from May 4, 1992, to July 16, 1992. Based on defendants’ use of the residence, Robert D. Espeseth, coauthor of Developing a Bed and Breakfast Plan and an associate professor at the University of Illinois, and Vickie Weger, president of the Illinois Bed and Breakfast Association, maintained the bed and breakfast establishment operated by defendants came within the definition of a “bed and breakfast homestay.” A “bed and breakfast homestay” is defined as:

“[a] private, owner-occupied residence in which the frequency and volume of [bed and breakfast] visitors are incidental to the primary use of the building as a private residence. One to five guest rooms are made available to transient visitors and provide supplemental income for hosts. Breakfast is the only meal served and is included in the charge for the room.” R. Buchanan & R. Espeseth, Developing a Bed & Breakfast Business Plan 1 (1991).

According to another source, “[bed and breakfasts] are either private residences where the owners rent spare bedrooms to travelers, or small, family-operated inns offering a special kind of warm, personal hospitality.” (B. Rundback, Bed & Breakfast U.S.A. 1991 1 (1991) (hereinafter Bed & Breakfast).) A bed and breakfast, “in the purest sense, is a private home, often referred to as a ‘homestay,’ where the owners rent their spare bedrooms to travelers.” Bed & Breakfast at 4.

After hearing, the trial court granted the motion for summary judgment, finding the covenant was unambiguous and conducting a bed and breakfast on the premises violated this covenant. The court enjoined the defendants from using the residence in violation of the restriction and from conducting a bed and breakfast on the premises until the expiration of the restriction. This appeal followed.

Summary judgment is properly granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) In evaluating the propriety of a trial court’s entry of summary judgment the proper standard of review is de novo. (See Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209; Illinois Municipal League Risk Management Association v. Seibert (1992), 223 Ill. App. 3d 864, 869, 585 N.E.2d 1130, 1134; Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.) A reviewing court will reverse an order granting summary judgment when it finds the existence of a genuine issue of material fact. (Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 31, 476 N.E.2d 413, 419.) In cases involving contracts, there is a disputed fact precluding judgment when the material writing contains an ambiguity which requires admission of extrinsic evidence. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272, 586 N.E.2d 1211, 1215.

On appeal, defendants contend the language of the restrictive covenant is ambiguous, and summary judgment, therefore, should not have been granted. Defendants argue they did not violate the restrictive covenant because the dominant use of the property is as a private dwelling for only one family, and their use of the home as a bed and breakfast is only incidental to and compatible with that dominant use. While using the residence as a bed and breakfast, defendants allege the house remained a private dwelling for one family only, thereby complying with the restriction. Conversely, plaintiffs argue the covenant is unambiguous, and defendants’ activities clearly violated the restriction. They also contend it takes a tortured reading of the covenant to permit the home’s use as a bed and breakfast.

Whether a restrictive covenant is ambiguous is a question of law because that determination necessarily involves a construction of

the restriction. (Cimino v. Dill (1980), 92 Ill. App. 3d 345, 348, 415 N.E.2d 1272, 1275.) The paramount rule for the interpretation of covenants is to expound them so as to give effect to the actual intent of the parties as of the time the covenant was made and as collected from the whole document construed in connection with the circumstances surrounding its execution. (Westfield Homes, Inc v. Herrick (1992), 229 Ill. App. 3d 445, 451, 593 N.E.2d 97, 101; Lake Barrington Shore Condominium Ten Homeowners Association v. May (1990), 196 Ill. App. 3d 280, 282-83, 553 N.E.2d 814, 816; Nassau Terrace Condominium Association, Inc. v. Silver stein (1989), 182 Ill. App. 3d 221, 224, 537 N.E.2d 998, 1000; Mertel v. Howard Johnson Co. (1989), 191 Ill. App. 3d 114, 117, 547 N.E.2d 670, 672; Cimino, 92 Ill. App. 3d at 348, 415 N.E.2d at 1275.) When the language of a covenant is unambiguous, clear and specific, no room is left for interpretation or construction. Board of Directors v. Secretary of Veterans Affairs (1992), 226 Ill. App. 3d 281, 286, 589 N.E.2d 761, 764.

Restrictions should be given the effect which the express language of the covenant authorizes. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 332, 478 N.E.2d 860, 864.) While doubts and ambiguities in the covenant should be resolved in favor of natural rights and against restrictions (Lake Holiday Property Owners’ Association v. Arenkill (1978), 172 Ill. App. 3d 892, 893-94, 527 N.E.2d 167, 168), this generalization cannot be used to ignore or override the specific language of a restrictive covenant. (Westfield, 229 Ill. App. 3d at 451, 593 N.E.2d at 101; Sherwood v. Rigsby (1991), 221 Ill. App. 3d 260, 261, 581 N.E.2d 696, 698; Lake Barrington, 196 Ill. App. 3d at 283, 553 N.E.2d at 816; Mertel, 191 Ill. App. 3d at 117, 547 N.E.2d at 672; Cimino, 92 Ill. App. 3d at 348, 415 N.E.2d at 1275.) Moreover, a person in whose favor a restrictive covenant runs is prima facie entitled to its enforcement (Sherwood, 221 Ill. App. 3d at 261, 581 N.E.2d at 698; Mertel, 191 Ill. App. 3d at 117, 547 N.E.2d at 672), and the mere breach of a covenant is sufficient grounds to enjoin the violation (Sherwood, 221 Ill. App. 3d at 261, 581 N.E.2d at 698).

We find the restriction unambiguous, and the home’s use as a bed and breakfast violates the explicit restriction. While the home may remain a private dwelling, its use as a bed and breakfast does not fall within the plain meaning of “a private dwelling for one family only.” The intent of the language of the covenant was to prohibit other uses of the premises than as single-family residence. Commercial use as a bed and breakfast is prohibited by the express language of the deed. The trial court’s order granting summary judgment was correct.

Following the filing of the notice of appeal, defendants filed a motion to stay the enforcement of the injunction pending appeal. The trial court granted the motion. Plaintiffs contend by way of cross-appeal the court erred in granting the stay and ask this court to vacate it and permit the order of permanent injunction to remain in effect pending appeal.

Courts may grant a stay pending appeal (see 134 Ill. 2d R. 305(b)(1)), as a matter of discretion. (Stacke v. Bates (1990), 138 Ill. 2d 295, 302, 562 N.E.2d 192, 195; Horvath v. Loesch (1980), 87 Ill. App. 3d 615, 620, 410 N.E.2d 154, 158; Henderson v. Graham (1988), 167 Ill. App. 3d 256, 259, 521 N.E.2d 143, 145.) On review, a court’s entry of a stay will be reversed only if the evidence establishes there has been an abuse of discretion. (Stacke, 138 Ill. 2d at 302, 562 N.E.2d at 195.) Under the circumstances, we find the trial court did not abuse its discretion in granting the stay.

The judgment of the trial court is affirmed, and the stay is dissolved.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE STOUDER

text:
    THE CITY OF JOLIET, Plaintiff-Appellee, v. MICHAEL D. FRANKLIN, Defendant-Appellant.
    Third District
    No. 3-92-0164
    Opinion filed April 23,1993.
    Rehearing denied June 9,1993.

      Donald F. Spak, of Hamblet, Casey, Oremus & Vacin, of Chicago (Elizabeth H. Schoettly, of counsel), for appellant.
    Thomas A. Thanas, of City Legal Department, of Joliet (Mary Kucharz, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Michael D. Franklin, was found guilty of violating a municipal ordinance of the City of Joliet, to wit, criminal trespass to land (Joliet, Ill., Code of Ordinances §21— 107 (1988)). The trial court sentenced the defendant to 60 days of supervision and a $50 fine. The defendant appeals.

The incident giving rise to the charge against the defendant occurred at the 1991 “Taste of Joliet” (the Taste). In 1991, the Taste was scheduled to take place on four consecutive days in late May and early June. In attendance were some 40 food vendors selling food to the public. The Taste also included a carnival and scheduled entertainment, including the “Aerobic All Stars” and a one-man act known as “the Flying Fool.” There was no admission charge.

Tina Mackey testified she was the superintendent of recreation for the Joliet Park District (the park district). She testified she was in charge of the Taste, which was held at the Joliet Memorial Stadium. The stadium is park district property. Mackey testified the stadium is enclosed by a fence and is generally closed to the public when there is no scheduled event taking place. Mackey testified the stadium is used for high school football games and special events such as the Fourth of July celebration and the Taste.

Mackey testified that each year she began screening acts in November and December to appear at the upcoming Taste. She attempted to vary the entertainment from year to year. A schedule was developed and certain entertainers were invited. Some type of contract was thereafter entered into between the entertainers and the park district. Any entertainer who was not scheduled was not allowed to perform. Mackey testified everything was done with an eye toward maintaining control over the event.

Mackey also testified there was a sign at the entrance to the stadium stating the park district had the right to refuse admittance. Mackey stated that in previous years they had stopped a photographer from offering to photograph persons attending the Taste for a fee. Also, persons handing out coupons for free food were told to stop.

Mackey stated she was working at the Taste on May 30, 1991. She estimated that some 15,000 to 20,000 persons attended the event on that day. She and the police were in constant radio communication during the Taste. At around 7:30 p.m., she received notice of a crowd gathering near the north end of the track. She immediately went to the area. On arriving she noticed “people” (the defendant) performing “an entertainment routine.” She described it as a “sort of audience participation; no big deal.”

Mackey, and police officials who had also arrived, watched the performance. A police officer asked her if she knew who these people were. After doing some checking she concluded the entertainers did not have a contract to perform at the Taste. However, Mackey testified, “[I]t seemed harmless enough at the time, so we said *** let’s let them proceed and kind of see what happens, and when they were done, we will explain to them this is a formal organized event, that they are not scheduled and we would appreciate it if they didn’t perform and did, in fact, leave.”

Mackey and the police continued watching the act, which involved members of the audience. Mackey testified the performance began to get “a bit crude.” At one point, the defendant brought out a black plastic gun. The defendant gave the gun to a girl from the audience and had her point it at another man’s crotch. Mackey stated she and the police looked at each other and then she stated to the police, “That’s it, we are going to have to shut this down immediately.” The police officers then went over to the defendant. Mackey did not accompany the police. In fact, she did not speak with the defendant at all or inform him personally that he could not perform and that he had to leave the premises.

Lieutenant William J. Fitzgerald of the Joliet police department was the security director at the Taste. On May 30, 1991, he was in charge of the overall supervision of the grounds. Fitzgerald testified he observed a man performing to a group of between 75 and 100 people. Fitzgerald testified one of the officers complained the act was getting “a little raunchy at times.” He stated Mackey made the decision to have the officers ask the defendant to leave.

Fitzgerald testified he told “them” they were going to have to stop performing. (The record shows the defendant’s wife was also present; however, it appears she was not part of the performance.) According to Fitzgerald, the defendant “became quite vocal” and stated he was not going to stop. The defendant told Fitzgerald he had “one more thing to do,” and “he just continued to play on this thing.” Fitzgerald told the defendant he would have to leave or he would be arrested. The defendant then told Fitzgerald he was going to have to be arrested because he had a constitutional right to do what he was doing. Fitzgerald told the defendant it was a question of trespass and that he had to leave. Thereafter, the defendant threw a hat onto the ground and told the crowd he was being arrested and needed bond money. The defendant was then taken to the “booking room” beneath the stadium.

Joliet police officer Richard Chizmark testified he was also present during the defendant’s performance. He was told by Mackey and Fitzgerald that the act was unauthorized and that when the defendant finished he would be asked to leave. When the plastic gun was produced, Mackey and Fitzgerald decided the act had to be stopped.

Chizmark approached the defendant and told him he had to stop performing. The defendant inquired as to why he had to stop his act and whether he had broken any laws or ordinances. Chizmark explained to the defendant that he did not have a contract to perform, and though he had not broken any laws, the park district was asking him to leave the premises. Chizmark advised the defendant that if he did not leave he would be committing a trespass.

The defendant stated he was not breaking any laws; therefore, he was not leaving. Fitzgerald then came over and continued talking with the defendant. When the defendant continued to refuse to leave he was arrested. Chizmark testified the defendant was not given a chance to pack his props. (Apparently the defendant’s wife gathered up the items.)

At trial, the defendant denied he refused to stop performing and maintained he complied with the order to stop. The defendant testified he approached the crowd and told them the Joliet police were stopping his performance. He then began picking up his things. He placed his hat on the ground and told the crowd he was a street performer. Fitzgerald told him he was under arrest for soliciting without a license. The defendant contended the charge was changed to trespass later in the booking room.

The trial court found the park district had a right to “license” who was going to perform on its property and had a right to tell those who did not have such permission to leave. The court found the defendant refused to leave after being told to do so. Therefore, the trial court found the defendant guilty of trespass.

On appeal, the defendant contends the trespass ordinance as applied to him violates his rights under the first amendment to the United States Constitution (U.S. Const., amend. I) and section 3 of article I of the Constitution of the State of Illinois (Ill. Const. 1970, art. I, §3). The defendant maintains his performance was stopped on the basis of its content.

Although the defendant asserts a constitutional claim, we find, given the evidence, we need not reach this claim because the case can be decided on more narrow grounds.

Joliet ordinance section 21—107(a) provides in pertinent part: “No person shall *** remain upon such land or building, or any part thereof, of another after receiving notice from the owner, occupant, owner or occupant’s agent, person in charge of such land or peace officer to depart.” (Joliet, Ill., Code of Ordinances §21—107(a) (1988).) Remaining upon the land of another after being requested to leave is sufficient to complete the offense. (See People v. Thompson (1978), 56 Ill. App. 3d 557, 372 N.E.2d 117.) Nothing in the United States Constitution prevents a public entity, be it State or local, from evenhanded enforcement of a general trespass law vis-a-vis public property. (See Adderley v. Florida (1966), 385 U.S. 39, 17 L. Ed. 2d 149, 87 S. Ct. 242.) A public entity, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated. Adderley v. Florida (1966), 385 U.S. 39, 17 L. Ed. 2d 149, 87 S. Ct. 242.

Under sections 8 — 1(a) and 8 — 10 of the Park District Code (70 ILCS 1205/8 — 1(a), 1205/8 — 10 (West 1992)), park districts may “plan, establish and maintain” programs such as the Taste of Joliet and enter into contracts in furtherance thereof. In the instant case, the Joliet Park District had contracted with all entertainers who were to appear at the Taste. Although the event was open to the public free of charge, the park district maintained strict control over the event as far as food venders and entertainment were concerned. In order to maintain this control, the park district entered into a contractual relationship with all parties who were to entertain at the Taste. No one was allowed to perform without having first entered into an agreement with the park district.

Under these circumstances, the park district had the authority to request that the defendant stop performing and leave the premises. The record shows the defendant refused to leave when so instructed by the Joliet police. At the time, the police were acting as the agents of the park district. Therefore, the record supports a finding that the defendant was guilty of trespass.

The defendant also contends, for the first time on appeal, that the complaint was fatally defective because the wrong last name was used in the body of the complaint. The heading on the complaint names the defendant, Michael D. Franklin. However, in the body of the complaint the defendant is listed as Michael D. Randall.

An objection raised to the misnomer of the defendant in a charging instrument has been held waived when it comes after a plea of not guilty. (See People v. Vinei (1938), 369 Ill. 563, 17 N.E.2d 19.) There is no reversible error unless it appears some substantial injury was done to the accused whereby he was unable to intelligently make his defense or was exposed to the danger of a second trial on the same charge. People v. Ferraro (1979), 79 Ill. App. 3d 465, 398 N.E.2d 1001.

In the instant case, at trial the defendant raised no objection to the mistake in the complaint. There was no question that he was the individual charged with trespass. He was fully able to present his defense. His name appears correctly in the heading of the complaint. Under the circumstances, we find no reversible error.

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

Affirmed.

McCUSKEY, P.J., and BARRY, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY PARROTT, Defendant-Appellant.
    Third District
    No. 3-92-0178
    Opinion filed April 30,1993.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Stanley Parrott was committed to the Department of Corrections in 1975 under the provisions of the Sexually Dangerous Persons Act (the Act) (Ill. Rev. Stat. 1975, ch. 38, par. 105—1.01 et seq.). In 1977, after the Illinois Supreme Court held that the standard of proof necessary for commitment under the Act was proof beyond a reasonable doubt (see People v. Pembrock (1976), 62 Ill. 2d 317, 342 N.E.2d 28), the State filed a second petition to commit the defendant. At the hearing on this petition, the parties stipulated to admission of the evidence presented at the 1975 hearing, and the court found the defendant to be sexually dangerous beyond a reasonable doubt. This finding was affirmed on appeal to this court. People v. Parrott (1982), 108 Ill. App. 3d 222, 438 N.E.2d 313.

On April 26, 1991, the trial court granted the defendant’s petition for conditional release pursuant to section 9 of the Act (Ill. Rev. Stat. 1991, ch. 38, par. 105—9). Section 9 provides that where a patient no longer appears to be dangerous but it cannot be determined with certainty that he has fully recovered, the court shall release him subject to such conditions and supervision as are necessary to protect the public.

On October 18, 1991, the State filed a petition to revoke defendant’s conditional release. The State alleged that defendant had violated a condition of his release by failing to avoid unsupervised contact with children or adolescents. After a hearing on February 14, 1991, the trial court revoked the defendant’s conditional release and remanded him to the custody of the Department of Corrections on February 18. On appeal, defendant contends that he was denied due process and equal protection of the law and that the trial court erred in admitting certain evidence. We affirm.

The first witness to testify at the hearing was five-year-old S.H. S.H. identified the defendant as the man who had approached her and her 11-year-old aunt, S.C., as they were playing and showed them “dirty” pictures. The defendant asked if they wanted one of the photos and showed them one picture which depicted nude people having sex. S.H. and S.C. began walking away, toward their house, and the defendant followed them. Once they reached the house, the children began yelling because they had no keys, and the defendant walked away. The defendant was carrying a blue bag which S.H. identified as exhibit 1. The police were summoned, and they drove the girls around the neighborhood in separate vehicles. Defendant was identified and arrested as he was walking along the sidewalk.

On cross-examination, S.H. stated that she only saw one picture and it had fallen out of defendant’s bag. S.C. picked up the picture and returned it to the defendant, who said thank you.

Mary Miceli, a Chicago police officer, was the next witness called on behalf of the State. Officer Miceli testified that on October 12, 1991, at approximately 2:30 p.m., she responded to a call regarding a disturbance. After talking to S.H. and S.C. and determining the nature of the complaint, each girl was placed in a separate squad car and was driven around the neighborhood. Shortly thereafter defendant was observed walking on the sidewalk carrying a blue bag which the girls had earlier described. Miceli identified the defendant as the man placed under arrest shortly after the incident. Over objection, Miceli identified exhibit 1 as the blue bag the defendant was carrying. Also over objection, Miceli identified the contents of the bag, which included sexually explicit magazines and photographs, candy bars and condoms.

The next witness to testify was 12-year-old S.C., who was 11 years old at the time of the incident. S.C. was speech and hearing impaired, so an interpreter was sworn in to assist with the testimony. According to S.C., she and S.H. were playing hide-and-go-seek when a man approached and tried to talk to them. The man asked S.C. if she wanted to have sex and showed her some “dirty” pictures which he threw on the ground. S.C. stated that she picked the pictures up and returned them to the man and began to run home. S.C. also claimed the man touched her breast. She identified exhibit 1 as the blue bag the man had been carrying. Two police cars responded to the girls’ complaint, and the defendant was identified and arrested as they drove through the neighborhood. S.C. stated that the man wearing orange sitting in the courtroom was the man involved, but she was too afraid to point him out.

On cross-examination, S.C. stated that only one photograph was involved and she did not know why she had picked it up and returned it to the man. S.C. agreed that the defendant looked scared when she returned the photo. S.C. stated that the defendant offered her money for sex, although she acknowledged she had difficulty hearing what the defendant said. Following S.C.’s testimony, the State rested its case.

Defendant Stanley Parrott testified on his own behalf. Parrott stated that following his conditional release, he lived in a halfway house for two months and later moved into a hotel. During this time he worked for a telemarketing company and he continued to receive counseling. At approximately 2 p.m. on October 12, defendant passed by a high school as he was walking to a friend’s house. Defendant reached into his shoulder bag to pull out a pack of cigarettes and four or five pictures from an adult magazine fell out. He stepped back to retrieve the pictures, noticed one was missing, and began looking for it. As he was looking through his bag, two girls walked by and the older girl picked up the lost picture and returned it to the defendant. Defendant became scared because he knew he was on conditional release. He offered the girl a quarter for being honest and thanked her, hoping that if he offered her some money she would be less likely to say anything to anyone. Defendant denied touching the girl’s chest and he also denied following the girls.

On cross-examination, over objection by defense counsel, the State was permitted to question the defendant about the contents of the shoulder bag, which included several adult magazines, candy bars, condoms, a sketch pad and a diary. Defendant stated that he had intended to trade the pictures and magazines with his friend. After brief redirect examination, the defense rested its case.

Following closing arguments, the court took the matter under advisement. On February 18, 1992, the court revoked defendant’s conditional release and remanded the defendant to the custody of the Department of Corrections.

Defendant first contends that the revocation and recommitment provision of the Sexually Dangerous Persons Act violates due process because it allows the court to revoke defendant’s conditional release without a finding that the defendant is currently sexually dangerous. We disagree. Section 9 of the Act provides:

“§9. An application in writing setting forth facts showing that such sexually dangerous person or criminal sexual psychopathic person has recovered may be filed before the committing court. *** If the patient is found to be no longer dangerous, the court shall order that he be discharged. If the court finds that the patient appears no longer to be dangerous but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered, the court shall enter an order permitting such person to go at large subject to such conditions and such supervision by the Director as in the opinion of the court will adequately protect the public. In the event the person violates any of the conditions of such order, the court shall revoke such conditional release and recommit the person pursuant to Section 5 — 6—4 of the Unified Code of Corrections under the terms of the original commitment.” 111. Rev. Stat. 1991, ch. 38, par. 105 — 9.

We believe that the argument defendant raises here is foreclosed by the supreme court’s decision in People v. Studdard (1972), 51 Ill. 2d 190, 281 N.E .2d 678. The Studdard court stated:

“The defendant argues that his conditional release could not have been revoked without the introduction of psychiatric testimony that he was sexually dangerous. This was not a proceeding to have the defendant declared to be sexually dangerous. *** The defendant had previously been declared to be sexually dangerous and had been committed and later conditionally discharged. He had not been discharged as recovered as provided for in section 9 of the Act. Sections 9 and 10 of the Act provide for a conditional release of a person who has been committed when, although that person appears no longer to be sexually dangerous, it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered. These sections also provide that in the event the person conditionally released violates any of the conditions of such order, ‘the court shall revoke such conditional release and recommit the person under the terms of the original commitment.’ There is no requirement under these sections that any psychiatric testimony be offered at this stage to show that the person is sexually dangerous. That had previously been determined at the original commitment. The determination to be made at this stage is whether the person violated any of the conditions of the conditional release order. If it is found that he has violated any condition, then the statute is mandatory that the court recommit him under the terms of the original commitment.
Also, the failure to require psychiatric testimony as to the defendant’s condition at this stage does not deprive him of a constitutional right as he now contends. If he in fact feels that he is no longer sexually dangerous, section 9 provides that he may file an application for discharge as recovered. On the filing of such an application the Director is required to file with the court a ‘socio-psychiatric report’ concerning the person. A hearing is then required to be held on the application, at which time the report so filed and any other relevant information submitted by or on behalf of the applicant will be considered. By virtue of this section the person is afforded an opportunity at any stage, including the recommitment stage, to file his application for discharge and has the benefit of any psychiatric or other relevant evidence he may wish to have the court consider.” (Emphasis added.) Studdard, 51 Ill. 2d at 194-95, 281 N.E.2d at 680.

Notwithstanding Studdard, defendant contends that the decision by the United States Supreme Court in Foucha v. Louisiana (1992), 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780, is controlling. We find, however, that Foucha is distinguishable from this case. In Foucha, the defendant was found not guilty by reason of insanity under Louisiana law and was committed to a mental institution. Defendant was later recommended for conditional discharge based on a finding that he was not mentally ill. Subsequent psychiatric testimony indicated that while the defendant was not mentally ill, he had an antisocial personality and could present a danger to himself or others if released. Defendant’s discharge was denied on the basis that he was dangerous to himself and others.

The Supreme Court held that the Louisiana statute violated due process because it allowed an insanity acquittee to be committed to a mental institution until he was able to demonstrate that he was not dangerous, even though he did not suffer from any mental illness. An insanity acquittee could only be held, according to the Court, so long as he was both mentally ill and dangerous.

In Foucha the State did not contend that the defendant was mentally ill at the time of the discharge hearing. Accordingly, the Court held that it was impermissible to predicate the defendant’s continued confinement solely on the basis of dangerousness. In this case, when the defendant was initially committed in 1975 there was a finding that defendant was a sexually dangerous person in that he suffered from a mental disorder, coupled with demonstrated propensities toward acts of sexual assault or sexual molestation of children. (See Ill. Rev. Stat. 1975, ch. 38, par. 105—1.01.) At a subsequent hearing in 1977, defendant was found to be sexually dangerous beyond a reasonable doubt. The conditional release granted to defendant in April of 1991 did not constitute a finding that defendant was no longer sexually dangerous. “A sexually dangerous person who has been conditionally released retains his status as sexually dangerous until a trial court grants a petition for a discharge.” (People v. Cooper (1989), 132 Ill. 2d 347, 358, 547 N.E.2d 449, 455.) Unlike Foucha, there has never been a determination that the defendant in this case was not mentally ill or not dangerous. Defendant’s continuing status as a sexually dangerous person obviated any need for a finding of current dangerousness at the revocation hearing.

In addition, since the State was not required to again prove that the defendant was sexually dangerous, the defendant’s related argument that clear and convincing evidence of current dangerousness was required also fails. We reiterate that defendant has already been shown to be sexually dangerous beyond a reasonable doubt and no change in that condition has been established. As the court noted in Studdard, the defendant had the opportunity to file an application for discharge at any time, including the recommitment stage. We find no denial of due process.

Defendant also maintains that revoking his conditional release without a showing of present dangerousness by clear and convincing evidence violated his right to equal protection of the law. Defendant notes that other groups of mentally ill persons, such as those found not guilty by reason of insanity, those unfit to stand trial, or persons subject to involuntary commitment, must be shown to be presently mentally ill and dangerous by clear and convincing evidence before they can be committed. In contrast, a violation of the terms of defendant’s conditional release need only be proved by a preponderance of the evidence.

Defendant is not, however, being treated more harshly than other groups of mentally ill persons. The defendant was not recommitted to the Department of Corrections upon a showing by a preponderance of the evidence that he was sexually dangerous. He was recommitted because he had previously been found sexually dangerous beyond a reasonable doubt and he had never been found to be no longer dangerous. Because defendant’s recommitment rests upon a finding of sexual dangerousness beyond a reasonable doubt, he was not more harshly treated than other persons whose commitment rests upon a finding of mental illness by clear and convincing evidence. Moreover, we note that our supreme court held in People v. Pembrock (1976), 62 Ill. 2d 317, 342 N.E.2d 28, that no equal protection violation resulted from the difference between commitment proceedings under the Sexually Dangerous Persons Act and commitment under what was then known as the Mental Health Code (Ill. Rev. Stat. 1971, ch. 91½, par. 1—1 et seq., repealed by Pub. Act 80—1414, eff. January 1, 1979). The court stated that a sexually dangerous person “creates different societal problems, and his past conduct is different in degree and kind from the conduct of persons in the larger, more inclusive class defined under the Mental Health Code.” Pembrock, 62 Ill. 2d at 322, 342 N.E.2d at 30.

Defendant further contends that his equal protection rights were violated because the Act makes recommitment mandatory upon a finding that he has violated a condition of his release. (Ill. Rev. Stat. 1991, ch. 38, par. 105-9; Cooper, 132 Ill. 2d 347, 547 N.E.2d 449.) Defendant points out that in cases where an individual has been convicted of a criminal offense and subsequently violates a condition of probation, the trial court “may continue him on the existing sentence, with or without modifying or enlarging the conditions” or impose any other sentence available at the time of initial sentencing. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—6—4.) Defendant argues that he was therefore treated more harshly than a criminal defendant.

A sentence of probation and conditional release under the Act are fundamentally different. (Cooper, 132 Ill. 2d 347, 547 N.E.2d 449.) Probation is a sentence imposed for a criminal conviction, while conditional release is one aspect of the treatment of sexually dangerous persons. (Cooper, 132 Ill. 2d 347, 547 N.E.2d 449.) Defendants on probation are not mentally ill, nor do they generally represent a significant threat to the public (see Ill. Rev. Stat. 1991, ch. 38, par. 1005—6—1 (court shall impose a sentence of probation unless imprisonment is necessary for the protection of the public)). Sexually dangerous persons on conditional release, however, are both mentally disturbed and potentially dangerous. The purpose of conditional release is to determine whether a person who no longer appears to be sexually dangerous is able to function in a noninstitutional setting. Where, as in this case, the defendant’s acts demonstrate that he has not recovered, the Act’s twin aims of treatment and protection of the public mandate re-commitment. While the equal protection clause requires equal treatment for similarly situated groups of persons, it does not prohibit treating different classes of people in different ways. (People v. Eck hardt (1989), 127 Ill. 2d 146, 535 N.E.2d 847; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215.) Given the great differences between persons sentenced to probation and those on conditional release, we find no equal protection violation.

Finally, defendant contends that the trial court erred in allowing the State to introduce the contents of the blue shoulder bag into evidence. Defendant argues that the bag’s contents, which were not seen by the children, were irrelevant and prejudicial.

Evidence is relevant if it tends to make a proposition at issue either more or less probable. (People v. Rachel (1984), 123 Ill. App. 3d 600, 462 N.E.2d 959.) The issue in this case was whether the defendant willfully violated a condition of his release which prohibited unsupervised contact with children or adolescents. The defendant’s testimony concerning the events of October 12, 1991, was clearly intended to show that his contact with the two girls was innocent and inadvertent. The trial court found that the sexually explicit materials found in the defendant’s bag circumstantially supported the testimony of the girls and tended to establish the defendant’s state of mind. We agree that the pictures and magazines, one of which is titled “Tender Shavers” and depicts women in a manner apparently intended to resemble prepubescent girls, were at least marginally relevant to the defendant’s state of mind. (See People v. Taggart (1992), 233 Ill. App. 3d 530, 599 N.E.2d 501 (books describing sexual encounters between older males and young boys were relevant to allegations of sexual misconduct between adult defendant and young boys); see also People v. Paull (1988), 176 Ill. App. 3d 960, 531 N.E.2d 1008 (no abuse of discretion in admitting nude photographs and books about incest in prosecution for aggravated incest).) It is the trial court’s function to balance the probative value and prejudicial effect of the evidence, and its decision will not be disturbed absent an abuse of discretion. (Rachel, 123 Ill. App. 3d 600, 462 N.E.2d 959.) We find no abuse of discretion here.

With regard to the other items in the bag, such as the sketch pad, diary, candy bars and condoms, although they were largely irrelevant, their prejudicial effect, if any, was minimal. We find that defendant was not deprived of a fair hearing by admission of these items.

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

Affirmed.

McCUSKEY, P.J., and LYTTON, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARINO ALVARADO-AGUILAR, Defendant-Appellant.
    Third District
    No. 3-92-0407
    Opinion filed May 5,1993.
    Janet Gandy Fowler, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Following a jury trial, the defendant, Marino Alvarado-Aguilar, was convicted of the unlawful delivery of more than 900 grams of a substance containing cocaine (720 ILCS 570/401(a)(2)(D) (West 1992)). He was sentenced to a term of 20 years in the Illinois Department of Corrections.

The sole issue raised by the defendant on appeal is whether the sentence imposed is excessive. We conclude that the trial court did not abuse its discretion in imposing sentence. Therefore, we affirm.

At trial, evidence was presented that the defendant delivered 1,990.2 grams of cocaine to an undercover police officer. The cocaine had a street value of $56,000. Following the defendant’s conviction, a presentence investigation report was prepared. The report stated the defendant had no prior history of criminal convictions. The report also stated that, since 1975, the defendant had been employed as a sign maker, an errand person, a building cleaner and a mechanic. The defendant obtained his GED certificate during his incarceration prior to trial. Based upon these facts, the defendant argues that the trial court abused its discretion in sentencing him to a term of 20 years’ imprisonment.

The State initially responds that the defendant is precluded from appealing his sentence due to his failure to file a motion to reduce the sentence in the trial court. The State relies on People v. Macke (5th Dist. 1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, and People v. Lewis (2d Dist. 1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492, appeal allowed (1993), 148 Ill. 2d 649. The Second District and the Fifth District Appellate Court held that a defendant who is convicted following a trial must file a timely motion to reduce his sentence in order to appeal the sentence. (Lewis, 235 Ill. App. 3d at 1005-06, 602 N.E.2d at 493; Macke, 224 Ill. App. 3d at 816, 587 N.E.2d at 1114; see also People v. Hess (2d Dist. 1993), 241 Ill. App. 3d 276, 282, 609 N.E.2d 371, 375-76; People v. Pfister (2d Dist. 1993), 240 Ill. App. 3d 931, 936-37, 608 N.E.2d 1230, 1234.) Both districts determined that a motion to reduce sentence was required by section 5—8—1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1992)).

However, in People v. Sims (1992), 233 Ill. App. 3d 471, 599 N.E.2d 137, we disagreed with the Macke court. We determined that a defendant convicted following a trial does not need to file a post-sentencing motion to preserve error as to sentencing issues. (Sims, 233 Ill. App. 3d at 473, 599 N.E.2d at 138.) The Fourth District Appellate Court has also declined to follow Macke. (People v. Turner (4th Dist. 1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10.) We see no reason to depart from our prior holding. Therefore, we will consider the defendant’s contention that his 20-year sentence is excessive.

The defendant argues that the trial court failed to consider his steady work record and his lack of a criminal record. The defendant asserts that his rehabilitative potential was further demonstrated by the fact he obtained his GED certificate before sentencing. The defendant argues that his sentence should be reduced on appeal to the minimum sentence available, a 15-year term of imprisonment. We disagree.

A trial court’s sentencing decisions are entitled to great deference and weight, and the standard of review is whether the trial court abused its discretion in imposing a sentence. (People v. Streit (1991), 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351, 1353; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) In weighing a defendant’s rehabilitative potential, the trial court is not required to give greater weight to that consideration than to the seriousness of the offense. (People v. Fort (1992), 229 Ill. App. 3d 336, 341-42, 592 N.E.2d 1205, 1210.) A defendant’s lack of a prior criminal record is not necessarily the most persuasive consideration at sentencing and, in fact, “the seriousness of the crime has been called the most important factor to be considered in imposing the sentence.” People v. Costello (1992), 224 Ill. App. 3d 500, 510, 586 N.E.2d 742, 749.

The sentencing range for the unlawful delivery of more than 900 grams of a substance containing cocaine is not less than 15 years and not more than 60 years. (720 ILCS 570/401(a)(2)(D) (West 1992).) The evidence at trial showed the defendant delivered 1,990.2 grams of cocaine. Also, we note that the defendant was convicted of a serious offense. Finally, the punishment imposed by the trial court was only five years above the minimum sentence. Based on these facts, we do not find the defendant’s sentence to be an abuse of discretion.

When a reviewing court is asked to exercise its power to reduce a sentence, that power must be exercised cautiously. (People v. Green (1992), 233 Ill. App. 3d 298, 303, 599 N.E.2d 39, 43.) A reviewing court will not engage in mere judicial clemency. (Green, 233 Ill. App. 3d at 303, 599 N.E.2d at 43.) Under these circumstances, we will not exercise our power to reduce the sentence.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


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    INDUSTRIAL COLOR, INC., Plaintiff-Appellant, v. C P INORGANICS, INC., Defendant-Appellee.
    Third District
    No. 3—92—0605
    Opinion filed April 30,1993.
    Rehearing denied June 7,1993.
    Timothy J. Rathbun, of McKeown Law Office, of Joliet (Ted Jarz, of counsel), for appellant.
    Mason, Orloff, Reich, Troy & Thanas, of Joliet (Thomas A. Thanas, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff Industrial Color, Inc., is engaged in the business of manufacturing and selling pigments used in the production of paint. In 1971, plaintiff and defendant C P Inorganics, Inc., which were adjoining landowners, had an agreement whereby plaintiff would assist the defendant in obtaining credit. Pursuant to the agreement, plaintiff would be billed for services actually sought and arranged for by the defendant. Plaintiff would pay for the services provided to defendant and defendant would thereafter pay the plaintiff.

In July of 1972, plaintiff received an invoice from Conservation Chemical Company for the disposal by defendant of 30,000 gallons of chromate bearing waste at a site in Gary, Indiana. In accordance with the agreement, plaintiff sent a check for $900 as payment and the defendant reimbursed $900 to plaintiff.

In September of 1985, the United States Environmental Protection Agency (EPA) determined that an imminent and substantial endangerment to the public health existed at the Gary waste disposal site. The EPA issued an order under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §9606(a) (1988)) directed at plaintiff because its name was included on invoices which indicated that it may have sent or caused to be sent hazardous substances to the Gary site. The EPA billed plaintiff in the amount of $25,000 for its share of the cost of cleaning up the waste disposal site.

In July of 1989, a lawsuit was brought against plaintiff in Federal court to obtain the costs of cleaning up the site. Plaintiff hired legal counsel and eventually negotiated a settlement in which it paid $3,270. However, in defending against the suit and negotiating the settlement the plaintiff incurred $10,575.14 in attorney fees. Plaintiff thereafter filed a complaint for indemnification against defendant in the circuit court of Will County. Defendant filed a motion to dismiss the complaint, and the parties agreed to resolve the matter by filing cross-motions for partial summary judgment on the single issue of whether the plaintiff could recover the attorney fees expended in defending the EPA lawsuit. The trial court found that plaintiff was not entitled to recover its attorney fees and granted defendant’s motion for partial summary judgment. The court subsequently granted judgment in favor of the plaintiff on its complaint in the amount of $3,270. Plaintiff now appeals from the trial court’s determination that it was not entitled to attorney fees.

“The law in Illinois clearly is that absent a statute or a contractual agreement ‘attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party.’ ” (Kerns v. Engelke (1979), 76 Ill. 2d 154, 166, 390 N.E.2d 859, 865, quoting Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41, 43.) Plaintiff does not quarrel with this proposition as a statement of law, but disputes its applicability to this case. Relying on Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47, and Nalivaika v. Murphy (1983), 120 Ill. App. 3d 773, 458 N.E.2d 995, plaintiff asserts that attorney fees are recoverable here under the general rule that one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of that act. As the court explained in Nalivaika:

“Care must be taken to distinguish between the rule prohibiting the recovery of attorney fees from the losing party by the prevailing party in litigation and the rule allowing the recovery of attorney fees incurred in litigation with third parties necessitated by defendants’ wrongful act. [Citation.] *** Where the attorney fees sought by the plaintiff are those incurred in actions with third parties brought about by a defendant’s misconduct, the litigation expenses are merely a form of damages and are accordingly recoverable from the defendant.” (Nalivaika, 120 Ill. App. 3d at 776, 458 N.E.2d at 997.)

Plaintiff contends that the attorney fees it expended in defending the EPA lawsuit were simply an element of damages brought about by the defendant’s misconduct and are therefore recoverable under Sorenson and Nalivaika. We disagree.

Sorenson was a legal malpractice action in which the plaintiff was required to pay tax penalties and interest due to defendant’s neglect in settling an estate. The trial court awarded as damages the attorney fees incurred by Sorenson in attempting to obtain a refund of the penalty and interest charges. The appellate court affirmed, finding that the defendant’s neglect was the direct cause of the legal expenses.

In Nalivaika, the defendants contracted to sell their interest in a land trust to the Ques, but later refused to sell. Plaintiffs, allegedly relying on false and fraudulent statements by the defendants, then contracted to purchase the land from the defendants. The Ques subsequently sued plaintiffs as owners of the property for civil rights violations. After successfully defending against the Ques’ lawsuit, the plaintiffs filed a two-count complaint against defendants seeking recovery of attorney fees they had incurred. Count I alleged fraudulent misrepresentation, and count II was based on a written indemnity agreement. The trial court dismissed the complaint. The appellate court affirmed the dismissal of count II because the indemnity agreement did not mention attorney fees. The court reversed the dismissal of count I, however, finding that the legal fees were merely a form of damages resulting from defendants’ alleged misconduct.

The defendants in both Sorenson and Nalivaika committed or were alleged to have committed torts against the plaintiffs. The attorney fees allowed as damages were simply an element of damages arising from the tort. In this case the plaintiff has not alleged any tortious conduct by the defendant directed at plaintiff.

Plaintiff also contends that it is entitled to attorney fees based upon its cause of action for implied indemnity. Implied indemnity is “a contract implied in law arising from the legal obligation of an indemnitee [here the plaintiff] to satisfy liability caused by actions of his indemnitor.” (Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 28, 495 N.E.2d 496, 498.) The fundamental premise underlying an action for implied indemnity is the recognition that the law may impose liability upon a blameless party derivatively through another’s conduct. (American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center (1992), 154 Ill. 2d 347.) “Thus, *** reason may exist to continue to recognize the viability of implied indemnity where a principal is vicariously liable for the conduct of an agent or for the nondelegable acts of an independent contractor.” American National, 154 Ill. 2d at 351.

The issue of attorney fees in the context of an indemnity action was addressed in Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859. In Kerns, the plaintiff was injured by a forage blower, and he brought suit against his employers (the Engelkes), the manufacturer of the blower (Fox River) and the retailer (Timmerman). A jury found that the Engelkes were liable for negligence and that Fox River and Timmerman were liable on the basis of strict liability. Timmerman received a judgment on his counterclaim for indemnity against Fox River, including an award for attorney fees expended in defending the suit. The appellate court affirmed and remanded for a determination of the amount of the attorney fees. In reversing the judgment for attorney fees, the supreme court cited Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41, for the proposition that attorney fees and the ordinary expenses of litigation are not recoverable. The court then stated:

“The appellate court distinguished the instant case from Ritter and the general proposition above in that the attorney’s fees here were the result of defending a prior action which gave rise to the indemnity claim. *** We are not persuaded we should create an indemnity exception to the Ritter holding even under the circumstances of this case in which Timmerman gave Fox River sufficient notice, and was ostensibly entitled to indemnification. Timmerman was properly sued as a defendant strictly liable; and that Timmerman was successful in the indemnity action is not a distinction sufficient to remove him from the ruling in Ritter.” Kerns, 76 Ill. 2d at 166-67, 390 N.E.2d at 865.

Plaintiff argues that Kerns is not applicable to this case, however, because unlike the indemnity plaintiff in Kerns, plaintiff here was not “properly sued as a defendant.” In effect, plaintiff contends that it was improperly sued by the EPA and only settled the case to avoid additional litigation expenses. If we were to accept this argument, however, plaintiff would not have a cause of action for implied indemnity.

As stated earlier, implied indemnity is based upon the premise that the plaintiff-indemnitee has been held liable for the acts of the defendant-indemnitor. If the plaintiff in this case was not liable for the cost of cleaning up the waste disposal site, and thus was not “properly sued as a defendant,” there would be no basis for indemnity. In such a situation, plaintiff would not be seeking restitution for payments it was legally required to make due to defendant’s conduct. Instead, plaintiff would be attempting to make defendant responsible for the consequences of the EPA’s mistake in suing the wrong party. We do not believe that the concept of implied indemnity would support such a notion.

We find that the plaintiff’s request for attorney fees was properly denied under Kerns, and we affirm the trial court’s order granting defendant’s motion for summary judgment on that issue. We note that the judgment for plaintiff for $3,270 on its complaint for indemnification has not been appealed and is not at issue here.

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

Affirmed.

BRESLIN and LYTTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY L. ALEXANDER, Defendant-Appellant.
    Third District
    No. 3-92-0517
    Opinion filed May 7,1993.
    Butz, Jaffe, Collins, O’Connor & Burnett, of Kankakee (Duane J. O’Con-nor, of counsel), for appellant.
    Clarke Erickson, State’s Attorney, of Kankakee (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Jerry Alexander, was convicted of the offense of unlawful use of weapons (720 ILCS 5/24 — 1 (West 1992)). He was placed on probation for 12 months. On appeal, the defendant raises the following issues: (1) whether he was denied due process when the circuit court permitted a witness to testify regarding conversations he had with the defendant; (2) whether section 24 — 1(a)(6) of the Criminal Code of 1961 (720 ILCS 5/24 — 1(a)(6) (West 1992)) is unconstitutionally vague in language, application, and effect; and (3) whether his guilt was established beyond a reasonable doubt. We affirm.

On April 17, 1991, Russell Vining placed several calls to the residence of the defendant. The purpose of the telephone calls was to request that the defendant loan a .380-caliber semi-automatic pistol and a silencer to Vining. Vining had previously sold the pistol and silencer to the defendant. At the time of the calls, Vining was acting as a police informant for the Illinois State Police and the Bradley police department. The telephone line on which the calls were placed had been tapped, and the police recorded the conversations between Vining and the defendant.

Jeff Justice, a special agent for the Illinois State Police, Division of Criminal Investigation, testified that he was contacted by Lieutenant Buhrmester of the Bradley police department on April 17, 1991. Buhrmester told Justice that there was a possible contract murder about to take place against a Kankakee police officer. Buhrmester, Justice, and Lieutenant Hevia met with Vining at approximately 9 p.m. that same evening. Vining informed the officers that at some time after 5 p.m. he had been contacted by Randy Huffman. Huffman wanted Vining to retrieve the pistol and silencer. Vining informed the officers that the weapon was in the possession of the defendant. The officers decided to have Vining phone the defendant and to make arrangements to have the defendant deliver the weapon and silencer to Vining’s place of business.

On the morning of April 18, 1991, the defendant brought the pistol and silencer to Vining’s place of business in Bradley, Illinois. Thereafter, both men got into the defendant’s truck and went to a restaurant. Vining was wearing a recording device on the morning of April 18, and all conversations with the defendant were recorded.

A judicial order authorizing the recording of the conversations was not obtained until 5:03 p.m. on April 18, after the conversations had occurred. The defendant was charged with the offense of unlawful use of weapons pursuant to section 24 — 1(a)(6), which prohibits the possession of silencers. Prior to trial, the defendant filed a motion to suppress the recorded conversations pursuant to section 108A — 9 of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A — 9 (West 1992)). The court granted the motion, finding that an emergency situation necessary for eavesdropping without prior judicial approval did not exist. Despite the suppression order, Vining was allowed to testify regarding the substance of his conversations with the defendant. The jury found the defendant guilty, and he was placed on nonreporting probation for 12 months.

On appeal, the defendant first argues that he was denied due process when the circuit court allowed Vining to testify regarding the substance of their conversations. The defendant claims that the court suppressed the contents of the recordings, not just the recordings themselves. Nevertheless, the supreme court held in People v. Gervasi (1982), 89 Ill. 2d 522, 434 N.E.2d 1112 (a case the defendant does not even attempt to distinguish), that the testimony of one of the participants to a conversation was not tainted by illegal eavesdropping. The Gervasi court explained that the testimony of one of the participants to the conversation was not “fruit of the poisonous tree” because his knowledge of what was said was not derived from any illegal action. The court stated that “[t]he eavesdropping statute does not protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides will not thereafter properly reveal his wrongdoing.” (Gervasi, 89 Ill. 2d at 531, 434 N.E.2d at 1116.) Therefore, although the actual recordings of the conversations between Vining and the defendant were correctly suppressed, it was proper for the trial court to allow Vining to testify regarding the substance of those conversations.

The defendant next argues that section 24 — 1(a)(6) is unconstitutionally vague in language, application, and effect. The section in question provides that it is an unlawful use of a weapon to possess “any device or attachment of any kind designed, used or intended for use in silencing the report of any firearm.” (720 ILCS 5/24 — 1(a)(6) (West 1992).) The defendant complains of the use of the word “silencing.” According to the defendant, if used in the present tense the word means to create the total absence of sound, but if used in the future tense, it would mean the acts performed in bringing about the total absence of sound. The defendant claims that this creates two different standards. The defendant would prefer that the statute prohibit devices which diminish, muffle, or reduce the report of any firearm. We find the defendant’s argument to be meritless.

Statutes are presumed constitutional, and it is the duty of a reviewing court to affirm their constitutionality and validity if it can reasonably be done. (People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.) In addition to the language used in the statute, consideration is also given to the legislative objective and the evil the statute is designed to remedy. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) In People v. Capitol News, Inc. (1990), 137 Ill. 2d 162, 171, 560 N.E.2d 303, 307, the supreme court stated:

“To avoid a complaint of vagueness and to satisfy due process, a statute must give a person of ordinary intelligence reasonable opportunity to know what conduct is lawful under it and what is prohibited and must provide standards to guide persons who administer the law so that there will not be arbitrary and discriminatory enforcement of the statute. An impossible standard of preciseness of language and expression cannot be required; it is enough that the law’s language and meaning are sufficiently definite when measured by common understanding and practices.”

We find no vagueness problem in section 24 — 1(a)(6). It is clear that the legislature intended in this section to outlaw the types of devices commonly referred to as silencers. The defendant cannot seriously argue that a person of ordinary intelligence would not understand that the device in question in this case would be prohibited by this statute. Further, the definition of silencer is “a silencing device for small arms that permits the exit of the projectile but reduces the noise without materially impeding the escape of the exploding gases.” (Emphasis added.) (Webster’s Third New International Dictionary 2117 (1966).) We decline to adopt the defendant’s interpretation of the statute, because we find it to be contrary to both legislative intent and common sense. If a law is susceptible of a reasonable interpretation that supports its constitutionality, the court must accord the law that meaning. (People v. Ford (1991), 221 Ill. App. 3d 354, 581 N.E.2d 1189.) Our interpretation of the section in question is that it prohibits silencers, and a silencer does not have to create a complete absence of sound. We find the statute to be sufficiently definite to apprise a person of ordinary intelligence of what conduct it prohibits.

The defendant’s final argument is that his guilt was not established beyond a reasonable doubt. The defendant bases this argument on the testimony of Robert Hunton, an employee of the Joliet crime lab, who stated that the device in question would diminish the report of a firearm. No witness testified that it would silence the report of a firearm. A reviewing court will not overturn a conviction so long as the evidence was sufficient for any rational jury to find the necessary elements beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) As previously stated, the legislative intent behind section 24 — 1(a)(6) is the prevention of the possession of silencers. Hunton repeatedly referred to the device in question as a silencer. A rational jury could clearly find the elements of the crime established beyond a reasonable doubt.

For the reasons stated, the defendant’s conviction for unlawful use of weapons is affirmed.

Affirmed.

SLATER and BARRY, JJ., concur.


author: JUSTICE BRESLIN

text:
    KENNETH UNGER, Plaintiff-Appellant, v. EICHLEAY CORPORATION, Defendant-Appellee (River City Construction Company, Defendant).
    Third District
    No. 3-92-0432
    Opinion filed January 28,1993.
    Rehearing denied June 8,1993.
    Modified opinion filed June 9,1993.

      Harvey & Stuckel, Chartered, of Peoria (Floyd C. Dailey, of counsel), for appellant.
    Robert V. Dewey, Jr., Karen L. Kendall, and Brad A. Elward, all of Heyl, Royster, Voelker & Allen, of Peoria (Craig S. Young, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Kenneth Unger, brought this negligence action against the defendants, Eichleay Corp. (Eichleay) and River City Construction Company (River City). The trial court granted defendant Eichleay’s motion for summary judgment, finding that Eichleay did not owe the plaintiff a duty as alleged in the plaintiff’s complaint. The plaintiff appeals from that decision. We reverse and remand.

The record reveals that Eichleay was hired by Caterpillar to set and install machinery at Caterpillar’s East Peoria plant. Eichleay subcontracted electrical conduit work on the project to the plaintiff’s employer, Schaefer Electric Co. (Schaefer). River City had been hired directly by Caterpillar to perform the concrete excavation work at the site. River City did not have a contractual relationship with Eichleay.

The plaintiff testified in his deposition that his accident occurred when he was riding a bicycle through a Caterpillar building to obtain additional materials for Schaefer. While driving the bike, he entered an aisle approximately 12 feet wide. It was bordered on the left by an area in which River City had broken through the concrete flooring leaving an area of broken-up concrete. On the right side of the aisle, two or three Eichleay workers were removing wooden blocks from the floor of the aisle.

The plaintiff further testified that Eichleay workers blocked at least three or four feet of the right side of the aisle, where he normally would have ridden his bike. According to the plaintiff, he steered his bike to the center of the aisle to avoid the Eichleay workers. As he moved onward, a bicyclist approached from the opposite direction, travelling fairly fast and moving directly toward the plaintiff. At that point, the plaintiff moved to the left side of the aisle and stopped. In so doing, he placed his left foot down onto the broken concrete, fell over, and injured his ankle. The accident occurred about 10 or 15 feet from the area where Eichleay workers were removing the wooden blocks. Following the occurrence, Eichleay workers helped the plaintiff to his feet and sought medical help.

Dale Minkle, an Eichleay millwright, testified in his deposition that he did not remember anyone from Eichleay working in the area at the time of the accident. He stated that about an hour after the accident he had two of his employees install steel barricades around the excavation site so that nobody else would fall there.

Jack Martin, the project superintendent for Eichleay, testified in his deposition that Eichleay was in charge of the work being done by Schaefer. It had authority to supervise, direct, or stop Schaefer’s work. Martin noted, however, that Eichleay did not actually direct the work of Schaefer’s employees.

Martin further testified that he had attended OSHA meetings and had inspected his subcontractors’ work to determine whether safety precautions were being observed. He noted that it was his responsibility to observe Eichleay’s subcontractors in the performance of their work. He stated that he was aware of the use of bicycles on the site, but he did not issue any safety precautions regarding bicycle use or routes within the building. He admitted that it was possible that workers would drive by dangerous areas.

The contract between Caterpillar and Eichleay provided:

“[Eichleay] shall provide and maintain the necessary precautions, supervision, and safeguards for the safety of all persons on the site. [Eichleay] shall designate in writing to Owner’s Representative a responsible member of his organization at the site of the work whose duty shall be personnel safety and prevention of accidents.”

The plaintiff’s amended complaint alleged that Eichleay had the right to direct and supervise the overall work of the plaintiff’s employer, Schaefer. It further alleged that Eichleay had a duty to exercise reasonable care for the safety of the plaintiff while he was working around and passing by work performed by River City. The complaint also alleged that Eichleay negligently: (1) failed to provide adequate barriers and safety rails to protect those using passageways at the construction site; (2) failed to prescribe regulations for bicycle safety; (3) failed to observe routes for bicycle use through passageways adjacent to excavation work; (4) failed to prescribe routes for bicycle use to protect employees from using routes adjacent to excavation work; and (5) failed to coordinate activities with other contractors at the work site.

The trial court granted Eichleay’s motion for summary judgment. In so doing, the court found that the record did not contain facts showing that Eichleay had a duty to perform any of the activities set forth in the plaintiff’s complaint.

On appeal, the plaintiff contends that the trial court erred in finding that Eichleay did not owe him a duty as alleged in his complaint. The plaintiff argues that since Eichleay had the right to control the work of his employer, Eichleay owed him a duty to prevent the accident or to warn him of the danger. In support of his argument, the plaintiff relies on section 414 of the Restatement (Second) of Torts (1965).

In response, Eichleay contends that it did not owe a duty in this particular case because the plaintiff was injured while passing through River City’s work area and River City was a contractor with which Eichleay had no contractual relationship and no right to control. In that regard, Eichleay further contends that the authority cited by the plaintiff only applies where the injury occurs on the employer’s land or the employer exercises such a degree of control over the contractor that the actions of the contractor are attributable to it under a theory of vicarious liability. Eichleay points out that none of the cases cited by the plaintiff addresses the precise issue of whether a contractor owes a duty to the employees of its subcontractors to protect them against injury while such employees move around, by, and through work performed by other contractors on the project.

In ruling on a motion for summary judgment, the trial court should construe the pleadings, depositions, admissions, exhibits, and affidavits on file most strictly against the moving party and most liberally in favor of the opponent (Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 461 N.E.2d 612), and summary judgment should only be granted when there is no genuine issue of material fact (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c)). The existence of a duty of reasonable care is one of the essential elements of a negligence action. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) A duty of care arises when the parties stand in such a relationship to one another that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) Factors relevant in determining whether a duty exists include: the foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against the injury, the consequences of placing that burden on the defendant, and the possible seriousness of the injury. (Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239.) Whether a duty exists is normally a question of law to be determined by the court on a case-by-case basis. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.

Section 414 of the Restatement (Second) of Torts provides:

“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts §414 (1965).

We note that the cases cited by the plaintiff that have relied on section 414 have dealt exclusively with owners of land. (See Weber v. Northern Rlinois Gas Co. (1973), 10 Ill. App. 3d 625, 295 N.E.2d 41; Pasko v. Commonwealth Edison Co. (1973), 14 Ill. App. 3d 481, 302 N.E.2d 642; Ryan v. Mobil Oil Corp. (1987), 157 Ill. App. 3d 1069, 510 N.E.2d 1162; McConnell v. Freeman United Coal Co. (1990), 198 Ill. App. 3d 322, 555 N.E.2d 993; Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 511 N.E.2d 805.) In Haberer, the court specifically noted that the effect of section 414 has been to broaden the basis upon which liability may be imposed on an owner of land who has contracted for construction work to be undertaken on its premises. The court further noted that Illinois courts have recognized that an employee hired by an independent contractor to do construction work may obtain recovery for injuries sustained in the course of that work from the owner of the premises where the owner has retained the requisite control over the work and has failed to exercise that control properly.

In the present case, the plaintiff failed to cite any authority from Illinois or any other jurisdiction applying section 414 to impose a duty upon a contractor who is not an owner or possessor of land. Accordingly, we hesitate to rely on section 414. Instead, we focus our analysis on the allegation in the plaintiff’s complaint that the defendant had a duty to exercise reasonable care for the safety of the plaintiff as he passed by the construction site.

A general contractor owes a duty to persons who might reasonably be expected to come upon the premises or be in the vicinity of the construction site to keep it safe and to see that adequate safeguards are furnished to protect against foreseeable injuries. (Ross v. Aryan International, Inc. (1991), 219 Ill. App. 3d 634, 580 N.E.2d 937.) Moreover, the negligent performance of contractual duties causing physical injury can give rise to tort liability (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 488 N.E.2d 623; Holubek v. City of Chicago (1986), 146 Ill. App. 3d 815, 497 N.E.2d 348) regardless of whether privity of contract exists between the plaintiff and the defendant (Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656), and the scope of the defendant’s duty is dependant on the terms of the contract (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 488 N.E.2d 623).

Applying the above-mentioned principles, we find unpersuasive Eichleay’s contention that it did not owe the plaintiff a duty. While we would agree that the plaintiff’s pleadings may be inartfully done, we note that this case does not involve a motion to dismiss a pleading as defective under section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 615). But, it must be remembered that the plaintiff is entitled to amend his pleadings at any time, before or after judgment, to conform the pleadings to the proofs. Ill. Rev. Stat. 1991, ch. 110, par. 2—616(c).

The contract between Caterpillar and Eichleay provided that Eichleay was responsible for the “safety of all persons at the site.” The contract further charged Eichleay with the responsibility of providing precautions and safeguards, and designating a representative at the work site whose duty was personnel safety and prevention of accidents. We find no indication from the record that the language in the contract was in any way limited. Additionally, the plaintiff’s deposition testimony indicated that Eichleay controlled the work site in the near vicinity of the plaintiff’s injury. Furthermore, there is enough evidence in the record from which it could be concluded that Eichleay had equal control with River City over the aisle and the actual area of the injury. The plaintiff’s workers were the first on the scene following the accident and they erected barricades along the aisle adjacent to the broken concrete. Eichleay’s post-occurrence, remedial measures would be admissible to show that Eichleay had control over the area and the authority to take such precautions. (See McLaughlin v. Rush-Presbyterian-St. Luke’s Medical Center (1979), 68 Ill. App. 3d 546, 386 N.E.2d 334.) Regarding the foreseeability of the injury, we note that Eichleay’s project superintendent testified that he was aware that bicycles might pass through dangerous areas. Given that Eichleay workers blocked about four feet of the aisle in which the plaintiff was injured, we find that it was reasonably foreseeable that a bicyclist could be injured when passing by the site in question. Under these particular circumstances, we find that the defendant had a duty to exercise reasonable care for the plaintiff as he travelled by the area in which he was injured.

We note that the plaintiff’s complaint alleges that Eichleay had a duty to exercise reasonable care for the safety of the plaintiff while he passed by the work of River City. We do not hold that the defendant owed a duty to the plaintiff wherever he travelled within the building or wherever he travelled around the work site of River City. Rather, we hold only that the defendant had a duty in the particular aisle where the plaintiff was in fact injured, since there are facts in the record indicating that the defendant exercised at least mutual control over that area, i.e., Eichleay employees worked a short distance away and they were the first on the scene with remedial measures following the accident. Accordingly, we conclude that it should be left to the trier of fact to determine whether Eichleay breached that duty by failing to provide adequate safeguards.

The next issue presented on appeal is whether the defendant’s negligent conduct was the proximate cause of the plaintiff’s injury.

A proximate cause is one which produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Chapman v. Baltimore & Ohio R.R. Co. (1950), 340 Ill. App. 475, 92 N.E.2d 466.) If the alleged negligence does nothing more than provide a condition which made the injury possible and that condition causes an injury by the subsequent independent act of a third party, the creation of that condition is not the proximate cause of the injury. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665.) However, there can be more than one proximate cause of an injury. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242; Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 443 N.E.2d 214.) In such a situation, a tortfeasor cannot avoid responsibility . merely because another person is guilty of negligence contributing to the same injury, and even though the injury would not have occurred but for the negligence of the other person. (Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 443 N.E.2d 214.) Moreover, we note that the need to limit the consequences of any act using the proximate cause rationale is diminished with the adoption of comparative negligence. (Michalak v. County of LaSalle (1984), 121 Ill. App. 3d 574, 459 N.E.2d 1131.) It has been repeatedly held that proximate cause is ordinarily a question for the trier of fact (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203); however, summary judgment may be appropriate when the facts are undisputed and the question of proximate cause can be determined as a matter of law. See Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 493 N.E.2d 372.

In the case at bar, the plaintiff testified that he was forced to steer his bike to the center of the aisle by the presence of wooden blocks and Eichleay workers and was thereafter forced into the broken concrete by an oncoming bicyclist. In contrast, an Eichleay employee’s deposition testimony suggested that Eichleay employees were not in the area at the time of the accident. Since the facts are in dispute on this issue, we find that the question of proximate cause should be resolved by the trier of fact.

For the foregoing reasons, we conclude that the trial court erred in granting Eichleay’s motion for summary judgment.

Accordingly, we reverse the judgment of the circuit court of Peoria County and remand the cause for further proceedings.

Reversed and remanded.

LYTTON and SLATER, JJ., concur.