author: JUSTICE McNAMARA

text:
    GEORGE MARTIN, Plaintiff, v. LION UNIFORM COMPANY et al., Defendants (Lion Uniform Company, Third-Party Plaintiff-Appellee; The City of Chicago et al., Third-Party Defendants-Appellants; Krasny & Company, Inc., Third-Party Plaintiff-Appellee).
    First District (3rd Division)
    No. 1—88—0037
    Opinion filed February 1, 1989.
    Rehearing denied April 17, 1989.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellants.
    Rooks, Pitts & Poust, of Chicago (Ian M. Sherman and Clifford E. Ber-man, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff George H. Martin, a Chicago fireman, filed an action seeking damages for personal injuries suffered as a result of fighting a fire. Plaintiff alleged negligence as to defendant Krasny & Company, Inc., which owned and managed the building, and alleged strict products liability and negligence as to defendant Lion Uniform Company, which designed, manufactured and sold the protective clothing which plaintiff wore. (Defendants Kane Uniform Company and Janesville Apparel Company are not parties to this appeal.) Lion and Krasny filed third-party complaints for contribution against third-party defendants, the City of Chicago and the Chicago fire department. The trial court denied the city’s motion to dismiss and found that the city was not immune from an action for contribution. On its own motion, the trial court certified the following question of law: “May a contribution action pursuant to the Illinois Contribution Act be maintained against a local public entity where provisions of the Local Governmental and Governmental Employees Tort Immunity Act ihay bar a direct action against the local public entity?” The city’s application for leave to appeal was granted pursuant to Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)).

We are concerned here with the third-party action filed on March 1, 1984, by Lion Uniform and the third-party action filed on October 18, 1985, by Krasny, seeking contribution under section 2(a) of the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 302(a)) in the event they should be held liable to plaintiff. The contribution action alleged that in its undertaking to provide fire services, the city failed to exercise ordinary care to plaintiff in several material respects. The city moved to dismiss the amended third-party complaints, asserting nonliability under section 2 — 201 (public employees are not liable for injuries arising from discretionary decisions regarding the training and equipping of fire fighters), and sections 5— 102 and 5 — 103 (governmental entities are not liable for injuries occurring in providing fire fighting services or in maintaining and operating fire fighting equipment) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2-201, 5-102, 5-103).

On October 1, 1987, the trial court denied the city’s motion to dismiss. The court relied on Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382 (State employee’s direct action against the State/employer barred by Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.); however, defendant may bring third-party negligence action for contribution against the State/employer), and Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54 (plaintiff’s direct action against city barred after he failed to give statutory notice of claim to city; however, plaintiff’s failure to comply with notice requirement does not bar defendant from bringing contribution action against city). The court concluded that the city’s immunity from a direct suit by plaintiff did not extend to immunity from contribution actions.

The issue before us is whether a municipality which might contribute to an individual’s injuries related to fire protection services is thereby “liable in tort” for purposes of an action for contribution brought by the defendant in a suit filed by the injured individual. Defendants seek contribution from the city under the Illinois Contribution Among Joint Tortfeasors Act (111. Rev. Stat. 1985, ch. 70, pars. 301 through 305). A right of contribution may exist if the State is “subject to liability in tort” in this action. 111. Rev. Stat. 1985, ch. 70, par. 302(a).

Defendants initially point to language indicating that the intent of the Contribution Act is “to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege.” (Doyle v. Rhodes, 101 Ill. 2d at 9.) This court has previously explained, in distinguishing cases relying on this broad statement, that where contribution is sought from the State, different considerations arise. Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E .2d 812; Welch v. Stocks (1987), 152 Ill. App. 3d 1, 503 N.E.2d 1079.

It has long been established in Illinois that a municipality owes no duty under the common law to any individual for failure to provide a governmental service such as fire protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515.) Similarly, the municipality is relieved of liability for injuries to persons resulting from the negligence of officers or employees connected with the maintenance and operation of its fire départment. Roumbos v. City of Chicago (1928), 332 Ill. 70, 163 N.E. 361, citing Wilcox v. City of Chicago (1883), 107 Ill. 334. See also Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 269 N.E.2d 504 (city immune from liability where bystander injured when struck by firehose after fireman lost control of hose while fighting fire).

The Illinois rule of nonliability follows the general rule in most jurisdictions that a municipality usually cannot be held liable in damages for negligence in connection with fire fighting. (18 E. McQuillin, The Law of Municipal Corporations §§53.52, 53.82 (3d ed. 1984).) “Thus, in those jurisdictions where the doctrine of governmental immunity was held applicable, the courts have been practically uniform in holding that the governmental entity was immune from liability for injury or damage resulting from negligent acts of omission or commission in connection with the maintenance and operation of a fire department.” (57 Am. Jur. 2d Municipal Tort Liability §265, at 228 (1971), citing Roumbos v. City of Chicago (1928), 332 Ill. 70.) The rule of nonliability rests upon the reasoning that the power conferred upon the municipality to establish a department for the protection of the property of its citizens from fire is of a public or governmental nature. 18 E. McQuillin, The Law of Municipal Corporations §53.82, at 479 (3d ed. 1984); 57 Am. Jur. 2d Municipal Tort Liability §§265, 266 (1971) (listing numerous other public policy reasons supporting this rule).

In Illinois, the sound public policy underlying the nonliability rule relates to the tremendous burden which the municipality would bear.

“ ‘If liable for neglect in this case the city must be held liable for every neglect of that [fire] department, and every employee connected with it when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employees had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person’s property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. *** To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.’ ” Roumbos v. City of Chicago, 332 Ill. at 81, quoting Wilcox v. City of Chicago, 107 Ill. at 339-40.

Significantly, this common law rule of nonliability may only be altered by statute. (See generally 57 Am. Jur. 2d Municipal Tort Liability §60 (1971).) In the area of fire fighting services, except for “negligence by reason of the condition of a motor vehicle while it is traveling on public ways” (Ill. Rev. Stat. 1985, ch. 85, par. 5 — 103(a)), the Illinois legislature has not created a new duty in derogation of the common law. Quite the contrary, the common law rule of no duty and the resulting nonliability of a municipality for failing to, or negligently, providing fire protection service was codified in Illinois. (Ill. Rev. Stat. 1985, ch. 85, pars. 5 — 101 through 5 — 104.) This was done as part of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), which also reinstated certain common law sovereign immunity defenses (see, e.g., Ill. Rev. Stat. 1985, ch. 85, par. 2 — 111) following the abrogation of sovereign immunity in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89, cert. denied (1960), 362 U.S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955.

The statute provides, consistent with the original rationale for the common law rule of no duty/no liability quoted above, that the local public entity is not liable for failure to provide fire protection service; failure to suppress a fire; failure to maintain sufficient personnel, equipment or fire protection facilities; or for any condition of fire protection or fire fighting equipment or facilities. Ill. Rev. Stat. 1985, ch. 85, pars. 5 — 101, 5 — 103.

We conclude that in the absence of either a statutory or common law duty, the city and its fire department cannot be “liable in tort” under the Contribution Act. (For similar reasoning, see Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757, where the court held that liability imposed on dramshops was not grounded in tort, and was exclusive, sui generis nontort liability, and thus the defendant dramshop could not be “liable in tort” for purposes of the Contribution Act. See also Jodelis v. Harris (1987), 118 Ill. 2d 482, 517 N.E.2d 1055 (dramshop is simply not “subject to liability”).) In regard to injuries resulting from the alleged negligent provision of fire protection services, a municipality is not subject to liability within the meaning of the Contribution Act.

Krasny maintains that the city asserted an affirmative defense of sovereign immunity when it filed á section 2 — 619 motion to dismiss and thereby acknowledged the existence of a duty in tort. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619.) Moreover, he argues that if the non-liability rule is nothing more than an affirmative defense, the determination of whether the rule bars a suit in contribution is governed by Doyle v. Rhodes, where the court held that the employer was “subject to liability” in tort under the Contribution Act, although liability could later be defeated by assertion of the affirmative defense provided by the Workers’ Compensation Act. Krasny reasons that because sovereign immunity is considered an affirmative defense, under the holding in Doyle v. Rhodes the third-party city here would be “subject to liability in tort,” and subject to a contribution action, although the affirmative defense of sovereign immunity could later be successfully asserted against third-party plaintiffs. The city counters that sovereign immunity plays no role in the present case because no duly ever arises. The city asserts that, while the no duty/no liability rule may function as an affirmative defense, it does not create a duty which is otherwise absent both at common law and in Illinois statutes.

The issue of a governmental entity’s “immunity and the issue of liability are two complete and distinct issues.” (57 Am. Jur. 2d Municipal Tort Liability §54 (1971).) Significantly, the common law rule of no duty, as codified, remains in force even where sovereign immunity has been abolished. (See Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214.) The absence of this duty persists, wholly “[independent of [either] statutory or common-law concepts of sovereign immunity.” (Huey v. Town of Cicero, 41 Ill. 2d at 363. See also Motyka v. City of Amsterdam (1965), 15 N.Y.2d 134, 204 N.E.2d 635, 256 N.Y.S.2d 595 (independent of sovereign immunity, no duty arises, even after abolition of governmental immunity, for failing to supply or negligently supplying fire protection services). Compare Hartigan v. Beery (1984), 128 Ill. App. 3d 195, 470 N.E.2d 571 (parent-child immunity is not based on absence of duty, but rather upon judicially created immunity from suit).) “Independent of sovereign immunity, a municipality is not liable for failure to supply general fire protection. Indeed, a municipality is not constitutionally required to provide adequate fire protection even where the municipality has undertaken such service.” (18 E. McQuillin, The Law of Municipal Corporations §53.53 (3d ed. 1984).) Tort immunity statutes simply continue the rule of nonliability. 18 E. McQuillin, The Law of Municipal Corporations §53.52 (Supp. 1987).

Thus, under the no duty/no liability rule, a duty never arises. The judicial abrogation of sovereign immunity merely abrogated a defense to any preexisting duty. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89.) There was no preexisting duty here. Neither Molitor nor any waiver of immunity creates new tort duties and liabilities. (See generally 57 Am. Jur. 2d Municipal Tort Liability §72 (1971); see also Trianon Park Condominium Association, Inc. v. City of Hialeah (Fla. 1985), 468 So. 2d 912.) Under the inapplicable concept of sovereign immunity, despite any “apparent duty,” the governmental entity is immune from tort liability. This does not occur from a denial of the tort’s existence, but rather because the existing liability in tort is disallowed. In contrast, here the tort liability or duty never existed. See, e.g., J & B Development Co. v. King County (1983), 100 Wash. 2d 299, 303, 669 P.2d 468, 471 (comparing public duty doctrine and sovereign immunity), citing W. Prosser, Torts §131 (4th ed. 1971) and comparing 18 E. McQuillin, Municipal Corporations §53.04b, at 127 (3d ed. 1977), overruled on other grounds Taylor v. Stevens County (1988), 111 Wash. 2d 159, 759 P.2d 447 (still finding that no governmental duty existed). See also Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515; Trianon Park Condominium Association, Inc. v. City of Hialeah (Fla. 1985), 468 So. 2d 912 (no tort liability because there has never been a common law duty of care with respect to governmental functions, including discretionary authority given fire protection agencies to suppress fires, and statutory waiver of sovereign immunity did not create new duties of care).

As sovereign, the governmental entity undertakes many activities as an obligation to its citizens. It performs functions which an individual could not or would not undertake. We will not hold the sovereign liable for the consequences of performance of fire fighting functions in the matter before us. A contrary holding would subject every fire department in the State to potential liability for each and every action it took in relation to fire protection services. This in turn would lead to hesitation on the part of the government to undertake and perform these essential duties. See Orzechowski v. State (R.I. 1984), 485 A.2d 545 (regarding State responsibility for parolees).

Moreover, the Contribution Act applies generally to claims for contribution, while the Tort Immunity Act deals specifically with litigation against the State. Where a court must construe a specific statutory provision and a general statutory provision in either the same or another act which relates to the same subject, the specific provision controls over the general statute. Welch v. Stocks (1987), 152 Ill. App. 3d 1, 50 N.E.2d 1079.

We rely on the holding in Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E.2d 812, where this court held that the public officials’ immunity doctrine barred a contribution action against a flagman on a State highway crew. The immunity remained in effect, even in the third-party action for contribution from the State, due to key public policy considerations. We distinguished the cases permitting contribution involving interspousal or parent-child immunity on the basis that the relationships sought to be protected by the immunity were not affected by the third-party suit to any extent greater than that already allowed by law. (See Hartigan v. Beery (1984), 128 Ill. App. 3d 195, 470 N.E.2d 571.) In Moon v. Thompson (1984), 127 Ill. App. 3d 657, 469 N.E.2d 365, this court held that the Contribution Act prevailed against a competing principle of parent-child tort immunity because the public policy considerations which necessitated the protection of the family unit would not be sacrificed where the complaint alleged the parent third-party defendant violated a specific statute pertaining to negligent supervision of his child, a duty imposed for the safety of both the child and the general public. Thus, the third-party action would not “violate the private confines of the family unit in any manner other than that already condoned and prescribed by the legislature” in the negligent parental supervision statute. (Moon v. Thompson, 127 Ill. App. 3d at 661; see also Hartigan v. Beery (1984), 128 Ill. App. 3d 195, 470 N.E.2d 571 (parent-child immunity does not bar third-party action).) In Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, the interspousal tort immunity doctrine was viewed only as a procedural bar to any direct suits between spouses, and where the bar was removed, i.e., the suit was not a direct action between spouses, then contribution could be sought.

In contrast, in the present case, the no duty/no liability rule for fire protection services is more than a mere procedural device barring direct suits between firemen and the municipality. The rule bars any party from bringing an action, not merely the plaintiff fireman. Moreover, the public policy considerations supporting the nonliability rule would be violated by either the prohibited direct action by plaintiff, or by the proposed third-party action against the governmental entity. No statutory provision demands the State insure the safety of the general public from fire-related injuries. (See Huey v. Toum of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Moon v. Thompson (1984), 127 Ill. App. 3d 657, 469 N.E.2d 365.) Thus, in cases involving governmental nonliability, the purpose of protecting public officials from personal liability exists regardless of who brings the direct or contribution action. “If third-party actions were allowed, public officials would be unable to exercise their best judgments without fear of being held personally liable and suffering devastating economic losses, and *** it would be impossible to find responsible employees willing to serve under such conditions.” Stephens v. Cozadd, 159 Ill. App. 3d at 458.

Under Illinois law, if the government is named as a third-party defendant, the nonliability of the government applies to both the plaintiff fireman and the government. The plaintiff and the third-party plaintiff are interchangeable for purposes of deciding whether or not public policy permits the direct or third-party actions. The non-liability rule applicable here was designed as a bar to all liability, not just liability to certain members of the general public, whether liability is sought to be imposed through a direct action or a third-party action. See Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E.2d 812.

While there is a trend in Illinois to permit third-party actions for contribution in the face of common law or statutory bars to direct actions, we find strong public policy considerations mandate a different result in this case. See Hartigan v. Beery (1984), 128 Ill. App. 3d 195, 470 N.E.2d 571.

Krasny contends that the Tort Immunity Act does not apply to fire fighters because they are entitled to recover compensation under the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. lOS1^, par. 6— 101 et seq.) and Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 138.1(b)(1), 138.8(c) (narrow coverage if fire fighter is in large city and claim is for permanent and serious disfigurement)). In regard to the Pension Code, section 22 — 307 refers to common law actions for injuries sustained in the course of the employment, but not while fighting a fire. See O’Donnell v. City of Chicago (1984), 126 Ill. App. 3d 548, 467 N.E .2d 971; Sweeney v. City of Chicago (1971), 131 Ill. App. 2d 537, 266 N.E .2d 689.

In regard to the Workers’ Compensation Act, Krasny urges that the case is “on all fours” with Doyle v. Rhodes. We disagree. The Workers’ Compensation Act creates a statutory no-fault system of compensation. At common law, employers were subject to liability in tort to employees. But for the Workers’ Compensation Act, employers would still be subject to such liability. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Thus, the Act replaces the common law system of rights and remedies in this area.- Here, the employer never had a common law duty of due care to its fire fighting employees.

In addition, the rule of nonliability remains the same- even where it is a fireman who seeks damages. The no duty/no liability rule applies to bar an action against a governmental entity whether or not the plaintiff is an employee. (See, e.g., Dallas v. City of St. Louis (Mo. 1960), 338 S.W.2d 39 (immunity applies whether injured person is employee or member of general public).) The fireman has no cause of action for negligence against the municipal employer for injuries resulting from the performance of fire fighting services. Any statutory compensation for injuries does not alter this. In the absence of statute, a fireman cannot recover damages from the governmental entity for injuries suffered while rendering fire protection services as a member of the fire department. (18 E, McQuillin, The Law of Municipal Corporations §§53.52, 53.82 (3d ed. 1984).) A similar rule applies to strict liability actions. 18 E. McQuillin, The Law of Municipal Corporations §53.82, at 479 (3d ed. 1984) (also citing rule that municipality is not ordinarily liable to one fireman for injury through the negligence of another fireman).

Furthermore, the entire common law and statutory setting of the Workers’ Compensation Act in Doyle differs significantly from the setting here involving the nonliability of a municipality. In Doyle, the court took special care to describe and highlight very precise factors, none of which are present here. The Doyle court was confronted by two earlier employment-related cases. First, the court found that the holding in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849, which permitted a contribution action by a manufacturer against plaintiff’s employer, and which was later codified, compelled it to similarly permit a contribution action by the defendant car driver against the employer in Doyle. Both employers were shielded from direct suits by their employees under the Workers’ Compensation Act. The court found no significant difference between the employers’ posture in Skinner and Doyle to permit an opposite holding. The court was therefore bound to follow the Skinner holding and its codified version and recognize that the employer was amenable to suit.

In contrast, here we are faced with no Illinois law permitting a contribution action by a defendant who was sued by a city employee, against the third-party defendant city/employer. Quite the contrary, the common law and statutory “no duty/no liability” rule provides just the opposite.

Second, in Doyle the court was faced with, and focused heavily on, Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630, where the court permitted a third-party indemnification action over to the employer. In permitting a contribution action, the Doyle court explained it could find “no solution for th[e] anomaly” which would permit an indemnification action over to the employer, but no contribution action over to the employer under the new Contribution Act. No such potentially anomalous situation exists in the municipal corporation area of law relating to nonliability for fire protection services.

In addition, the origin, purpose and structure of the Workers’ Compensation Act differs considerably from the no duty/no liability rule at issue here. As explained in Doyle, the Workers’ Compensation Act gave the employer of an injured worker merely one alternative defense against the employee. The employer could show either no employment relationship or no nexus between employment and injury, or it could waive its rights under the Act by failing to assert it. “The potential for tort liability exists until the defense is established.” (Doyle, 101 Ill. 2d at 10-11.) Thus, at the time of injury, the employer is subject to liability in tort to the employee, although its liability can be defeated depending on the response the employer chooses to make to its employee’s claim for compensation or damages. Here, at the time of the fireman/plaintiff’s injury, the municipality/employer was not subject to liability in tort. Unlike the employer who falls under the Workers’ Compensation Act, the municipality has no duty here.

The Doyle court pointed out that the employer could compensate the employee for a loss either under the Workers’ Compensation Act or through a negligence action. In a tort action, however, the court preferred to use contribution instead of the disproportionate and likely unfair indemnification rule under DeWitt, because this would permit the court to focus on the culpability of each party “rather than on the precise legal means by which the plaintiff is ultimately able to make each defendant compensate him for his loss.” (Doyle, 101 Ill. 2d at 14.) In contrast, in the present case, the municipality would never compensate the plaintiff employee for a loss connected with fire protection services. Instead of choosing between two “precise legal means by which plaintiff is ultimately able to make” the City compensate him for his loss, permitting a third-party action here would actually create an entirely new cause of action, and impose a previously unknown duty on the city.

Moreover, the Doyle court noted the Workers’ Compensation Act’s provision permitting the employer to recoup any compensation it pays from proceeds of a judgment or settlement paid to the employee by another party. In the present case, no similar legislative provision indicates any contemplation that the municipality would act as a joint tortfeasor under the Contribution Act.

We conclude that the holding in Doyle does not require us to permit the third-party action for contribution against the city and its fire department.

Defendants and the trial court also rely on Stephens v. McBride. In Stephens, the court held that the plaintiff-motorcycle driver’s failure to comply with the notice provisions of the Tort Immunity Act, requiring the notification to a local entity within one year of an accident (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102), did not prevent the defendant automobile driver’s third-party action against a local governmental entity for alleged negligence in failing to remove obstructions from an intersection. The Stephens holding did not create liability where, as a matter of law, none existed. Instead, it merely held that a procedural notice bar would not bar an otherwise proper third-party suit. But for the notice provision, the village in Stephens would have been subject to direct liability in tort to plaintiff. Plaintiff’s failure to file notice did not affect the village’s underlying liability; it simply permitted the village to avoid it.

In contrast, here the city was never under any duty, common law or statutory, to plaintiff or any other person for injuries sustained during the fighting of a fire. Defendants fail to cite any case establishing such a duty. Thus, Stephens applies only to the Tort Immunity Act’s notice provision which bars the legal effect of a preexisting duty in tort.

In response to the certified question, we find that the common law and statutory rule of nonliability bar the third-party suit for contribution. We reverse the trial court’s order denying the city’s motion to dismiss and remand for further proceedings consistent with the holdings contained herein.

Judgment reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    GAIL S. WERBLOOD, Plaintiff-Appellant, v. COLUMBIA COLLEGE OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—1712
    Opinion filed February 16, 1989.
    Rehearing denied April 18, 1989.

      Thomas D. Rosenwein and Beverly L. Bailey, both of Karon, Morrison & Savikas, Ltd., of Chicago, for appellant.
    R. Peter Carey and Theodora M. Rand, both of Mandel, Lipton & Stevenson, Ltd., of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Gail S. Werblood (Werblood) appeals from trial court orders dismissing certain counts of her complaint against Columbia College of Chicago (Columbia College), the Board of Trustees of Columbia College, President Mirron Alexandroff of Columbia College (President Alexandroff), and Dean Lya Dym Rosenblum of Columbia College (Dean Rosenblum), for failure to state claims for which relief could be granted (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(a)) and finding no just reason to delay enforcement of or appeal from this disposition (107 Ill. 2d R. 304(a)), The trial court dismissed counts of the complaint sounding in intentional interference with prospective economic advantage and negligent administration of college bylaws on the ground that these counts improperly sought damages for economic loss barred by Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, and Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 503 N.E.2d 246. The trial court also dismissed a count alleging fraud against President Alexandroff on the premise that it failed to state sufficient facts re-gar ding his authorization of fraud allegedly committed by Dean Rosenblum against Werblood.

We conclude that the count in Werblood’s complaint alleging negligent administration of college bylaws was properly found to be precluded by the economic loss doctrine of Moorman and Anderson Electric. We further determine that the counts in the complaint alleging intentional interference with prospective economic advantage, although not barred by the economic loss doctrine, were nevertheless properly dismissed for insufficient factual allegation regarding a reasonable expectancy of future employment at either Columbia College or at another institution of higher education in the Chicago area. We also conclude that the count in the complaint alleging fraud on the part of President Alexandroff was properly dismissed because of insufficient factual allegations regarding President Alexandroff’s authorization of Dean Rosenblum’s allegedly fraudulent representations to Werblood. Accordingly, we affirm the orders of the trial court.

Background

According to the allegations of Werblood’s complaint as ultimately amended, which we accept as true for the purpose of review (see, e.g., Abrams v. Echlin Corp. (1988), 174 Ill. App. 3d 434, 437, 528 N.E.2d 429), Werblood was a faculty member of Columbia College from 1978 to 1985. She had an employment contract with Columbia College for the 1984-85 academic year, and this contract incorporated the rules and policies of Columbia College regarding the engagement, separation, and tenure of faculty members. According to these rules and policies, faculty members were advised by their department chairpersons by March 30 of a given contract year if the faculty member would not be retained for the following academic year; failure to so notify faculty members by the date prescribed caused automatic renewal of the faculty member’s employment contract for the following academic year. Dismissal of faculty members during the period of their employment contracts required written notice and a due process hearing.

In March 1985, Werblood was advised by her department chairperson that her performance was “competent,” and she was thereafter assigned courses for the 1985-86 academic year. On May 13, 1985, however, Dean Rosenblum informed Werblood that Columbia College was rescinding its contract with her for the upcoming 1985-86 academic year and that her salary and employment benefits would be terminated on June 30, 1985. Werblood received no explanation for the termination, nor a due process hearing, although she requested one.

Werblood filed suit against Columbia College, its Board of Trustees, President Alexandroff, and Dean Rosenblum. As amended, the complaint alleged breach of contract by Columbia College (count I); fraud by President Alexandroff and Dean Rosenblum (count II); intentional interference with Werblood’s prospective economic advantage by President Alexandroff and Dean Rosenblum, both individually and as agents of the Board of Trustees, on the premise that the method by which Werblood’s employment was terminated “stigmatized” her and would effectively interfere with her ability to find suitable employment in her field at other area institutions of higher education (count III); intentional interference by President Alexandroff and Dean Rosenblum with Werblood’s prospective economic advantage, on the ground that termination of Werblood’s employment by these defendants deprived Werblood of the opportunity to gain tenure with Columbia College at the end of the 1985-86 academic year (count IV); and negligence on the part of the Board of Trustees of Columbia College for its failure to manage and direct the affairs of Columbia College as required by its bylaws regarding faculty hiring and firing (count V).

Following briefing and argument upon defendants’ motion to dismiss the complaint for failure to state claims for which relief could be granted (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(a)), the trial court dismissed the counts regarding fraud and intentional interference with prospective business advantage, relying upon the economic loss doctrine of Moorman and Anderson Electric. The trial court dismissed the fraud count as it pertained to President Alexandroff on the ground that it failed to allege specific facts to show that he had authorized the fraudulent scheme allegedly undertaken by Dean Rosenblum against Werblood. Thereafter the trial court found no just reason to delay enforcement of or appeal from these rulings. (107 Ill. 2d R. 304(a).) This appeal followed.

Opinion

Werblood argues that the trial court should not have dismissed the fraud count against President Alexandroff for failure to state a claim. In her complaint, Werblood alleged that President Alexandroff committed fraud upon her when he authorized Dean Rosenblum to assure Werblood that her faculty employment with Columbia College would continue from 1985 until at least the spring of 1987, during which time Werblood intended to and did in fact enroll in and pursue studies to secure a Ph.D. at Union Graduate School. Werblood alleged that Dean Rosenblum’s representations to her, and President Alexan-droff’s authorization that Dean Rosenblum make these representations to her, constituted a fraudulent scheme whereby Werblood was encouraged to remain at Columbia College, to pursue graduate studies, and to forego pursuit of other employment opportunities, until President Alexandroff and Dean Rosenblum could select other personnel to replace Werblood. Werblood further alleged that Dean Ro-senblum’s representations were false, that President Alexandroff and Dean Rosenblum knew these representations were false when they were made, and that the representations were made with the intent to induce Werblood to act thereon to her detriment.

The trial court dismissed the fraud count with respect to President Alexandroff because it failed to allege facts showing specific words or actions by President Alexandroff which authorized Dean Ro-senblum to make the alleged misrepresentations to Werblood. We agree with the trial court’s reasoning and disposition.

Werblood’s fraud count against President Alexandroff was premised on the notion that Dean Rosenblum acted as President Alexandroff’s agent with respect to the alleged fraudulent representations made by Dean Rosenblum to Werblood. “Agency may be established and its nature and extent shown by parol evidence, whether direct or circumstantial, and reference may be had to the situations of parties ***, acts of parties, and other circumstances germane to the question, [including] *** one [person] acting for another under circumstances implying knowledge on the part of the supposed principal of such acts ***. [Citations.]” City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 518, 170 N.E.2d 569.

Applying these principles to the case at bar, we find that Werblood’s fraud count alleges no direct or circumstantial facts to demonstrate that Dean Rosenblum was acting as agent to President Alexandroff with respect to the allegedly fraudulent representations at issue here. For example, Werblood does not allege that Dean Rosenblum told her that President Alexandroff had advised Dean Rosenblum to make the alleged misrepresentations to Werblood. Werblood does not allege that President Alexandroff said or did anything to indicate that he was aware of and concurred in the alleged misrepresentations made by Dean Rosenblum to her. In light of these considerations, we conclude that the trial court properly dismissed Werblood’s fraud complaint as it pertained to President Alexandroff. See also Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 322-23, 214 N.E.2d 612.

The remaining issues pertain to Werblood’s claims for intentional interference with prospective economic advantage and her claim for negligent administration of the bylaws of Columbia College. Defendants maintain that these claims are barred by the economic loss doctrine set forth by the Illinois Supreme Court in Moorman and Anderson Electric. In Santucci Construction Co. v. Baxter & Woodman, Inc. (1986), 151 Ill. App. 3d 547, 502 N.E.2d 1134, appeal denied (1987), 115 Ill. 2d 550, the court determined that the economic loss doctrine in this State precludes a claim for negligent administration of a construction project, because such a cause of action in tort seeks economic losses occasioned by defeated expectations of a commercial enterprise. However, the court further determined that the economic loss doctrine does not bar a claim for intentional interference with prospective economic advantage, because such a cause of action falls within the exceptions to the economic loss doctrine stated in Moorman and Anderson Electric. (See also HPI Health Care Services, Inc. v. Mt. Vernon Hospital (1988), 172 Ill. App. 3d 718, 729, 527 N.E.2d 97; Fence Rail Development Corp. v. Nelson & Associates, Ltd. (1988), 174 Ill. App. 3d 94, 99-100, 526 N.E.2d 849.) In reaching these conclusions, the Santucci court reasoned as follows:

“Addressing first whether the negligence action as alleged in count I is barred under the economic-loss doctrine established in Moorman ***, the recently filed opinion of our supreme court in Anderson Electric *** is dispositive of this issue. In Anderson Electric, the court reaffirmed its position that there can be no recovery in tort solely for economic losses — economic losses being defined as damages for inadequate value, costs of repair and replacement of the defective product, or consequential loss of property, without any claim of personal injury or damage to other property. (115 Ill. 2d 146, 149.) It also held that a plaintiff seeking to recover purely economic losses due to defeated expectations of a commercial bargain cannot recover in tort, regardless of the plaintiff’s inability to recover under an action in contract. (115 Ill. 2d 146, 149-50.) In the instant case, the damages sought [in count I] are for economic losses, and the holdings in Moorman and Anderson Electric require the dismissal of the negligence action pleaded in count I.
* * *
[With respect to plaintiff’s claims for intentional interference with contract and with prospective economic advantage,] [w]e are well aware that the court in Moorman only referred to two exceptions to the economic-loss doctrine, i.e., where one intentionally makes false representations and where one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations. [Citation.] Nevertheless, we do not believe the questions addressed and decided in Moorman and in the subsequent supreme court decisions of Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171,441 N.E.2d 324, Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125, and Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, were intended to abolish causes of action for intentional interference with contract and prospective advantage.
The purpose of imposing liability in tort upon persons who interfere with the contractual relations of others is to protect one’s interest in his contractual relations against forms of interference which, on balance, the law finds repugnant. [Citations.] Because the very interest protected by the torts of intentional interference with contractual relations and prospective advantage is the reasonable expectation of economic advantage, economic losses are the damages recoverable. [Citations.] Moorman and its progeny arose out of economic losses suffered from alleged negligence or strict liability whereas the economic loss in the interference torts is occasioned by an intentional and improper interference with the performance of a contract or of a prospective contractual relation with third parties. We conclude that these interference actions are more similar to the two exceptions noted in Moorman and are still viable causes of action in Illinois.” Santucci, 151 Ill. App. 3d at 551-52, 553-54.

Defendants have not presented, and we are unable to discern, any sound reason to deviate from this precedent. Accordingly, we conclude that the economic loss doctrine bars Werblood’s claim for negligent enforcement or administration of college bylaws, but does not preclude Werblood’s claims for tortious interference with prospective economic advantage in the case at bar. Consequently, we affirm the trial court’s dismissal of count V of Werblood’s amended complaint alleging negligent administration of the college bylaws based on the economic loss doctrine of Moorman.

Defendants further contend that Werblood’s claims for intentional interference with prospective economic advantage, if not barred by the economic loss doctrine, are factually insufficient to state claims for which relief may be granted. We consider these arguments to the extent that they were briefed and argued before the trial court and renewed in this appeal, since “it is the judgment and not what else may have been said by the lower court that is on appeal to the court of review. [Citation.]” In re Marriage of Lenhardt (1988), 176 Ill. App. 3d 429, 435, 531 N.E.2d 123.

Werblood relies on the theory of intentional interference with prospective economic advantage in both counts III and IV of her amended complaint. In count III, Werblood alleged that because of her background and experience, she had “the reasonable expectancy of being employed full time at another institution of higher education in the Chicago area” in her field “if she left Columbia by voluntary resignation or by discharge in which Columbia followed its own proper procedures and customary practices.” Werblood alleged that President Alexandroff and Dean Rosenblum also “knew that [she] could be so employed by other institutions.” Werblood further alleged that the President and Dean were aware “that the market for full-time academic appointments in the Chicago area for [Werblood’s] art and humanities disciplines is one of extremely limited openings” and that they knew “that such expectance of future employment could be interfered with if [Werblood] were to be improperly stigmatized in any manner and that such improper stigmatization would occur if [she] were discharged by the President and/or Dean (a) after the date required for advising faculty of non-renewal of contracts, (b) without hearing, (c) without written explanation, and (d) any summary manner without conformity to Columbia’s established procedures.”

Werblood alleged that such “stigmatization” would result because it would “suggest[ ] to other institutions that the terminated faculty member engaged in activities requiring immediate termination or otherwise has such problems or deficiencies that would warrant immediate termination by Columbia’s administration.” She alleged that President Alexandroff and Dean Rosenblum “intentionally interfered with said expectancy in the manner in which they purported to discharge [Werblood], thereby effectively stigmatizing her and rendering her unemployable at other institutions of higher education in the Chicago area in [her] art and humanities disciplines.”

Defendants assert that Werblood’s amended complaint is factually insufficient because it fails to allege that Werblood had a reasonable expectancy of employment with a third party. In order to state a claim for intentional interference with prospective economic advantage, a plaintiff must allege, inter alia, that “any clearly identifiable group of third parties contemplated] prospective contractual arrangements with the plaintiff.” (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 403, 357 N.E.2d 211; see also Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 162, 466 N.E.2d 1137.) Werblood fails to allege that any institution of higher education in the Chicago area contemplated or contemplates employment of Werblood in her chosen field, nor does Werblood allege that she has attempted to seek employment at any institution of higher education in the Chicago area. Consequently, count III is factually insufficient to state a claim and was properly dismissed by the trial court.

Count IV of Werblood’s complaint was also factually insufficient to state a claim for intentional interference with prospective economic advantage. In count IV, Werblood alleged that at the time that Dean Rosenblum advised her that her employment with Columbia was secure until at least the spring of 1987, both Dean Rosenblum and President Alexandroff “were revising Columbia’s procedures so that, inter alia, faculty would receive credit for all prior full-time employment, thereby immediately entitling [Werblood] to tenure at Columbia. Said revisions were scheduled to be implemented by the spring of 1986, and Columbia’s faculty had been so advised.” Werblood further alleged that President Alexandroff and Dean Rosenblum “knew that the revisions would have the effect of creating tenure for [Werblood]” and that in “order to deprive [Werblood] of her prospective economic advantage in such tenure,” President Alexandroff and Dean Ro-senblum “did wrongfully and improperly discharge [her] in May 1985, even though such a discharge was arbitrary and capricious, and was in violation of the rules, procedures, representations, customs and practices of Columbia.” Werblood also alleged that President Alexan-droff and Dean Rosenblum “acted with the intent and purpose of interfering with [her] prospective economic advantage and preventing her from achieving tenure,” to her detriment.

Defendants assert, and we agree, that this count of the amended complaint is factually insufficient. In order to establish an action for intentional interference with prospective economic advantage, a plaintiff must allege inter alia “a reasonable expectancy of a valid business relationship or economic advantage ***. *** [T]he mere hope of continued employment, without more, does not *** constitute a reasonable expectancy as must exist to state a cause of action for tortious interference.” (Emphasis in original.) Williams v. Weaver (1986), 145 Ill. App. 3d 562, 568-69, 495 N.E.2d 1147.

Here, Werblood alleges no more than a hope of continued employment in the event that revisions, drafted but not alleged to have been implemented, would have accorded her tenure at Columbia College. Because the revisions had not been finalized and implemented at the time Werblood was discharged, she did not at that time have a “reasonable expectancy” of a continuation of her employment at Columbia based on tenure. As a result, we find that the trial court properly dismissed count IV of Werblood’s amended complaint.

For the reasons stated, the orders of the circuit court of Cook County are affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ROSARIO et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—85—3307
    Opinion filed February 22, 1989.
    Rehearing denied April 17, 1989.

      Paul P. Biebel, Jr., Public Defender, and Michael J. Pelletier and Bruce Mosbacher, both of State Appellate Defender’s Office, both of Chicago (Alison J. Norwood, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Al Tomaso, and Robert B. Berlin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendants Richard Torres and David Rosario were convicted of murder and conspiracy to commit murder. The trial court sentenced Torres to a term of 34 years and sentenced Rosario to a term of 28 years. On appeal, Torres contends that he was denied a fair trial because Rosario’s statement implicating him was admitted into evidence and that counsel was ineffective for failing to move for a pretrial severance. In addition, Torres contends that the trial court erred in barring his attempt to show' that a prosecution witness had a bad reputation for truth in the community and that his sentence was excessive. Rosario contends he was denied effective assistance of counsel when his attorney failed to move for a pretrial severance.

Billy Dixon, an eyewitness, testified for the State that on November 13, 1984, at 9 p.m., he heard gang slogans being yelled outside. From his front door, he could see four people running from Brentano School. He identified Thomas Adachi, Stacey Crawford, Virginia Shay, and the deceased, Joe Rodriquez. About 12 other people stood in the school yard. One was shooting at the four persons who were running and who then split up and ran in different directions. The deceased ran alone down an alley. Torres, carrying a sawed-off shotgun, followed until the deceased tripped over a fence and fell on his hands and knees. Torres leaned over the fence, shot the deceased in the back, dropped the gun and ran. Dixon identified Torres in a lineup several days later.

Thomas Adachi testified for the State that he and the deceased were members of the Spanish Lords. On November 13, 1984, they saw defendants at Brentano School. Rosario carried a blue duffle bag, which he opened, revealing a sawed-off shotgun. Adachi and the deceased ran, passing 10 to 15 people standing on the corner. Defendants and a third person chased Adachi and the deceased. Rosario handed the blue bag to Torres. The third person began shooting towards Adachi with a pistol. Shay and Crawford then ran with Adachi and the deceased. When the group split up and the deceased ran alone, Torres chased and shot the deceased after he fell. Adachi identified Torres in a lineup on November 15, 1984, and identified Rosario in a lineup on January 16,1985.

Assistant State’s Attorney Robert Babbitt testified that on January 16, 1985, he and Officer Schalk took a statement from Rosario. Rosario stated that on November 13, 1984, at about 6 p.m., he and several other persons were at the home of Jimbo Bates. They planned to go out with other members of their gang and get revenge for a gang killing which had occurred two years earlier. Several other people, including Torres, arrived at Bates’ home. At 8:45 p.m., they began walking to Brentano School. Torres and Bates left together, and Bates carried a blue gym bag. Rosario saw Bates place the bag in the school yard. Various people were yelling gang slogans, and Bates and Torres began chasing two people across the street. Rosario then carried the gym bag and could see that it held a sawed-off shotgun.

Rosario pulled out the gun and handed it to Bates. “I pulled it out and gave it to [Bates], at which times, [Bates and Torres] started running through the alley.” Roberto Gonzales, another man with Rosario, took out a pistol and began shooting at the two men who were being chased. Rosario saw the two pursued men split up, and a short time later he heard a loud noise. He described the final events preceding the shooting. Rosario and Gonzales were

“standing on the corner. *** And we started telling, the two guys that [Bates and Torres] were chasing, to come back, they won’t come. They didn’t have any guns or knives out, I didn’t see any weapons. They started running and [Gonzales] pulled the pistol out of his waistband and started popping at them. The two guys split up. And a short time later, I heard a big noise. We heard the noise. [Gonzales] and me ran ***.”

Officer Jerome Bogucki testified for Rosario that after he spoke to Adachi during the investigation, he marked only one offender in the police report. He had told Rosario, however, that he had been identified as a participant in the murder.

Officer Lawrence Poli testified for Rosario that at the time of the November lineup, Torres was the only offender in custody. He was identified by Dixon and Adachi.

Daniel Beauchamp testified for Torres that he was at home at 9 p.m. on November 13, 1984, when he heard gunshots. He looked out a window and saw a man lean over the fence and shoot another man with a shotgun. Beauchamp did not see the face of the shooter. Three months before trial, Torres’ counsel showed Beauchamp some photographs, but he was still unable to identify the shooter.

The court sustained objections to the attempt by Torres’ counsel through Beauchamp to establish Dixon’s reputation for truth in the community. Beauchamp testified that he knew Adachi. Just after hearing the gunshots and coming out his front door, Beauchamp saw Adachi under the porch steps of his home.

Lori Lynn Beauchamp testified for Torres that she heard gunshots and looked out her window. She saw six people running, but did not see who fired or held the shotgun.

Marty Benavides testified for Torres that he heard the gunshots and looked out his window. He saw Adachi squatting down in the gangway by the side of the stairs to his house. Benavides then stated that he saw Rosario fire the shotgun.

Rosario’s attorney moved for a mistrial on the basis that Rosario was prejudiced by Benavides’ identification of Rosario as the shooter. Torres’ attorney stated that he also was surprised by the testimony. The court found that Torres’ attorney did not act in bad faith in not notifying Rosario’s attorney prior to trial of Benavides’ testimony. The court denied Rosario’s motion for separate trials because there was no factual basis upon which counsel could have moved for a severance on the basis of known facts prior to trial.

Benavides testified further that Torres’ attorney interviewed him a month prior to trial, showing him two photographs. He told Torres’ attorney that one man looked familiar, and Benavides thought he looked like the person who did the shooting. Benavides testified that Torres’ attorney asked Benavides if he would testify that the person in the photograph was the shooter. While Benavides told Torres’ attorney the man only looked familiar, when he saw Rosario in court, he felt more certain. Benavides testified that, other than in the courtroom and once in his backyard, he had never before seen Rosario.

Several times during Benavides’ testimony, Rosario’s attorney again moved for a mistrial, arguing that he had never been told that Benavides identified Rosario as looking familiar. The court denied the motions.

Timothy Pater, an investigator, testified for Torres that during his investigation Dixon stated to Pater that he did not see anything.

Torres testified on his own behalf that on November 13, 1984, at about 7 p.m., he was at Bates’ home. Several people, including Rosario, later walked to Brentano School. Torres heard gunshots, but saw nothing. He just began running because he thought someone might be shooting at him. He never saw a blue gym bag. Torres denied having any knowledge of a plan to shoot someone.

Both defendants maintain they were prejudiced by the failure to sever the trials.

Torres contends he was denied his right of confrontation and denied a fair trial due to the introduction at the joint trial of an extrajudicial confession inculpating Torres, where the confession was made by a nontestifying codefendant. (See Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) Similarly, Rosario argues that, because in his statement he denied guilt and blamed Torres, it was “almost inevitable that the lines of defense at trial will become inconsistent and antagonistic.” On the basis of Rosario’s statement alone, Rosario’s counsel should have known “it was obvious that codefendant Torres’ line of attack, in order to protect himself, would be to blame David Rosario for the shooting and negate his own involvement.”

In his pretrial statement, Rosario stated that Torres was at the school. Rosario gave the shotgun to Bates. Torres ran through the alley with Bates, chasing two men. Shortly thereafter, Rosario heard a loud noise. In regard to the actual shooting, Rosario saw the men being chased “split up. And a short time later, I heard a big noise. We heard the noise. [Gonzales] and me ran ***.” Rosario never stated that Torres had possession of the gun, shot the -victim, or even was present when the shots were fired. Torres testified that he saw nothing.

Under such circumstances, Rosario’s statement did not implicate Torres in the murder in the sense of attributing the commission of the murder to him and, at most, is merely contradictory of Torres’ defense rather than antagonistic to it. (People v. Lumpkin (1982), 105 Ill. App. 3d 157, 433 N.E.2d 1369; People v. Holman (1976), 43 Ill. App. 3d 56, 356 N.E.2d 1115.) Thus, no Bruton error occurred, and a severance was not required.

Both defendants maintain that their attorneys’ failure to request a pretrial severance constituted ineffective assistance of counsel. Under Strickland v. Washington (1984), 466 U.S. 688, 88 L. Ed. 2d 674, 104 S. Ct. 2052, ineffective assistance of counsel is shown where defendant shows that counsel’s performance was deficient where the errors were so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. Defendant must show the deficient performance prejudiced the defense.

We have already found that Rosario’s statement did not directly inculpate Torres. Similarly, Torres testified that Rosario was present at Bates’ and that Rosario walked towards Brentano School. Torres revealed no other facts regarding Rosario’s presence, absence, or possible participation in the shooting. Counsel is not ineffective where the motion to sever would have been futile. People v. Pangburn (1976), 41 Ill. App. 3d 781, 354 N.E.2d 152.

Furthermore, because defendants’ references to each other were not crucial links in the State’s case against them, which included eyewitness testimony, it could not be said that the result of the trial would have been different had a severance been granted. (People v. Lumpkin (1982), 105 Ill. App. 3d 157, 433 N.E.2d 1369; People v. Jones (1980), 82 Ill. App. 3d 386, 402 N.E.2d 746.) Defendants were not denied effective assistance of counsel.

Rosario also contends that the judicial process broke down when Benavides testified that he saw Rosario shoot the deceased. The trial court found that the attorneys did not know of this information before trial and thus there was no basis upon which to grant a severance prior to trial. (See People v. Stevenson (1980), 90 Ill. App. 3d 903, 413 N.E.2d 1339.) We note further that the trial court expressly stated that it placed no credence in Benavides’ testimony.

Torres next contends that he was denied a fair trial where the trial court barred his attempt to present evidence through Beauchamp that Dixon had a bad reputation for truth and veracity in the community. Any witness may be impeached by evidence showing generally a poor reputation for truth and veracity. People v. Nash (1966), 36 Ill. 2d 275, 222 N.E.2d 473.

The State concedes that the law does not support the trial court’s decision to bar the impeachment. Instead, the State argues that Torres failed to make an adequate offer of proof. (See People v. Burris (1971), 49 Ill. 2d 98, 273 N.E.2d 605.) The trial court, however, refused to allow an offer of proof. It interrupted counsel’s attempt to make an offer of proof and simply sustained the State’s objection as to the relevance of whether or not Beauchamp knew Dixon. Under these circumstances, we find the issue was not waived on appeal.

We find, however, that the failure to permit this impeachment is not reversible error. There was overwhelming evidence of Torres’ guilt, including Adachi’s eyewitness testimony and identification of Torres in a lineup. The improper limitation of cross-examination does not warrant reversal where there is no showing of manifest prejudice to defendant and where the prosecution’s case does not stand or fall based upon the credibility of that witness. (People v. Bingham (1979), 75 Ill. App. 3d 418, 394 N.E.2d 430.) The error was harmless.

Torres finally contends that the trial court abused its discretion in sentencing him to a term of 34 years. Absent an abuse of discretion, a sentence will not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The trial court here considered the presentence reports, which indicated Torres had received supervision for criminal damage to property and which reported his use of marijuana. The court also considered the statement of counsel and the evidence presented at trial. The court emphasized the brutal, senseless nature of the murder in imposing sentence. The 19-year-old Torres’ youth did not require a different sentence. See People v. Fabian (1976), 42 Ill. App. 3d 934, 356 N.E.2d 982.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

RIZZI and WHITE, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    HANNAH THOMSON, Plaintiff-Appellant, v. MCDONALD’S, INC., et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—88—0253,1—88—0880 cons.
    Opinion filed March 3, 1989.
    Rehearing denied April 13, 1989.

      Robert F. Klimek and Robert L. Richiardi, both of Klimek & Richiardi, Ltd., of Northlake, for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Randall G. Talan, and Christine L. Olson, of counsel), for appellee Harry Theodore.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Hannah Thomson appeals from orders dismissing her complaint against defendant Harry Theodore on the ground that it was barred by the applicable statute of limitations. The cause of action arose out of plaintiff’s fall on the ice in a McDonald’s restaurant parking lot on January 29, 1985. She subsequently sued only defendant McDonald’s to recover for her injuries. McDonald’s registered agent was served and McDonald’s then filed an appearance.

In its answer to plaintiff’s complaint, McDonald’s made a general denial to the allegations, including denials of the assertions that it was transacting retail food business at that restaurant or in Illinois (a different corporation, McDonald’s Restaurant of Illinois, does transact business in this State), and that it owned the premises on which plaintiff fell. Both parties filed interrogatories, and in June 1986, plaintiff served a request for production on McDonald’s. In July, the trial court ordered McDonald’s to comply with outstanding discovery within 28 days. McDonald’s took depositions of plaintiff and her husband, and its insurance company (which was also the Theodores’ insurer) communicated with plaintiff regarding a possible settlement. On January 27, 1987, McDonald’s sent a letter to plaintiff stating that a copy of the subject lease was available for inspection. Two days later the two-year statute of limitations expired. In March 1987, McDonald’s answered plaintiff’s interrogatories and stated that McDonald’s did not possess, occupy, operate, maintain, or control the relevant premises. Plaintiff then discovered that Harry Theodore and Theodore Theodore were the lessees of the franchise.

Subsequently, the trial court granted McDonald’s motion for summary judgment with no objections from plaintiff. Plaintiff was granted permission to amend her complaint to join Harry Theodore and Theodore Theodore as defendants. In July 1987, Harry Theodore only was served personally and thereafter he moved to dismiss plaintiff’s complaint because it was barred by the statute of limitations. Plaintiff responded to the motion, alleging that McDonald’s had fraudulently concealed plaintiff’s cause of action as to the Theodores and that her complaint against Harry Theodore should relate back to the filing of the original complaint against McDonald’s pursuant to section 2 — 616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(d)).

Plaintiff appealed from that order (case No. 88 — 0253) but it was not final and appealable. Thereafter another trial court certified the original order for immediate appeal and this second order was appealed (case No. 88 — 0880). Both appeals, with identical issues, have been consolidated. There are two issues on appeal: (1) whether McDonald’s fraudulently concealed the cause of action against the Theodores by not timely complying with discovery; and (2) whether the requirements of section 2 — 616(d) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(d)) were satisfied so as to allow plaintiff’s amended complaint to relate back to her original complaint.

We first must dismiss appeal No. 88 — 0253 since the order appealed from did not contain the language required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Although not yet served with summons, Theodore Theodore is still a named defendant in the trial court proceedings.

With respect to the issue of alleged fraudulent concealment, there are several problems. Concealment of a cause of action sufficient to toll the statute of limitations requires an affirmative act or representation designed to prevent discovery of the cause of action. (Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 402 N.E.2d 181.) And, mere silence of a defendant accompanied by a plaintiff’s failure to discover the cause of action does not constitute fraudulent concealment. (Harvey v. Harris Trust & Savings Bank (1979), 73 Ill. App. 3d 280, 391 N.E.2d 461.) Moreover, fraudulent concealment of a cause of action by one other than the defendant usually does not toll the running of the limitations period unless the concealer is in privity with or occupies an agency relationship with defendant. Chicago Park District, 78 Ill. 2d at 563, 402 N.E.2d at 185.

However, in the present case, McDonald’s gave notice, albeit in a general denial, that it did not own or control the premises where plaintiff fell. It is true that McDonald’s did not timely comply with plaintiff’s discovery requests. However, after it did not produce documents or answer interrogatories as ordered by the court in July 1986, plaintiff made no further efforts to compel responses or to otherwise discover who owned or managed the restaurant. Reliance on another’s representations must be reasonable and, further, to expect a plaintiff to look to public records to ascertain certain information does not impose an undue burden on a plaintiff. (See Illinois Central Gulf R.R. Co. v. Department of Local Government Affairs (1988), 169 Ill. App. 3d 683, 523 N.E.2d 1048.) In any event, McDonald’s did not represent that it was the owner or manager of the restaurant; it merely remained silent as to the real owners’ identities.

It is also clear that McDonald’s was not in privity with the Theodores (see Upper Lakes Shipping Ltd. v. Seafarers’ International Union of Canada (1963), 40 Ill. App. 2d 392, 189 N.E.2d 753), nor was there an agency relationship between the parties (see Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E.2d 457 (mere licensing of a trade name does not create an agency relationship — either actual or ostensible).) According to the franchise agreement, only the Theodores were responsible for all losses and damages arising out of the operations of the business, including personal injury claims. Thus, even if McDonald’s had concealed the cause of action against the Theodores, and there is no evidence that it did so, absent a special relationship not existing here, there can be no fraudulent concealment.

In addition, McDonald’s is not a party to this appeal. It was granted summary judgment with no objections by plaintiff and is not now before this court to respond to her allegations. Accordingly, we cannot find on the record before us that McDonald’s fraudulently concealed plaintiff’s cause of action against the Theodores.

We also conclude that it is legally impossible for plaintiff’s complaint against Harry Theodore to relate back to her original complaint against McDonald’s. Section 2 — 616 of the Code of Civil Procedure provides that a cause of action against a defendant not originally named is not barred by lapse of the statute of limitations if five elements are met: (1) the original action was timely filed; (2) failure to join the proper person was inadvertent; (3) service of summons was in fact personally served upon the defendant, or on his agent or partner; (4) the person, within the time suit could have been brought against him, knew the original action was pending and that the underlying transaction involved or concerned him; and (5) the amended complaint arose out of the same occurrence or transaction as that underlying the original complaint. 111. Rev. Stat. 1985, ch. 110, par. 2 — 616(d).

If any one of these requirements is not met, then the amended complaint cannot relate back. (Hoving v. Davies (1987), 159 Ill. App. 3d 106, 512 N.E.2d 729.) Plaintiff’s amended complaint cannot relate back because neither Harry Theodore nor any of his “agents or partners” were served with summons before the limitations period had expired. Plaintiff contends that McDonald’s acted as an agent for the Theodores by investigating the claim and participating in discovery. The fact remains, however, that legally no agency relationship exists here, and therefore, the summons requirement of section 2 — 616(d) was not satisfied. Thus, there can be no relating back of the amended complaint. As a result, there is no need to discuss plaintiff’s arguments concerning the inadvertence element of the statute.

For the above reasons, the trial court’s dismissal with prejudice of plaintiff’s complaint against Harry Theodore is affirmed.

Affirmed.

LORENZ and COCCIA, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT McNEAL, JR., Defendant-Appellant.
    First District (1st Division)
    No. 1—85—2558
    Opinion filed March 13, 1989.

      Steven Clark and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry and Stephen M. Sutera, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Petitioner, Robert McNeal Jr., appeals the circuit court’s dismissal of his post-conviction petition, contending that: (1) he was entitled to a hearing and the appointment of counsel on his post-conviction petition pursuant to section 122 — 2.1 of the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1); (2) section 122 — 2.1 contradicts Supreme Court Rule 651(e) (107 Ill. 2d R. 651(c)), and thus violates the doctrine of separation of powers; (3) due process requires the appointment of counsel to indigent post-conviction petitioners; (4) section 122 — 2.1 is violative of the due process and equal protection guarantees because counsel is provided as a matter of right for indigents who take direct appeals from convictions; (5) because section 122 — 8 of the Act is unconstitutional, the dismissal of his petition must be vacated and the cause remanded for further proceedings before the trial judge; (6) he was entitled to a hearing on his petition because the court failed to dismiss it within 30 days of filing; (7) due process and equal protection require that indigent petitioners be provided free transcripts prior to a final adjudication on the merits; and (8) he should be allowed to file an amended petition. Defendant’s contention that he is entitled to a hearing by virtue of the trial court’s failure to dismiss the petition within 30 days is meritorious, and hence, we reverse the decision of the trial court.

Several of defendant’s challenges to the constitutionality of section 122 — 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1) were recently addressed by the Illinois Supreme Court in People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, in which the supreme court upheld the constitutionality of section 122— 2.1. Specifically, the supreme court held that the statute did not conflict with Supreme Court Rule 651(c) and that it does not deny indigent defendants due process or equal protection. 122 Ill. 2d 64, 521 N.E.2d 1158; People v. Bostic (1988), 173 Ill. App. 3d 428, 430.

In the present appeal, defendant challenges the constitutionality of the Act on the additional basis that it fails to provide an indigent defendant with a free transcript of this trial prior to final adjudication. He claims that a petitioner needs a transcript in order to identify and frame the errors he seeks to raise in his post-conviction petition and to locate the facts to support his position.

Section 122 — 4 of the Act provides that if a petition is not dismissed pursuant to section 122 — 2.1, the court may order that a transcript of the proceedings be given to an indigent petitioner. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 4.) This is the same section that authorizes the appointment of counsel to represent an indigent petitioner. Since the legislature appears to have considered the two requests to be analogous, and the supreme court has held that is not a violation of petitioner’s constitutional rights to provide him with counsel only after his petition has met the threshold requirements of section 122— 2.1, it follows that the petitioner must meet this threshold requirement before he is provided with a transcript. (People v. Jones (1988), 168 Ill. App. 3d 925, 933, 522 N.E. 2d 1325.) Consequently, defendant was not entitled to a transcript to aid in the preparation of his petition.

We do find merit, however, in defendant’s position that he is entitled to a hearing on his post-conviction petition because the trial court failed to dismiss it within 30 days of filing. Section 122 — 2.1(a) of the Post-Conviction Hearing Act authorizes summary dismissals of frivolous or meritless post-conviction petitions and provides that “[wjithin 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(a).) Section 122 — 2.1(b) provides that if the petition is not dismissed pursuant to this section, it shall be docketed for further consideration in accordance with sections 122 — 4 through 122 — 6. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(b).) The supreme court’s decision in Porter clearly indicates that this requirement is mandatory rather than discretionary and that a trial court’s noncompliance with the Act renders a dismissal void. People v. Porter (1988), 122 Ill. 2d 64, 86, 521 N.E.2d 1158.

In the present case, the petitioner filed his pro se post-conviction petition on April 24, 1985, but the trial court did not enter a written order dismissing the petition until July 18, 1985, well past the specified 30-day period. Consequently, the petition could no longer be dismissed pursuant to section 122 — 2.1, and the court was required to proceed in accordance with sections 122 — 4 through 122 — 6. 122 Ill. 2d 64, 521 N.E.2d 1158.

Finally, defendant contends that since section 122 — 8 of the Act, which provided that a different judge hear a post-conviction petition than had presided at trial, has been declared to be unconstitutional by the supreme court (see People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E.2d 501), the cause must be remanded to the original trial judge for hearing. Section 122 — 8 was found to be unconstitutional because it violated the doctrine of separation of powers by legislatively impinging upon the circuit court chief judge’s authority to assign cases, not because it violated the petitioners’ right to have their petitions heard by the original trial judges. (People v. Garvin (1987), 152 Ill. App. 3d 438, 446, 504 N.E.2d 979.) Thus, defendant does not possess a right to have his petition heard by the original trial judge on remand.

Accordingly, the judgment of the circuit court is reversed, and the cause is remanded to the circuit court. On remand, the circuit court is directed to order the defendant’s petition docketed for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Post-Conviction Hearing Act.

Judgment reversed and remanded, with directions.

BUCKLEY and O’CONNOR, JJ., concur.


text:
    LEO N. DUBROVIN, Plaintiff-Appellant, v. MARSHALL FIELD’S & COMPANY EMPLOYEE’S CREDIT UNION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—86—3469
    Opinion filed March 13, 1989.

      John Thomas Moran and Stephen G. Selger, both of Chicago, for appellant.
    John R. Ruddy and Kirkland & Ellis, both of Chicago (Roger L. Taylor and Marion B. Adler, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Leo N. Dubrovin, plaintiff, filed this action to recover damages in the circuit court of Cook County, alleging slander per se against Marshall Field’s & Company Employee’s Credit Union, Marshall Field’s & Company, and John Ahlers, chairman of the board of directors of the credit union.

Plaintiff has been employed by Marshall Field’s & Company since 1946 in a variety of positions. From November 1977 through May 1985, the plaintiff was employed by Marshall Field’s & Company (Marshall Field’s) and the Marshall Field’s & Company Employee’s Credit Union, wherein he held the offices of president-treasurer and served in the salaried position of managing director of the Marshall Field’s & Company Employee’s Credit Union (Credit Union). Plaintiff was on Marshall Field’s executive payroll. However, the credit union reimbursed Marshall Field’s for plaintiff’s salaried position.

Although plaintiff was reelected as a director of the credit union on March 15, 1985, John Ahlers, chairman of the board of directors of the credit union, informed the plaintiff on May 1, 1985, that his employment with the credit union was terminated based on the plaintiff’s failure to meet certain performance objectives. Mr. Ahlers stated by affidavit that the plaintiff held the salaried position of manager of the credit union, and that he removed the plaintiff from that position, but never advised plaintiff that he could not continue to serve as a director and in the capacity of president and treasurer of the credit union. Moreover, plaintiff attended a board of directors meeting on June 12, 1985, where he voted as a director and provided a report in his capacity as president and treasurer of the credit union.

After notifying plaintiff of his employment termination, Mr. Ahlers offered the plaintiff a position as a shoe salesman at the Marshall Field’s Oak Brook store, which he initially declined but subsequently accepted. Mr. Ahlers also accompanied the plaintiff to the credit union office after notifying him of his employment termination, and in the presence of other Marshall Field’s employees, asked the plaintiff to clean out his desk, return his credit union office keys, leave some personal belongings in the credit union office and leave the premises. Mr. Ahlers then proceeded to escort the plaintiff to the elevator and exit door. While in the elevator, and in the presence of another Marshall Field’s employee, Mr. Ahlers asked the plaintiff for his building pass. At the exit door, in the presence of other Marshall Field’s employees, plaintiff’s personal belongings were inspected by a Marshall Field’s security guard.

On May 31, 1985, plaintiff filed his original complaint in the chancery division of the circuit court of Cook County seeking an injunction to restrain the directors of the credit union from removing him as president-treasurer and managing director of the credit union. The Illinois Credit Union Act (Ill. Rev. Stat. 1985, ch. 17, par. 4436) and the credit union bylaws require a majority vote of the board of directors to remove officers or members of the board of directors. When the plaintiff filed his original complaint, Mr. Ahlers had personally notified him of his employment termination. However, the board of directors had not acted upon his removal as a member of the board of directors or as an officer. On June 21, 1985, the board of directors voted to terminate the plaintiff as president-treasurer of the credit union. They also resolved that the plaintiff would remain as a director of the credit union and serve as chairman of the membership committee. However, plaintiff asserts that he was not provided with notice of the May 23, 1985, and June 27, 1985, special meetings of the board of directors.

On July 22,. 1985, plaintiff filed an amended complaint. In count I plaintiff sought an order to restrain the board of directors from preventing him from assuming his duties as a director of the credit union by not providing him with proper notice of the meetings of the board of directors. On August 8, 1985, the trial court entered an order that plaintiff be provided with the “usual and customary notice” of the board of director meetings and that a record be maintained of the notice of meetings provided to the plaintiff. The trial court further ordered the transfer of the remaining counts to the law division since no equitable matters remained before the court.

The defendants filed motions to strike or dismiss plaintiff’s amended complaint on the ground that the complaint was insufficient as a matter of law, since it failed to state a cause of action. The motions to dismiss were granted by the trial court on June 20, 1986. Thereafter, plaintiff filed a second amended complaint. The defendants again filed motions to strike or dismiss plaintiff’s second amended complaint upon the ground that it was insufficient at law, since it failed to state a cause of action. On November 14, 1986, the trial court granted the defendants’ motions, dismissing the second amended complaint for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615).

Plaintiff argues on appeal that his second amended complaint does state a cause of action for slander per se since the defendants’ acts and gestures communicated to third parties that he lacked integrity in his profession and he is a thief. Plaintiff further contends that Marshall Field’s has a store policy that only employees terminated for security reasons are escorted from the premises. Defendants contend that to state a cause of action for slander per se the plaintiff must allege that a false statement was made, and when stripped of innuendo, is not reasonably capable of an innocent interpretation. Defendants further contend that conduct unaccompanied by words does not constitute slander per se.

When reviewing a complaint that was dismissed for failure to state a cause of action, we must accept as true all well-pleaded facts and reasonable inferences therefrom to determine whether the complaint states a cause of action as a matter of law. Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 503 N.E.2d 760.

The same rules are applicable to both slander and libel. (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 579, 506 N.E.2d 1370; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154, 159, 221 N.E.2d 516.) However, Illinois distinguishes between defamatory language that is slanderous per se and slanderous per quod. A statement is slanderous per quod if innuendo and extrinsic facts are required to give it a slanderous meaning and special damages are alleged and proved. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 741-42, 415 N.E.2d 434; Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 258, 458 N.E.2d 115.) In the instant case plaintiff did not allege any special damages to support an action for slander per quod. Therefore, we will review this appeal based on plaintiff’s contention that the statements and conduct are actionable per se as a matter of law. Whether Mr. Ahlers’ statements and conduct are defamatory per se is a question of law to be resolved by the court. Powers v. Delnor Hospital (1986), 148 Ill. App. 3d 844, 847, 499 N.E.2d 666.

In analyzing a defamation allegation, we must focus upon the effect of the publication on those who received it since such communication must be capable of conveying a defamatory meaning to the person who heard it. (Colson v. Stieg (1982), 89 Ill. 2d 205, 212, 433 N.E.2d 246.) The plaintiff asserts that Mr. Ahlers’ actions were slanderous per se because third persons could impute that a criminal offense had been committed and he lacked integrity in discharging his duties. To constitute slander per se, the language and acts complained of in and of themselves must be “so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary.” (Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145; American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 1024, 483 N.E.2d 965.) Moreover, it is well-settled that under common law, words are actionable per se if they falsely impute: (1) lack of integrity in the discharge of that person’s duties of office or employment; (2) words which result in prejudice to that person’s trade or profession; (3) commission of a criminal offense; and (4) infection with a communicable disease. Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 580, 506 N.E.2d 1370; Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145; Fried v. Jacobson (1983), 99 Ill. 2d 24, 27, 457 N.E.2d 392.

In a defamation action the specific defamatory material must be clearly identified. (Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 163, 466 N.E.2d 1137.) The alleged defamatory statements and acts specifically referred to by the plaintiff consisted of asking the plaintiff to: (1) clean out his desk; (2) leave some personal belongings in the credit union office; (3) return his credit union office keys; and (4) escorting the plaintiff to the elevator and exit door; (5) requesting his building pass in the elevator; and (6) inspection of his personal belongings by a security guard. Each of these actions occurred in the presence of other Marshall Field’s employees. However, the statements articulated by Mr. Ahlers standing alone cannot be considered as so “obviously or naturally harmful” as to constitute slander per se to the plaintiff. These statements on their face do not falsely impute to the public the commission of a crime nor do they impute a lack of integrity in the discharge of plaintiff’s duties of employment. Moreover, under the facts of this case, we cannot conclude that the actions of escorting the plaintiff or the inspection of his personal belongings by a security guard in the absence of any defamatory statements constitutes slander per se.

Even if specific slanderous statements were made, before they can be determined to be defamatory as a matter of law, they must be viewed in light of the innocent construction rule set forth in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195. The Chapski court held:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.’’ 92 Ill. 2d at 352.

Moreover, whether the statements and acts complained of are susceptible to an innocent interpretation is a question of law for the court to determine by reviewing the statements and acts stripped of innuendo. Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 256, 458 N.E.2d 115; Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 483, 361 N.E.2d 74.

The statements and acts raised by the plaintiff in the instant case are reasonably susceptible to an innocent interpretation. Asking the plaintiff to clean out his desk and return his office keys and building pass can certainly be innocently construed to apply to all employees terminating their positions, either voluntarily or involuntarily. Moreover, escorting an employee to an elevator or exit door can be construed as a courtesy and searching an exiting employee can be viewed as a standard procedure of the employer. A witness to these statements or acts could have observed the interaction without concluding that the plaintiff was being terminated for dishonesty or lack of integrity in his employment. In reviewing these actions and statements under the innocent construction rule, we conclude that the alleged defamation was nonactionable as a matter of law since the statements and actions may be innocently interpreted. Moreover, they are nonactionable per se because they do not fall within any of the categories recognized by Illinois law to be actionable without proof of special damages.

In view of our disposition of these issues, we need not address whether the credit union bylaws or the applicable State statute were violated, nor whether the defendants were protected by a conditional or qualified privilege. For the reasons stated, the order of the circuit court of Cook County dismissing this case for failure to state a cause of action is affirmed.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.