author: PRESIDING JUSTICE JIGANTI

text:
    THE ARTFUL DODGER PUB, INC., Plaintiff-Appellee and Cross-Appellant, v. FRED KOCH, JR., Indiv. and as Sole Beneficiary of American National Bank and Trust Company Trust No. 57648, et al., Defendants-Appellants and Cross-Appellees.
    First District (4th Division)
    No. 1—91—1189
    Opinion filed June 11,1992.

      Joseph I. Adler, of Adler & Adler, of Chicago (Robert Handelsman, of counsel), for appellants.
    L. Steven Platt, of Arnold & Kadjan, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a bench trial, the defendant, Fred Koch, appeals from the judgment of the circuit court granting specific performance to compel Koch to sell certain real property to the plaintiff, Artful Dodger Pub, Inc., which had the option to purchase the property in its leasing agreement with Koch. Artful Dodger cross-appeals from the court’s judgment denying its motion for replevin of rent payments.

Koch contends the court erred in awarding specific performance because Artful Dodger abandoned its contract to purchase the property. Koch also alleges that Artful Dodger should not be granted specific performance because it did not prove that it was ready, willing, and able to perform its contractual obligations.

Artful Dodger contends the court erred in denying its recovery of the rent payments which it made to Koch from the time it exercised its option to purchase the property to the present.

Koch and Artful Dodger were parties to a written lease pertaining to the rental of a store located in Chicago, Illinois. The lease ran from October 1, 1984, to October 31, 1987. Pursuant to rider “A” of the lease, the parties agreed that Artful Dodger

“[Sjhall have the option of purchasing the property in which the demised premises are located provided that at the time of the exercise of such option no default has occurred under the terms of this Lease and that it is in effect at that time and Lessee is in possession of premises.”

The option purchase price was specified as “one hundred five thousand dollars cash.” Rider “A” contained no other conditions relating to the exercise of the option to purchase.

On June 27, 1987, counsel for Artful Dodger, L. Steven Platt, sent a letter to Koch by registered mail exercising the option to purchase the property pursuant to the terms and conditions contained in rider “A” to the lease. The letter requested that Koch’s attorney contact him to set a date, time, and place for closing. Koch does not dispute that the option was validly exercised.

On July 16, 1987, Platt sent another letter to Koch advising him that:

“[0]ur clients, Brian Friedler and James Swanson, individually and d/b/a the Artful Dodger Pub, Inc., hereby rescind their agreement to purchase your building according to the terms of the above-referenced lease, effective immediately.
*** [Tjhis is to advise you that the Artful Dodger Pub hereby exercises its option to renew the term of the above-referenced lease for a period of three additional years commencing October 1, 1987 and ending September 30, 1990.”

Friedler testified at trial that he received a copy of Platt’s July 16, 1987, letter shortly after that date. Friedler had a conversation with Swanson and they were “both flabbergasted that this letter [had] been sent.” Friedler further testified that Platt had no authority to send the letter and that the letter was a mistake. Friedler and Swanson immediately telephoned Platt’s office. Friedler testified that he told Platt, “[w]e have got to send out something immediately because this is all a mistake. It has to be rectified.” As a result of their conversation, Platt sent Koch a letter dated July 20, 1987, withdrawing Artful Dodger’s three-year renewal of the lease and further stating:

“We therefore intend to hold you to the terms of the Rider ‘A’ thereto, as exercised by our clients on June 27, 1987. In accordance with that exercised option to purchase, we hereby demand that you order title from Chicago Title, and close at the offices of the same on August 30, 1987, at 10:00 a.m., in Chicago, Illinois.”

On August 21, 1987, Koch sent a letter to Artful Dodger’s counsel in which he stated that he did not intend to sell his building.

Artful Dodger filed its complaint for specific performance on September 16, 1987. Artful Dodger paid the July and August 1987 rent and has continued to pay rent until the present time.

On January 31, 1991, the trial court entered judgment for Artful Dodger and ordered the parties to close on the property within 90 days of the date of the order. The court found that a valid option to purchase the premises existed and was exercised by Artful Dodger in its letter dated June 27, 1987. The court stated that since a valid option existed and had been exercised, the option could only have ended if Koch had released Artful Dodger, which he did not. Further, Koch did not change his position in reliance on the July 16, 1987, letter. The court, therefore, concluded that a valid option existed and was properly exercised.

Koch first contends on appeal that the trial court erred, as a matter of law, when it did not conclude that the evidence of Artful Dodger’s July 16, 1987, letter in conjunction with Artful Dodger’s continued rent payments constituted an abandonment of the real estate contract. Koch relies on Hayes v. Carey (1919), 287 Ill. 274, 122 N.E. 524, for the proposition that a lease of realty by the parties to a sales contract constitutes an abandonment of the contract. In Hayes, a written contract was entered into for the sale of a farm. The purchase payments were to be made in installments which were due at specified dates. When the purchaser did not make his first installment payment, the farm owner entered into a leasing arrangement with the purchaser. The court held that the purchaser’s failure to make any of the payments under the purchase agreement and his acceptance of the new lease were sufficient evidence of his abandonment of the sales contract. The court stated:

“A rescission or abandonment of a contract in writing may be deduced from circumstances or a course of conduct clearly showing such abandonment.” (287 Ill. at 278,122 N.E. at 525.)

Other courts have also stated that to constitute an abandonment the acts relied upon must be positive, unequivocal, and inconsistent with the existence of a contract. People v. Bristow (1980), 80 Ill. App. 3d 535, 400 N.E.2d 511.

The facts of the instant case are clearly distinguishable from the facts in Hayes. Artful Dodger exercised the option to purchase on June 27, 1987, and rescinded on July 16, 1987. However, four days later, Artful Dodger retracted its notice of rescission. Further, Artful Dodger filed a lawsuit for specific performance less than one month after Koch’s refusal to sell the property. While Koch argues the rent payments were evidence of Artful Dodger’s abandonment of the contract, Artful Dodger claims that it paid rent to mitigate its damages. It should also be noted that rider A specified that at the time the option was exercised, the lessee was required to be in possession of the premises and not in default under the terms of the lease. We cannot conclude from this set of circumstances, or from Artful Dodger’s course of conduct, that an abandonment of the sales contract is clearly evidenced.

Koch also argues that Artful Dodger is not entitled to specific performance because it did not prove that it had sufficient assets to purchase the property and, therefore, that it was ready, willing, and able to perform its contractual obligations. Koch cites Lasher v. Loeffler (1901), 190 Ill. 150, 60 N.E. 85, for this proposition. The court in Lasher stated:

“A party demanding that a court of chancery shall exercise its jurisdiction to enforce the specific performance of a contract must show he has himself always been ready, willing and eager to perform the contract on his part, and he cannot have a decree for specific performance if it is made to appear he has consented to a rescission of the contract or has abandoned it.” (Lasher, 190 Ill. at 155, 60 N.E. at 86.)

As we have already discussed, Artful Dodger did not consent to abandon the contract. Moreover, Lasher does not state that a purchaser must show he was ready, willing, and able to perform the contract by proving he had sufficient assets to purchase the property. The acceptance of an option contract is valid when the parties meet all of the terms of the option. (Seaberg v. American National Bank & Trust Co. (1976), 35 Ill. App. 3d 1065, 342 N.E.2d 751.) Artful Dodger met all of the terms specified in the option contract and Koch has not argued to the contrary. Thus, for all of the aforementioned reasons, we believe the trial court properly granted specific performance.

On cross-appeal, Artful Dodger contends the trial court erred in denying its motion for replevin of all rents which Koch wrongfully collected from Artful Dodger and all of the other tenants since July 1987 through the present time. Artful Dodger argues that it paid the rent from July 1987 through the present to mitigate any possible damages and Koch should not be entitled to rent monies from other tenants during the period of time when Artful Dodger should have been the owner of the building. Koch alleges that since Artful Dodger voluntarily made the rent payments and was under no compulsion to do so, Artful Dodger’s motion was properly denied.

An option, when accepted and exercised according to its terms, becomes a present contract for the sale of the premises. (Welsh v. Jakstas (1948), 401 Ill. 288, 82 N.E.2d 53.) Upon exercise of the option, the former relationship of lessor and lessee terminates and the parties occupy the relationship of vendor and vendee. (Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 89 N.E.2d 392.) Thereafter, the land is regarded, in equity, as the property of the vendee subject to the rights of the vendor under the contract, and the lessor is not entitled to rent thereafter unless the lease expressly so provides. Cities Service Oil, 404 Ill. at 554-55.

Based upon equitable principles of law, the objective is to put the parties in the position they would have been had the contract been properly executed. If the closing had occurred in August 1987, as was intended trader the terms of the contract, Artful Dodger, as owner of the property, would have been entitled to all rent payments from the tenants and would not have paying rent to Koch. On the other hand, Artful Dodger would have been obligated for all expenses attendant to the ownership and operation of the premises and Koch would have been receiving interest on the purchase monies he would have received from Artful Dodger.

We therefore find, based upon equitable principles of law, that Artful Dodger is entitled to an accounting and replevin of any monies owed it resulting from the parties’ failure to execute their contract in August 1987. We accordingly remand to the trial court for an accounting consistent with this opinion.

Affirmed in part; reversed and remanded in part.

LINN and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—0260
    Opinion filed June 12,1992.
    James P. Daley, Ronald J. Cuchna, Stuart F. Gassner, and Robert T. Opal, all of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (James E. Weging, Special Assistant Attorney General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

The circuit court of Cook County, in an action for administrative review (111. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), affirmed a series of orders by the defendant Illinois Commerce Commission (the Commission), dismissing plaintiff Chicago and North Western Transportation Company’s (CNW’s) petition for apportionment of the cost of the removal of five abandoned railroad bridges. This appeal followed. For the reasons set forth below, we affirm.

The facts are not in dispute. In 1985, CNW abandoned a 2.6-mile rail line running through Evanston and Skokie, Illinois. The line included seven bridges. Five of these bridges were removed by CNW on its own initiative in late 1985 and early 1986 as part of the dismantling of the line. Two bridges remained, one spanning Green Bay Road and one spanning McCormick Boulevard. CNW did not remove these bridges because it did not believe it owned them.

In January 1987, defendant Illinois Department of Transportation (IDOT) filed two related petitions with the Commission. The first, Commission docket number 87 — 0003, requested a Commission order directing removal of the Green Bay Road bridge and apportioning the costs of removal. The second, Commission docket number 87 — 0008, requested similar relief as to the McCormick Boulevard bridge.

On February 26, 1987, CNW filed a cross-petition in docket number 87 — 0003, requesting the Commission to apportion costs for the removal of the five bridges previously removed by CNW. The cost of removal was alleged to be $245,000. CNW’s cross-petition was dismissed in an “interim order” issued by the Commission on April 15, 1987.

In its “interim order” on docket number 87 — 0003, the Commission first set forth the relevant statute. (Ill. Rev. Stat. 1987, ch. 95V2, par. 18c — 7401(7).) The statute provides, in its entirety:

“(7) Abandoned Bridges, Crossing, and Other Rail Plant. The Commission shall have authority, after notice and hearing, to order:
(a) The removal of any abandoned railroad tracks from roads, streets or other thoroughfares in this State; and
(b) The removal of abandoned overhead railroad structures crossing highways, waterways, or railroads.
The Commission may equitably apportion the cost of such actions between the rail carrier or carriers, public utilities, and the State, county, municipality, township, road district, or other public authority in interest.” (Ill. Rev. Stat. 1987, ch. 95^2, par. 18c — 7401(7).)

After quoting the statute, the Commission went on to say:

“The Commission is of the opinion that that Section of the Law provides for apportionment of costs only in the instance where the Commission has held hearings and entered an Order for the removal of said structure. To find otherwise, the Cross-Petition could subject parties to the Commission’s jurisdiction as to monetary payment after the action resulting in such costs has already been taken without hearing allowing such parties to participate, and without notice that such action might subsequently result in those parties bearing the costs of such action.”

It also found that “it would be improper without notice and hearing, in violation of the due process to which the parties are entitled, to order retroactive apportionment of costs for the removal of said bridges.”

In a final order on docket number 87 — 0003, entered November 24, 1987, the Commission refused to direct the removal of the Green Bay Road bridge, finding insufficient evidence to show that removal of the bridge was in the public interest, and ordered that if either IDOT or CNW ordered the removal of the bridge, the removing party should bear 100% of the cost of removal. The final order also “reconfirmed” the “interim order” dismissing CNW’s cross-petition. In its final order, the Commission stated:

“The Commission is of the opinion that the Interim Order entered on April 15, 1987, was correct and the imposition of costs for the removal of the other five bridges without notice or hearing prior to the removal of the bridges would violate IDOT’s due process and no such offset or payment would be proper.”

Regarding the McCormick Boulevard bridge (docket number 87— 0008), the Commission issued an “interim order” directing the removal of the bridge, and left the apportionment of costs for determination at a later date. In its final order, the Commission apportioned the costs of removal 50% to IDOT and 50% to CNW.

CNW filed a motion for rehearing on docket number 87 — 0003 before the Commission, contesting the dismissal of its cross-petition for apportionment of costs. The motion was denied. CNW then brought an action for administrative review in the circuit court. The circuit court affirmed the Commission’s orders, and this appeal followed.

Opinion

On review, we may reverse an administrative agency’s decision only if it is factually against the manifest weight of the evidence or if it is legally erroneous. (Falato v. Teachers’ Retirement Systems (1991), 209 Ill. App. 3d 419, 423, 568 N.E.2d 233.) As noted above, the facts of this case are not in dispute. The single issue before us on appeal is whether the Commission’s dismissal of CNW’s cross-petition was contrary to section 18c — 7401(7) of the Illinois Commercial Transportation Law. Ill. Rev. Stat. 1987, ch. 95V2, par. 18c — 7401(7).

CNW contends that the Commission dismissed its cross-petition solely because the Commission was of the erroneous belief that to do otherwise would have been a violation of constitutional due process. CNW argues that there is no valid due process concern in apportioning removal costs for bridges removed without a prior Commission order, and as a result we should remand this matter to the Commission for a hearing on the merits. On appeal the Commission apparently concedes this point as well, as it makes no argument to the contrary. We agree that so long as the parties have notice and an opportunity to be heard prior to any order of apportionment, allowing apportionment for the voluntary removal of abandoned tracks or other structures would not violate due process. (See People ex rel. Pennsylvania R.R. Co. v. Illinois Commerce Comm’n (1968), 40 Ill. 2d 58, 61, 237 N.E.2d 514 (“demands of due process do not require a hearing, at the initial state or at any particular point or at more than one point in the proceeding so long as the requisite hearing is held before the final order becomes effective”).) However, we disagree with CNW that remandment is required.

The Commission contends that although “notice and hearing,” terms used by the Commission in its decisions, are traditional constitutional due process concerns, they are also requirements of the statute, which provides that the Commission’s authority requires “notice and hearing.” It is the Commission’s position that the orders were based not on constitutional analysis but rather were the result of the Commission’s interpretation of the statute. Consequently, the Commission urges, its construction of the statute is entitled to deference upon review.

We agree with the Commission that deference should be given to the statutory construction by the agency. Upon review, the construction of a statute by the agency charged with its administration and enforcement is entitled to “substantial weight and deference.” (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152, 447 N.E.2d 295.) Although we are not bound by an agency’s statutory interpretation which is based upon a clearly erroneous premise (Dunaway v. Department of Labor (1982), 109 Ill. App. 3d 63, 68, 440 N.E.2d 231, rev’d on other grounds (1984), 99 Ill. 2d 417, 459 N.E.2d 1332), we must otherwise give “great weight” to the agency’s construction in our own construction of the statute. Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235, 247, 520 N.E.2d 46 (court not “formally bound” by agency’s interpretation, but must give “great weight” to that interpretation in its own construction). See also Farmers State Bank v. Department of Employment Security (1991), 216 Ill. App. 3d 633, 640, 576 N.E.2d 532 (court should “accord substantial weight and deference to the interpretation of a statute which the agency administers and enforces”); Castillo v. Jackson (1990), 207 Ill. App. 3d 799, 803, 566 N.E.2d 404 (court must give “substantial weight and deference” to agency’s interpretation).

We further question whether the later use of the term “due process” in the Commission’s findings compels the conclusion that the Commission’s results were predicated upon the premise of constitutional compulsion which has been shown to be erroneous. (People ex rel. Pennsylvania R.R. Co. v. Illinois Commerce Comm’n, 40 Ill. 2d 58, 237 N.E.2d 514.) We observe that in the “interim order,” the Commission’s references to notice and hearing immediately follow its reference to the statute. Although later in the interim order and in the final order the term “due process” was used, it is by no means clear that a constitutional reference was what was intended, given that earlier in the interim order the Commission appears to be speaking to the requirements of the statute rather than in a constitutional sense.

Our disposition of this case, however, does not depend on whether the Commission was referring to constitutional due process or the requirements of the statute, since our own construction of the statute would also require that CNW’s cross-petition be dismissed.

A statute must be read as a whole, and each provision construed with every other provision in determining the intent of the legislature. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318, 547 N.E.2d 437; I.F. v. Department of Children & Family Services (1986), 146 Ill. App. 3d 68, 71, 496 N.E.2d 1162; Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n, 165 Ill. App. 3d at 247.) CNW argues that proper construction of the statute does not require that the Commission order removal of a bridge in order to apportion removal costs. Under CNW’s construction, the statute provides two separate and independent grants of authority to the Commission: the authority to order removal of the listed structures, and the authority to apportion costs. It is CNW’s position that the plural “actions” in the second sentence of the statute dealing with apportionment must refer to the bare act of removal of the two types of structures listed in the first sentence: abandoned railroad tracks (subsection (a)), and abandoned overhead rail structures (subsection (b)). Thus, CNW reasons, the power to apportion in the second sentence arises from the actual removal work, not from the fact that the Commission ordered the removal, and an order for removal is not required before the Commission may apportion costs.

CNW’s proposed construction fails to consider the statute as a whole. When read in its entirety, it becomes apparent that “such actions” refers to removals made pursuant to a Commission order. To argue, as CNW does, that the plural “actions” in the second sentence refers to the bare acts of removal of the two types of structures in subsections (a) and (b) is to read the second sentence in isolation from the first. Construction of the two sentences in conjunction with each other fully supports the Commission’s conclusion that apportionment requires a prior order of removal for which the statute requires notice and hearing.

This construction is most consistent with the overall pattern of the statute which gives the Commission authority to order removal in the first instance. Although the railroad need not obtain Commission permission to remove an abandoned structure once it has received abandonment authority from the applicable agency (here the Interstate Commerce Commission) (Illinois Commerce Comm’n v. Interstate Commerce Comm’n (D.C. Cir. 1989), 879 F.2d 917), it is clear that the right to obtain apportionment of the costs of removal through Commission order flows from and is a consequence of the language of section 18c — 7401(7), which grants the Commission power to order the removal in the first instance.

This result is also consistent with the approach taken by the Commission in construing other sections of the statute. The Commission noted in its final order in docket number 87 — 0003 that although subsection 18c — 7401(7) is a new power under the 1986 Illinois Commercial Transportation Law, its language is virtually identical to that in subsection 18c — 7401(3), which deals with construction and alteration of grade crossings. (Ill. Rev. Stat. 1989, ch. 95x/2, par. 18c — 7401(3).) Thus, earlier interpretations of section 62 (Ill. Rev. Stat. 1983, ch. lll2/3, par. 62), the predecessor to section 18c — 7401(3), would be enlightening in interpreting section 18c — 7401(7). Under section 18c— 7401(3), the Commission cannot apportion costs without first approving and directing the work to be done. “[P]ower to apportion the expense of eliminating a grade crossing [is] inseparable from the power to determine its necessity and manner of accomplishment.” (City of Chicago v. Chicago & North Western Ry. Co. (1955), 4 Ill. 2d 307, 312, 122 N.E.2d 553, citing City of Chicago v. Illinois Commerce Comm’n (1934), 356 Ill. 501, 190 N.E.2d 896.) Our interpretation of section 18c — 7401(7) is in conformity with this position.

We are not persuaded by CNW’s attempt to distinguish section 18c — 7401(3) from section 18c — 7401(7) by the fact that section 18c— 7401(3) contains an express requirement that Commission authority be obtained before grade crossings can be constructed or altered, and section 18c — 7401(7) contains no such express requirement regarding removal of abandoned structures. No one is arguing that CNW did not have the right to remove its abandoned bridges, or that a Commission order was required prior to removal. Nevertheless, the pattern still remains that the agency first orders removal, and then apportionment may follow.

We note that this approach is consistent with the procedure used by the Commission in the McCormick Boulevard bridge matter (docket number 87 — 0008). There the Commission in an interim order directed the removal of the McCormick Boulevard bridge, reserving the question of apportionment of costs for determination at a later date. Although the Commission did not require that apportionment be determined simultaneously, it did act to order removal first so that the order of removal would precede any further act of apportionment. There is nothing in the statute that mandates that apportionment be decided at the same time removal is ordered, yet the action taken regarding the McCormick Boulevard bridge shows the relationship between the two actions: an order of removal must precede an order of apportionment of costs.

CNW urges that we should remand this matter to allow the Commission to set forth in greater detail its reasons for its ruling, arguing that without such detail we cannot “intelligently review” the Commission’s decision. In support, CNW directs our attention to Cerro Copper Products v. Illinois Commerce Comm’n (1980), 83 Ill. 2d 364, 369-70, 415 N.E.2d 345, and Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm’n (1988), 175 Ill. App. 3d 39, 48-49, 529 N.E.2d 671. Those cases dealt with the necessity for an agency to set out with specificity its findings of fact so that an intelligent review could be made. Such specificity is required due to the deference a reviewing court must give to such findings. (Cerro Copper Products, 83 Ill. 2d at 370 (“[o]ne reason for requiring specificity in the finding of facts is that reviewing courts are not permitted to conduct a de novo review”).) Here, however, the question is not one of reviewing factual findings by the Commission, but rather one of statutory interpretation. Inasmuch as an agency’s determinations of law are not accorded as great a degree of deference as are its findings of fact (Dunaway v. Department of Labor, 109 Ill. App. 3d at 68 (“We are not bound to give the same deference to an administrative agency’s construction of a statute that we give to its findings of fact”)), the same degree of specificity should not be required. Moreover, here our ultimate result based upon our own independent analysis is in accord with the ultimate determination of the agency. Accordingly, we do not find any need for reversal and remandment to elicit a clearer exposition by the Commission of its statutory interpretation.

Accordingly, for all the above reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNULTY, P.J., and LORENZ, J., concur.


text:
    ERNESTO PARRA, JR., Special Adm’r of the Estate of Ernesto Parra, Deceased, Plaintiff-Appellant, v. TARASCO, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—3427
    Opinion filed June 12,1992.
    Rehearing denied July 10,1992.

      Hardiman & Hardiman, P.C., of Chicago, for appellant.
    Brody, Gore, Fineberg & Wikoff, Ltd., of Chicago, for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff Ernesto Parra, Jr., special administrator of the estate of Ernesto Parra, decedent, filed a wrongful death action against defendants Tarasco, Inc., and unknown owners, d/b/a Jiminez Restaurant, alleging that decedent died when he choked on a piece of food in defendant’s restaurant. The trial court dismissed the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), on the basis that defendant owed decedent no duty under the common law or the Choke-Saving Methods Act (Ill. Rev. Stat. 1989, ch. SO1^, par. 601 et seq.).

The complaint, filed March 2, 1990, alleges that on March 4, 1989, decedent was a customer at defendant’s restaurant, and that defendant owed decedent “the duty of exercising ordinary care in the ownership and operation of said restaurant.” The complaint states that, “while eating his meal ***, food became lodged in the plaintiff decedent’s throat and [he] was unable to breathe.”

The complaint alleges that defendant was negligent in that defendant failed to post in a “conspicuous location that was visible to patrons and employees *** instructions concerning first aid assistance to choking persons in violation of Illinois Revised Statute.” Furthermore, defendant failed to instruct its employees in first aid; failed to promptly summon emergency medical personnel; and failed to assist decedent when he was choking.

On June 25, 1990, defendant filed a motion to dismiss. On November 2, 1990, the trial court granted that motion, dismissing the complaint with prejudice.

OPINION

On appeal, plaintiff contends that the court erred in dismissing his complaint. In the complaint, plaintiff alleges that defendant owed decedent “the duty of exercising ordinary care in the ownership and operation of said restaurant.” The common law recognizes no general duty to aid a person in peril. “[A] mere bystander incurs no liability where he fails to take any action, however negligently or even intentionally, to rescue another in distress.” Traudt v. City of Chicago (1968), 98 Ill. App. 2d 417, 424, 240 N.E.2d 188.

A duty may exist, however, where some special relationship exists between the parties. (Garrett v. Grant School District No. 121 (1985), 139 Ill. App. 3d 569, 487 N.E.2d 699; W. Keeton, Prosser & Keeton on Torts §56, at 373-77 (5th ed. 1984); Restatement (Second) of Torts, §314A (1965).) Courts have recognized a relationship between an invitee on premises open to the public and the possessor of the premises such that it creates such a duty. (See, e.g., Lindsey v. Miami Development Corp. (Tenn. 1985), 689 S.W.2d 856 (and cases cited therein).) The duty to render aid in such cases is a duty to use reasonable care under the circumstances. Lindsey v. Miami Development Corp., 689 S.W.2d 856; Coccarello v. Round Table of Coral Gables, Inc. (Fla. App. 1982), 421 So. 2d 194 (per curiam); W. Keeton, Prosser & Keeton on Torts §56, at 382 (5th ed. 1984).

The parties have cited no Illinois cases, nor are we aware of any, which impose a duty on a restaurateur to rescue a customer from a danger which was not caused in the first instance by the restaurateur. It differs substantially from premises liability cases involving patrons injured in restaurants, or tort cases where a restaurant patron suffers injuries due to foreign substances in the food, or food poisoning. Instead, in a case such as the present one, where a restaurant patron chokes on food, the cause of the injury is wholly idiopathic, i.e., it is of an internal, personal origin.

A restaurant is not like a public swimming pool where lifeguards are posted in anticipation of a patron’s drowning, i.e., his suffering an injury directly related to swimming — the purpose of the existence of the swimming pool. See, e.g., Decatur Amusement Park Co. v. Porter (1907), 137 Ill. App. 448, 452 (owner of lakeside resort liable for failure to take precautions to prevent guest from drowning; duty to “guard against those accidents which common knowledge and experience teach are liable to befall those engaging in the sport which appellant had invited the public to participate in”).

In contrast, at common law restaurants have never been required to post trained guards in anticipation of a patron’s choking, i.e., his suffering an injury directly related to eating — the purpose of the existence of the restaurant. As a general rule, a restaurateur is not an insurer of his customers’ safety against all personal injuries. (See generally, 65 C.J.S. Negligence §63(131), at 909-12 (1966).) He has no duty as to “conditions or risks which are ordinary and are, or should be, known or obvious to the patrons.” 65 C.J.S. Negligence §63(131), at 911 (1966).

Even if we were to find a common law duty existed, however, the Illinois legislature has enacted a statute providing that no liability exists for either attempting to help, or failing to help, a choking person in a restaurant. Section 5 of the Illinois Choke-Saving Methods Act provides as follows:

“Except as provided by law, no person shall be obligated to remove, assist in removing, or attempt to remove, food from another person’s throat, nor shall any person who in good faith removes or attempts to remove such food in an emergency occurring at a food-service establishment be liable for any civil damages as a result of any acts or omissions by such person in rendering such emergency assistance.” Ill. Rev. Stat. 1989, ch. 561/2, par. 605.

Here, we agree with the trial court that the language of the statute is clear that the defendant restaurant cannot be held liable for civil damages as a result of failing to “assist in removing” food from decedent’s throat.

Plaintiff, however, points to defendant’s alleged failure to comply with section 4 of the Act, which requires that every restaurant “shall have posted in a conspicuous location that is visible to patrons and employees on the premises, but which location need not be in the actual dining areas, instructions concerning at least one method of first aid assistance to choking persons.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 604.) Under the Choke-Saving Methods Act, participation in first aid training programs is only “on a voluntary basis by food service establishments to train employees in the first-aid procedures approved” under the Act. Ill. Rev. Stat. 1989, ch. 56V2, par. 603.2.

Of the States which have a statute similar to the Illinois Choke-Saving Methods Act, only Indiana ties civil damages directly to the failure to post first aid instructions. See Ind. Code §§16 — 1—41—3 (requires posting sign; no location specified), 16 — 1—41—5 (restaurant not liable for civil damages “if there is an approved placard posted”) (1991).

In California, Arkansas and Ohio statutes requiring the posting of first aid instructions for use in removing food lodged in a person’s throat, it is expressly stated that failure to post the instructions shall not subject the restaurant to civil liability. See Cal. Health & Safety Code §28689 (West 1991); Ark. Code Ann. §20-57-207(d) (Michie 1991); Ohio Rev. Code Ann. §3732.09(D) (Anderson 1991) (failure “to post instructions *** shall not subject such food service operation *** to any criminal penalty or to civil liability”).

Other statutes, like Illinois, Kentucky, Rhode Island, and Texas, require the posting of a sign, but make no reference to civil liability for failure to post the instructions. See Ky. Rev. Stat. Ann. §217.285 (Baldwin 1991) (restaurant must post instructions “in a location conspicuous to employees”; no reference to civil liability or criminal penalty tied to failure to post sign); R.I. Gen. Laws §§23 — 20.5—2(a) (must post instructions “in conspicuous locations”), 23 — 20.5—3 (violation of posting requirement is a misdemeanor punishable by a fine not more than $50) (1991); Tex. Code Ann. §438.051 (West 1991) (must post instructions “in a place conspicuous to employees or customers”). See also Mass. Gen. L. ch. 94, §305D (1991) (restaurant must have “device” to remove food or employee trained in manual procedures and insurance to cover those employees; no reference to posting of instructions).

Plaintiff, however, maintains that a private cause of action is implied under the Illinois statute, notwithstanding the absence of any reference to civil liability by the legislature. Even where the “legislature may have as [its] purpose the protection of a substantial segment of the public, [that] fact alone does not imply that the legislature intended to create a private cause of action for breach of the statute.” (Rhodes v. Mill Race Inn, Inc. (1984), 126 Ill. App. 3d 1024, 1027, 467 N.E.2d 915, citing Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 103-04, 395 N.E.2d 541; Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, 5, 359 N.E.2d 473.) Although the courts will imply a private cause of action where there is a clear need to effectuate the purpose of an act (see, e.g., Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849), “the judiciary by implying causes of action is assuming policy-making authority, a power more properly exercised by the legislature. The court should exercise such authority with due caution.” Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 606, 480 N.E.2d 1176.

A private cause of action is found to exist under a statute where: (1) the plaintiff falls within the class of persons the statute is designed to benefit; (2) the plaintiff’s injury is one the statute is intended to prevent; (3) implying the cause of action is consistent with the underlying purpose of the statute; and (4) implying a private cause of action is necessary to effectuate the purpose of the statute, i.e., a civil remedy is needed. Board of Education v. A, C & S, Inc. (1989), 181 Ill. 2d 428, 470, 546 N.E.2d 580; Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 432 N.E.2d 849; Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 484 N.E.2d 473.

Plaintiff’s decedent here falls within the class of persons the statute is designed to primarily benefit, and his injury (asphyxiation on food) is within the type of injury which the statute is designed to cover, since decedent was a customer in a food service establishment who had food become lodged in his throat. See Ill. Rev. Stat. 1989, ch. 56x/2, par. 601 et seq.

We find, however, that implying a private cause of action is not consistent with the underlying purpose of the statute. Like the purpose underlying Good Samaritan statutes (see, e.g., Ill. Rev. Stat. 1989, ch. 111, par. 4400 — 30), the purpose here is to induce voluntary aid of restaurant customers who are choking and require immediate care, within only a few minutes, by removing the rescuer’s fear of potential liability. (80th Ill. Gen. Assem., House Proceedings, March 16, 1977, at 28 (statements of Representative Capparelli) (stating that the Choke-Saving Methods Act is also covered by the Good Samaritan statute).) Under a similar statute in New York (N.Y. Pub. Health Law §1352 — b (McKinney 1990)), the purpose has been described as follows:

“It seems clear that the intent of the Legislature in enacting PHL §1352 — b was to save lives by encouraging use of the Heimlich Maneuver. As a matter of public policy, the statute is designed to further the public’s ability to render aid in cases of a choking emergency without imposing the economic burden of such aid on the restaurant owners, or other persons attempting to render aid.” (Acosta v. Fuentes (1991), 150 Misc. 2d 1013, _, 571 N.Y.S.2d 666, 667.)

We believe that to impose civil liability for not posting the sign would undermine the Act's purpose of encouraging voluntary aid by removing the fear of potential liability. Thus, we find that a private cause of action would not be necessary to effectuate the purpose of the statute. The statute’s purpose is best accomplished through the establishment of a business offense (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 1—2), i.e., the monetary penalty which is set forth in section 6: “Any person who violates section 4 of this Act is guilty of a business offense and shall be fined $500.” Ill. Rev. Stat. 1989, ch. 56x/2, par. 606.

In determining whether there is a need for a civil remedy, one factor to be considered is whether there is a criminal penalty. (Lane v. Fabert (1989), 178 Ill. App. 3d 698, 702-03, 533 N.E.2d 546; Lehmann v. Arnold, 137 Ill. App. 3d 412, 484 N.E.2d 473.) However, “the fact that the Act provides only a criminal penalty for its violation does not end the inquiry into whether a civil action is barred.” Rhodes v. Mill Race Inn, Inc. , 126 Ill. App. 3d at 1026, citing Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 155, 128 N.E.2d 691, and Burton v. McClellan (1840), 3 Ill. (2 Scam.) 434, 437.

Furthermore, the size of the fine ($500), compared to the benefit to be gained from the posting of the sign, does not indicate a private cause of action is needed. Cf. Lehmann v. Arnold, 137 Ill. App. 3d 412, 484 N.E.2d 473 (large size of real estate transactions compared to $200 fine indicates a private cause of action is needed as incentive for compliance with statute which requires the recording of plats near water so that buyers will know about easily flooded land); Lane v. Fabert, 178 Ill. App. 3d 698, 533 N.E.2d 546 (statute limits interest charge on pawnbrokers’ loans to 3%; court holds that small size of pawnbrokers’ usual transactions compared to $500 to $1,000 fines indicates no private cause of action is needed because penalty is already substantial).

Here, unlike other cases, it is not logical that some restaurant owners “would risk the threat of criminal sanction in order to escape their responsibility under the Act.” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 185, 384 N.E.2d 353 (court found it conceivable that some employers would risk criminal penalty under Worker’s Compensation Act and fire its employees in retaliation for filing worker’s compensation claims).) It is unlikely that a restaurateur would prefer to pay the $500 criminal penalty rather than post a single sign depicting the Heimlich Maneuver. The sign need not even be posted in the dining room, and thus the requirement offers little or no interference with the management of the restaurant. See 80th Ill. Gen. Assem., House Proceedings, March 16, 1977, at 29 (Statements of Representative Capparelli) (indicating amendment was included to ensure that restaurants could choose the “conspicuous” location, even posting the sign in bathrooms); 80th Ill. Gen. Assem., Senate Proceedings, May 31, 1977, at 16, (statements of Senator Egan) (stating that the sign need not be posted “in the actual dining area, so as to preserve any particular decor that a restaurant might have”).

Other methods attempting to address the statute’s posting requirement would be extremely difficult to enforce. Moreover, any private recovery would be difficult to establish as to the pleading prerequisites, since it would in most instances be difficult to prove the necessary causal relationship between failure to post the sign and the ultimate injury-

Even if it were possible to state a private cause of action for failure to post the sign, and to establish the necessary causal relationship, plaintiff here failed to adequately aHege that failure to post the sign was the proximate cause of decedent’s death. The violation of a statute or ordinance designed for the protection of human life or property can be prima facie evidence of negligence, but the injury must have a direct and proximate connection with the violation. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738; Dini v. Naiditch (1960), 20 Ill. 2d 406, 417-18, 170 N.E.2d 881; Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 249, 236 N.E.2d 576.) Plaintiff must include sufficient factual allegations that such violation was the proximate cause of his injuries. (See Dini v. Naiditch, 20 Ill. 2d at 417-18; Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 56, 583 N.E.2d 561; Horcher v. Guerin, 94 Ill. App. 2d at 249-50; Schwartz v. City of Chicago (1965), 63 Ill. App. 2d 416, 422, 211 N.E.2d 477.) It is not sufficient to merely plead conclusions. Munizza v. City of Chicago, 222 Ill. App. 3d at 56 (complaint fails to allege sufficient facts to show that defendants’ violation of ordinances was the cause of plaintiffs’ injuries; complaint properly dismissed for failure to state private cause of action). See also Horcher v. Guerin, 94 Ill. App. 2d at 248-50 (complaint merely alleges conclusion that violation of building code (inoperative windows) was proximate cause of injury from fire; however, nothing indicates causal connection between inoperative windows and actual injury of plaintiff).

In order to state a cause of action, plaintiff must allege the ultimate facts which give rise to the cause of action, and liberality of pleading will not relieve plaintiff of the requirement that the complaint contain sufficient, factual averments and set out every fact essential to be proved. In re Beatty (1987), 118 Ill. 2d 489, 499, 517 N.E.2d 1065.

In determining whether proximate cause has been sufficiently set forth, it is important to “distinguish the causal connection between what the defendant did and the plaintiff’s injury from the connection between the plaintiff’s injury and the class of injuries from which the statute was intended to afford protection [choking to death].” (2B N. Singer, Sutherland on Statutory Construction §55.05, at 287-88 (5th ed. 1992).) While clearly decedent’s choking to death is precisely the class of injury for which the statute intends to afford protection, the necessary causal connection here runs between what defendant allegedly did — failure to post the sign — and plaintiff’s injury — choking to death on his food.

The complaint here merely alleges that defendant:

“5.a. failed to post in a conspicuous location that was visible to patrons and employees in the premises instructions concerning first aid assistance to choking persons in violation of Illinois Revised Statute;
b. failed to instruct their employees in first aid assistance to choking persons;
c. failed to assist the plaintiff decedent who was choking after failing to post in a conspicuous place instructions concerning first aid assistance to choking persons.
6. That as a direct and proximate result of the aforesaid negligent acts or omissions of the defendants, the plaintiff decedent *** suffered personal injuries and died on March 18,1989.”

This broad, conclusory language fails to provide the necessary factual allegations which would establish a causal relationship between not posting the sign and decedent’s death. There is no allegation, for example, that anyone tried to perform the Heimlich Maneuver but performed it incorrectly because the sign was not posted, or failed to undertake such an attempt because of a failure to post the sign.

Plaintiff additionally alleges in the complaint that defendant “failed to promptly summon emergency medical personnel.” The statute only provides there is no duty to assist the customer “in removing, or attemptpng] to remove, food from another person’s throat.” (111. Rev. Stat. 1989, ch. 56V2, par. 605.) It does not provide that a restaurant operator has no duty to assist in any way, such as by calling for an ambulance.

As noted earlier, no cases in Illinois have been cited to establish any such affirmative duty by a restaurateur to his patrons. However, the Restatement (Second) of Torts §314A, Comment /, does impose a minimal duty upon a possessor of land who holds it open to the public to simply take steps to obtain medical care:

“f. The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give as much first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.” (Restatement (Second) of Torts §314A, Comment/, at 120 (1965).)

Prosser and Keeton treat the issue similarly:

“Where the duty to rescue is required, it is agreed that it calls for nothing more than reasonable care under the circumstances. The defendant is not liable when he neither knows nor should know of the unreasonable risk, nor of the illness or injury. He is not required to give aid to one whom he has no reason to know to be ill. He will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick person over to a doctor or to those who will look after him until one can be brought.” W. Keeton, Prosser & Keeton on Torts §56, at 377 (5th ed. 1984).

While Illinois has no reported cases under the Choke-Saving Methods Act, courts in several other jurisdictions, construing either a similar statute or the common law, have found that, while there is no duty to render first aid, the restaurant personnel must summon medical assistance within a reasonable amount of time.

For example, California has a statute similar to that in Illinois, providing that there is “no obligation on any person to remove, assist in removing, or attempt to remove food which has become stuck in another person’s throat.” (Cal. Health & Safety Code §28689 (West 1991).) The California Appellate Court defined the extent of the proprietor’s duty under the statute when it held that “this statute establishes as a matter of law that a restaurant meets its legal duty to a patron in distress when it summons medical assistance "within a reasonable time.” Breaux v. Gino’s, Inc. (1984), 153 Cal. App. 3d 379, 382, 200 Cal. Rptr. 260, 262 (summary judgment for restaurant affirmed, where complaint alleged that decedent/customer choked on food and assistant manager of restaurant called for ambulance as soon as he became aware that decedent was in distress, but that no one attempted to give first aid to decedent).

Thus, “the business proprietor is not a stranger who can stand idly by, refuse to provide assistance that is available, and let his customer die.” (Drew v. LeJay’s Sportmen’s Cafe, Inc. (Wyo. 1991), 806 P.2d 301, 307 (Cardine, J., dissenting), citing Restatement (Second) of Torts §314A (1965).) See also Acosta v. Fuentes, 150 Misc. 2d 1013, 571 N.Y.S.2d 666 (upholding summary judgment for defendant/restaurant where defendant’s employees had called “911”); Drew v. LeJay’s Sportsmen’s Cafe, Inc. (Wyo. 1991), 806 P.2d 301, 305 (restaurant owner’s common law duty to customer choking on food was only to make a “timely call for professional medical assistance”); Coccarello v. Round Table of Coral Gables, Inc., 421 So. 2d 194 (proprietor of a public place has a common law duty only to take reasonable action to give aid such as calling rescue squad after he knows that a patron is choking on food). But see City National Bank v. 4000 Restaurant, Inc. (Fla. App. 1979), 372 So. 2d 1146 (per curiam) (affirming dismissal of complaint alleging defendant restaurant failed to secure medical aid for customer choking on a piece of meat when defendant was placed on notice that she required medical aid) (with one judge dissenting). See generally Annot., Duty of Retail Establishment, or Its Employees, to Assist Patron Choking on Food, 2 A.L.R.5th 966 (1992).

Here, there is no factual allegation in the complaint which even hints at a causal connection between decedent’s death, and any action or inaction by defendant. In fact, there is no allegation that anyone in the restaurant had any knowledge that decedent was choking. There is no allegation that defendant’s employees had discovered decedent choking and refused to call, or delayed calling, for medical assistance. There is no allegation that, but for the failure of defendant to summon an ambulance, decedent would have lived. Cf. Acosta v. Fuentes, 150 Misc. 2d at _, 571 N.Y.S. at 669 (if the patron choking on his food was “already doomed to die” before the restaurant’s employees called an ambulance and moved him outside, then no causal connection has been shown between defendants’ action or inaction and decedent’s death).

We conclude that the trial court properly found that plaintiff’s allegations of negligence based on defendant’s failure to post a sign, or failure to secure or render first aid, did not state a cause of action.

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

Judgment affirmed.

McNULTY, P.J., and MURRAY, J., concur.