author: PRESIDING JUSTICE HEIPLE

text:
    AURELIA PESCETTO, Plaintiff-Appellee, v. COLONIAL TRUST & SAVINGS BANK et al., Defendants-Appellants.
    Third District
    No. 3—84—0337
    Opinion filed December 31, 1984.
    James A. McPhedren, of Anthony C. Raccuglia & Associates, of Peru, of appellants.
    John Olivero and William LaSorella, both of Peru, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Defendant Colonial Trust & Savings Bank (the bank) appeals from a judgment in favor of plaintiff Aurelia Pescetto in the amount of $10,721.93 on count I of her complaint. The trial court certified this interlocutory appeal pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

Aurelia Pescetto and her late husband, Battist, had a joint tenancy savings account with the bank. During his lifetime, Battist took out certain loans with the bank. As security for these loans, Battist pledged the account in question. Aurelia was unaware of her husband’s use of the account in this manner. The bank, finding Battist’s loans to be in default after his death, enforced its security interest by charging the loans against the account. Aurelia, as surviving joint tenant, brought the instant action to establish her rights to the funds free of any claims by the bank. Her motion for summary judgment was granted by the circuit court of La Salle County. The trial court based its ruling on cases holding that the mortgage by one joint tenant of his interest in real property held in joint tenancy does not encumber the interest taken by the surviving joint tenant. See, e.g., Harms v. Sprague (1983), 119 Ill. App. 3d 503, 456 N.E.2d 976, aff’d (1984), 105 Ill. 2d 215.

We disagree with the analogy. The common law of real property cannot govern the outcome here. The only similarity between a joint tenancy in real property and a joint tenancy bank account is the right of survivorship. With a joint tenancy in real property, the ability to convey one’s interest is limited to an “equal, aliquot share of joint property.” (People v. Varel (1933), 351 Ill. 96, 101, 184 N.E. 209.) One of the two joint tenants may not convey as his own, to the exclusion of the other, the subject matter of the joint tenancy except by survivorship. David v. Ridgely-Farmers Safe Deposit Co. (1950), 342 Ill. App. 96, 95 N.E.2d 725.

The bank account, however, stands on a different footing. It is governed by contract. (Menicocci v. Archer National Bank (1978), 67 Ill. App. 3d 388, 385 N.E.2d 63.) The contract in question here is the signature card agreement signed by the Pescettos. The portions of the agreement relevant to this case are as follows:

“You [the bank] are authorized to recognize any of the signatures subscribed below in the payment of funds or the transaction of any business for this account ***.”
“The undersigned, joint depositors, hereby agree with the other and with the bank, that all sums now on deposit *** are and shall be owned by them jointly, with rights of survivorship, and be subject to the order or receipt of either of them or the survivor of them and payment to or on the order of either or the survivor shall be valid and discharge said bank from liability.”

There can be no question that if Aurelia had joined Battist in pledging the account, the lien would survive the death of Battist. That is to say, a pledge by both joint tenants would be inarguably effectual. Thus, since the contract between the bank and the two joint tenants authorizes each tenant to deal unilaterally with the account, it is equally clear that the conduct of one joint tenant is sufficient to pledge the account as to both. In the case at hand, the pledge by Bat-tist was of the whole account — everything, both his interest and the interest of Aurelia. Since Battist had the authority to pledge Aurelia’s interest as well as his own interest in the account, the matter of his death is utterly of no moment. Battist did not pledge his interest subject to divestiture at his death. He pledged the whole account. The lien, therefore, survived his death. The bank was fully justified in applying the account thus pledged to the satisfaction of the delinquent loans.

Aurelia also argues that public policy supports her position. She claims that as against the bank, she is the more innocent party relative to her husband’s fiscal irresponsibility. There is also a hint of conspiracy, she alleges, in that Battist listed a post office box as his address so that she would be ignorant of his dealings. There is also a challenge to the outcome as upholding the creation of secret liens.

The innocent party appellation does not wear well. The marital estate of the Pescettos was benefitted, at least in theory, by the money borrowed from the bank. If the bank cannot satisfy its claims from the funds as pledged and cannot recoup the loans from Battist’s estate, a windfall would result in favor of Aurelia. As to a conspiracy to keep her in the dark, there is nothing in the record to indicate the bank’s awareness of anything of that nature. Apart from a special contractual agreement, which we do not have in this case, no requirement exists that both joint tenants of a bank account be informed of transactions affecting the account by a single joint tenant. As to the charge that the pledge created a secret lien, there is no statutory or other requirement that the internal pledge of a bank account by a depositor be noticed or publicly filed in any way.

Accordingly, the judgment of the circuit court is reversed and remanded with the direction that judgment be entered for the bank on count I of the complaint.

Reversed and remanded.

STOUDER and WOMBACHER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS D. HENDERSON, Defendant-Appellee.
    Fourth District
    No. 4—84—0256
    Opinion filed December 13, 1984.
    Rehearing denied January 29, 1985.
    Neil F. Hartigan, Attorney General, of Springfield (James V. Cinotto and Mark L. Rotert, Assistant Attorneys General, of counsel), for the People.
    John H. Bisbee, of Law Offices of. John H. Bisbee, of Macomb, for appel-lee.
   JUSTICE MILLS

delivered the opinion of the court:

This is an interlocutory appeal by the Attorney General, who asks us to overturn an order of the circuit court suppressing the contents of several tape recordings made pursuant to a one-party consent authorization.

We agree that the suppression was improvidently allowed.

We reverse and remand.

On September 29, 1983, a Pike County grand jury returned a two-count bill of indictment against defendant. Count I charged defendant with the unlawful delivery of cannabis in that on March 7, 1983, he knowingly and unlawfully delivered cannabis in the amount of more than 30 grams, but not more than 500 grams, in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56x/2, par. 705(d)). Count II charged that defendant unlawfully possessed cannabis in that on March 7, 1983, he knowingly and unlawfully had in his possession more than 30 grams, but not more than 500 grams, of a substance containing cannabis, in violation of section 4(d) of the Act (Ill. Rev. Stat. 1981, ch. 56V2, par. 704(d)).

The indictment was the result of an investigation begun in 1982 by William Rinehart, a special agent of the Illinois Division of Criminal Investigation (DCI). He was contacted by a person named Ron Dell. Dell told Rinehart that he had some information regarding John Lenerts and others which he wished to provide DCI in exchange for assistance in a prosecution which was proceeding against him in Adams County. As a result of the information given to DCI by Dell, a petition for an overhear was submitted on November 17, 1982. The period of the overhear was one day — November 17, 1982, from 1:30 p.m. to 11:59 p.m. Ron Dell was named as the consenting party, and a conversation between Dell and Lenerts was to be overheard.

On November 17, 1982, Dell and Lenerts met at the Ollie Pop Tavern in Quincy. They had a brief conversation which did not relate to a drug transaction. Dell mentioned defendant’s name as they talked in the tavern, but did not indicate that he was in any way connected with drugs. Lenerts then told Dell to go to another tavern, at which time he would meet him. Dell left and was later met by Lenerts. Lenerts told him that he had just found out from his source that he could get 10 pounds of marijuana the next day. Lenerts also told Dell that the marijuana which he was going to supply was locally grown in a three-county area. He also indicated that the source of the marijuana lived 45 minutes from his home in Golden.

The agents knew that defendant was present at Ollie Pop’s Tavern on the evening of November 17, 1982. They also knew that he lived in Pittsfield, which was a 45-minute drive from Lenerts’ home in Golden, and that he owned farm real estate which was available for growing marijuana.

On November 19, 1982, Lenerts delivered cannabis to Ron Dell at the Pittsfield airport. During subsequent conversations, Lenerts told Dell that he could get more marijuana and cocaine, but the opportunity to make any additional deliveries evaporated when Dell left the area and moved to Florida.

In February 1983, Lenerts, during a meeting with DCI agents Michael Ernst and William Rinehart in a parking lot in Clayton, was advised that he had been under surveillance. The purpose of this meeting was to interrogate Lenerts concerning the prior delivery of cannabis to Dell. During this meeting, Lenerts was told by the agents that they knew that he had made a delivery of cannabis to Ron Dell on November 19, 1982. He was also informed that Dell had been wearing a wireless microphone during their previous meetings.

Lenerts told the agents that he would be willing to cooperate with the DCI in exchange for consideration on the drug charge. The agents told him that if he would cooperate, they would recommend to the State’s Attorney that he not be prosecuted. Responding to further questions, Lenerts told the agents that he got the cannabis from Henderson. He described the delivery, including the fact that it was made at a law office maintained by the defendant, and that the marijuana was taken by the defendant from a large garbage bag apparently containing more cannabis and stored on the premises. He further stated that, to the best of his knowledge, attorney Henderson was not presently dealing in drugs because he had “cleaned up his act following a close call,” but he qualified the statement by saying that he was not sure of this fact.

Based upon this information, agents Ernst and Rinehart went to Anthony Cameron, the Adams County State’s Attorney. After hearing the information, Cameron advised the agents to seek further eavesdropping authority. He was told that the subject of further investigation would be the defendant, Thomas Henderson.

On March 4, 1983, Rinehart applied for an overhear in Adams County. The petition requested that Henderson be overheard, with Lenerts being a consenting party. The period of the overhear was from 12:01 a.m. March 7,1983, to 11:59 p.m. March 15,1983.

The petition which was presented to the court was accompanied by a two-page document detailing the transactions which led the agents to believe that Henderson was the source of Lenerts’ marijuana. The petition was presented to a judge who had been actively involved in the Dell-Lenerts transactions and was familiar with the facts of the investigation.

The agents indicated that there were two goals of the March 4 application. The first was to engage the defendant attorney in conversations concerning the 1982 delivery of marijuana from Lenerts to Dell. The second goal was to determine whether Henderson was still dealing drugs. The agents informed the issuing judge of both these goals.

In addition to the written matters submitted with the application, there was also oral discussion with the judge. Rinehart responded to the judge’s questions, and also volunteered other general background information based on his personal knowledge of defendant and his location in Pike County. Rinehart also summarized what happened on November 17,1982, when Lenerts and Dell met at Ollie Pop’s Tavern.

The judge, after hearing this information, authorized the overhear. During the period authorized, seven tapes were generated. A return was made on March 16, 1983, at which time Rinehart and the judge listened to all the tapes.

After being indicted, the defendant moved to suppress the contents of any recordings of conversations between Lenerts and himself, pursuant to section 108A — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 9). After a full hearing on defendant’s motion, the trial judge granted defendant’s motion to suppress the contents of the overhears. The court found that the reliability of the confidential informant, John Lenerts, was not established and therefore the petition failed to establish reasonable cause for issuing the original authorization.

(A written order to this effect was filed on April 11, 1984, nunc pro tunc March 14, 1984. The State filed notice of intent to seek interlocutory appeal on April 6, 1984, and a certificate of substantial impairment was filed April 19,1984.)

In this appeal, we are called upon to decide two issues. First, whether the trial court erred in ordering that the tape recordings be suppressed because the reliability of the State’s consenting party was not established. The defendant has also raised an issue which was listed on his motion to suppress and which he feels is an alternate ground upon which the trial court order might be sustained. The second question is whether a delay of more than 90 days between the termination of the period of the order authorizing the overhear and the statutorily required notice of the existence of the overhear should result in the information being suppressed.

I

In this appeal, both parties seem to agree that this court’s decisions in People v. Moore (1980), 90 Ill. App. 3d 760, 413 N.E.2d 516, and People v. Wassell (1983), 119 Ill. App. 3d 15, 455 N.E.2d 1100, control the disposition of this question. While we agree that Moore and Wassell both present situations from which the contours of the structural analysis from which the reasonable cause required to issue an overhear may be gleaned, we find that neither are analogous to the extent necessary to dispose of this case. Rather, a case cited by neither party but discovered through our own research is.

In People v. O’Dell (1980), 84 Ill. App. 3d 359, 405 N.E.2d 809, a court was faced with a virtually identical situation to that before this court. In O’Dell, Special Agent Martin McCarthy petitioned for an order authorizing the use of an eavesdropping device. The petition was accompanied by a consent form, executed by Frank Crockett, and an executed authorization from the State’s Attorney. To establish that a felony had been, was being, or was about to be committed, the petition asserted as follows:

“ ‘Frank Eugene Crockett informed S/A Martin F. McCarthy that on July 16, he, along with Roy Lewis, set a gasoline-based fire and explosion at 1633 North 45th St., East St. Louis, Illinois. He said that he was paid to set afire both 1633 North 45th St. and 1637 North 45th St. by the owner of the properties, Harry O’Dell, of Belleville, Illinois. Crockett said that it was O’Dell’s intent to collect the insurance money on the property. The East St. Louis Fire Department record of the explosion at 1633 North 45th indicated that they suspect arson as the cause. A fire department report also indicated that 1637 was saturated with gasoline at the time of the explosion, but that firemen were able to prevent its ignition. Crockett has met with O’Dell approximately ten (10) times in the past and he discussed the burning of the houses on No. 45th St. several times prior to the explosion.’ ” (84 Ill. App. 3d 359, 362-63, 405 N.E.2d 809, 813.)

The court noted that the petition specified the type of conversation involved, and the location from which it would be monitored. It also specified the defendant as the party whose conversations were to be overheard. The time frame was clearly established. No separate facts were alleged establishing reasonable cause to believe additional conversations would take place.

Based on the above information, the judge entered an order granting DCI authority to use an eavesdropping device, consistent with the provisions of the petition. On September 21, 1977, Frank Crockett engaged defendant in a recorded conversation at defendant’s apartment, in which defendant acknowledged that he had arranged the arson of his properties. He was subsequently indicted for the instant offenses. On March 29, 1978, defendant moved to suppress the recorded conversation. No witnesses were called at the hearing on the motion which was denied on May 11,1978.

Following his conviction, O’Dell appealed and asserted as one ground requiring reversal the fact that the overhear was not properly supported by reasonable cause to believe that he had committed, was committing, or was about to commit a felony. The appellate court disagreed, noting that the informant (Crockett) told the affiant that he was personally involved in the arson, the occurrence of which defendant did not dispute. The court also noted that the Supreme Court has held that admissions of crime carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search. (United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075.) The same rule was again enunciated in the case of United States v. Carmichael (7th Cir., 1973), 489 F.2d 983, where a second informant’s statements to the first informant — although hearsay upon hearsay — were held reliable as an exception to the hearsay rule because of the inherent reliability of statements against interest.

The O’Dell court concluded that Crockett's admissions to McCarthy that he had committed the crime of arson was sufficient reason for crediting his information and supported a finding of reasonable cause for the eavesdropping. The court stated:

“A common-sense reading of the petition discloses that a crime had been committed: Frank Crockett told Agent McCarthy that he (Crockett) and Roy Lewis set fire to defendant’s houses for pay; that it was O’Dell’s intent to collect the insurance money on the property; the East St. Louis Fire Department had a record of the explosion, indicating that the property was saturated with gasoline and that arson was the suspected cause. McCarthy acquired his information for the affidavit not as hearsay upon hearsay, but from a direct participant in the illegal activity who, under Harris and Carmichael, was a reliable informant. Clearly, McCarthy was entitled to rely on this firsthand observation by Crockett.” 84 Ill. App. 3d 359, 367, 405 N.E.2d 809, 816-17.

Turning to the case sub judice, we find ourselves confronted with nearly the same situation. Lenerts admitted to Rinehart arid Ernst that he delivered marijuana to Ron Dell. The agents in fact knew that Lenerts had personally participated in this crime, as they were listening to the transaction as it occurred between Lenerts and Dell. At the time of the delivery, Dell was acting as an undercover agent for the police. Upon being confronted with the information, Lenerts did not attempt to evade the issue, but rather admitted it. Under these circumstances, we find that his reliability was established. Since the reliability of the consenting party was properly established in this case, we find that the circuit court erred in suppressing the contents of the tape recorders which were generated based on the consenting parties’ information. People v. O’Dell (1980), 84 Ill. App. 3d 359, 405 N.E.2d 809.

II

The second issue which we must discuss is whether a delay of more than 90 days between termination of the period of the overhear and notification of the subject of the overhear of its existence should result in the information elicited being suppressed.

We hold that it should not.

The issue requires construction of section 108A — 8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 8). That section provides in pertinent part:

“Within a reasonable time, but not later than 90 days after either the filing of an application for an order of authorization or approval which is denied or not later than 90 days after the termination of the period of an order or extension thereof, the issuing or denying judge shall cause to be served on the persons named in the order or application *** a notice of the transaction involving any requested ór completed use of an eavesdropping device ***.”

Here, the order authorizing the use of the eavesdropping device covered the period from 12:01 a.m. on March 7, 1983, to 11:59 p.m. on March 15, 1983. File folders from the two cases reveal that Rinehart reported back to the judge on October 24, 1983, in case No. 83 — MR—68 (Adams County), and on April 12, 1983, in case No. 83 — MR—39 (Adams County). The statutorily required notice in No. 83 — MR—68 was filed October 24, 1983, while the notice in No. 83 — MR—39 (dated April 12, 1983) was filed June 24, 1983. In both cases, it is clear that the notice which defendant received was outside the 90-day requirement of the statute. The question then becomes whether the violation of the 90-day requirement calls for the suppression of the fruits of the overhear. In our view, it does not.

In People v. Nieves (1982), 92 Ill. 2d 452, 442 N.E.2d 228, our supreme court, in construing the sister statute of section 108A — 8, held that technical violations of these statutes do not per se require the suppression of the fruits thereof. In Nieves, the supreme court held that tape recordings were properly admitted at trial even though one requirement of the statute had been violated by 16 days. While Nieves specifically involved the immediacy requirement of section 108A — 7(b) and this case involves the notice requirement of 108A — 8(a), it seems clear that Nieves and the reasoning therein is applicable" to the instant case. This is important because the supreme court in Nieves specifically cited Federal courts as sources of interpretation of similarly worded statutes in Illinois.

Examining the Federal cases construing the portion of the statute similar to that questioned here, we note that in United States v. Cafero (3d Cir. 1973), 473 F.2d 489, the Third Circuit addressed the question of whether defective notice constituted proper grounds for suppression. It held that it did not. The Cajero court likened the notice requirements to technical procedural requirements in the context of a traditional search warrant. The failure to deliver a copy of the warrant to the party whose premises are searched, a delay in the execution of the warrant, or a mistake in the return of inventory do not generally require suppression of items seized. The court concluded that in the context of electronic surveillance, service of defective statutory notice should also not be sufficient grounds to require suppression.

Since it seems clear that our supreme court is willing to adopt Federal cases construing similar statutes in this particular area of the law, we hold that the violation of the 90-day notice statute does not require suppression of the contents of the tapes in this case.

Reversed and remanded.

GREEN, RJ., and TRAPP, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BEN TOM JONES, Defendant-Appellee.
    Second District
    No. 83—507
    Opinion filed December 20, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Prei-ner, Assistant State’s Attorney, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Catherine Anagnost, of Anagnost & Anagnost, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Ben Tom Jones, was found guilty in a jury trial of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)). His motion for a new trial was denied, except that the court reserved its ruling on defendant’s contention that the court previously had erred in denying his pretrial motions to suppress his confession. After sentencing the defendant to a term of imprisonment of six years plus 180 days, the trial court immediately thereafter vacated the sentence and judgment of conviction, granted a new trial, and granted the defendant’s pretrial motions to suppress his confession. The State filed a certificate of impairment and appeals pursuant to Supreme Court Rule 604(a)(1) from that portion of the order suppressing defendant’s confession.

The issue raised on appeal by the State is whether the trial court’s determination that defendant had not knowingly and intelligently waived his right to counsel during a police interview was against the manifest weight of the evidence.

The procedural posture in which we receive this case is somewhat unusual. For purposes of this appeal, it is necessary to relate only the proceedings on the motion to suppress defendant’s confession and certain portions of the trial evidence, as most of the trial evidence is not essential for review purposes in view of the trial court’s vacation of the judgment of conviction and grant of a new trial.

Defendant’s several pretrial motions to suppress his confession alleged, inter alia, that prior to his interrogation he had not been given the Miranda warnings, and that he had invoked his right to counsel but the police nevertheless interrogated him without obtaining a waiver of his right to counsel. At a hearing on these pretrial motions, the following testimony relevant to the issue on appeal was adduced.

Thomas E. Vosburgh, a detective with the Du Page County sheriff’s office, testified that Ben Jones brought his son, defendant Ben Tom Jones, to the sheriff’s office in response to a prior telephone call in which he, Vosburgh, wanted to talk with defendant about an armed robbery in Woodridge. The three went to an interview room, and Vosburgh read defendant the Miranda warnings verbatim from a card. Defendant said he understood each right and agreed to answer the questions. He did not ask for a lawyer at any time and did not refuse to answer any questions. The questioning took about 40 minutes. Vosburgh determined defendant was not involved in that armed robbery, and then advised defendant that other officers wished to talk with him. After introducing defendant and his father to Detective Herb Hogberg from the Elmhurst police department and to Detective James Romani from the Oakbrook police department, he went to his office and did not participate in any further questioning of defendant. He had not informed defendant’s father previously that other officers would question defendant about other offenses.

Detective Hogberg testified that he advised defendant from memory that he had a right to remain silent and a right to an .attorney during any questioning, that anything he said could be used against him in a court of law, that if he could not afford an attorney, one would be appointed by the court but couldn’t be appointed that night — “at a later date if he was ever charged with anything.” He never specifically told defendant he could have an attorney during this particular interrogation. Defendant either nodded his head or stated he understood after each statement and at the end. Defendant’s father also said he understood, as he was a police officer in Bellwood. Only Romani, defendant and his father, and Hogberg were there throughout the questioning. Hogberg advised defendant he was investigating an armed robbery in Elmhurst. At first defendant denied knowledge of the incident, but then gave incriminating statements. At no time did defendant ask for a lawyer or indicate he wished the questioning to stop. After the incriminating statements were made by defendant, his father asked whether he should get an attorney and Hogberg said it was up to him. Later, the defendant said he had better get an attorney, and the questioning ceased.

Detective Romani testified, in. pertinent part, that Hogberg advised defendant of his rights before questioning him, maybe from a card, but he was not certain, and that defendant acknowledged orally that he understood the rights and never asked for an attorney. Defendant’s father had once inquired whether he should get an attorney and was told that was his decision. Later, defendant’s father said he should get an attorney, and the questioning stopped. The interview took approximately 30 minutes. Defendant did not execute a written waiver of his rights.

Defendant’s father testified that he was a part-time policeman, that during the first questioning by Vosburgh defendant was not advised of his rights until defendant said, “Hold it, we wants a lawyer.” Then Vosburgh told defendant of his right to remain silent and that anything he said could be used against him. Vosburgh did not recite from a card. His son denied involvement, and was then questioned by the other two detectives. He told them that they were not answering any questions and they wanted a lawyer. The officers just went on talking, and his son then made statements. Defendant himself did not testify at the hearing.

The trial court denied the motion to suppress the confession, stating that it was difficult to resolve the conflicting testimony, but did so on the basis of the “reasonableness of the conflicting stories.” The court found Vosburgh accurately admonished defendant from the rights card. However, the trial judge felt Hogberg’s explanation of the presence of a lawyer that night might have been misleading, and his difficulty in recalling gave her trouble. She concluded that the State had met its burden on the issue because of Vosburgh’s credible testimony regarding his reading of the rights and Romani’s testimony that Hogberg also gave the rights accurately.

At trial, Hogberg’s testimony pertinent to his questioning of defendant was that he orally advised defendant of his rights, that defendant nodded or said he understood after each right was explained, and although he did not specifically tell defendant he had a right to an attorney during that particular questioning, he thought defendant understood he had the right to an attorney during any questioning. He did not give defendant a rights waiver form to sign. Romani gave testimony similar to that at the pretrial hearing regarding Hogberg’s advising defendant of his Miranda rights. To his recollection the defendant responded at the summation of the admonitions. He didn’t recall Hogberg telling defendant he had a right to have an attorney present for that particular interrogation or that defendant could stop any time and refuse to answer and request an attorney.

After the defendant had been found guilty by the jury and immediately following her sentencing of the defendant, the trial judge vacated the sentence and judgment, granted a new trial, and suppressed the confession. As we can best summarize, the trial judge remarked that she had not ruled on the credibility of the witnesses at the pretrial hearing, that she was not doing so now, and she was reassessing her ruling on the “reasonableness” of what happened. The judge stated that “[t]he narrow ground of my ruling is not that the defendant wasn’t warned, but that I do not believe there is the requisite showing that he knowingly and intelligently waived his right to counsel. It is the single issue of my ruling.” Nevertheless, the judge went on to remark that although the pretrial hearing testimony of Romani convinced her that the State had met its burden, there was some difference in the trial testimony concerning whether Hogberg paused after each Miranda warning, and she now felt the State had not met its burden to show a knowing and intelligent waiver of defendant’s right to counsel.

We first note that, although the issue is not before us on appeal, there was some question raised below whether defendant was in custody during the second questioning when he gave the confession. The court below found defendant was not free to leave and, considering this record and the State’s failure to seek review of this question, we do not consider the point further.

The relevant inquiry before us is whether the defendant knowingly and intelligently waived his fifth amendment rights and, in particular, his right to counsel. Certain well-established principles are involved. The State bears the burden of demonstrating that a defendant has been warned of his constitutional rights under the fifth amendment and has waived them. (People v. Hebein (1982), 111 Ill. App. 3d 830, 845, 444 N.E.2d 782.) The trial court must initially determine these questions and, in making its decision, the court does not have to be convinced beyond a reasonable doubt; its findings will not be disturbed unless they are against the manifest weight of the evidence. (People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228.) In order to establish a valid waiver of the right to counsel, the State must prove an intentional relinquishment or abandonment of a known right or privilege. (People v. Aldridge (1980), 79 Ill. 2d 87, 93, 402 N.E.2d 176.) The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. People v. Martin (1984), 102 Ill. 2d 412, 425, 466 N.E.2d 228.

The trial court expressly found at the time of the hearing on the motion to suppress and later at the new trial motion hearing that defendant was given his Miranda warnings. The record supports this conclusion. Hogberg’s explanation to defendant that if defendant could not afford an attorney one would be appointed for him by the court, but at a later date if he was ever charged, was not entirely accurate. However, neither defendant nor his father testified that defendant was misled by the erroneous reference to appointed counsel if he was ever charged or that the warning was explained in this fashion. Moreover, Romani did not testify that this misstatement was made by Hogberg when advising defendant of his rights. In fact, he testified that Hogberg told defendant an attorney would be appointed by the court to represent him, if he wished, and told defendant he could exercise his rights at any time and not answer any questions. Nor did Hogberg use the inaccurate phraseology when testifying on cross-examination at the pretrial hearing and at the trial as to his explanation of the Miranda warnings. Any deficiency in this respect has not been established in this record. Accordingly, we focus on whether the defendant knowingly and intelligently waived his right to counsel.

The unusual circumstances present in this record are that the trial court originally ruled, after a pretrial hearing on defendant’s motion to suppress his confession, that the State had met its burden on both the admonition of rights and a waiver thereof. At the hearing on defendant’s post-trial motion for a new trial, the trial court, however, granted a new trial and suppressed the confession, finding there were certain discrepancies raised in the trial testimony which persuaded it that the State had not met its burden on the waiver of counsel issue only.

Generally, relitigation in the form of another hearing of a prior order denying a pretrial motion to suppress should not be conducted in the absence of additional evidence or peculiar circumstances. (See People v. Armstrong (1973), 56 Ill. 2d 159, 161, 306 N.E.2d 14; People v. Hopkins (1972), 52 Ill. 2d 1, 4, 284 N.E.2d 283; People v. Coleman (1981), 100 Ill. App. 3d 306, 310-11, 426 N.E.2d 1124.) While here, no new motion to suppress was made during trial based upon additional evidence or unusual circumstances, the trial court did consider the trial testimony in reassessing its initial decision on the motion to suppress during the proceedings on defendant’s post-trial motion for a new trial. A pretrial ruling on suppression is not final and may be changed or reversed at any time prior to final judgment. (People v. Caballero (1984), 102 Ill. 2d 23, 35-36, 464 N.E.2d 223.) The function of a pretrial hearing on a motion to suppress a confession is specifically to conduct an evidentiary hearing into the merits of the motion and for a determination based upon the facts adduced. However, once this motion is decided at that hearing, the focus of the trial testimony is not directed to a reestablishment of the issues previously resolved at the pretrial hearing, nor is there any requirement to do so.

The trial court apparently thought that detective Romani’s trial testimony, that he didn’t “recall him [Hogberg] stopping after” each warning, was a significant departure from the pretrial hearing testimony to conclude that the State had not met its burden to show a knowing and intelligent waiver of counsel. Hogberg had testified at the pretrial hearing that defendant nodded his head or stated he understood after each right was given him and at the end. Romani testified at the pretrial hearing that defendant said he “acknowledged understanding them,” but was never asked by the State or defendant when defendant acknowledged the understanding of the rights. We do not find consideration of Romani’s trial testimony warranted the trial court’s ultimate suppression of the confession on the specific basis that defendant did not make a knowing and intelligent waiver of his right to counsel, and the finding was against the manifest weight of the evidence.

As we stated earlier, the trial court expressly found at the time of its ultimate ruling suppressing the confession that defendant had been given the Miranda warnings. On the waiver issue, the trial judge expressly stated she was not making a credibility assessment even though the officers’ testimony and the defendant’s father’s testimony was directly contradictory on whether defendant waived his right to an attorney. Instead, the court phrased its conclusions in terms of “reasonableness of what happened.” While the court below should have made a more specific finding on the credibility of the witnesses under the circumstances here to facilitate appellate review, we shall presume that the trial court credited only the testimony that supports its ruling. (See People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299.) In this regard, we shall therefore assume that the court below felt that Officer Hogberg’s testimony, that he paused after each warning was read to the defendant and defendant acknowledged those rights, was not credible, and in view of this failure to obtain an acknowledgement after each warning, defendant did not knowingly and intelligently waive his right to counsel.

Miranda does not specify the precise manner and language to be used in advising a defendant of his constitutional rights. It requires not a ritualistic recital of words, but an intelligent conveyance of the right to remain silent and of the general right of counsel. (People v. Merrero (1984), 121 Ill. App. 3d 716, 722, 459 N.E.2d 1158.) We believe that the failure to pause after the reading of each right and to receive an acknowledgment of understanding and waiver of that right before proceeding with admonition of the next right is not required in order to effectuate a knowing and intelligent waiver. When an individual has been admonished of his rights and indicates that he understands them, his giving of a statement without requesting a lawyer is evidence that he chooses to waive a known right. People v. Martin (1984), 102 Ill. 2d 412, 425, 466 N.E.2d 228; People v. Brooks (1972), 51 Ill. 2d 156, 164, 281 N.E.2d 326.

Here, the defendant was first given his Miranda warnings by Officer Vosburgh and, according to Vosburgh, defendant said he understood them and agreed to talk with him. Defendant did not refuse to answer any questions or request a lawyer at any time. Although the defendant’s father contradicted this testimony by testifying that defendant asked for a lawyer and was not advised of his rights prior to the questioning, the trial court specifically found Vosburgh gave the required warnings. The court never stated whether defendant knowingly and intelligently waived his rights to Vosburgh — perhaps because no incriminating statement was made to Vosburgh on the unrelated armed robbery for which he was being questioned. There is no reason not to conclude that the trial court, when it originally denied the motion to suppress, found that defendant had waived his rights to Vosburgh. Moreover, there is nothing that the court below said, when it reversed itself and did suppress the confession, that relates to Vosburgh’s testimony. Thus, we conclude defendant was advised of his rights by Vosburgh and knowingly and intelligently waived them.

It has been held that once Miranda’s mandate has been complied with at the threshold of the questioning, it is not necessary to repeat the warnings at the beginning of each successive interview conducted close in time to the original warnings. (People v. Hill (1968), 39 Ill. 2d 125, 131-32, 233 N.E.2d 367; People v. Beamer (1978), 59 Ill. App. 3d 855, 858, 376 N.E.2d 368.) Although the second questioning, which immediately followed, by Hogberg and Romani, who were not with the same law enforcement agency as Vosburgh, concerned separate crimes, courts have generally taken the position that new warnings are not required just because there has been a change in the locale of the interrogation, in the officers doing the questioning, or in the subject matter of the investigation. (See 1 W. LaFave & J. Israel, Criminal Procedure sec. 6.8, at 520 (1984).) Under the circumstances present here, we find that the warnings given and the waiver of the rights at the initial questioning by Vosburgh were an adequate protection of defendant’s fifth amendment right as applied to the immediate, subsequent questioning by Hogberg and Romani.

Even without considering Vosburgh’s warnings, we conclude from this record that there has been a knowing and intelligent waiver of the right to counsel. The trial court consistently found defendant was correctly given the Miranda warnings at the second interview with Hogberg and Romani. Defendant, according to Hogberg and Romani, said he understood his rights and gave a statement without requesting a lawyer. The trial court appeared to suppress the confession only on the basis of trial testimony which, as previously discussed, was that there was no pause between the warnings for defendant to then respond rather than at the end of the admonitions. Although we place great weight on the findings of fact by the trial court, for all the foregoing reasons, the order suppressing the evidence was manifestly erroneous. See People v. Winters (1983), 97 Ill. 2d 151, 163, 454 N.E.2d 299.

The trial court’s order to suppress the confession after granting a new trial was manifestly erroneous, requiring reversal and remandment. However, we are compelled to further comment on the trial court’s erroneous assumption, made at the time it vacated the sentence and conviction, that “if the State prevails in the appeal, *** I am hopeful that the Appellate Court will send it back and say that the judgment of conviction shall be reinstated and that the sentence should be reinstated.” While a reviewing court may in proper circumstances upon a defendant’s appeal of his conviction vacate the judgment and remand for a redetermination of facts not originally considered or found by the trial court in a pretrial hearing to suppress and direct reinstatement of the conviction following that hearing if suppression is denied (see People v. Simmons (1975), 60 Ill. 2d 173, 181-82, 326 N.E.2d 383; People v. Lane (1982), 106 Ill. App. 3d 793, 798, 436 N.E.2d 704), there is no authority for the trial court to vacate a judgment of conviction and grant a new trial, and upon the reviewing court’s reversal of its granting of a motion to suppress, to reinstate the original judgment of conviction and sentence. Nor does a reviewing court have authority to issue such directions to a trial court. (See 87 Ill. 2d R. 615(b).) In view of the trial court’s action, the suppression order is reversed, and the cause remanded for a new trial.

Reversed and remanded.

NASH and HOPE, JJ., concur.


text:
    MARY CANFIELD WEBER, Adm’r of the Estate of George Canfield, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF CAROL STREAM et al., Defendant-Appellees.
    Second District
    No. 83—1061
    Opinion filed December 31, 1984.
    Lester E. Munson, Jr., and Robert P. Gavin, both of Smith & Munson, Ltd., of Wheaton, for appellant.
    Thomas C. Dudgeon, of O’Reilly & Cunningham, of Wheaton, and O’Brien, Hanrahan, Wojcik & Fay, of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Mary Canfield Weber, administrator of the estate of George Canfield, deceased, appeals from orders granting summary judgment for defendants, the village of Carol Stream (village) and Kaufman & Broad Homes, Inc. (K & B), finding the defendants owed no duty to plaintiff’s decedent as a matter of law.

The single issue on appeal is whether the trial court erred when it ruled that defendants owed no duty to plaintiff’s decedent, who fell through an ice-covered water retention pond, located in a residential subdivision, alleged to be owned, possessed, and controlled by K & B.

Plaintiff’s complaint against K & B alleged, inter alia, that on December 19, 1980, K & B owned, possessed, and controlled a water-retention pond in the Spring Valley subdivision in the village of Carol Stream; that K & B knew or should have known that neighborhood children played within the immediate vicinity of the pond; that on December 19, 1980, while playing on the pond, the minor decedent slipped and fell through the ice, causing his death; and that K & B was negligent in failing to maintain a fence around the pond in violation of State statutes and village ordinances, to post warning signs of the inherent danger of the pond, and to prevent children from entering upon the pond. An amended complaint against the village alleged, in pertinent part, in two counts, that the village owed a duty to plaintiff’s decedent because the pond was created as a result of an agreement between the village and K & B and the village approved the design and placement of the pond, and alternatively, that the village owed a duty because the pond existed within the village and it knew or should have known of the dangerous agency of the pond and the foreseeable risk to children residing and playing in the area.

K & B and the village filed answers generally denying the material allegations of the plaintiff’s complaints, although admitting the minor decedent died on the date alleged. K & B’s answer also admitted decedent slipped and fell through the ice. Subsequently, the village filed a motion for summary judgment attaching the affidavit of Gregory Bielawski, the village manager. The affidavit averred that the village neither owned, accepted, nor maintained the pond. The motion requested summary judgment on the basis that, as a matter of law, it was not liable for negligence on property it did not own, maintain, or control. Alternatively, the village asserted the pond was not a dangerous condition so as to create a legal duty to the minor decedent. The plaintiff filed a response which included a copy of an annexation agreement between the village and K & B relating to the subject property.

Without deciding whether the village could be liable for negligence on property it did not own or maintain, the trial court granted summary judgment for the village on the basis that the pond was not an inherently dangerous condition and thus no duty was owed to the minor decedent, who the parties agree was nine years old. K & B then filed its motion for summary judgment which was granted by the trial court for the same reason. Plaintiff filed a motion to reconsider, apparently also submitting photographs of the pond, which were not admitted as evidence at the hearing nor are they contained in the record on appeal. In a memorandum of law submitted by plaintiff, an excerpt from the inquest proceeding was attached which, in pertinent part, revealed that the temperature was about zero on December 19, 1980, that decedent and another young boy were throwing sticks on the pond, that decedent fell through the ice on the pond while retrieving a stick, and that the ice was about an inch and a half or two inches thick. The motion to reconsider was denied.

Initially, we must consider K & B’s motion to strike certain factual allegations contained in the statement of facts and argument portion of plaintiff’s brief and reply brief. K & B correctly contends that the record does not support references in plaintiff’s briefs that the pond was snow-covered, hidden or obscured, nor does the record support references to conditions allegedly portrayed in certain photographs which are not in the record. Plaintiff has not responded to the motion. We grant the motion to strike these alleged facts contained in plaintiff’s briefs, and we do not consider them in this appeal. Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 186, 419 N.E.2d 935.

In considering whether the defendants owed a duty to plaintiff’s decedent under the circumstances of this case, the recent decision of our supreme court in Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, is particularly instructive. In Cope, the court held that a retention pond, partially covered with ice and with a large portion of open water clearly visible, was not a dangerous condition which presented a peril not appreciated by the seven-year-old decedent. (102 Ill. 2d 278, 289, 464 N.E.2d 1023.) Accordingly, the court found the defendant owed no duty to plaintiff’s decedent as a matter of law.

The customary principles of ordinary negligence must be applied to determine the liability of owners or parties in possession or control of premises upon which a child is injured. (Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836.) Quoting, in part, from Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, the court in Cope stated:

“The court in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, reiterated the rule announced in Kahn. It stated that the customary principles of ordinary negligence must be applied to determine the liability of owners or parties in possession or control of premises upon which a child is injured. The court also stated that a duty which would not be imposed under ordinary negligence will be imposed where an owner or party in possession or control of premises ‘knows or should know that children frequent the premises and if the cause of the child’s injury was a dangerous condition on the premises.’ (73 Ill. 2d 316, 326.) It reasoned that ‘[i]f both these prerequisites are met, it is deemed that harm to children is sufficiently foreseeable for the law to impel an owner or occupier of land to remedy the condition.’ (73 Ill. 2d 316, 326.) The court in Corcoran defined a dangerous condition as one which is likely to cause injury to children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. In such an instance, there is a duty to remedy the condition.” 102 Ill. 2d 278, 286, 464 N.E.2d 1023.

In determining that the applicable rule does not impose a per se duty upon owners or parties in possession and control of premises to remedy all conditions on their land, the court in Cope further stated:

“This rule however does not impose a per se duty upon owners or parties in possession and control of premises to remedy all conditions on their land. It is well settled that if the condition complained of presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that condition. The rationale for this rule is that, since children are expected to avoid dangers which are obvious, there is no reasonably foreseeable risk of harm. The law then is that foreseeability of harm to the child is the test for assessing liability; but there can be no recovery for injuries caused by a danger found to be obvious.” (102 Ill. 2d 278, 286, 464 N.E.2d 1023.)

The court reiterated its acknowledgement in Corcoran that there are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. 102 Ill. 2d 278, 286-87, 464 N.E.2d 1023.

As stated above, the court in Cope determined that a retention pond partially covered with ice and with a large portion of open water clearly visible was not a dangerous condition which presented a peril not appreciated by the seven-year-old decedent. In the case at bar, which presents only a slightly different factual variation from Cope, we must determine under the limited facts present in this record whether a water retention pond covered with ice in a residential subdivision, on which plaintiff’s decedent, a nine-year-old boy, was retrieving a stick and fell through the ice, was a dangerous condition which children would not be expected to comprehend and avoid the attendant risks.

A body of water is generally held not to constitute a concealed, dangerous condition (Cortes v. State (1974), 191 Neb. 795, 799, 218 N.W.2d 214, 216; Hatten v. Mason Realty Co. (1964), 148 W. Va. 380, 387, 135 S.E.2d 236, 241), and partially ice-covered ponds are ordinary bodies of water which, as any other, present the risk of drowning. (Cope v. Doe (1984), 102 Ill. 2d 278, 289, 464 N.E.2d 1023.) Although the distinguishing factor here, as contrasted with Cope, is a water retention pond completely covered with ice, we conclude that such a factual distinction is not of significant magnitude to warrant a different result. Like the danger of water, an ice-covered pond is such a danger which, under ordinary conditions, may reasonably be expected to be fully understood and appreciated by children of an age to be allowed at large. Children are expected to appreciate the possible hazards associated with water and should know that the same dangers accompany ice, which is the frozen form of water. An ice-covered pond presents an obvious risk of drowning which we believe children would be expected to appreciate and avoid. We are not here confronted with the factual situation present in Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806, 808-09, 431 N.E.2d 1218, where the pleadings alleged a creek in the park frozen over with a thin layer of ice that was completely concealed by a layer of snow which made it impossible to discern the location of the creek, and which the appellate court found to be a risk not the type which children generally would be expected to recognize and appreciate.

Accordingly, we hold that the defendants owed no duty to plaintiff’s decedent as a matter of law, and the trial court properly granted summary judgment for defendants where it determined as a matter of law that the condition was not dangerous. See Fuller v. Justice (1983), 117 Ill. App. 3d 933, 941, 453 N.E.2d 1133.

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

Affirmed.

NASH, P.J., and SCHNAKE, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    SAMUEL F. KENNEDY, Plaintiff-Appellant, v. THE FIRST NATIONAL BANK OF DECATUR, Defendant-Appellee.
    Fourth District
    No. 4—84—0241
    Opinion filed January 30, 1985.

      Costello, Long & Young, of Springfield, for appellant.
    Vernon H. Houchen, of Decatur, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On September 23, 1983, plaintiff, Samuel E Kennedy (Kennedy), filed an amended complaint in the circuit court of Macon County, alleging that he had suffered damages as a result of certain actions and representations made by defendant, the First National Bank of Decatur (the bank). Kennedy appeals from an order entered by the trial court granting a motion filed by the bank and dismissing the amended complaint with prejudice. We previously reversed the circuit court’s decision in part and affirmed it in part. We then granted defendant’s petition for rehearing. Upon further consideration, we affirm the decision of the circuit court in toto.

Kennedy was the president and majority shareholder in an Illinois corporation known as S. F. Kennedy Industries, Inc. (the corporation). On July 14, 1983, Kennedy filed his original complaint against the bank. That complaint was subsequently dismissed on the bank’s motion, and Kennedy filed the amended complaint, which contained the following allegations. For approximately two years prior to July 1981, Kennedy and the corporation had maintained a banking relationship with the bank. The bank had extended a $1 million line of credit to the corporation, and Kennedy had personally guaranteed the corporation’s line of credit. Kennedy, in his capacity as president of the corporation, had agreed to allow the bank to withdraw from the corporation’s demand deposits with the bank the amount of interest which had accrued each month on the corporation’s outstanding loans.

The amended complaint further alleged that on July 15, 1981, while Kennedy was engaged in a trial in Indiana, the bank’s president advised Kennedy by telephone that the bank desired to demand a portion of the outstanding principal owed by the corporation to the bank and personally guaranteed by Kennedy. Kennedy stated that as soon as he could return from Indiana he would make arrangements to comply with the bank’s desires. The bank’s president then agreed that the bank “would forebear from any further action” until the Indiana trial was concluded. Subsequently, without further notice to Kennedy or the corporation and “contrary to the [parties’] express and explicit agreement,” the bank seized corporate bank accounts, dishonored corporate checks and rendered the corporation unable to pay its current obligations.

The amended complaint also alleged that “as a direct result and consequence of the bank’s actions and false representations and assurances,” (1) Kennedy’s creditors deemed themselves “insecure” and looked to Kennedy “to pay accelerated obligations and sums otherwise not yet due,” (2) Kennedy’s creditors sued him, seized his property, levied on his property and “ravaged and plundered” his estate, and “impaired and destroyed” his other business and opportunities, and (3) Kennedy incurred damages exceeding $1 million “to his business, property and credit.”

In the amended complaint, Kennedy (1) stated that the injuries “herein complained of have been inflicted on [Kennedy] personally, and are completely separate from and not intended to reflect any injuries” suffered by the corporation, and (2) explicitly disclaimed any damages reflecting injuries to the corporation.

Although counts I and II each request compensatory damages, count II further alleges that Kennedy’s business reputation was impaired. Count III alleges that the bank’s alleged actions were wilful and requests punitive damages.

The bank filed a motion to dismiss on September 30, 1983, asserting that (1) the cause of action was barred by the doctrine of res judi-cata, (2) the cause of action was barred by the statute of limitations, and (3) Kennedy did not have the legal capacity to sue because the cause of action was the property of the trustee in bankruptcy.

Prior to the hearing on the motion to dismiss, the bank filed an affidavit in support of its motion stating that the United States Bankruptcy Court for the Central District of Illinois had entered an order on October 12, 1983, in a proceeding in which the bank was plaintiff and Kennedy and the trustee in bankruptcy of the corporation and related companies were defendants. In that case the bank sought to recover on the corporation’s indebtedness which Kennedy had guaranteed. In the order, a copy of which was attached to the affidavit, the Bankruptcy Court determined that the corporation’s trustee in bankruptcy did not have a cause of action, counterclaim, or setoff against the bank in connection with any of the activities between the corporation and the bank, relating to the bank’s claims or activities in offsetting corporate bank accounts and dishonoring outstanding corporate checks.

Following a hearing, the trial court dismissed the amended complaint with prejudice. Upon rehearing and after considering the record, we conclude that the trial court properly dismissed the amended complaint.

In the motion to dismiss, the bank asserted that this cause of action was barred by the doctrine of res judicata based upon a prior judgment entered by the circuit court of Macon County in an action between the same parties. In the previous action, the bank obtained a judgment by confession on a note of the corporation which was guaranteed by Kennedy, individually. Kennedy subsequently filed a motion to open that portion of the judgment by confession relating to the award of attorney fees (87 Ill. 2d R. 276).

We note that although Kennedy could have filed a counterclaim in the previous action asserting the same cause of action as that alleged here, he was not required to do so. Section 2 — 608(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 608(a)) provides that a defendant may plead a counterclaim against a plaintiff. However, section 2 — 608(a) does not require a defendant to immediately assert his rights by way of a counterclaim if it would be inconvenient or strategically inadvisable for him to do so. (See Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 403 N.E.2d 1262.) Here, had Kennedy been injured in a manner permitting recovery, he might not have known the fullest extent of those damages at the time of the prior action.

We also note that the previous case between the parties was based upon a different cause of action and involved different issues than the cause of action and issues alleged in the case at bar. Accordingly, we conclude that the instant cause of action is not barred by the prior judgment by confession obtained by the bank.

The bank also argued that the instant case was barred by the statute of limitations because the “cause of action [was] asserted more than two years” after it arose. We believe that this argument must fail. We note that although the amended complaint was filed more than two years after the bank’s alleged actions which occurred “on or about” July 15, 1981, the original complaint was filed on July 14, 1983, within the two-year period after the cause of action arose. The instant case was not barred by the statute of limitations because the cause of action alleged in the amended complaint “grew out of the same transaction or occurrence set up” in the timely filed original complaint (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(b)).

The bank argued in its motion to dismiss that Kennedy did not have the legal capacity to sue because the cause of action was the property of the trustee in bankruptcy. Kennedy argues on appeal that the bank’s actions injured him both as a shareholder and individually (1) as a guarantor of the corporation’s indebtedness to the bank, and (2) in his other business activities.

If a corporation is injured by conduct similar to that alleged in the amended complaint, the corporation is the proper party to sue, and shareholders of the corporation injured by virtue of the diminution in value of their shares may not recover directly for their losses, but are compensated indirectly if the corporation recovers because its assets are replenished. (Stein v. United Artists Corp. (9th Cir. 1982), 691 F.2d 885.) In addition, Kennedy admits on appeal that all rights of action for injury to property of a bankrupt are vested in the trustee in bankruptcy. Accordingly, we conclude that Kennedy is not the proper party to sue for damages sustained either by the corporation or by Kennedy as a shareholder.

Kennedy’s contention that he was damaged in an individual capacity is more complicated. However, regardless of whether any representations or promises on behalf of the bank were made to Kennedy in his individual capacity as a guarantor of the note, all of the allegedly wrongful acts of the bank were directed at the corporation. These acts included the bank’s seizure of the corporate bank account, the dishonoring of corporate checks, and the rendering the corporation unable to pay its corporate obligations. The theory of the amended complaint was that the resultant damage to the corporation, in turn, caused Kennedy’s creditors to take various actions against him. There was no allegation that the bank sued Kennedy on his guaranty or took any action against any of his assets.

Thus, even if Kennedy’s creditors acted pursuant to a fear that his credit was damaged because he was likely to incur liability on his guaranty, the motive for the creditors’ concern arose from the alleged injury to the financial position of the corporation. Any injury to Kennedy would have been derivative of that to the corporation in the same manner that injury to Kennedy in his capacity as a shareholder would have been derivative of injury to the corporation. Stein v. United Artists Corp. (9th Cir. 1982), 691 F.2d 885.

Kennedy has not set forth any theory upon which he can recover. He requests that we remand so that he may have an opportunity to further amend his complaint. His request comes too late. Had he wished to amend, he should have requested leave of the trial court to do so at the time it entered the order from which appeal was taken.

The bank also asserts that the order entered by the Bankruptcy Court serves as a collateral estoppel bar to the instant case. The doctrine of collateral estoppel provides that parties are precluded from relitigating an issue in a subsequent proceeding when that issue was actually or necessarily decided by a court of competent jurisdiction in an earlier proceeding involving the same parties and a different cause of action. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 444 N.E.2d 205.

We conclude that the doctrine of collateral estoppel does not bar Kennedy from asserting that the bank’s actions injured him in his other business affairs and individually in his capacity as guarantor of the corporation’s indebtedness. We note that the Bankruptcy Court, in striking certain portions of the bank’s complaint in bankruptcy, determined that it had no jurisdiction over Kennedy’s claim for damages sustained in his individual capacity. Moreover, the Bankruptcy Court determined only that the corporation’s trustee in bankruptcy had no cause of action against the bank based on its actions relating to the corporation. Accordingly, the doctrine of collateral estoppel does not bar the issue of whether Kennedy was injured individually because (1) such issue was not actually or necessarily decided in the bankruptcy proceeding, and (2) the Bankruptcy Court expressly determined that it had no jurisdiction over such issue.

For the reasons stated, we affirm.

Affirmed.

MILLS and TRAPP, JJ., concur.


text:
    PETER PARTING, Plaintiff and Counterdefendant-Appellee, v. NALCO CHEMICAL COMPANY, Defendant and Third-Party Plaintiff and Counter-plaintiff-Appellant (Specialist Window Cleaning Service, Inc., Third-Party Defendant).
    Second District
    No. 83—1108
    Opinion filed December 31, 1984.
    Stephen A. Rehfeldt, of Wylie, Wheaton & Associates, P.C., of Wheaton, for appellant.
    Christopher W. Bohlen, of Blanke, Norden, Barmann & Bohlen, P.C., of Kankakee, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Nalco Chemical Company appeals from the trial court’s dismissal of its counterclaim against Peter Parting in which it sought to pierce the corporate veil of Specialist Window Cleaning Service, Inc., and impose individual liability on Parting, president of Specialist. The sole issue on review is whether the trial court erred in dismissing Nalco’s counterclaim against Parting on the ground that the issues raised by the counterclaim should have been raised in Specialist’s bankruptcy proceedings.

Peter Parting filed a two-count complaint against Nalco Chemical Company (Nalco), alleging that as an employee of Specialist Window Cleaning Service, Inc. (Specialist), he was engaged in window washing on Nalco’s premises, and that while standing on a plank which was on scaffolds erected by Nalco, one of the scaffolds collapsed and Parting was thrown from the plank and sustained serious injuries. Count I alleged violations of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.), and count II was founded on common law negligence.

After filing an answer in which Nalco denied responsibility for the equipment and scaffolding, Nalco filed a third-party complaint against Specialist on July 6, 1982, alleging that there was an indemnification clause in the contract between Nalco and Specialist in which Specialist expressly agreed to indemnify Nalco for the exact claims and demands sought by Parting against Nalco. The contract was attached to the third-party complaint, and was signed by Parting on behalf of Specialist.

On August 2, 1982, Specialist filed a voluntary debtor’s petition in bankruptcy court that was signed by Parting as president of Specialist. On August 4, 1982, Specialist filed an answer to the third-party complaint, admitting the existence of the indemnification clause but denying that Nalco was entitled to indemnification, stating that Specialist filed its voluntary petition in bankruptcy listing Nalco as a contingent creditor, and contending that Specialist was absolved from liability pursuant to the Federal Bankruptcy Act.

On July 11, 1983, Nalco filed a counterclaim against Parting, alleging that Parting, as shareholder and president of Specialist, had negotiated the contract and executed it on behalf of Specialist; that pursuant to the contract, Specialist agreed to indemnify and hold Nalco harmless from all claims arising out of bodily injury incurred as a result of the performance of window cleaning services; that a bankruptcy petition was voluntarily filed on behalf of Specialist on August 2, 1982; that at all relevant times, Parting exercised ownership control over Specialist such that there was unity of ownership and interest in that the separate personalities of the corporation and the individual no longer existed, as evidenced by Parting’s failure to maintain adequate corporate books and financial requirements in compliance with statutory corporate formalities, by his commingling of the corporate funds and assets with his personal funds and assets, and by disbursing corporate funds to pay for Parting’s personal expenses; and that adherence to the fiction of separate corporate existence would sanction a fraud and promote injustice.

Parting filed a motion to strike the counterclaim pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615), stating that Specialist voluntarily filed a bankruptcy petition; that Nalco was listed as a creditor in the bankruptcy petition and was given notice of the petition; that Nalco had an opportunity to be heard at the first meeting of creditors but chose not to appear and never objected to the bankruptcy petition; that at no time during the bankruptcy proceeding did Nalco claim that Specialist was a “sham” corporation or assert that the bankruptcy petition was unfair or unjust; and that given that Nalco failed to object after being properly notified and given an opportunity to be heard, the preservation of the separate corporate existence of Specialist became necessary to prevent injustice. The affidavit of the bankruptcy trustee, corroborating the statements in the motion as to Nalco’s nonparticipation in the bankruptcy proceedings, was attached.

In a written memorandum and during oral argument at the hearing on the motion to strike the counterclaim, Parting contended that the bankruptcy court, by virtue of 11 U.S.C. sec. 523 (Supp. 1978), had exclusive jurisdiction to determine the dischargeability of the debt in question. By Nalco’s failure to appear, object, or litigate the issue in the bankruptcy proceedings, the issue was not properly before the trial court. Parting further argued that the determination of whether he had violated a fiduciary duty should have been made in bankruptcy court so that the benefit could inure to all the creditors and not merely Nalco.

Nalco responded by stating that while bankruptcy courts had exclusive jurisdiction to resolve issues arising under 11 U.S.C. sec. 523 (Supp. 1978), jurisdiction extends to the individual debtor before the bankruptcy court, which was Specialist, not Parting. Nalco added that the bankruptcy court decides whether there are enough assets to satisfy liabilities, not whether shareholders are liable to any individuals.

At the hearing on Parting’s motion to strike the counterclaim, the trial court asked what orders were entered in the bankruptcy proceeding, and Parting answered that the petition was heard and there was a meeting of creditors and that there is no absolute discharge for a corporation because it is assumed that the corporation will dissolve, which occurred here.

The trial court granted the motion to strike pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619), stating that as a result of the failure of Nalco to participate in the bankruptcy proceedings involving Specialist, when Parting appeared as an officer of the corporation, those issues were decided by the bankruptcy court; that notice having been given, issues involving piercing of the corporate veil or any debts of the corporation which may have also been the debts of Parting as a result of any malfeasance or unlawful conduct on his part should have been brought to the attention of the bankruptcy court; and that since the opportunity was not taken, there should be a bar to pursuing any relief as to ob-taming monies from Parting.

Both parties relied below on section 523 of the Bankruptcy Code (11 U.S.C. sec. 523 (Supp. 1978)) as the controlling provision in the determination of whether the bankruptcy court had exclusive jurisdiction to decide the issue of piercing the corporate veil. However, our review of section 523 discloses that it is not jurisdictional, but rather merely delineates the types of debts that are not discharged under an order of discharge. Because corporations that file voluntary petitions for bankruptcy under chapter 7 of the Bankruptcy Code, as Specialist did, never receive an order of discharge (see 11 U.S.C. sec. 727(a)(1) (Supp. 1978); 4 Collier on Bankruptcy par. 727.01, at 727 (15th ed. 1983)), section 523 has no application to the facts before us.

Congress conferred jurisdiction on the bankruptcy courts when it enacted 28 U.S.C. sec. 1471 (Supp. 1978), which provides:

“(a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11.
(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11 or arising in or related to cases under title 11.
(c) The bankruptcy court for the district in which a case under title 11 is commenced shall exercise all of the jurisdiction conferred by this section on the district courts.
(d) Subsection (b) or (c) of this section does not prevent a district court or a bankruptcy court, in the interest of justice, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. Such abstention, or a decision not to abstain, is not reviewable by appeal or otherwise.
(e) The bankruptcy court in which a case under title 11 is commenced shall have exclusive jurisdiction of all of the property, wherever located, of the debtor, as of the commencement of such case.”

Our reading of this statute leads us to conclude that section 1471(b), in conjunction with section 1471(c), vests bankruptcy courts with original but not exclusive jurisdiction of civil proceedings “related to cases under title 11.” Thus, for the bankruptcy court to have had any jurisdiction to consider this matter, the issue of piercing the corporate veil of Specialist must be “related to” Specialist’s bankruptcy proceedings.

Nalco argues that its attempt to impose individual liability on Parting for Specialist’s debts is unrelated to Specialist’s bankruptcy proceedings since Parting was not before the bankruptcy court as an individual debtor but only as an officer of Specialist. No clear test for determining whether a suit is “related to” a title 11 case has yet arisen. (Steyhr Daimler Puch of America Corp. v. Pappas (E.D. Va. 1983), 35 Bankr.. 1001, 1005.) One commentator has suggested that “[t]he criterion to be adopted in such a situation will undoubtedly be related to a determination of whether the outcome of the proceeding could conceivably have any effect upon the estate being administered.” 1 Collier on Bankruptcy par. 3.01, at 3 — 49 (15th ed. 1983).

Using this analysis, a cogent argument can be made that the outcome of the present controversy will have an effect on the administration of Specialist’s estate because, if Parting is declared the alter ego of Specialist, the interest of Parting, Specialist, and all of Specialist’s creditors, including Nalco, will be affected. (See Steyhr Daimler Puch of America Corp. v. Pappas (E.D. Va. 1983), 35 Bankr. 1001, 1005.) Furthermore, in emphasizing the short period of time between Nalco’s filing of the third-party complaint and Specialist’s commencing of bankruptcy proceedings, Nalco has implied that Parting, on behalf of Specialist, filed the voluntary petition in bankruptcy in an attempt to avoid potential liability under Nalco’s third-party complaint, and has thus conceded a connection between the two actions.

Therefore, under the facts here and for the purposes of this appeal, we will assume that an attempt to pierce the corporate veil of a bankruptcy petition is “related to” a suit under title 11. In support of our conclusion, we note that bankruptcy courts, pursuant to their general equitable powers, have entertained attempts to pierce corporate veils by consolidating the assets and liabilities of an individual and an affiliated corporation. See 5 Collier on Bankruptcy par. 1100.06, at 1100-32 through 1100-34 (15th ed. 1983); In re Continental Vending Machine Corp. (2d Cir. 1975), 517 F.2d 997, 1000.

Assuming that the bankruptcy court was vested with nonexclusive jurisdiction to hear and rule on the issue of piercing the corporate veil, we still must decide whether Nalco, as argued by Parting and determined by the court below, was required to pursue this claim in that forum so that, by declining to litigate in the bankruptcy court, Nalco waived the right to raise this claim in the circuit court. We hold that, under the facts here, Nalco should have been permitted to raise, in its counterclaim, the issue of piercing the corporation veil of Specialist. We know of no authority requiring Nalco, under the circumstances here, to litigate the issue raised here in the bankruptcy proceeding filed prior to the counterclaim filed in another court, where both have jurisdiction. To hold otherwise would implicitly vest bankruptcy courts with exclusive jurisdiction in these matters unless the bankruptcy court decided to abstain under 28 U.S.C. sec. 1471(d) (Supp. 1978). Furthermore, a stronger argument can be made for the proposition that where creditors actually participate in the bankruptcy proceedings of the debtor corporation but fail to raise the issue of a “sham” corporation in those proceedings, those creditors should be barred from attempting to pierce the corporate veil of the debtor at a later date and in a second, different forum. Yet, under those circumstances, the later challenge to the debtor corporation has been allowed by the second forum. See Steyhr Daimler Puch of America Corp. v. Pappas (E.D. Va. 1983), 35 Bankr. 1001; B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 415 N.E.2d 1070.

While Parting claims that should Specialist’s corporate veil be pierced, all of the creditors should benefit but only Nalco will be before the trial court, the outcome of this litigation and its effects on all involved are speculative at this point, and our holding does not prejudice other creditors. Their interests may be protected, for example, by the joining of the chapter 7 trustee as a necessary party. (See Steyhr Daimler Puch of America Corp. v. Pappas (E.D. Va. 1983), 35 Bankr. 1001.) Under the facts here, Nalco’s failure to attempt to pierce the corporate veil in bankruptcy court, assuming it could do so, will not operate as a waiver of its right to make that claim in this State court proceeding against Parting, nor is Parting prejudiced in any way.

We note in closing that in its reply brief, Nalco also argues that the bankruptcy court was without jurisdiction since the bankruptcy petition was filed after the decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982), 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858, which found the broad grant of jurisdiction to the bankruptcy courts contained in 28 U.S.C. sec. 1471 (1978) unconstitutional. This issue was not raised below (see Carillo v. Jam Productions, Ltd. (1983), 97 Ill. 2d 371, 377, 454 N.E.2d 649) and was not raised or argued in Nalco’s initial brief (Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 6, 454 N.E.2d 706; Will v. Will Products, Inc. (1982), 109 Ill. App. 3d 778, 785, 441 N.E.2d 343), and thus is deemed waived. Also, as this matter was brought prior to the recent changes in the bankruptcy laws, we express no opinion as to whether the bankruptcy courts continue to have nonexclusive jurisdiction and thus remain available to future litigants who seek to pierce the corporate veil of a debtor corporation in that forum.

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

Reversed and remanded.

NASH, P.J., and HOPF, J., concur.


author: JUSTICE SCHNAKE

text:
    ALICE HOOTMAN, Special Adm’r of the Estate of Bobby Hootman, Deceased, Plaintiff-Appellant, v. HENRY DIXON et al., Defendants-Appellees.
    Second District
    No. 83—1145
    Opinion filed December 31, 1984.

      Steven A. Wakeman, of Strodel, Kingery & Durree, of Peoria, for appellant.
    Ole Bly Pace III, of Ward, Murray, Pace & Johnson, of Sterling, for ap-pellees.
   JUSTICE SCHNAKE

delivered the opinion of the court:

This is an appeal from an order granting the defendant’s motion for a judgment n.o.v. A wrongful death action was brought in the circuit court of Lee County by the plaintiff, Alice Hootman, as the special administrator of the estate of her deceased son, Bobby Hootman. The deceased was killed on August 13, 1981, when a small brick building with a concrete roof collapsed upon him. The building was owned by the defendants, Henry Dixon, Luke Morin, Art Eicholz and Paul Long, d/b/a Country Manor Estates, a partnership. The case proceeded to trial and on September 17, 1983, the jury returned a verdict of $35,100 for the plaintiff. The trial court entered judgment on the verdict on September 27, 1983, but granted the defendants’ motion for a judgment n.o.v. on December 27, 1983. The plaintiff appeals the trial court’s granting of the judgment n.o.v.

On about August 3, 1981, the Hootmans moved into a trailer park located on the north end of a 77-acre tract of land owned by the defendants. A brick building was located on the south end of this tract, approximately 1,000 to 2,000 feet from the trailer park. The building was small, approximately 10 by 10 feet to 12 by 12 feet, made out of red ceramic tile bricks with a four- to six-inch concrete roof, and was described as having holes in each of its walls large enough for two people to walk through. The area where the building was located was often played in by the local children, and the defendants, who were aware of this, made no attempt to keep the children out.

At some time between August 8 and August 11, 1981, the deceased and two of his friends, David Ackert and Michael Cook, began trying to knock the brick building down by using hammers and pieces of brick to knock out still more bricks from the building’s walls. It is clear the boys’ purpose was to cause the building to collapse. While it is uncertain how many bricks the boys knocked out or how long each day the boys spent knocking the bricks out, it is certain that the boys succeeded. At approximately 6 p.m. on August 13, 1981, the boys realized the building was beginning to collapse. Ackert and Cook were able to jump free of the building, but the roof collapsed on and killed Bobby Hootman as he tried to escape.

At the time of the accident, the deceased was 12 years old and his two friends were both 10 years old. Ackert and Cook realized and had discussed the dangers of someone being seriously hurt, i.e., that they could sustain broken bones. The boys, in fact, had planned an escape route by clearing a path out of the building and placing a mattress just outside on which to jump. It is disputed, however, whether the deceased was present on the day that Ackert and Cook discussed these dangers. The deceased was present, however, at about 3:30 p.m. on the day of the accident when Karen Dale, a 15-year-old friend, told the boys to stay away from the building or they might get hurt.

The defendants argue that the brick building was not a “dangerous condition” (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625) as required for imposing liability on the property owners because the risk of the ceiling collapsing was an obvious risk and because the building was not inherently dangerous. Therefore, the defendants argue, they owed no duty to the deceased and are not liable for his death. We agree and therefore affirm.

Our supreme court in Kahn held that the proper basis for deciding such cases was the customary rules of ordinary negligence. Under the rules of ordinary negligence, a property owner is under no duty to keep the premises in any particular condition to promote the safety of those who come upon the land without an invitation because the law does not require the owner to anticipate the presence of persons wrongfully or unexpectantly on the property. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 325.) Nor do infants, as a general rule, have any greater right to go upon the lands of others than do adults, and their minority imposes no duty upon the owner to expect them or take precautions for their safety. Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625.

An exception is recognized, however, where the owner knows or should know that young children habitually frequent the area where a dangerous condition exists on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625.) If all three prerequisites are met, it is deemed that harm to a child is sufficiently foreseeable for the law to impel an owner or occupier of land to remedy the condition. Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326.

In the present case, the defendants admit that they knew children frequently played in the area of the building and that the cost of demolishing the building and hauling away the debris was only $250. The only remaining issue, therefore, is whether the brick building was a “dangerous condition.”

“As Kahn sets forth, a dangerous condition *** is one which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved.” (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326.) “It is well settled that if the condition complained of presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that condition. The rationale for this rule is that, since children are expected to avoid dangers which are obvious, there is no reasonably foreseeable risk of harm.” (Cope v. Doe (1984), 102 Ill. 2d 278, 286). See Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316 (risk of falling into a visible drainage ditch); Cope v. Doe (1984), 102 Ill. 2d 278 (risk of falling through ice and drowning in partially frozen drainage ditch); Fuller v. Justice (1983), 117 Ill. App. 3d 933 (risk of standing on a log and having it roll out from underneath you).

Applying these principles to the present case, the brick building was not a dangerous condition, because the risk it presented was an obvious risk. The evidence is undisputed that the deceased and two of his 10-year-old friends spent three to five days using hammers and bricks to knock still more bricks from the building’s walls. It was the boys’ conscious plan to knock out bricks from the walls until the building collapsed. Under these circumstances, the deceased must be held to have appreciated the risk of serious injury from the building collapse as he stood inside and knocked out its walls.

The plaintiff argues that since several other neighborhood children had also knocked bricks out of the building’s walls, we cannot say, as a matter of law, that the deceased should have appreciated the risks involved. However, our supreme court has acknowledged that “[t]here are many dangers, such as those of fire and water, or falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large” (Restatement (Second) of Torts sec. 339, comment j, at 203 (1965), cited with approval in Cope v. Doe (1984), 102 Ill. 2d 278, 286-87, and Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 327), and yet many children tragically die or are seriously injured from these risks each year. Nor do we believe that a child must have been previously exposed to the precise type of risk involved before the child can be expected to appreciate it.

Another basis for our affirmance here is that the brick build: ing did not constitute a “dangerous condition” in that it was not inherently dangerous. An object is not inherently dangerous, and thus not a “dangerous condition,” merely because it is capable of being abused or wrongfully used.

In Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, our supreme court held that a pile of trash which contained cans of paint and lacquer was not a dangerous condition, even though paint and lacquer are flammable, because they could be made dangerous only if ignited, and in Donehue v. Duvall (1968), 41 Ill. 2d 377, the supreme court held that a large pile of dirt was not a dangerous condition, even though the propensity of small boys to throw things such as dirt clods at each other is well known. In Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, this court held that the combination of a picnic table, bench and tree did not constitute a dangerous condition, even though the table and bench made it possible for children to jump onto a higher tree limb and swing on it.

Similarly here, the brick building was not an inherently dangerous condition. There was no evidence that the building and its concrete roof collapsed of their own accord while the three boys played quietly inside. Rather, the building collapsed only after the three boys, using hammers and bricks, purposely knocked bricks out of its support walls until the walls could no longer support the weight of the concrete roof. It was this misuse of the building, an object which was not otherwise inherently dangerous, that caused the death of the deceased.

The plaintiff cites Driscoll to support her argument based on the court’s statement:

“Paint or lacquer is not explosive, nor is it inherently or intrinsically dangerous. It is of course combustible, as are any number of other materials ordinarily found on trash piles, and it can be made dangerous if ignited or brought into contact with fire. But this is an unusual or extraordinary use, which a person cannot reasonably be required to anticipate in the absence of something to put him on notice of such a practice. *** The cause of plaintiff’s injury was not the paint cans or the trash pile but the fire with which he was playing.” (Emphasis added.) (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 78.)

The plaintiff argues that since the holes in the building’s walls had grown larger over time, the defendants should have known that children were knocking bricks out of the walls and, therefore, the defendants owed the deceased a duty to remedy the condition by tearing down the building.

We disagree for two reasons. First, even if it is foreseeable that an object on the owner’s property might be abused or misused, that does not place a duty upon the property owner to remedy the condition if the condition is not inherently dangerous. In Donehue, a child was allegedly hit in the eye with a dirt clod containing broken glass which was taken from a pile of dirt that had been dumped in the defendant’s backyard. In holding that the dirt was not a dangerous condition, the court stated:

“A pile of dirt is unquestionably attractive to children, and the propensity of small boys to throw things at each other is a matter of common knowledge. But if the objects left accessible to them are not inherently dangerous, harm is not reasonably foreseeable. (See Landman v. M. Susan & Associates, Inc., 63 Ill. App. 2d 292.) It is not enough that a possibility of injury exists. As this court observed in Lance v. Senior, 36 Ill. 2d 516, 518, ‘After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.’ ” Donehue v. Duvall (1968), 41 Ill. 2d 377, 379.

Similarly in this case, even if it was foreseeable that children might abuse the brick building, the defendants owed no duty to the deceased to remedy the condition, because the building was not inherently dangerous.

Second, to accept the plaintiff’s reading of Driscoll would mean that one child’s prior failure to avoid an obvious risk would make a later child’s failure to avoid the same obvious risk foreseeable. In essence, after the first child, the owner would become the insurer of every child who came upon the property and would be required to child-proof the property.

Since the brick building was not a dangerous condition and the defendants owed no duty to the deceased to tear it down, they cannot be held liable for his death.

The court below properly granted judgment n.o.v.

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.