author: JUSTICE NASH

text:
    E. LAWRENCE YOUNG, JR., et al., Plaintiffs-Appellees, v. THE VILLAGE OF GLEN ELLYN et al., Defendants-Appellants.—BROWNING FERRIS INDUSTRIES, INC., Plaintiff-Appellee, v. THE VILLAGE OF GLEN ELLYN et al., Defendants-Appellants.
    Second District
    Nos. 82—871, 82—881 cons.
    Opinion filed December 30, 1983.

      Huck & Walsh, of Wheaton, for appellant Village of Glen Ellyn.
    John J. O’Toole and John R. Fielding, both of Chicago, for appellant Theta Systems, Inc.
    Thomas L. Johnson, of Wheaton, for appellee Browning Ferris Industries, Inc.
    John F. Garrow and Alfred E. Woodward, both of Rathje, Woodward, Dyer & Burt, of Wheaton, for other appellees.
   JUSTICE NASH

delivered the opinion of the court:

Defendants, the village of Glen Ellyn and Laidlaw Waste Systems, Inc., appeal from a summary judgment entered in favor of plaintiffs, E. Lawrence Young, Jr., et al. and Browning Ferris Industries of Illinois, Inc., declaring that a contract for garbage removal entered into between the village and Laidlaw was void and enjoining its performance.

The primary question presented by this appeal is whether garbage collection is a utility service excluded from competitive bidding requirements within the context of an ordinance of the village.

In September 1980, the board of trustees of the village decided to solicit bids from interested parties for the award of an exclusive contract for collection of residential refuse within the village. It caused bid packages to be sent to 18 or 20 scavenger companies for which bids were requested on several alternate options, including both a limited and full service basis. Bidders were also requested to submit rates for alternate terms extending over both a 21/2-year period and also for a five year period. The village expressly reserved the right to determine which level of service and time period would be accepted and a contract awarded to the successful bidder.

In October 1980, the village held a prebid conference with interested bidders who were advised it reserved the right to reject any or all bids and that, depending upon the bid options which it accepted, the contract entered with the successful bidder would be modified to meet the type of service selected by the village.

The village eventually received four bids relating to the unlimited garbage collection service option sought by it, and which it ultimately selected, as follows:

Curb Rear Door Stern $ 7.56 $10.56

Theta (now Laidlaw) 6.82 10.41

Browning Ferris 8.50 15.32

Molenhouse 10.00 11.10

A public information meeting was held December 15 at which the garbage collection options were discussed and the Village Board of Trustees met on January 12, 1981, and adopted a resolution awarding the garbage collection contract to Laidlaw (the low bidder) under the full-service option. The resolution also set forth a formula for adjustment of the rate after the initial 21/2-year contract period and the terms of the performance bond were fixed.

Prior to adoption of the resolution accepting Laidlaw’s bid the trustees debated, with much disagreement, whether the contract should be awarded to Browning Ferris (third lowest bidder) because it had been serving a majority of the village residents through individual contracts with them under the previous licensing system then in operation. A tie vote of the six village trustees was resolved by the vote of the village president to award the contract to Laidlaw. The final contract was entered between the village and Laidlaw on January 26, 1981, in which several modifications of terms were agreed upon between them which were considered by the trustees to be necessary under the unlimited service collection option chosen.

Declaratory judgment actions were commenced by plaintiffs, Young et al., as taxpayers of the village, and by Browning Ferris, as an unsuccessful bidder for the contract. The cases were consolidated by the trial court and it granted a motion for summary judgment in which all plaintiffs joined. The trial court found, inter alia, that section 1 — 10—1 of chapter 10 of the Village Code of Glen Ellyn required that the garbage collection contract be let only by competitive bidding and, while the village did seek such bids, material alterations in the terms of the contract which was thereafter entered from those upon which bids were sought invalidated the contract.

Neither defendant argues on appeal that plaintiffs Young et al., as taxpayers of the village, lack standing to seek the declaratory and in-junctive relief sought in this action; however, Laidlaw challenges the right of Browning Ferris to do so as an unsuccessful bidder on the contract and we will consider that issue first.

In order to have standing in an action for declaratory relief a party must be interested in the controversy to the extent that the party has a personal claim, status or right which is capable of being affected and the dispute must touch the legal relations of parties who are adverse to one another. (Allen v. Love (1983), 112 Ill. App. 3d 338, 340-41, 445 N.E.2d 514.) It has been held under these standards that an unsuccessful bidder for a public contract has standing to bring an action against a municipality and the successful bidder challenging the award. (Stanley Magic-Door, Inc. v. City of Chicago (1979), 74 Ill. App. 3d 595, 597, 393 N.E.2d 535; see Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785; Mohr v. City of Chicago (1904), 114 Ill. App. 283.) We conclude Browning Ferris was authorized to bring its action.

We consider next defendant’s contention that summary judgment was erroneously granted to plaintiffs as the village was not required by its ordinance to let the garbage collection contract under the competitive bidding provisions of the ordinance, as was determined by the trial court. The village argues that although it solicited bids for this purpose, it may reject any or all of them and negotiate a contract with the party of its choice.

Section 1 — 10—1 of chapter 10 of the Village Code provides:

“All purchase orders or contracts for labor, services, or work or the purchase of personal property, materials, equipment or supplies involving amounts in excess of $2,500 made by or on behalf of the Village of GLEN ELLYN, shall be let by competitive bidding after advertisement to the lowest bidder. Contracts which by their nature are not adapted to award by competitive bidding, as for professional services or utility services are excluded.” (Emphasis added.)

We note first that the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 1—1 et seq.) does not require a village to submit a garbage collection contract to a competitive bidding procedure. (See Ill. Rev. Stat. 1981, ch. 24, par. 11 — 19—1; Strub v. Village of Deerfield (1960), 19 Ill. 2d 401, 402-03, 167 N.E.2d 178.) A local ordinance may, however, impose more rigorous or definite regulations in addition to those enacted by the State legislature so long as they do not conflict with the statute. Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 969-70, 422 N.E.2d 205; Jones v. City of Chicago (1952), 348 Ill. App. 310, 316,108 N.E.2d 802.

The village in this case has adopted a competitive bidding ordinance which requires it to let certain of its contracts to the lowest bidder after competitive bidding. Expressly excepted from the constraints of that ordinance, however, are “contracts which by their nature are not adapted to award by competitive bidding, as for professional services or utility services are excluded.” Thus, we must determine whether an exclusive contract for the collection of garbage within the village constitutes a contract for utility services within the meaning of its competitive bidding ordinance and is thus excluded from its terms, as argued by defendants.

If, in this case, the village was bound by the term of its ordinance to let the garbage collection contract only on a competitive bidding basis and in accordance with the terms of its bidding proposal, as the trial court found, then, as also determined below, changes or modifications of the terms of the contract entered into with the successful bidder could act to invalidate the contract. (See, e.g., City of Chicago v. Mohr (Í905), 216 Ill. 320, 328, 74 N.E. 1056; Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 344, 422 N.E.2d 1078; Rosetti Contracting Co. v. Brennan (7th Cir. 1975), 508 F.2d 1039; 10 E. McQuillan, Municipal Corporations sec. 29.72, at 392 (3d ed. 1981 & 1982 Supp.).) Modifications in such a contract which were, in fact, cohtemplated in the original bid proposal will not, however, act to invalidate the contract. (See M.A. Lombard & Son Co. v. Public Building Com. (1981), 101 Ill. App. 3d 514, 521, 428 N.E.2d 889.) If, on the other hand, under the ordinance in question the garbage collection contract disputed by the parties is a utility service and thus excluded from the requirements of the bidding ordinance, modifications or variations between the terms of the bid proposal and the contract then negotiated by the parties would not cause its invalidity and subject it to the attack made by plaintiffs here. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 983-84, 387 N.E.2d 785, 793; Urban Products International, Ltd., v. National Disposal Service (1975), 32 Ill. App. 3d 299, 301-02, 336 N.E.2d 138, 141-42; 10 E. McQuillan, Municipal Corporations sec. 29.37, at 324 (3d ed. 1981 & 1982 Supp.).

When construing a municipal ordinance its language must be given its plain and ordinary or commonly accepted meaning unless to do so would defeat the intent of the ordinance. (Scott v. Rockford (1979), 77 Ill. 2d 507, 512, 397 N.E.2d 801; City of Chicago v. Pennsylvania R.R. Co. (1968), 41 Ill. 2d 245, 251, 242 N.E.2d 152.) The construction of a municipal ordinance is a matter of law. Oberman v. Byrne (1983), 112 Ill. App. 3d 155,160, 445 N.E.2d 374.

A public utility has been defined as a private enterprise clothed with the public interest; one who devotes his property to such a use grants to the public an interest in that use and must submit to public regulation for the common good. (People v. Phelps (1978), 67 Ill. App. 3d 976, 978-79, 385 N.E.2d 738, 741.) A public utility is a business organization regularly supplying the public with some commodity or service, and a distinguishing characteristic of a public utility is a devotion of private property by the owner to service useful to the public which has a right to demand it so long as it is continued with reasonable efficiency under proper charges. (City of Wichita Falls v. Kemp Hotel Operating Co. (Tex. Civ. App. 1942), 162 S.W.2d 150, 152-53.) Black’s Law Dictionary defines a public utility as “[a] privately owned and operated business whose services are so essential to the general public as to justify the grant of special franchises for the use of public property or of the right of eminent domain, in consideration of which the owners must serve all persons who apply, without discrimination.” (Black’s Law Dictionary 1108-09 (5th ed. 1979); see also Commonwealth v. Lafferty (1967), 426 Pa. 541, 233 A.2d 256.) This definition of a public utility has been applied in other jurisdictions to contracts for the exclusive collection of garbage within a municipality. City of Wichita Falls v. Kemp Hotel Operating Co. (Tex. Civ. App. 1942), 162 S.W.2d 150; see also Schlagel v. Hoelsken (1967), 162 Colo. 142, 145-46, 425 P.2d 39, 41; County of Bergen v. Department of Public Utilities (1971), 117 N.J. Super. 304, 284 A.2d 543; 12 E. McQuillan, Municipal Corporations sec. 34.08, at 24 (3d ed. 1970 & 1982 Supp.).

We conclude that the contract for the exclusive collection of garbage within the village was for utility services within the meaning of the village ordinance. Our conclusion finds support in the actions of the village trustees during their discussion of the contract in the January 1981 meeting. The trustees did not feel compelled by the ordinance to necessarily award the garbage collection contract to the lowest bidder. Rather, there was much debate as to whether or not the contract should have been awarded to Browning Ferris, the third lowest bidder. The final vote taken by the trustees showed three trustees voting in favor of awarding the contract to Laidlaw and three trustees voting to award the contract to Browning Ferris. The tie was broken by the vote of the village president for the lowest bidder, Laidlaw. It seems apparent the village trustees did not consider the bidding ordinance to control the letting of the contract in question and considered it to be excluded from the requirements of the ordinance.

As the village was thus not required to solicit competitive bids for the letting of this contract, it was allowed by law to award the contract to any bidder it considered responsible and on such terms as they may have agreed. (See Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 983-84, 387 N.E.2d 785, 793; Urban Products International Ltd. v. National Disposal Service (1975), 32 Ill. App. 3d 299, 301-02, 336 N.E.2d 138, 141-42; 10 E. McQuillan, Municipal Corporations sec. 29.37, at 324 (3d ed. 1981 & 1982 Supp.).) The resolution of this issue is dispositive, requiring reversal of the summary judgment entered below, and we need not therefore consider other questions raised by appellants.

Accordingly, the judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.

      Although the statutes relating to the jurisdiction of the Illinois Commerce Com mission define a “public utility” more narrowly (see Ill. Rev. Stat. 1981, ch. lll2/3, par. 10.3), we do not consider that to be conclusive for the term as used in the village ordinance.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    DOUGLAS RIO, Plaintiff-Appellant, v. EDWARD HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 83—71
    Opinion filed December 29, 1983.

      Douglas Rio, of Oak Brook, pro se, and Charles E. Lab, of Joliet, for appellant.
    Craig J. Cobine and Kathleen C. West, both of Hennessy, Dommermuth, Brestal, Cobine, Roth & West, of Naperville, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Douglas Rio, appeals from an order dismissing his amended complaint for medical malpractice against defendants, Edward Hospital and Dr. A. Hussain, on defendants’ motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) for plaintiff’s failure to comply with the notice provision of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102).

The issue raised on appeal is whether a complaint filed less than three months after the plaintiff, as later alleged in an amended complaint, knew or reasonably should have known of his injury caused by defendants is barred by the notice provision of section 8 — 102 of the Tort Immunity Act where the alleged medical malpractice occurred more than one year prior to the filing of the complaint and no written notice of injury was given.

On August 14, 1981, plaintiff filed a complaint for medical malpractice against defendants, Edward Hospital and Drs. A. Hussain and K. A. Hurst, in the circuit court of Cook County. Plaintiff alleged he was treated by the defendant doctors at Edward Hospital on August 14, 1979, and suffered personal injury resulting from their negligent acts. All defendants were served by summons on September 16, 1981. On October 16, 1981, Edward Hospital and Dr. Hussain filed a motion to dismiss and, alternatively, a motion to transfer the cause to Du Page County. Dr. K. A. Hurst was represented by separate counsel and, as he is not a party to this appeal, will not be further referred to. Defendants’ motion to dismiss alleged that Edward Hospital was a municipal corporation, that Dr. Hussain was an employee of the hospital, that Dr. Hussain did not reside in Cook County, and that the principal office of the hospital was in Du Page County. On November 17, 1981, an order was entered transferring the cause to the circuit court of Du Page County.

The cause was filed in Du Page County on February 16, 1982. On June 17, 1982, defendants filed a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48), recodified as section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619), alleging that the notice provision in section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) was not complied with, and filed two affidavits which stated, in essence, that Edward Hospital was a municipal corporation; that no written notice of injury was received; that Dr. Hussain was an employee of Edward Hospital and treated plaintiff in August 1979; and that Edward Hospital had no primary insurance coverage. Plaintiff then filed an amended complaint on August 27, 1982, alleging, inter alia, that he discovered on May 19, 1981, that he had been injured as a result of defendants’ negligent treatment on August 14, 1979, and that that was the first time that he knew or reasonably should have known of the existence of the injury and its wrongful causation. The previously filed motion to dismiss was allowed to stand as to the amended complaint. Plaintiff filed his own affidavit which stated that he injured his wrist and hand while at work on August 14, 1979; that on August 15 he was treated at Edward Hospital and examined by Dr. Hussain; that his X rays were examined by Dr. Hurst; that he was told by Dr. Hussain that his wrist was sprained; that on May 19, 1981, he was examined by a Dr. Lewis and informed that his wrist had been fractured in August 1979 and injured by the failure to properly treat the fracture then; and that May 19, 1981, was the first time that he knew he had been injured by the defendants’ negligent treatment in August 1979. Defendants later filed an affidavit by one of their attorneys which represented that the law firm was first notified of the transfer of the cause from Cook County to Du Page County in a letter from plaintiff’s attorney dated May 24, 1982. On November 17, 1982, defendants’ motion to dismiss was granted on the basis of plaintiff’s failure to comply with the notice requirement of section 8— 102. Plaintiff’s motion to reconsider was denied on December 22, 1982.

The pertinent sections of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, pars. 8 — 101 through 8 — 103) provide:

“Sec. 8 — 101. No civil action may be commenced in any court against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action accrued.”
“Sec. 8 — 102. Within 1 year from the date that the injury or cause of action, referred to in Sections 8 — 101, 8 — 102 and 8— 103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.”
“Sec. 8 — 103. If the notice under Section 8 — 102 is not served as provided therein, any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.”

Plaintiff first contends that the discovery rule applicable in medical malpractice cases, whereby the period of limitations starts to run where a person knows or reasonably should know of his injury, and also knows or reasonably should know that it was wrongfully caused, should be recognized as being applicable to the notice provisions in similar malpractice claims against municipalities. Thus, he contends that, once the discovery rule is applied in the present action, he complied with the notice provisions by filing his complaint on August 14, 1981, several months after he first became aware of the cause of action on May 19, 1981, upon being so informed by Dr. Lewis. Defendants maintain that “[n]o judicial decision has extended the notification period of the Tort Immunity Act to the date of discovery of negligent professional treatment,” and that statutes requiring the giving of notice of injury to public entities are to be strictly construed.

Plaintiff failed to serve, as is required under section 8 — 102 of the Tort Immunity Act, any written notice of injury on Edward Hospital within one year from the date that the injury or cause of action was received or accrued that he was about to commence a civil action for damages for injury. However, our supreme court held in Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89, that the filing of the complaint within the then-applicable six-month statutory notice period satisfied the notice requirement of section 8 — 102 of the Tort Immunity Act even though no prior written notice was served on the municipality. (64 Ill. 2d 230, 237, 356 N.E.2d 89; see also Zavala v. City of Chicago (1977), 66,Ill. 2d 573, 577-78, 363 N.E.2d 848.) In the case at bar, the original complaint, which alleged that the negligent treatment and injury occurred on August 14, 1979, was filed on August 14, 1981, more than one year after the alleged injury. However, plaintiff’s amended complaint filed on August 27, 1982, alleged that he discovered he had been injured by defendants’ treatment on May 19, 1981. Plaintiff contends that his August 14, 1981, complaint was therefore filed within one year from the date the injury or cause of action was received or accrued.

Generally, in medical malpractice cases in which the discovery rule is applied, the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 232, 447 N.E.2d 408; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869; see also Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212.) While we have found no Illinois case which expressly holds that the discovery rule is applicable to a medical malpractice action against a municipality and to the special notice requirements of the Tort Immunity Act, the appellate court has applied, without expressly deciding, the discovery rule in medical malpractice cases involving a municipality and the notice provision. See, e.g., Zagar v. Health & Hospitals Governing Com. (1980), 83 Ill. App. 3d 894, 404 N.E.2d 496; Addison v. Health & Hospital Governing Com. (1977), 56 Ill. App. 3d 533, 371 N.E.2d 1060; see also Eason v. Garfield Park Community Hospital (1977), 55 Ill. App. 3d 483, 487, 370 N.E.2d 1099 (Simon, J., dissenting).

Section 8 — 102 expressly provides that notice be served “[wjithin 1 year from the date that the injury or cause of action *** was received or accrued ***.” (Ill. Rev. Stat. 1981, ch. 85, par. 8— 102.) This language is substantially similar to that of the discovery rule in medical malpractice cases. (See Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 232, 447 N.E.2d 408.) We note that a rigid application of the notice provisions of the Tort Immunity Act will not be upheld if in conflict with another statute (see Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54 (right of contribution)), or during the minority of a claimant. (Cf. Haymes v. Catholic Bishop (1965), 33 Ill. 2d 425, 211 N.E.2d 690.) Also, the Tort Immunity Act is in derogation of the common law action against local public entities and must be strictly construed against the local public entity. Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415.

The purpose of timely notice allows the governmental entity the opportunity to examine the location of the occurrence at an early date so that conditions do not change and evidence does not become stale, to plan its budget in light of prospective liabilities, to settle claims and avoid costly civil litigation, and to correct the alleged defective condition so that future injuries and liabilities may be avoided. (Stephens v. McBride (1983), 97 Ill. 2d 515, 524, 455 N.E.2d 54.) Under the circumstances present here, we conclude that application of the discovery rule in a medical malpractice claim against a municipality does not offend the purposes of the notice provision of section 8— 102 of the Tort Immunity Act, and is, in fact, implicit in the language of section 8 — 102. Plaintiff’s amended complaint which alleged that he discovered on May 19, 1981, that he had been injured by defendants’ prior treatment, relates back to the date of his original complaint (see Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(b)), which was filed on August 14, 1981, and is within three months of his discovery of the injury. This is within one year from the date the injury or cause of action was received or accrued, as provided in section 8 — 102 of the Tort Immunity Act.

As we previously stated above, the filing of a complaint within the one-year statutory notice period satisfies the notice requirement of section 8 — 102 even though no prior written notice was served on the municipality. (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89.) Contrary to the defendants’ general assertion that plaintiff’s complaint “was insufficient to provide the requisite information,” we conclude the complaint provided the necessary information to give the municipality notice of the civil action for damages against it and furnished timely notice of injury so that there could be a prompt investigation. (See Dunbar v. Reiser (1976), 64 Ill. 2d 230, 236, 356 N.E.2d 89.) The complaint need not contain all the information required by section 8 — 102 (64 Ill. 2d 230, 236, 356 N.E.2d 89) and, here, the complaint adequately notified defendants of the name of the person to whom the action accrued and who was injured, the date and place of the occurrence, and the general nature of the occurrence. In the context of this medical malpractice action against a municipality, the filing of plaintiff’s complaint satisfied the requisites of section 8 — 102.

Defendants further contend, however, that the failure of plaintiff to file the lawsuit in the proper county, to cause transfer of the case within a reasonable period of time, to notify them of the docketing of the case in Du Page County, and to allege late discovery in the original complaint, prevented defendants from an opportunity to obtain by discovery or otherwise, the information required under . the Tort Immunity Act. Defendants cite Zavala v. City of Chicago (1977), 66 Ill. 2d 573, 363 N.E.2d 848, as analogous authority for this argument. The gist of this argument appears to be that plaintiffs actions “let the discovery period pass without providing to the municipal defendant either the required notice, the information that would be required in the notice, or an opportunity to conduct discovery.”

We do not find that Zavala is any help to defendants in support of their contention. In Zavala, a defective notice was served on the municipality within the statutory notice period, a complaint was not filed within that notice period, and the court held there was a failure to comply with the requirements of section 8 — 102 which required dismissal of the complaint.

In contrast, the filing of the complaint here within the statutory notice period satisfied the notice requirement of section 8 — 102. The filing of the complaint was less than three months after the injury was discovered by plaintiff. While defendants contend that because plaintiff filed suit in the wrong venue and because of his other subsequent actions they were prevented from undertaking pretrial discovery until some time later, we find this contention without merit. In view of the fact that a governmental entity need not be given notice for almost a year after the occurrence, it can hardly be contended that the statute necessarily assures an opportunity to conduct an investigation immediately after the injury is sustained. (See Stephens v. McBride (1983), 97 Ill. 2d 515, 524, 455 N.E.2d 54.) Moreover, once a complaint has been filed within the statutory notice period, the requirements of section 8 — 102 are met (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89), and defendants could have undertaken an investigation and pretrial discovery of the facts underlying the claim. Under the limited facts in this record on a motion to dismiss, we do not find that plaintiff’s filing of the complaint in the wrong venue and the subsequent delay in transferring the cause to Du Page County are sufficient to violate the purposes of the notice requirement of section 8 — 102 of the Tort Immunity Act, nor has any prejudice to defendants been shown.

For the foregoing reasons the judgment of the circuit court of Du Page County dismissing plaintiff’s complaint is reversed, and the matter remanded for further proceedings.

Reversed and remanded.

VAN DEUSEN and NASH, JJ., concur.

      It has been suggested that injuries resulting from malpractice are not intended to be within the coverage of the notice requirement of section 8 — 102. See Eason v. Garfield Park Community Hospital (1977), 55 Ill. App. 3d 483, 487, 370 N.E.2d 1099 (Simon, J., dissenting).


author: JUSTICE STAMOS PRESIDING JUSTICE DOWNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH PALMER et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 82—1403, 82—1567 cons.
    Opinion filed December 27, 1983.
    DOWNING, P.J., dissenting.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Frank D. Madea, Assistant Public Defender, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court;

This appeal is taken from rulings in two cases which were consolidated for purposes of this appeal. Defendants were charged with unlawful use of weapons within five years of a prior felony conviction (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — l(a)(10), 24 — 1(b)) and each sought to exclude evidence of his prior felony convictions from consideration by the jury. Defendant Hollins offered to stipulate to his prior conviction outside the presence of the jury, and the trial court excluded evidence of that conviction from the jury. Defendant Palmer did not so stipulate and the trial court ordered a bifurcated proceeding under People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490. The State filed interlocutory appeals from these rulings.

Defendant Joseph Palmer was charged by information with unlawful use of weapons within five years of a prior felony conviction. He waived his right to a jury and raised an objection to the unlawful use of weapons statute, arguing that if the trial court heard evidence of defendant’s prior conviction for murder, defendant would not receive a fair trial. The court suggested that it would order a bifurcated proceeding in which the prior conviction would be considered by the sentencing court only after defendant was found guilty of misdemeanor unlawful use of weapons. The court commented that the information to be presented to the court as set forth in the charge would not cause prejudice to defendant because the case was being tried as a bench proceeding.

After the start of the trial, defendant indicated that he wished to withdraw his jury waiver and that he was unwilling to stipulate to his prior conviction. The court then ruled that it would not permit the State to prove the prior conviction to the jury as an element of the offense and indicated that it would order a bifurcated proceeding under Hayes.

Defendant Kenneth Hollins was charged by indictment with felony unlawful use of weapons and made a motion in limine to prohibit consideration by the jury of his prior conviction for burglary. The motion was granted by the court, and Hollins offered to stipulate to his conviction outside the presence of the jury.

In each case the State argued that, because the prior conviction was a factual element of the offense, the court’s ruling would result in a verdict which was insufficient as a matter of law, and would therefore operate as a dismissal of the felony charge. The State then certified that the court’s rulings substantially impaired its case as required under People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501.

The State now appeals the trial court’s rulings disallowing evidence of defendants’ prior convictions from being heard by the jury. Defendants contend that the rulings should be upheld under Hayes.

The Illinois Supreme Court has explicitly rejected the use of a bifurcated proceeding in circumstances similar to those of the case at bar. (People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 394 N.E.2d 1043.) In Pincham, the supreme court said:

“The decisions of this court have established that proof of the prior conviction is necessary to a conviction on the felony charge. (People v. Edwards (1976), 63 Ill. 2d 134; People v. Os-trand (1966), 35 Ill. 2d 520.) These decisions have been followed by the appellate court, and in People v. Crawford (1978), 59 Ill. App. 3d 211, the court held that where proof before the jury established only possession of a weapon, the conviction was for a misdemeanor only in spite of a stipulation out of the presence of the jury as to the defendant’s prior conviction and incarceration. That court held that proof of the aggravating circumstances must come before the finding of guilt or innocence, which is consistent with the decisions of this court.” 76 Ill. 2d 478, 480.

This reasoning was followed by the appellate court in People v. Wright (1981), 98 Ill. App. 3d 1089, 1092, 425 N.E.2d 42.

Defendants contend that, despite this line of cases, the trial court’s rulings should be upheld under People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490. Defendants argue that Hayes eliminated the need for introducing evidence of a prior conviction, for purposes of enhancing the degree of the offense, during the evidentiary stage of the trial. However, Hayes discussed the leading Illinois cases on the subject (People v. Dixon (1970), 46 Ill. 2d 502, 263 N.E.2d 876; People v. Owens (1967), 37 Ill. 2d 131, 225 N.E.2d 15; People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, overruled on other grounds in People v. Bracey (1972), 51 Ill. 2d 514, 519, 283 N.E.2d 685), which uniformly hold that it is proper to introduce evidence of prior convictions that serve to increase the degree of the offense during the evi-dentiary stage of the trial. Although we note that the supreme court in Hayes did not discuss Pincham, neither did it overrule the Ostrand line of cases upon which the Pincham decision was based. (See People v. Collins (1982), 109 Ill. App. 3d 1076, 1081, 441 N.E.2d 935.) We also note that, in People v. Stapleton (1983), 115 Ill. App. 3d 1067, 1070, 451 N.E.2d 584, the appellate court elected to follow Hayes over the Ostrand line of decisions. The court in Stapleton noted that Hayes did not overrule the Ostrand cases, but nonetheless cited Hayes in support of its decision not to require consideration by the jury of defendant’s prior convictions in a felony unlawful use of weapons prosecution.

After careful consideration of Hayes and Stapleton, as well as of Collins and the Ostrand line of decisions which it follows, we must affirm the soundness of the Ostrand line of cases. (See People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499; People v. Owens (1967), 37 Ill. 2d 131, 225 N.E.2d 15; People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 498; People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 394 N.E.2d 1043; People v. Crawford (1978), 59 Ill. App. 3d 211, 375 N.E.2d 1314.) We therefore find that defendants’ position is not supported by the case law in Illinois, and that evidence of defendants’ prior felony convictions should be presented to the jury as an el-

ement of the felony offense of unlawful use of weapons.

The State asks that costs be taxed against defendants. A conviction is the prerequisite for the assessment of costs. (See People v. Brown (1983), 98 Ill. 2d 374; People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d 205; People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194; People v. Halliday (1979), 73 Ill. App. 3d 615, 392 N.E.2d 389; and Ill. Rev. Stat. 1981, ch. 53, par. 8.) No convictions having occurred, there is no authority for the assessment of costs.

For the reasons stated, this case is reversed and remanded for further proceedings in the circuit court of Cook County in accordance with this opinion.

Reversed and remanded.

HARTMAN, J., concurs.

PRESIDING JUSTICE DOWNING,

dissenting:

As the majority notes, a conflict exists between the latest decision of our supreme court and a series of its earlier cases. Confusion exists as to when a defendant’s prior conviction can be used for the purpose of enhancing the degree of an offense. As the result, defendants, trial attorneys, trial and reviewing courts in this State are uncertain as to which supreme court case to follow.

I dissent for the reason expressed in People v. Hayes (1973), 15 Ill. App. 3d 851, 859, 305 N.E.2d 283: “We also question whether, under the statutory scheme which provides for enhanced penalties, it is fundamentally fair to inject the fact of prior convictions either in the indictment or before the trier of fact, until there has been a finding of guilty as to the substantive offense.” In that case, we felt constrained to follow, as does the majority here, People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, and People v. Dixon (1970), 46 Ill. 2d 502, 263 N.E.2d 876. However, now because of the supreme court’s position in People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490, I no longer feel constrained to follow Ostrand and Dixon. I recognize that in the 1981 Hayes case, the charge involved the retail theft statute (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3); whereas, in the instant case, as in People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 394 N.E.2d 1043, the charge is unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — l(a)(10), 24 — 1(b)). As each statute provides for enhancing the degree of the offense, I perceive no reason why the

results should be different. Further, I believe that the rights of defendants are better protected, whereas, the rights of society are not diluted, by following the principle set forth by our supreme court in Hayes.

There is a 180 degree difference between the 1981 Hayes case and the Pineham case. As said in a separate concurring and dissenting opinion in Redarowicz v. Ohlendorf (1981), 95 Ill. App. 3d 444, 454, 420 N.E.2d 209, rev’d in part (1982), 92 Ill. 2d 171, a case involving conflicting appellate court decisions, “[hjow do we decide to use one decision and reject another?” I think it appropriate to follow the later decision.

Ostrand, Davis and Pincham were not directly overruled by Hayes-, yet, In re Lane (1962), 58 Cal. 2d 99, 105, 372 P.2d 897, 900, 22 Cal. Rptr. 857, 860, held that it is an established rule of law that a later decision overrules prior decisions which conflict with it, whether or not such prior decisions are mentioned and commented upon. (Also see R. Leflar, Appellate Judicial Opinions 28 (1974).) In a somewhat similar problem discussed by the United States Supreme Court in James v. United States (1961), 366 U.S. 213, 215, 6 L. Ed. 2d 246, 251, 81 S. Ct. 1052, 1053, Chief Justice Warren said the earlier decision, though not overruled, “was thoroughly devitalized” by a later Supreme Court decision.

I recognize the doctrine of stare decisis. (See Neff v. George (1936), 364 Ill. 306, 308-09, 4 N.E.2d 388; Marathon Oil Co. v. Briceland (1979), 75 Ill. App. 3d 189, 191, 394 N.E.2d 44.) But, I seriously question the applicability of that principle to the case at bar, for “the precedents we create are not for all times; law must respond to changing conditions in society.” (Emphasis added.) (Redarowicz v. Ohlendorf (1981), 95 Ill. App. 3d 444, 455.) In addition, it is important to note the Marathon Oil court’s concession that “stare decisis is not universally applicable to all situations without exception.” Marathon Oil Co. v. Briceland (1979), 75 Ill. App. 3d 189,191.

In Pincham, the supreme court adhered to the principle of law set forth in Ostrand, Davis et al. But, the Hayes court, while ignoring Pineham, and acknowledging but not overruling Ostrand and Davis, held that the sentencing court must make the finding beyond a reasonable doubt that the accused was convicted of a prior offense. I regard Hayes to be the governing decisional law here.

For the aforesaid reasons, I would affirm the judgment of the circuit court of Cook County.

      The party in the 1973 Hayes case is nolfthe same as in the 1981 Hayes case.


author: JUSTICE JIGANTI PRESIDING JUSTICE LINN,

text:
    RONALD CLOW, Plaintiff-Appellant, v. METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 82—3060
    Opinion filed December 22, 1983.
    Rehearing denied January 13, 1984.
    Sidney Z. Karasik, of Chicago (Catherine L. Grahn, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Michael J. Gibbons and William E. Hoversen, Jr., of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

Ronald Clow, the plaintiff, was injured while he was working on the construction of a tunnel. He filed a multi-count complaint. Only the count stating a cause of action under the Structural Work Act is now at issue. (Ill. Rev. Stat. 1981, ch. 48, pars. 60-69.) The trial court granted a motion for summary judgment in favor of the defendant, Metropolitan Sanitary District of Greater Chicago (MSD). Clow appeals.

Clow was employed as a locomotive engineer for a contractor on the project. MSD was the owner of the property and was allegedly in charge of the work. The job site consisted of a 30-foot diameter shaft which was approximately 280 feet deep and which provided access to two horizontal tunnels. Without incident Clow went down to the tunnel by means of a bucket lowered by a crane. As he emerged from the bucket he stood on some flooring. For purposes of the motion for summary judgment MSD accepted the fact that the flooring was a structure within the purview of the Structural Work Act. The flooring was over a pit. It consisted of removable steel plates about four feet wide, eight feet long and one inch thick. The plates were laid close together and were not connected to each other or tied down. There was no framing on the sides. The area of the purported structure was about 16 feet by 12 feet. While Clow was standing on the flooring an explosion occurred in the shaft beneath him. Propane gas and/or diesel fuel was used on the project for heating and melting ice. The gas or oil was apparently the cause of the explosion. Clow was knocked to his knees but not off the platform. The explosion disrupted the arrangement of the plates. The complaint alleged that MSB was in charge of the work and wilfully violated the Structural Work Act because it failed to provide a safe, suitable and proper scaffold. Section 60 of the Structural Work Act provides:

“That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed *** for the use in the erection, repairing *** of any *** structure, shall be erected and constructed, in a safe, suitable and proper manner *** to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.)

Issues are raised as to whether this was a safe, suitable and proper structure and also as to proximate cause. We believe that the trial court properly entered judgment in favor of MSB because it was not shown that the structure was not erected in a safe, suitable and proper manner. Consequently, it is not necessary to consider the issue of proximate cause. See Illinois Pattern Jury Instruction, Civil, No. 180.09 (2d ed. 1971).

What is a safe, suitable and proper structure varies according to conditions and circumstances and no attempt has been made by the courts to define those terms. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 449, 236 N.E.2d 724, cert, denied (1968), 393 U.S. 935, 21 L. Ed. 2d 271, 89 S. Ct. 296.) Such questions are ordinarily for the jury. (Oldham v. Kubinski (1962), 37 Ill. App. 2d 65, 185 N.E.2d 270; Burgh v. Crane Construction Co. (1968), 102 Ill. App. 2d 188, 243 N.E.2d 590.) The Structural Work Act was designed to prevent injuries to persons employed in dangerous and extra-hazardous occupations and is to be liberally construed to that end. (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817.) The Act is to “give protection to workmen engaged in structural work.” Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 317,175 N.E.2d 785, 791.

The failure to provide a structure is a violation of the Act. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724, cert, denied (1968), 393 U.S. 935, 21 L. Ed. 2d 271, 89 S. Ct. 296.) A safe, suitable and proper structure must protect a workman from falling off the structure or from the structure itself falling. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607.) For purposes of this appeal, there was a structure in the instant case. Clow did not fall off the structure. The only suggestion that the structure was not safe, suitable and proper was that the unsecured planking was disrupted by the explosion and, Clow concludes, came up and struck him. The unsecured planking, however, did not render the structure unsafe, unsuitable or improper for engaging in structural work. A structure does not have to protect a workman from every hazard in the workplace, only hazards relating to structural work. An explosion is not, in our estimation, related to structural work.

Clow argues that MSB knew, either actively or constructively, that the gas or oil was placed below the scaffolding and that consequently, the Structural Work Act should require the structure to protect workers against such an explosion. For the reasons stated we do not think that the Act intended such a result. Whether the explosion resulted from negligence is not before the court at this time. To say that the Structural Work Act must protect against the explosion because gas or oil is on the premises would mean that the Structural Work Act must protect a worker against a fire because there are materials on a construction site which might cause a fire.

Clow also argues that whether the structure was safe, suitable and proper under the circumstances is a question of fact to be decided by the jury. However, that general proposition is modified by the exception that when the facts are undisputed and reasonable men could not draw different inferences from these facts a question of law is presented. (See St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 439 N.E.2d 12.) We do not believe that reasonable persons could draw any inference other than that the record fails to show that the structure was not safe, suitable and proper for structural work.

For the foregoing reasons, the decision of the trial court is affirmed.

ROMITI, P.J., and LINN, J., concur.

PRESIDING JUSTICE LINN,

dissenting:

On petition for rehearing, Justice Linn would allow the petition and dissents from the majority opinion for the following reasons:

The purpose of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) is to prevent injuries to (Halberstadt v. Harris Trust & Savings Bank (1972), 7 Ill. App. 3d 991, 996, 289 N.E.2d 90, 94, affirmed (1973), 55 Ill. 2d 121, 302 N.E.2d 64) and protect (Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 235, 367 N.E.2d 466, 467) workers engaged in dangerous and extrahazardous occupations (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 536, 263 N.E.2d 817, 819) or activities from certain risks inherent in the nature of their jobs (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, 1055) so as to secure for them a safe place to work and provide them with a remedy for personal injuries suffered at the hazardous construction site. Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 683, 384 N.E.2d 102,105.

In order to fall within the ambit of the Act, the particular activity involved must be an integral part of the structural construction operation, as the Act is not intended to cover any and all construction activities whatsoever. (Allen v. Godar (S.D. Ill. 1979), 476 F. Supp. 172, 173.) Moreover, it is only when the injury has some connection with the hazardous nature of one of the devices named in the Act that a cause of action may be maintained under it. St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 524, 439 N.E.2d 12, 16.

The majority has concluded that no genuine issue of material fact exists as to whether the structure upon which plaintiff was standing at the time of the explosion was “erected in a safe, suitable and proper manner.” This conclusion is based on my colleagues’ reasoning that (1) “An explosion is not *** related to structural work” and (2) that the intent of the Structural Work Act is not to protect a worker against such an explosion. This antilogy is directly at odds with the purpose of the Structural Work Act and with the applicable law.

Here, the activity in which plaintiff was engaged at the time of the injury was clearly related to the structural conscruction operation. Equally clear is that plaintiff’s injury, allegedly occasioned by the movement of unsecured planking, has some connection with the scaffold upon which he stood, a device, as defendant acknowledges, within the purview of the Structural Work Act. The fact that the explosion was or was not related to the structural work is irrelevant to a determination of whether the activity and the injury fall within he scope of the Act, and thereby give rise to a cause of action.

The relevance of the explosion is that it was a hazardous condition created and maintained within the work area by defendant. One in charge who creates or maintains a hazardous condition within the work area becomes liable under the Act to those persons injured therein. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 509, 373 N.E.2d 1354, 1366.) Liability from such hazardous condition will arise, however, only if plaintiff can show that (1) defendant, by maintaining or creating this hazardous condition, violated the Act, and (2) that this violation was the proximate cause of plaintiff’s injury. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, 1055.) The majority addressed only the first of these prerequisites to liability. Having concluded that “it was not shown that the structure was not erected in a safe, suitable and proper manner,” my colleagues have resolved that defendant did not violate the Act and that, consequently, it is not necessary to consider the issue of proximate cause. Resolution of disputed facts, however, is not the purpose of a summary judgment proceeding. Summary judgment is not designed to try an issue of fact but rather to determine whether there is an issue of fact to be tried. (Bultman v. Bishop (1983), 120 Ill. App. 3d 138.) Because the Structural Work Act requires a safe, suitable and proper scaffold and does not specifically define what constitutes such a scaffold, this question is one of fact to be determined by the jury. Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393, 398 N.E.2d 382, 387.

The majority’s assertion that the Act is not intended to protect a worker against such as the instant explosion also raises a question of fact. The real issue at bar is whether the presence of explosives in the pit beneath the scaffold upon which plaintiff stood, while engaging in an activity related to the structural work, rendered either the scaffold or the work area unsafe, unsuitable or improper so as to deny plaintiff adequate protection to his life and limb. This issue arises, as do all issues by definition, out of disputed facts. In light of the intent of the Act to protect workers, prevent injuries arising out of risks created by dangerous activities, and provide a safe work area, I cannot readily conclude, as have my able colleagues, that this particular explosion under these particular circumstances is not one of the dangers against which the Act was intended to protect.

The right to summary judgment must be clear beyond question. (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App. 3d 1020, 1022, 402 N.E.2d 281, 282.) Where, as here, doubt exists, the more prudent judicial policy is to allow the matter to proceed to trial. Johnson v. North Bank (1981), 99 Ill. App. 3d 320, 322, 426 N.E.2d 4, 5.

For these reasons, I respectfully dissent.


author: JUSTICE LINN

text:
    JOYCE M. RAKOWSKI et al., Plaintiffs, v. JAMES LUCENTE et al., Defendants (James Lucente, Counterplaintiff-Appellant, v. Leo R. Rakowski, Counterdefendant-Appellee).
    First District (4th Division)
    No. 83—37
    Opinion filed December 22, 1983.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellant.
    Victor J. Piekarski and Susan F. Zwick, both of Querrey, Harrow, Gu-lanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Leo Rakowski, and his two passengers filed suit against defendant, James Lucente, for personal injuries sustained in a two-car collision. Lucente counterclaimed against Rakowski pursuant to the Contribution Among Joint Tortfeasors Act (Act) (Ill. Rev. Stat. 1981, ch. 70, par. 302(a)).

Rakowski moved to dismiss the counterclaim on the ground that a general release signed by Lucente as part of a previously executed settlement agreement barred all subsequent claims, including the counterclaim for contribution.

The trial court granted Rakowski’s motion, dismissed the counterclaim with prejudice and denied a rehearing. Lucente now appeals.

We affirm the decision of the trial court.

Facts

On September 7, 1981, Leo Rakowski, and his two passengers, Joyce M. Rakowski and Edward J. Rakowski, a minor, were involved in a two-car accident with the counterplaintiff-appellant, James Lu-cente.

On September 21, 1981, James Lucente and the owner of the vehicle he was driving received $2,297 from Leo Rakowski and his insurer in full settlement of the medical expenses and property damages sustained. On that same day, Lucente signed a release negotiated by Rakowski, which read as follows:

“ ‘RELEASE’
For the Sole Consideration of Two Thousand two hundred ninety seven Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges Leo Rakowski, his heirs, executors, administrator, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 7th day of Sept., 1981 at or near Grand and Mannheim, Franklin Park.
This release expressly reserves all rights of the parties released to pursue their legal remedies, if any, against the undersigned, their heirs, executors, agents and assigns.
Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.”

On the following day, September 22, 1981, Rakowski and his two passengers filed suit against Lucente, seeking damages for personal injury sustained in the aforementioned accident.

Lucente, in turn, filed a counterclaim against Rakowski pursuant to the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 302(a)), seeking contribution to pay any damages awarded to the passengers. Rakowski moved to dismiss the counterclaim on the grounds that the release signed by Lucente barred all subsequent claims, including the counterclaim for contribution. In opposition to Rakowski’s motion to dismiss, Lucente submitted an affidavit to the trial court. The affidavit explained that the release executed on September 21, 1981, was contemplated to be a release solely for liability for any personal injuries sustained by Lucente as a result of the accident. Lucente swore that he never contemplated releasing nor released Rakowski from contributing to any damages awarded to Ra-kowski’s passengers as a result of the accident.

The trial court granted Rakowski’s motion and dismissed with prejudice the counterclaim for contribution. Lucente’s subsequent motion for rehearing was denied. This appeal followed.

Opinion

The sole issue on appeal is whether a counterclaim for contribution filed pursuant to the Illinois Contribution Among Joint Tort-feasors Act (Act) (Ill. Rev. Stat. 1981, ch. 70, par. 305), is barred by the execution of a general release given by the tortfeasor/counterclai-mant to the joint tortfeasor/plaintiff, in settlement of a previous action. Applying this issue to the facts at bar, the question becomes, does the general release executed by Lucente and given to Rakowski as part of a previous settlement bar Lucente’s counterclaim for contribution against Rakowski in a subsequent suit brought by Rakowski, a joint tortfeasor, and his two passengers. Our reading of the Contribution Among Joint Tortfeasors Act leads us to conclude that the counterclaim is barred.

Section 302 of the Act, which sets forth the right of contribution among joint tortfeasors, reads in pertinent part:

<<* * *

(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in' tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide ***
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.

* * *>>

Ill. Rev. Stat. 1981, ch. 70, pars. 302(c), (d).

Both parties state that the issue in the instant case, whether a general release extends to a claim for contribution between joint tort-feasors for damages sustained by third parties, is one of first impression in Illinois. While our research has not uncovered any case in which this has been the dispositive issue, we have found two cases in this State in which the issue was raised but not addressed. In both LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 442 N.E.2d 1367, and Houser v. Witt (1982), 111 Ill. App. 3d 123, 443 N.E.2d 725, a tortfeasor brought a contribution claim against a joint tortfeasor for damages sustained by a third party after the joint tortfeasor had settled and executed a general release with a claimant. The claims for contribution in both actions were brought pursuant to the Act. In LeMaster, the court found that the general release given to the joint tortfeasor by the claimant did not constitute a bar to the other tortfeasor’s claim for contribution because the settlement agreement was not entered into in “good faith” due to the lack of consideration. (LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 736, 442 N.E.2d 1367, 1373.) In Houser, the injured parties in an auto accident settled with the defendant and executed a joint release. Defendant/releasee, alleging comparative negligence, counterclaimed against the driver/joint tortfeasor for contribution to the damages awarded to the passenger. The court directed a verdict for the driver because the joint settlement agreement did not apportion the damages attributable solely to the passenger. The court suggested in dicta that a properly drawn release would have enabled the releasee to counterclaim against the joint tortfeasor/claimant for his portion of the damages awarded to the passenger. (Houser v. Witt (1982), 111 Ill. App. 3d 123, 127, 443 N.E.2d 725, 728.) Both Houser and LeMaster suggest that a general release does extend to a contribution claim between joint tortfeasors for damages sustained by third parties.

While the disposition of the instant issue in regard to general releases may merely be inferred from the aforementioned cases, it has been specifically addressed in regard to a covenant not to sue. (Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 612, 422 N.E.2d 979, 980-81.) The Act treats a release and a covenant not to sue identically for purposes of a joint tortfeasor’s right to contribution. (Ill. Rev. Stat. 1981, ch. 70, par. 302(c).) Thus, the interpretation and application of sections 302(c) and (d) set forth in Van Jacobs are germane to the instant inquiry.

In Van Jacobs, Parikh and Roper, joint tortfeasors, had been joined as defendants in a wrongful death action brought by Van Jacobs. Van Jacobs settled with Parikh for $10,000, and a covenant not to sue was executed. Roper thereafter filed a third-party complaint against Parikh, the releasee, seeking contribution. Parikh moved to dismiss on the basis of section 302(c) and (d) of the contribution act (Ill. Rev. Stat. 1981, ch. 70, pars. 302(c), (d)). The trial court agreed that under the Act, Parikh’s settlement immunized him from any liability to Roper. Affirming, the appellate court reasoned as follows:

“We first address the count in the third-party complaint which seeks contribution. The act applies to any tortfeasors who are ‘subject to liability’ for the same injury or wrongful death. (El. Rev. Stat. 1979, ch. 70, par. 302(a).) Section 2(d) of the act by its terms discharges settling parties of liability for contribution. It is modeled after the Uniform Contribution Among Tortfeasors Act of 1955 (see 12 Uniform Laws Annotated sec. 4(b), at 98 (1965)), and clearly evinces legislative intent to encourage settlements in tort litigation. (Appel and Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative and Judicial Cooperation, 10 Loy. Chi. L.J. 169 (1979).) Where a statute is clear and unambiguous we must enforce it according to its terms. (Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 206 N.E.2d 709.) There is no issue presented here regarding the ‘good faith’ element of Parikh’s settlement. Accordingly, the Act specifically bars Roper’s claim for contribution.” Van Jacobs v. Parikh (1982), 97 Ill. App. 3d 610, 612, 422 N.E.2d 979, 980-81.

The Van Jacob court’s analysis applies with equal force to the case at bar. The distinguishing feature is that here, as in Houser, the claimant is a joint tortfeasor, where as in Van Jacobs, she was not. This feature in no way undermines the legislative intent evinced by the Act, which makes clear that a release executed in good faith discharges the tortfeasor outright from all liability for contribution. (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 186 (1980).) We therefore find Van Jacobs to be persuasive authority on this issue.

Counsel for appellant asserts that Van Jacobs is distinguishable by the fact that there, the release was executed during pending litigation, while here, the release was executed when no litigation was pending. We have found no authority for the proposition that a release must be executed during pending litigation in order for it to act as a bar to subsequent contribution claims. The only reference to pending litigation in the Act itself is contained in the “Enforcement” provision: The enforcement provision has been interpreted by this court “as covering situations where no suit is fending which was initiated by the injured party; however, when there is a fending action, the contribution claim should be asserted ‘by counterclaim or by third-party claim’ in that action.” (Emphasis added.) (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 245, 446 N.E.2d 1271, 1275.) The concept of pending litigation relates not, as counsel urges, to when a release must be executed, but rather to when and how a contribution claim may be asserted. The fact that Lucente’s right to contribution had not ripened at the time the release was executed is immaterial to the effect of the general release on subsequent claims. The only relevant argument counsel could be making with the invocation of the “pending litigation” concept is that, absent a pending suit, a contribution claim could not have been within the contemplation of the parties at the time the release was executed. In light of the facts and circumstances of the transaction, this argument too must fail.

“Sec. 5. Enforcement. A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (Ill. Rev. Stat. 1981, ch. 70, par. 305.)

While we agree that the scope and extent of a release depends on the intention of the parties expressed therein (Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 696, 366 N.E.2d 430, 432), and that the language of a release cannot be interpreted so broadly as to defeat a valid claim not then in the minds of the parties (Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 674, 434 N.E.2d 365, 368), we cannot ignore the clear and unambiguous language on the face of the instrument itself.

Where the language of a release is clear and unambiguous (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 565, 420 N.E.2d 456, 459), and the release is executed with knowledge of its meaning, absent an express limitation on the face of the release itself (LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 716, 423 N.E.2d 496, 500), or clear and convincing evidence of fraud, mutual mistake or mental incompetence (McComb v. Seestadt (1981), 93 Ill. App. 3d 705, 706, 417 N.E.2d 705, 707), causes of action covered by the release are barred. (Artoe v. Navajo Freight Lines, Inc. (1978), 65 Ill. App. 3d 119, 122, 382 N.E.2d 492, 495.) Neither unilateral nor self-induced mistake is sufficient to invalidate a clear release. Meyer v. Murray (1979), 70 Ill. App. 3d 106, 111-12, 387 N.E.2d 878, 882.

In the instant case, it cannot seriously be contended, in light of the clear language of the release, the express reservation of the right of released parties to pursue their legal remedies, and the circumstances surrounding the execution of the release, that eventual suit by Rakowski was an “unknown claim” not then in the minds of the parties. Rakowski and his two passengers sustained personal injuries in the two-car accident. The possibility that Lucente’s alleged negligence contributed to these injuries and that Rakowski and his passengers would attempt to obtain damages from Lucente existed at the time the release was executed. The clear language of the release states that the releasor understood and voluntarily accepted the terms of the release. Having voluntarily executed a release, the releasor cannot now avoid its legal effect. Artoe v. Navajo Freight Lines, Inc. (1978), 65 Ill. App. 3d 119, 127, 382 N.E.2d 492, 499.

For these reasons, we find that the general release executed pursuant to section 302(c) of the Contribution Among Joint Tortfeasor’s Act bars Lucente’s counterclaim for contribution. HI. Rev. Stat. 1981, ch. 70, pars. 302(c), (d).

We therefore affirm the decision of the circuit court.

ROMITI, P.J., and JIGANTI, J., concur.


author: JUSTICE O’CONNOR

text:
    BRIAN DOUGLAS LAZZARA, Father and Next Friend of Heather Lazzara, a Minor, Plaintiff-Appellee, v. DREYER MEDICAL CLINIC et al., Defendants—(Dr. John E. Hopper, Defendant-Appellant).
    First District (4th Division)
    No. 83—296
    Opinion filed December 22, 1983.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard French and Dorothy French, of counsel), for appellant.
    Goldberg & Goldberg and Mitgang, Levine and Schwartz, both of Chicago (John B. Schwartz, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Dr. John E. Hopper appeals from an order of the circuit court of Cook County which reinstated him as a defendant after vacating a prior order granting summary judgment in his favor.

Plaintiff Brian Douglas Lazzara, as father and next friend of Heather Lazzara, a minor, brought suit on April 9, 1980, against Dr. Hopper (originally named as Dopper) and others including Copley Memorial Hospital (the hospital) to recover damages for injuries Heather allegedly received due to the alleged medical negligence of the various defendants.

The complaint alleged that on January 9, 1976, Heather was taken to the hospital for treatment and that while there, she came under the care of Dr. Hopper who rendered consultation and advice concerning the care, condition, diagnosis and treatment of Heather and undertook to care and treat her. The complaint charged that Dr. Hopper was an employee of the hospital, was negligent in his treatment of Heather by various means and methods and that, as a direct and proximate result of the alleged negligent acts, Heather was severely and permanently injured. Dr. Hopper’s answer denied that he had treated Heather and that he was an employee of the hospital.

Subsequently in response to a request to admit facts, plaintiff admitted that Heather was not treated by Dr. Hopper, that Heather was to meet her private physician (Dr. Abell) in the emergency room of the hospital, that Dr. Abell rendered care and treatment to her and sent her home.

On July 10, 1981, Dr. Hopper moved for summary judgment relying on this admission of facts and on his affidavit in which he stated that he was on call as the emergency physician at the hospital on January 9, 1976, that he was not asked to, nor did he, render any care or treatment to Heather or offer any medical services to her.

After Dr. Hopper’s deposition was taken, a hearing on his motion for summary judgment was held on December 16, 1981. At that hearing the admitted facts were:

1. Heather Lazzara was not treated by Dr. Hopper at Copley Memorial Hospital on January 9, 1976.

2. Heather Lazzara had been taken to Copley Memorial Hospital for treatment and to meet Dr. Abell there.

3. Dr. Abell did render care and treatment to Heather Laz-zara in the emergency room. and the undisputed facts were:

1. Dr. Hopper was not asked to render any care and treatment to Heather Lazzara.

2. Heather Lazzara was presented to the emergency room with the chief complaint of a right earache.

3. That, after treatment by Dr. Abell, Heather Lazzara was sent home with medication and was to see Dr. Abell if the problem persisted.

The only disputed fact was whether Dr. Hopper was an employee or an independent contractor on January 9, 1976. Plaintiff claimed that according to Dr. Hopper’s deposition, Dr. Hopper was an employee. The trial court found that there was no genuine issue of material fact and granted summary judgment in favor of Dr. Hopper on December 16, 1981. Plaintiff’s motion for rehearing was denied on February 24, 1982. No appeal was taken by plaintiff.

On July 2, 1982, the hospital filed a motion to dismiss, or alternatively, a motion for summary judgment. In that motion, the hospital stated, “Plaintiff has brought suit against this defendant and against this defendant’s alleged employee, Dr. Hopper, for alleged acts or omissions in this defendant’s emergency room.” The hospital stated that Dr. Hopper was granted summary judgment on December 16, 1981, that that order was now final and that the plaintiff had not appealed it. The hospital further stated that in light of the final and nonappealed judgment order in favor of the hospital’s alleged employee, Dr. Hopper, it could not be held vicariously liable for any acts or omissions of that alleged employee. Its brief in support of that motion, instead of stating alleged employee, stated “the defendant hospital could not be held vicariously liable for any acts or omissions on the part of its employee, Dr. John Hopper, who has been granted summary judgment.”

Based on the reference in the brief to Dr. Hopper as the hospital’s employee, plaintiff filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), now section 2— 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) to vacate the order of December 16,1981.

Plaintiff’s petition was granted and the trial court vacated the summary judgment in Dr. Hopper’s favor as well as the order denying plaintiff’s motion for a rehearing and ordered Dr. Hopper reinstated as a defendant. He appeals, raising the sufficiency of the petition under section 72.

To be entitled to relief under section 72, the party seeking relief must demonstrate (1) the existence of meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original action; (3) that, through no fault or negligence of his own, an error of fact or a valid defense or claim was not made to appear at the time the challenged judgment or order was entered and (4) due diligence in filing the petition for relief under section 72. Halas v. Executor of Halas’ Estate (1983), 112 Ill. App. 3d 940, 445 N.E.2d 1264; Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 386 N.E.2d 284.

Plaintiff contends that under section 1 of “An Act requiring hospitals to render hospital emergency service in case of injury ***” (Ill. Rev. Stat. 1975, ch. IIIV2, par. 86) the hospital was obligated to furnish emergency services and that because Dr. Hopper was the physician on duty in the emergency room his duty to each patient in the emergency room must be determined to the extent of the legal obligations and duties which the hospital imposed on itself by its bylaws and under the statutes.

That section provides:

“Sec. 1. Every hospital required to be licensed by the Department of Public Health pursuant to the Hospital Licensing Act, approved July 1, 1953, as now or hereafter amended, which provides general medical and surgical hospital services shall provide a hospital emergency service in accordance with rules and regulations adopted by the Department of Public Health and shall furnish such hospital emergency services to any applicant who applies for the same in case of injury or acute medical condition where the same is liable to cause death or severe injury or serious illness.” Ill. Rev. Stat. 1975, ch. HV-k, par. 86.

The policies and procedures of the hospital regarding the emergency room provide in pertinent part:

“All severe injuries or illnesses must be seen by the doctor on call or a private physician. All patients will be asked if they wish their private physician to attend them. If so, they will be notified. In any case, the private physician of all patients seen in the Emergency Department should be notified of the visit.” (Emphasis added.)

This provision explicitly states that “all severe injuries or illnesses must be seen by the doctor on call or a private physician.” The facts are quite simple. Heather was taken to the emergency room at Copley Memorial Hospital on January 9, 1976. She went there to meet Dr. Abell, her private physician. Her chief complaint as given by her mother was a right earache. She was seen and treated by Dr. Abell and released to go home. She was in the emergency room 35 minutes. Dr. Hopper was the emergency room physician on call that evening. He was never called or asked to render any care to Heather, nor did he render any care to Heather. The provision above quoted imposed no duty on Dr. Hopper which he violated. It imposed no duty on him to see a patient who was there to see the patient’s private physician.

Plaintiff also points to excerpts from the Joint Commission on Accreditation of Hospitals. We have examined those excerpts and found that they apply only to hospitals, if at all, and not to Dr. Hopper.

In addition there is nothing in those excerpts which would create a standard in 1976 that would require Dr. Hopper to triage (the classification of patients according to priorities for treatment and care) or to treat every patient who walked into the emergency room even though he was not made aware of that patient’s existence or need of treatment.

There are no questions of material fact which would preclude the entry of summary judgment for Dr. Hopper. It is admitted that Heather was seen by her private physician. Thus, the hospital policies were followed. Plaintiff offered no evidence, either at the time summary judgment was entered, on the motion for rehearing, or at the time of the hearing on his section 72 petition, which would justify a finding that he has a meritorious claim against Dr. Hopper. He offered no standard of care that would require a doctor to render treatment to a patient whom he does not know exists and who has not asked for any treatment from him. Whether Dr. Hopper was an employee or not of the hospital does not change the fact that as a matter of law he had no duty to treat a patient of whom he had not been notified as being in need of treatment.

Plaintiff further failed to present any evidence that, even if Dr. Hopper were an employee of the hospital at the time, he would have any duty whatsoever to see and treat Heather Lazzara when he was not informed that she was present and in need of treatment. Further, plaintiff failed to present any evidence that Dr. Hopper was in charge of the nurses or the emergency room during the time of Heather’s visit, nor did he even indicate at the time of the summary judgment motion by Dr. Hopper that discovery might reveal that to be the fact.

The issue as to Dr. Hopper’s relationship with the hospital — employee or independent contractor — was argued on both the motion for summary judgment and motion for rehearing. No appeal was taken by plaintiff from the granting of summary judgment for Dr. Hopper and from the denial of the rehearing. Matters which have been thus adjudicated cannot again be put in issue by a section 72 petition. Union National Bank & Trust Co. v. Green (1979), 80 Ill. App. 3d 32.

Plaintiff’s petition under section 72 fails to state a meritorious claim against Dr. Hopper.

Because we so find, it is unnecessary to consider Dr. Hopper’s further contentions that the petition was insufficient in other respects.

The order orally rendered January 12, 1983, and entered January 21, 1983, nunc pro tune as of January 13, 1983, is reversed and the order entered December 16, 1981, granting summary judgment in Dr. Hopper’s favor and the order entered February 24, 1982, denying plaintiff’s motion for rehearing are reinstated.

Reversed in part and orders reinstated.

JOHNSON and LINN, JJ., concur.


text:
      In re ESTATE OF ROSE MYERS, Deceased—(Robert Myers, Petitioner-Appellant, v. Sherry Myers et al., Respondents-Appellees).
    First District (4th Division)
    Nos. 83—629, 83—995, 83—996 cons.
    Opinion filed December 29, 1983.
    Rehearing denied January 26, 1984.

      Ziemba, Rozmarek, Hammer, of Chicago (Andrew A. Ziemba, of counsel), for appellant.
    Feiwell, Galper & Laskey, Ltd., of Chicago (Michael Braun and Nancy Barrett, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner Robert Myers appeals the trial court’s ruling that his action to set aside an antenuptial agreement executed in 1972 was barred by the running of the five-year statute of limitations, the court’s subsequent denial of his application for a surviving spouse’s award and its order dismissing the balance of his complaint. We affirm.

Robert Myers and Rose Keller executed an antenuptial agreement on September 26, 1972. The agreement, which included a detailed list of each of the parties’ properties, provided that each party retained the full right to control, manage and dispose of his or her own property. In addition, each party released all rights and claims in and to the property of the other, and further released and waived all rights of administration and renunciation. Upon the death of either party, the survivor would receive nothing from the estate of the deceased spouse. The parties were married shortly thereafter on October 1, 1972, at which time Robert was 66 years of age and Rose was 69.

In 1976 Rose became ill, and she entered a nursing home in July of that year. During this period Rose’s sister, Evelyn Brown, managed all of Rose’s financial affairs and signed checks on Rose’s behalf pursuant to a written power of attorney. Both Evelyn and Robert petitioned the court to become conservators of Rose’s estate in November of 1976, however only Evelyn, along with the Northern Trust Bank, was so appointed on March 22, 1977, at which time Rose was adjudicated incompetent. At the same time both Evelyn and Robert were appointed co-conservators of Rose’s person.

Rose died five years later on March 4, 1982. Her will, dated January 20, 1975, was admitted to probate on April 15, 1982. Evelyn, Rose’s nephew, and the nephew of Rose’s late husband, Milton Keller, were named executors. Approximately half of the estate was bequeathed to the children and the family of Milton Keller in various percentages. The remaining half was to be distributed to Evelyn and Evelyn’s family. The will also provided for a bequest of $10,000 to Robert Myers, notwithstanding the parties’ mutual antenuptial agreement to waive all rights in each other’s estates.

On May 28, 1982, petitioner filed a three-count complaint against respondents, beneficiaries under his deceased wife’s will. Count I was premised on the decedent’s alleged lack of testamentary capacity and count II on alleged undue influence exerted on the decedent during the preparation of her will. Count III sought to set aside the antenup-tial agreement on the basis of misrepresentation, designed concealment and fraud. Count III was severed from the other counts, it being determined that an adjudication of that count would determine petitioner’s interest, if any, necessary to set aside the will. After considering the evidence and having heard extensive arguments, the trial court on February 10, 1983, granted respondents’ amended motion for summary judgment on count III. The court subsequently entered orders denying petitioner’s application for surviving spouse’s award, and granting respondents’ motion to dismiss the remaining counts of the complaint. All three orders are now appealed from.

We agree with the trial court’s assessment that an initial determination of petitioner’s rights under the prenuptial agreement is necessary to determine his standing to bring the remaining counts. In count III, petitioner alleges that he was misled as to the purpose of the antenuptial agreement, the decedent having told him that it was merely a “face saving” device, not meant to become operative, and that she would destroy it shortly after the parties’ marriage. Petitioner also alleges that he was physically unable to read the agreement at the time of its signing and that its contents were not explained to him. Lastly, he alleges that the decedent designed to conceal from him the true nature and extent of her property.

Prior to entering its order on February 10, the trial court entertained oral arguments on respondents’ motion on three separate occasions, beginning on January 11, 1983. Respondents argued that petitioner’s claim was barred under either 13 — 205 or 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 13 — 205, 13— 215). The former section which would apply generally to a cause of action to set aside an antenuptial agreement, provides that the action shall be commenced within five years after the accrual of plaintiff’s cause of action. The latter section acts as a tolling provision in cases of fraudulent concealment, and provides that in such instances an action may be commenced at any time within five years of discovery of the existence of the cause of action. Respondents’ motion was supported by the discovery deposition of Robert Myers, in which he testified that he requested and received a copy of the antenuptial agreement in July of 1976, more than five years before he filed the.instant action. Specifically, petitioner stated that he requested a copy “right after I saw that I was going to have trouble with the estate, with the self-appointed conservators, *** [T]hat would have been 1976, about July. *** When Rosie went into the nursing home. *** I requested a copy and got it. In fact, I was told to contact Mr. Harris, which I did, and he mailed me a copy and I gave it to my lawyer at that time, who was Sam Wexler.” Petitioner did not then, or at any subsequent time during these proceedings file any affidavits or other competent evidence to controvert his deposition testimony. The court orally granted respondents’ motion, finding that to the extent that the allegations of count III constituted an alleged promise of the decedent that the an-tenuptial agreement would be destroyed shortly after the parties’ marriage, petitioner received notice approximately four years later when he got a copy of the agreement, that the document had not in fact been destroyed. The court further noted that once the decedent was adjudicated incompetent in March of 1977, she thereafter lacked the mental capacity to rescind the agreement and consequently, the statute began to run on that date.

Thereafter, on January 21, 1983, petitioner presented his motion to reconsider and vacate the order of January 11. The motion was premised solely on the argument of petitioner’s attorney which purported to raise an ambiguity in petitioner’s assertions as to his receipt of the agreement. It was argued that in light of petitioner’s advanced age and limited education, his reference to “conservators,” who were not actually appointed by the court until March of 1977, must lead to the conclusion that petitioner did not receive the agreement until July of 1977, and not in 1976 as he mistakenly testified. It was also argued that the copy which petitioner then received from Harris, the drafting attorney, had no direct connection with the then current existence of the antenuptial agreement. The trial court then reconsidered its earlier oral ruling and denied respondents’ motion for partial summary judgment, granting them leave to amend the motion and granting both sides leave to file additional evidence in support thereof.

Respondents subsequently filed their amended motion for summary judgment which was argued on February 10, 1983. The motion once again averred that petitioner received the agreement in 1976, and was supported by the corroborating affidavits of Evelyn Brown and Charlotte Wieca, Harris’ secretary. In addition, the motion averred that the issue of whether petitioner had any interest in his wife’s estate, in light of his execution of the antenuptial agreement, was discussed in open court during the conservatorship proceedings. This fact was corroborated by the attached deposition testimony of Gregory Gelderman, who was petitioner’s attorney of record beginning on or before December of 1976 and who represented the petitioner at those proceedings. The trial court sustained respondents’ motion for partial summary judgment on count III, reiterating its belief that, in light of the evidence before it, the latest possible date on which the statute of limitations began to run was with the appointment of the conservators in March of 1977.

Petitioner argues on appeal that the trial court erred in granting summary judgment because the date of his receipt of the antenuptial agreement and the date on which he discovered or knew of the existence of the elements necessary to constitute his cause of action to set aside the agreement for fraud were never precisely pinpointed. He therefore concludes that the statute of limitations did not begin to run until the time when his wife’s will was admitted to probate in April of 1982.

Petitioner’s arguments, however, ignore the basic law of summary judgment, which shall be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005; Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055, appeal denied (1981), 85 Ill. 2d 582.) It is also elementary that since well-alleged affidavits in support of motions for summary judgment are substitutes for testimony, they must be taken as true if left uncontroverted by counteraffidavit, “notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish bona fide issues of fact.” (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) In this context, the same rule would apply to discovery depositions, which may be used in evidence “for any purpose for which an affidavit may be used.” (See 87 Ill. 2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill. 2d 585, 328 N.E.2d 559; Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 676, 445 N.E.2d 1184.) Where, as here, petitioner has not contradicted by competent evidence a single fact material to the disposition of respondents’ motion, there is no question but that those facts set forth in respondents’ exhibits must stand as admitted (Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 385). Those facts include petitioner’s deposition admission of receipt in July of 1976, along with the testimony of Gelderman leading to the inescapable conclusion that petitioner was on notice of the continuing existence of the agreement no later than March of 1977.

Petitioner next argues that the usual requirement to exercise due diligence to discover fraud is excused where the parties stand in a confidential or fiduciary relationship, tolling statute of limitations until only at such time as actual knowledge of the deceit is acquired. We believe that In re Estate of Dykema (1980), 89 Ill. App. 3d 741, 412 N.E.2d 13, appeal denied (1981), 83 Ill. 2d 570, a case cited by respondents, is directly on point. In that case the trial court’s dismissal, based on the five-year statute of limitations, of a widow’s complaint to set aside her late husband’s will and an antenuptial agreement executed by the parties was affirmed. Plaintiff’s allegations there were substantially the same as in the instant case. On appeal, she argued that fraudulent concealment of the nature and extent of the decedent’s property warranted setting aside the antenuptial agreement, that engagement to marry constitutes a fiduciary relationship and imposed on the deceased a fiduciary duty of full disclosure, that in cases of fraudulent concealment, the statute of limitations is tolled until the time of discovery, and that there exists a judicial interpretation in cases of this sort requiring the defrauded party to exer-

cise due diligence where the fraudfeasor stands in a fiduciary relationship with the defrauded party. The appellate court in Dykema looked to two earlier supreme court decisions where the requisite due diligence had been excused, and concluded that an essential element in both of those decisions was that the defrauded party had attributed his failure to discover the fraud to the trust and confidence he had placed in the fraudfeasor. (See Keithley v. Mutual Life Insurance Co. (1916), 271 Ill. 584, 111 N.E. 503; Vigus v. O’Bannon (1886), 118 Ill. 334, 8 N.E. 78.) Thus in order to assert that the statute of limitations was tolled, the Dykema court concluded that plaintiff must aver either (1) that the fraud could not have been sooner discovered with ordinary diligence, or, (2) that the trust and confidence she placed in the fiduciary prevented her from sooner discovering the fraud, and this she had failed to do. While the plaintiff in Dykema had been granted leave to amend her complaint, she elected to stand on her pleadings and was thus dismissed. In the instant case, petitioner urges that he was unjustly denied leave to amend his complaint at the time that the trial court granted respondents’ motion for partial summary judgment. We find that the allegations set forth in petitioner’s complaint are insufficient under the rule enunciated in Dykema but that, given the uncontroverted evidence before us, petitioner would be unable, as a matter of law, to make those allegations necessary to toll the running of the statute of limitations. The trial court’s refusal to grant petitioner’s motion to amend did not therefore constitute an abuse of discretion.

Based on the foregoing, we hold that respondents’ motion for summary judgment on count III of petitioner’s complaint was properly granted, and consequently, that the remaining counts of petitioner’s complaint were properly dismissed.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.