text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL EVANS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2306
    Opinion filed May 8, 1984.

      William J. Harte, of William J. Harte, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Adam A. Dabek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant, Michael Evans, appeals from his conviction after a bench trial of three counts of reckless homicide. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).) The sentence imposed was 30 months’ probation with the special condition that defendant serve the first six months, as well as the weekends of the final 90 days, in the Cook County Department of Corrections. Defendant contends on review that he was not proved guilty beyond a reasonable doubt, and that the trial court abused its discretion in imposing the special condition of his probation.

At approximately 9:30 p.m. on March 24, 1982, Catherine Campbell was waiting in her Ford van for the traffic light to change at the intersection of 159th and Torrence Avenue in Calumet City, Illinois. Campbell’s vehicle was facing north, occupying the east-center lane of northbound Torrence Avenue. That part of Torrence Avenue at which she was stopped, immediately south of the intersection, consists of four lanes. There is a lane for turning left onto 159th Street so as to proceed west; there are two center lanes for continuing north on Torrence Avenue; and there is a fourth lane for either turning right onto 159th Street so as to proceed east, or for continuing north and eventually merging with the east-center lane of Torrence Avenue.

While Campbell waited for the traffic light to turn green, she noticed a blue Plymouth automobile pull up immediately next to her in the west-center, northbound lane of Torrence Avenue. This car, containing four people, was being driven by defendant. At that same time, Campbell observed a white Plymouth automobile pull up immediately next to her on the other side of her van, occupying what was the fourth or far east lane of northbound Torrence Avenue. This vehicle, also containing four people, was being driven by the codefendant in the trial below, John Best. Just before the traffic signal changed green, Campbell noticed that both cars on each side of her were inching forward to a point beyond the painted traffic line delineating the southern boundary of the intersection. As soon as the light turned green, the vehicles driven by defendant and Best accelerated at a high rate of speed. Campbell accelerated at a slower rate of speed but, within seconds, she had to “back-off” since Best immediately began to merge into the east-center lane as he drove through the intersection heading north.

Campbell then observed the two cars proceed north up Torrence Avenue, side-by-side, toward Michigan City Road. The particular stretch of road on which defendant and Best were driving that night was asphalt-paved and “a little bumpy.” The area itself was characterized as very dark at the time in question. According to two Calumet City police officers, on March 24, 1982, the posted speed limit along that portion of Torrence Avenue was either 40 or 45 miles per hour. Campbell estimated that the speeds of the two cars driving ahead of her were between 65 and 70 miles per hour; whereas, Diane Dougall, a passenger in defendant’s car, estimated that defendant’s speed reached “55, or maybe more.”

Since it was night, Campbell eventually lost sight of both vehicles except for their taillights. Soon thereafter, by viewing the position of the respective taillights of each car less than one-half of a mile away, she noticed that defendant’s vehicle veered over into the lane occupied by Best’s car. About three or four seconds later, as Campbell arrived “to abouts where the tail lights [sic] went into one lane,” she observed Best’s car smoking as it appeared to be hooked to a green car in the southbound lanes of Torrence Avenue, approximately one-half mile north of 159th Street.

George Zorich was driving south on Torrence Avenue at approximately 9:30 p.m. on March 24, 1982. At some point south of Michigan City Road, he saw Best’s car come across from the northbound lanes of Torrence Avenue directly into the southbound lanes and collide with a blue Chevrolet, being driven by Sherry Kassee, as it was proceeding south approximately four car lengths in front of Zorich. Following the collision with Kassee’s car, Best’s automobile became airborne and struck Zorich’s vehicle on the hood. Another car, heading south on Torrence Avenue, then collided with Zorich’s vehicle from behind.

Officer Peter Miller of the Calumet City police department was dispatched to the scene of the accident that night. Upon his arrival, he observed that Kassee’s car, which faced west across the innermost southbound lane of Torrence Avenue, had extensive front-end damage. He then saw that Best’s vehicle, which faced south in the outermost southbound lane of Torrence Avenue, had very heavy rear-end and right side damage. The car left skid marks, measuring 150 feet in length, which extended across the median from the northbound lanes into the southbound lanes of Torrence Avenue. As Officer Miller approached Best’s vehicle, he observed the body of Patricia Koerner, who had been riding as a passenger in the car, pinned in the back seat. The officer thereafter found the body of Ronald Gibbs, another passenger in the Best vehicle, lying in a wooded area nearby. Sherry Kassee also died as a result of injuries sustained when her car was struck by Best’s vehicle.

An April 1982 grand jury charged defendant and John Best each with three counts of reckless homicide. Following a joint bench trial, the trial court found both offenders guilty as charged. Defendant’s culpability was premised on the court’s belief that “[defendant] blocked the progress forward of the Best vehicle *** [and] that Best had to take evasive action of some kind.” At the sentencing hearing, following arguments presented in aggravation and mitigation, the trial judge sentenced codefendant Best to a term of 30 months’ probation under the jurisdiction of the adult probation department of Cook County. A special condition of periodic imprisonment was imposed with the option of serving such term in the Lake County, Indiana, jail if it could be arranged.

Regarding defendant, the court first ordered him to surrender his driver’s license so that it could be forwarded to the Illinois Secretary of State for revocation. Defendant was then ordered to serve 30 months’ probation under the jurisdiction of the adult probation department of Cook County. As a special condition, defendant was further ordered to serve the first six months, as well as the weekends of the final 90 days, of the probation period in the Cook County Department of Corrections. From the orders of conviction and sentence, defendant now appeals.

I

Initially, defendant argues that the evidence adduced at the instant trial failed to establish his guilt beyond a reasonable doubt. We disagree.

In Illinois, a person commits reckless homicide if, while driving a motor vehicle, he unintentionally kills an individual and the acts which caused death are performed recklessly so as to create a likelihood of death or great bodily harm to some person. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).) “A person acts recklessly in this regard when he consciously disregards a substantial and an unjustifiable risk that his acts are such as are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in such a situation.” (People v. Bonzi (1978), 65 Ill. App. 3d 927, 931, 382 N.E.2d 1300, appeal denied (1979), 74 Ill. 2d 587; see generally Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) Criminal liability attaches only to acts of such a reckless or wanton character as to be indicative of an utter disregard for the safety of others under circumstances likely to result in injury. (People v. Petersen (1982), 110 Ill. App. 3d 647, 659, 442 N.E.2d 941.) The reckless conduct must be wilful and wanton. People v. LaCombe (1982), 104 Ill. App. 3d 66, 72, 432 N.E.2d 672, appeal denied (1982), 91 Ill. 2d 576.

It is defendant’s position that the evidence proffered by the State failed to prove that his conduct was the actual and legal cause of the offense for which he was charged and convicted. It is, of course, clear that defendant’s Plymouth automobile was not directly involved in the multivehicle collision which resulted in three fatalities on the night of March 24, 1982. Indeed, defendant’s overt acts at the time in question were limited to operating his car at an excessive rate of speed, and veering into the east lane of northbound Torrence Avenue in front of Best’s car. In order to secure defendant’s reckless homicide conviction, it was therefore necessary for the State to prove that he was legally accountable for the deaths of the three motorists. One may be held accountable for the acts of another without having actively participated in the overt act. (People v. Ray (1979), 80 Ill. App. 3d 151, 156, 399 N.E.2d 977, appeal denied (1980), 81 Ill. 2d 586.) We view the present record as adequate to support defendant’s conviction under the complicity theory.

To bring an accused within the purview of the Illinois accountability statute, the prosecution must establish, beyond a reasonable doubt, that (1) either before or during the commission of an offense, (2) with the intent to promote or facilitate the commission of an offense, (3) the defendant solicited, aided, abetted or attempted to aid another person in the planning or commission of an offense. Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c); People v. Underwood (1982), 108 Ill. App. 3d 846, 851, 439 N.E.2d 1080, appeal denied (1982), 91 Ill. 2d 579.

Regarding the case at bar, the evidence clearly showed that on the night of March 24, 1982, defendant and John Best, two young drivers, engaged in what is commonly known as street drag racing. Defendant attempted to refute this fact by claiming that he proceeded north on Torrence Avenue from the 159th Street intersection at a normal speed, and that his tires screeched as he accelerated because he disengaged the clutch after revving the engine in an effort to raise oil pressure. Catherine Campbell, however, testified that while she was waiting at the aforesaid intersection at the time defendant and Best pulled their cars up along each side of her, she noticed that both vehicles were inching forward to a point beyond the painted traffic line which represented the southern boundary of the intersection. As soon as the traffic signal turned green, Campbell observed defendant and Best’s vehicles accelerate at a high rate of speed. In corroboration, Diane Dougall, who was seated in the rear seat of defendant’s car that night, testified that defendant’s acceleration up Torrence Avenue in the direction of Michigan City Road caused her to be pushed back into her seat.

Although the posted speed limit on the relevant stretch of road was either 40 or 45 miles per hour, Campbell, who had for three years assisted her husband, a professional auto racer, estimated that the speed of the two cars driving ahead of her on the dark, bumpy road was between 65 and 70 miles per hour. It was Dougall’s estimation that defendant’s vehicle reached a speed of “55, maybe more.”

We find that this testimonial evidence established, without question, that defendant was one of two puerile young men bent on an illegal act which was certainly reckless and dangerous in character and which would require the use of force, albeit mechanical, that could very well result in the unlawful taking of a human life. As such, we are of the opinion that defendant was legally accountable for the deaths of Patricia Koerner, Sherry Kassee and Ronald Gibbs.

Defendant correctly points out that excessive speed, by itself, is not always sufficient to sustain a conviction for reckless homicide. (See People v. Ziegler (1979), 78 Ill. App. 3d 490, 496, 396 N.E.2d 1160, appeal denied (1980), 79 Ill. 2d 629.) “However, a charge of reckless homicide may be justified by a combination of excessive speed and other circumstances which would indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others, and the circumstances are such that a reasonable person would act differently under the same situation.” People v. Bonzi (1978), 65 Ill. App. 3d 927, 931-32.

Here, the indicium of conscious disregard of substantial risk was defendant’s act of maneuvering his motor vehicle as he raced north along Torrence Avenue toward Michigan City Road. Based upon the testimony of Campbell and Dougall, the trial court reasonably inferred that when defendant veered over into the east lane of northbound Torrence Avenue, he changed lanes in such a reckless and dangerous manner so as to cut off Best’s automobile. It was thus perfectly logical and proper for the court to deduce that Best was forced to take the evasive action which resulted in the tragic vehicular collision.

We will not substitute our judgment for that of the trial court on questions involving witness credibility and evidentiary inferences, for the law commits to the trier of fact the determination of such issues. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733; People v. Ahern (1983), 119 Ill. App. 3d 532, 536, 456 N.E.2d 852.) “[T]hat determination will not be reversed unless the evidence is so improbable as to create a reasonable doubt of defendant’s guilt [citation].” People v. Davis (1983), 95 Ill. 2d 1, 27, 447 N.E.2d 353.

The defendant’s right to drive carried with it the correlative duty to refrain from reckless or wanton driving which utterly disregarded the safety of others. The defendant’s driving certainly did not reach the aforesaid standard. In light of defendant’s utter disregard for the lives of other motorists, the lives of his three passengers and his own life as well, we conclude that the evidence adduced at the instant trial was more than sufficient to establish defendant’s legal accountability for the three senseless fatalities. Thus the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

II

The next issue for resolution concerns the propriety of that part of the trial court’s sentencing order imposing the special condition that defendant serve the first six months, as well as the weekends of the final 90 days, of his probationary period in the Cook County Department of Corrections.

A

Defendant contends that the special condition of his probation was not warranted in light of mitigative circumstances.

Our supreme court has firmly established that the determination of a sentence is a matter of judicial discretion and that, absent an abuse of this discretion, the sentence imposed by the trial judge may not be altered upon review. (People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861; People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541.) It is not our function to serve as a sentencing court; thus, “[a] sentence imposed within the statutory limits will not be reduced merely because we, as a reviewing court, might have imposed a different punishment.” People v. Holloway (1983), 119 Ill. App. 3d 1014, 1022, 457 N.E.2d 466, citing People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.

Reckless homicide is a Class 4 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(b)(2).) The permissible sentence ranges from a one to three-year term of imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 8 — 1(a)(7).) The maximum probationary period for the commission of a Class 4 felony is 30 months. (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 6 — 2(b)(2).) An offender, as a condition of his probation, can be sentenced to a term of incarceration not to exceed six months. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3(d).) Consequently, it is clear that the trial judge did not transcend the prescribed statutory framework by requiring that defendant be imprisoned during the first six months of his probationary period.

It is suggested that the lower court was unconcerned with defendant’s rehabilitative potential in that it “arbitrarily” imposed the special condition of his probation. To the contrary, however, we discern careful consideration by the court of defendant’s personal traits, his age, his educational as well as employment background, his family situation, and his lack of a juvenile delinquency record. Indeed, the imposition of the probationary period itself, as opposed to a sentence of a one- to three-year term of incarceration, is clearly indicative of the court’s regard as “to the nature and circumstance of the offense, and to the history, character and condition of the offender ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(a).) Further the sentencing judge provided defendant’s trial lawyer with ample opportunity, which counsel fully utilized, for argument in mitigation. Although the record evinces several significant mitigative circumstances, the cumulative import of such attendant conditions is in no way conclusive. This is because “rehabilitation and the seriousness of the offense are to be accorded equal weight in fixing punishment, and the prime responsibility for striking the proper balance between the two factors rests with the trial court.” People v. Crosser (1983), 117 Ill. App. 3d 24, 32, 452 N.E.2d 857.

Defendant’s citation of error regarding the disparity between his sentence and codefendant Best’s sentence must similarly fail. “[M]ere disparity in sentences, without more, does not warrant reduction of the greater sentence by a reviewing court.” (People v. Mick (1980), 86 Ill. App. 3d 1022, 1028, 408 N.E.2d 1079.) Moreover, in Illinois, a trial court’s determination of the punishment to be imposed involves consideration of the subjective circumstances presented in each individual case, i.e., the defendant’s mentality and general moral character, his abnormal or subnormal tendencies, and his natural inclination or aversion to commit crime. People v. Dukett (1974), 56 Ill. 2d 432, 452, 308 N.E.2d 590, cert. denied, (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226; People v. Reese (1984), 121 Ill. App. 3d 977, 989.

At defendant’s sentencing hearing, the State proffered evidence that since August 18, 1982, the date on which judgment of conviction was entered, defendant had been observed speeding and driving erratically through a residential area on a number of occasions. In addition to this aggravating factor indicative of a lack of remorse, the trial court also considered “that there is a greater degree of culpability here in the driving of Evans as opposed to the driving of Best. And it was my finding, and still is, that the manner in which Evans drove compelled Best to do whatever he had to do to avoid a collision with Evans.”

In essence, our review of the record reveals that, taken separately, the two incarceration requirements of defendant’s special probationary condition were each based upon the unique objective and subjective circumstances presented in this case. Defendant argues that such imprisonment will have 'a disruptive effect on his lifestyle; we feel it unnecessary to depict the disruption, if not sheer anguish, that has pervaded the lifestyles of the victims’ families since the night of March 24,1982.

B

The final claim of error for review concerns defendant’s contention that section 5 — 7—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 7—1(c)) precludes six months’ incarceration in conjunction with a term of periodic imprisonment.

Section 5 — 7—1(c) provides in pertinent part that: “The court shall not impose a sentence of periodic imprisonment if it imposes a sentence of imprisonment upon the defendant in excess of 30 days.” The sentence here of six months’ straight time as a condition of defendant’s probation was, as previously stated, permissible under the sentencing provisions of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3(d).) Alternatively, the trial court could have ordered the special condition that defendant serve up to 18 months’ periodic imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 7—1(d).) However, as the State concedes, “[i]f straight time of more than 30 days as a condition of probation is imposed, [the court] cannot impose in addition any periodic imprisonment.” People v. McMullen (1980), 88 Ill. App. 3d 611, 615, 410 N.E.2d 1174.

The trial court could not impose six months’ straight time together with 90 days’ periodic imprisonment. We believe the trial court should make the determination of which special condition should be imposed. We therefore vacate the special condition of defendant’s probation and remand this cause for resentencing within the prescribed statutory framework.

Ill

Under the authority of section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1983, ch. 53, par. 8) and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we assess defendant $50 in costs for the State’s defense of this appeal, and hereby incorporate it as part of this judgment. We deny the State’s request for an additional $25 for oral argument. This denial is predicated on our interpretation of the per diem provisions of the statute (“For each day actually employed in the trial of a case, $25”) as referring to an actual trial in the circuit court, not to an oral argument on appeal.

For the reasons set out herein, the judgment of conviction is affirmed, the sentencing order is vacated in part, and this cause is remanded to the circuit court of Cook County for resentencing.

Judgment affirmed; sentence vacated in part; cause remanded for resentencing.

STAMOS and PERLIN, JJ., concur.

      Michigan City Road transects Torrence Avenue at a point approximately one mile north of 159th Street.

      The exact length of Best’s incarceration is uncertain since page 625 of the record is missing and the half-sheet incorporated into this record only refers to the sentencing order entered against defendant. The trial court indicated that it could possibly order revocation of Best’s Illinois driving privileges; however, due to the incomplete transcript of proceedings, it is not clear if the judge’s observation was carried out.

      It is defendant’s averment that, notwithstanding the incomplete transcript of record before this court, Best’s sentence of probation was conditioned only on periodic imprisonment, as opposed to straight-time incarceration, during the first six months of his 30-month probationary period.


source: Caselaw Access Project

author: JUSTICE McNAMARA JUSTICE WEBBER,

license: Public Domain

text:
    YELLOW CAB COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (James L. Jones, Appellant).
    First District (Industrial Commission Division)
    No. 1—84—382
    Opinion filed May 2, 1984.
    Rehearing denied June 27, 1984.
    WEBBER, J., dissenting
    DeMunno, Krol, DeCarlo & Bongiorno, Ltd., of Chicago (Vito D. DeCarlo, of counsel), for appellant.
    Robert E. Haythorne, of Geneva, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, James L. Jones, filed a claim under the Workmen’s Compensation Act for accidental injuries sustained while driving a Yellow cab on November 7, 1975. An arbitrator found that the relationship of employee and employer existed between claimant and respondent Yellow Cab Company at the time of the accident. The arbitrator awarded Jones 464/y weeks of temporary total disability, permanent partial disability to the extent of 20% of the whole person, and medical payments. The Industrial Commission, with one dissent, affirmed the existence of an employer-employee relationship and reduced the amount claimant received for permanent partial disability to a 45% loss of the use of his right leg. Respondent sought review in the circuit court of Cook County by writ of certiorari. That court found that the Commission’s decision that there was an employer-employee relationship was against the manifest weight of the evidence and reversed the Commission’s decision. Claimant appeals.

The sole issue on appeal is whether claimant, a lease cab driver, was an employee of respondent rather than an independent contractor for the purposes of the Workmen’s Compensation Act.

Claimant testified before the arbitrator that on October 13, 1975, he went to a new Yellow Cab garage to lease a cab on a 24-hour basis. During this visit, he filled out a personnel resume, presented his chauffeur’s license, and talked to the garage manager. At the beginning of each 24-hour lease period, claimant had to sign a lease agreement and pay a lease fee. The lease agreement disclaimed the parties’ relationship as one of employer-employee. If the cab became inoperable within a six-county area, respondent would provide repair and tow service. Respondent provided public liability and property damage covering lessor and lessee. All accidents were to be reported immediately, and if claimant failed to do so he would be discharged. The garage manager told claimant to buy his gas at the company garage except in an emergency. Only claimant could drive the cab. The cab could carry passengers only, and no passengers could sit in the front seat.

Claimant was not required to drive a certain number of hours, to fill out trip sheets, to report fares or tips, or to generate a certain amount of income during the lease period. Additionally, claimant was not required to answer radio calls, but if he accepted one, he was expected to follow through with it. When claimant returned the cab at the end of the daily lease period, mileage was reported. As a lease driver, claimant was not issued a paycheck or given any withholding tax forms. He did not qualify for a pension or paid vacation, and was not required to join the union.

Paul Logue, respondent’s president, testified that all Yellow cabs are painted alike and had the company’s name and telephone numbers printed on their sides. Yellow is not obligated to renew or extend the terms of the lease agreement. Yellow derives good will from the presence of both lease and commission cabs on the street. Roadmen for respondent fill out observation reports on all cabs regarding their dirty and damaged condition and on commissioned cabs regarding company violations. Mileage reports on leased cabs at the end of each lease period are for maintenance purposes only. Logue also testified that a driver did not need any special education, skills or tools, and was not given a test. If a passenger complained about a lease driver, respondent directed the passenger to call the Consumer Sales Office of the city of Chicago. If the city did not suspend the lease driver’s license, respondent would continue to lease cabs to the driver. If a driver had too many accidents, his leasing privileges would not be renewed. Respondent also would not lease a cab to an intoxicated driver.

Claimant contends that the decision of the Commission that an employer-employee relationship existed between the parties at the time of the accident was not against the manifest weight of the evidence.

Our supreme court has held on three occasions in circumstances similar to this case that a lease cab driver is an employee for the purposes of the Workmen’s Compensation Act.

In Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 324 N.E.2d 425, the court identified a number of general factors to distinguish between an employee and an independent contractor. The court stated that no one factor is determinative, that all circumstances were to be considered, but that of these factors, the right to control the manner in which the work is done is most important. In applying this right-to-control test, the court upheld the Commission’s decision that an employer-employee relationship existed between the cab company and the lease-cab driver based upon the following evidence. The driver was required to accept radio calls from the dispatcher, to have his radio repaired at a designated shop, and to bring the cab to the company garage upon request for inspection or repair. The cabs were painted alike with the company’s name and telephone number on their sides, and the cab company could refuse the driver a cab for various reasons. The court stated further that it was clear that the cab company was operating a fleet of cabs for public use rather than simply leasing vehicles with no interest in their operation as taxis.

In Penny Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 217, 326 N.E.2d 393, the decision of the Commission that the lease-driver claimant was an employee was upheld upon facts substantially identical to Morgan except that Penny cabs had no radios and therefore there were no corresponding company-imposed radio requirements. The court held that the difference between the two cases did not require a different result.

Finally, in Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354, 427 N.E.2d 48, a case very similar to the present one, the Commission’s decision that an employer-employee relationship existed between the parties was upheld. Despite a written lease identifying the cab company and driver as lessor and lessee respectively, the court found that the cab company placed too many restrictions on the driver’s activities to be engaged in anything other than the business of operating a fleet of cabs for public use. The court noted the cab company’s control over the work shifts and the assignment of cabs to drivers, the requirement that all routine repairs and maintenance on cabs be performed at the company garage, the instruction to claimant that he buy his gas at the company garage, the repair and tow service provided by the cab company for cabs that become inoperable during the lease periods, and the requirements that drivers be courteous to passengers and keep their cabs neat and clean. The court also found significant the facts that the cabs were leased to its drivers, that the cab company provided oil, that all cabs were identical in appearance with the company’s name and telephone number printed on them, and that the cab company had a right to discharge the driver or cancel the lease.

As in Globe, the clause in the present lease agreement disclaiming an employer-employee relationship is not dispositive of the claimant’s status under the Act. (See also Luby v. Industrial Com. (1980), 82 Ill. 2d 353, 412 N.E.2d 439.) Many of the factors of control highlighted by the court in the case above are present in this case. The cabs, whether driven by lease or commission drivers, are uniform in appearance and have the company’s name and telephone number on them. Respondent had the right to discharge the claimant. It could terminate or refuse to renew the claimant’s 24-hour lease and could refuse to assign claimant to a cab for various reasons. Claimant was not permitted to sublease a cab, was instructed to purchase his gas at the company garage, and was required to report mileage at the end of each lease period. Respondent derives goodwill from the public presence of both commissioned and leased cabs that are well maintained. Roadmen fill out observations reports on leased cabs regarding their condition. Respondent performs routine maintenance and repair on its cabs, which presumably would include cab-radio repairs. If a cab breaks down within a six-county area, respondent makes the necessary repairs or tows the cab and, if one is available, provides the driver with another cab. Thus, despite the lease agreement’s employment relationship disclaimer, the record clearly indicates that respondent’s interest in its cabs did not cease with their leasing, but extended to their operation.

A reviewing court will not set aside a decision of the Commission unless it is contrary to the manifest weight of the evidence. (Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354, 427 N.E.2d 48.) Although the facts in the present case are not identical to the cited cases, we find that the differences are not so significant as to compel a different result. Respondent is engaged in the business of operating a fleet of cabs, leased and commissioned, for public use. The Commission had sufficient evidence presented to conclude that claimant was an employee of Yellow Cab.

In so holding, we note that the cases relied upon by respondent in which lease drivers were found to be independent contractors under various Federal and State laws do not control claimant’s status under the Workmen’s Compensation Act. Indeed, in Local 777, Democratic Union Organizing Com. (D.C. Cir. 1978), 603 F.2d 862, the case upon which respondent places great emphasis, the court so recognized. In a footnote (603 F.2d 862, 876 n.38), the court cited the Morgan Cab and Penny Cab holdings and stated that its interpretation of an employee under the Federal labor laws was not affected by the contrary result reached by our supreme court in those cases relating to the Workmen’s Compensation Act.

For the reasons stated, the judgment of the circuit court of Cook County reversing the decision of the Industrial Commission is reversed.

Judgment reversed.

SEIDENFELD, P.J., BARRY and KASSERMAN, JJ., concur.

JUSTICE WEBBER,

dissenting:

With all due deference to my colleagues, I respectfully dissent from their holding that an employer-employee relationship existed here.

The reliance on Morgan Cab Co. and Globe Cab Co. is misplaced. In both of those cases the supreme court stated unequivocally that no one factor may determine what the relationship of the parties is in a given situation. To state the matter another way, each case must stand on its own facts, and I find considerable factual differences between the instant case and Morgan and Globe.

In Morgan the driver was required to take 10 calls per day from the company; most drivers worked shifts, although some were purchasing their cabs on a lease-with-option basis; the driver was required to take his radio to a designated shop for repair and was required to bring the cab itself in for repair when called for; the manager could refuse to allow a driver to take a cab; the driver was required to purchase $2 worth of gasoline when turning the cab in.

In Globe the driver was required to pay for six days, regardless of the number of days on which the cab was actually used; as in Morgan the drivers worked shifts; all repairs were to be made by the company; and the driver had to pay a late fee of $5 if he turned the cab in tardily.

None of this is present in the instant case. For all the record shows, a driver for Yellow Cab could keep his cab at home in the garage during the rental period. Only the profit motive kept him on the street, and such motive is more clearly characteristic of an entrepreneur than a workman. There were no shifts, no mandatory suppliers of gasoline, no late fees.

What is at stake here is interference with the manner in which Yellow elected to do business. The question is not Professor Larson’s “relative nature of the work.” The nature of Yellow’s business, obviously, was to conduct a taxicab operation, but how it determined to do that is its own business and should be free from judicial inter-meddling. The question is not what Yellow was doing, but how it did it: it could employ drivers directly for wages, or it could lease cabs to independent contractors, or it could do both, or any other combination which resulted in the greatest advantage to it. There is nothing to indicate that this was anything other than an arm’s length transaction at its inception. The claimant knew exactly what he was getting into; it was not until after an injury that he sought to disclaim his leasing arrangement and obtain that for which he had not bargained.

The totality of the circumstances as set forth in the lease indicates that no employment relationship was intended; in fact, it was specifically avoided, for which no criticism can be leveled. The document appears to have been knowingly drawn to avoid the pitfalls of Morgan and Globe. The record is barren of any indication that Yellow forced the claimant into the position of lessee, and one can speculate at length as to why the claimant elected a 24-hour lease instead of some more permanent arrangement.

I would affirm the circuit court.


author: PRESIDING JUSTICE SEIDENFELD

text:
    CATERPILLAR TRACTOR CO., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jean L. Hoffman, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—84—0097WC
    Opinion filed May 21, 1984.
    Rehearing denied July 9, 1984.
    Forrest D. Serblin, of Peoria, for appellant.
    Warren E. Danz, PC., of Peoria, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Jean L. Hoffman, claimant, sought workers’ compensation benefits for injuries sustained while she was employed by Caterpillar Tractor Company. An arbitrator awarded Hoffman, inter alia, permanent disability to the extent of 20% loss of use of the left hand and 10% loss of use of the right hand. Both parties petitioned for review before the Industrial Commission, which affirmed the arbitrator’s award. Caterpillar sought review in the circuit court of Wood-ford County by writ of certiorari. The court affirmed the decision of the Commission. Caterpillar appeals.

The sole issue on appeal is whether the Commission’s finding that Hoffman’s bilateral carpal tunnel syndrome was causally related to the work accident is against the manifest weight of the evidence.

Hoffman testified before the arbitrator that on August 21, 1978, she was employed by Caterpillar, hooking steel shoes onto a conveyor line. As a wooden skid loaded with 105-pound shoes came down the line, the skid broke; the shoes fell away from her but pushed the skid toward her. She bent over and shoved the skid, with both palms upright, away from her to prevent it from striking her. The skid hit her left shin, breaking the skin.

Hoffman told her supervisor that she was injured and that she did not need any treatment, but he insisted that she report to first aid. She had a Vs-inch abrasion on her left shin, to which the company nurse applied medication and a bandage. Hoffman did not complain about any injuries to other parts of her body. She returned to her job and worked the balance of her shift.

The next day, Hoffman noticed stiffness in her neck and sought treatment from Dr. C.T. Kearney, her family physician. She complained of a stiff left side of her neck and swollen hands and fingers. Hoffman returned to Dr. Kearney on five more occasions within a one-month period. At the September 1 appointment, Hoffman told the doctor about the swelling in her hands, but he said he did not know what it could be and that it would eventually go away. On September 16, 1978, he released her from treatment with a final diagnosis of traumatic neuromyositis of the dorsum of the neck.

Dr. Alfred Chione, a company physician, testified at the hearing that he examined Hoffman on September 1, 1978, at which time she complained of neck pain, but had no complaints of pain in any other parts of her body.

When Hoffman returned to work, albeit with restrictions, on September 18, 1978, she noticed swelling and pain in her hands. She soaked her hands in warm water at home. After the death of her physician, Dr. Kearney, she visited Dr. Ronald Meyer on November 7, 1978, complaining of pain, swelling and numbness in her hands which had been present for approximately one month. Dr. Meyer admitted Hoffman to St. Francis Hospital on November 14, 1978, and diagnosed her condition as “bilateral carpal tunnel syndrome, worse on the right.” He then referred her to Dr. John Henderson, a neurosurgeon, who initially examined her on December 4, 1978, and subsequently performed surgery to decompress the median nerves in the carpal tunnels of both hands. Hoffman continued to complain of swelling, pain and weakness in her hands.

At the hearing before the arbitrator, Hoffman presented the evidence depositions of Dr. Meyer and Dr. Horatio Rivero. Dr. Rivero testified that he examined Hoffman on February 16, 1979, and discovered numbness in some of her fingertips and some stiffness in her hands. In response to a hypothetical question incorporating the facts of the accident and Hoffman’s medical history, Dr. Rivero stated that there was a causal connection between the work accident and the carpal tunnel syndrome. He described this case as one of insidious onset of symptoms, in which the swelling may take several weeks before it harms the nerve, thereby causing the symptoms of carpal tunnel syndrome.

Dr. Meyer testified, in response to a hypothetical question, that it is possible that the single incident of trauma brought about the onset of carpal tunnel syndrome. He further stated that with a pushing type of trauma there is usually quite a delay between the injury and the degree of symptoms for which the injured party will seek medical attention, and with a hyperextension type of trauma he would expect some symptoms following the injury.

On Commission review, Caterpillar introduced the deposition of Dr. Henderson. When asked a hypothetical question, he stated that he really did not know if Hoffman’s bilateral carpal tunnel syndrome was related to the accident. He did state, however, that a single incident of blunt trauma can cause carpal tunnel syndrome, but that he would expect some symptoms to appear shortly thereafter. He concluded that he “would find it hard to relate [Hoffman’s] one episode” of blunt trauma to the palms of her hands to carpal tunnel syndrome if, in fact, she exhibited no symptoms until six weeks after the accident. When asked if Hoffman could develop complaints relating to carpal tunnel syndrome up to two months after direct trauma, Dr. Henderson stated he supposed she could if there was hemorrhaging in the canal or in the palm. He further testified that his handwritten notes from his initial examination of Hoffman indicated that she had the pain and swelling in her hands since “approximately August ’78.”

Caterpillar argues that the finding of the Commission that Hoffman’s carpal tunnel syndrome was causally related to the work accident is contrary to the manifest weight of the evidence.

It is a function of the Industrial Commission to determine “whether there is a causal connection between the claimant’s injuries and the employment” and to choose between conflicting medical evidence. (Domagalski v. Industrial Com. (1983), 97 Ill. 2d 228, 236.) In making these determinations, it is solely within the province of the Commission to judge the credibility of witnesses, draw reasonable inferences from the testimony, and determine the weight the evidence is to be given. (Steiner v. Industrial Com. (1984), 101 Ill. 2d 257.) The fact that this court or the circuit court might have drawn different inferences from the evidence is not relevant since a reviewing court “will not disregard or reject permissible inferences drawn by the Commission” nor will it substitute its own judgment for that of the Commission unless its findings are contrary to the manifest weight of the evidence. Castaneda v. Industrial Com. (1983), 97 Ill. 2d 338, 341.

Caterpillar first asserts that Hoffman’s carpal tunnel syndrome was unrelated to the work accident since she exhibited no sudden breakdown or physical changes to her hands or wrists following the accident. A review of the record reveals some question as to when Hoffman first exhibited symptoms of the condition. Hoffman testified that she complained to Dr. Kearney of swollen hands and fingers on August 22, 1978, the day after the accident. Dr. Meyer testified that when he initially examined Hoffman on November 7, 1978, she complained of swelling, pain and numbness in her hands, especially the right hand, and said that the condition had been present for approximately one month and that it had been associated with an accident at work in which she injured her neck. Dr. Henderson testified that when he initially examined Hoffman in December 1978, she told him that she had pain and swelling in her hands since approximately August 1978.

Moreover, the experts agree that it is possible that, in some situations, the symptoms of carpal tunnel syndrome may not appear until weeks or months after the trauma to the hands. Consequently, even if Hoffman first noticed the symptoms in October rather than August, the Commission could reasonably infer that the hand injury was causally related to the accident. The fact that Hoffman may not have complained about pain or swelling in her hands immediately following the work accident is not sufficient evidence to overcome the inference drawn by the Commission.

Caterpillar also maintains that the medical opinions relied upon by Hoffman to establish a causal relationship were based on speculation, mere possibilities and unproven assumptions, rather than factual evidence. All three doctors testified in response to a hypothetical question in their evidence depositions. Dr. Rivero responded that there was a causal connection between the work accident and the carpal tunnel syndrome; Dr. Meyer stated that it was possible that the single incident of trauma caused the condition; and Dr. Henderson stated that a single incident of blunt trauma can cause bilateral carpal tunnel syndrome but that he “would find it hard to relate” Hoffman’s episode to the condition.

It is not necessary for a medical expert witness to testify positively as to the cause of an injury, despite any objection that his or her testimony is inconclusive or speculative. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.) A finding of a causal connection may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. Mason & Dixon Lines, Inc. v. Industrial Com. (1983), 99 Ill. 2d 174, 182.

We concludé that there was sufficient evidence from which the Commission could find a causal connection between the work accident and the carpal tunnel syndrome. Accordingly, its decision is not contrary to the manifest weight of the evidence and will not be disturbed.

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

Affirmed.

McNAMARA, BARRY, WEBBER and KASSERMAN, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    WARREN NELSON, a Minor, by Linda L. Tatum, his Mother and Next Friend, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    Second District
    No. 83—370
    Opinion filed May 4, 1984.
    Gregory E. Barrett, of Schlueter, Ecklund, Olson, Barrett & Moore, of Rockford, for appellants.
    Kristine A. Karlin, Jay S. Judge, and Thomas G. Leavy, all of Judge & Knight, Ltd., of Park Ridge, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

On October 14, 1981, Warren Nelson, a 10-year-old boy, was playing in Sabrooke Playground in Rockford, Illinois. High voltage electrical power lines run in an east-west direction over the middle of the park and are at least 30 feet high. The park land is owned by Commonwealth Edison but leased and controlled by the Rockford Park District. Young Nelson, either by himself or with a playmate, apparently had discovered a piece or spool of copper wire and one of the youths tossed it high into the air while Nelson held on to one end of the wire. An electric current either arced from nearby power lines to the copper wire or the wire actually contacted the power lines, causing plaintiff to receive serious electrical burns.

Linda Tatum, mother and next friend of Warren Nelson, filed a five-count complaint predicated upon theories of negligence, strict liability, and wilful and wanton misconduct. Count I was premised upon negligence and directed at Commonwealth Edison. It alleged, in addition to the foregoing facts which we have set forth, that the defendants knew that children habitually frequented the Sabrooke Playground, that the park was directly underneath electrical power transmission lines, and that said power lines over the Sabrooke Playground constituted a dangerous condition. It further alleged that defendants knew or should have known that a young child such as the plaintiff would not appreciate the dangers of the said power lines, and it was the duty of the defendants to remedy the described dangerous conditions or to otherwise take any necessary steps to protect children from injury that might result therefrom. Count I further alleged that the cost of providing warning signs was slight when compared to the risk of injury to young children. The count also included charges, inter alia, that Edison was negligent in failing to warn plaintiff of the dangers of the nearby electrical lines, failing to properly insulate those particular lines to prevent arcing of electrical current, failing to maintain the power lines in a good and safe condition, and in permitting a public park to exist under such dangerous wires. Count II was directed against the park district and made overlapping allegations of negligence.

Count III advanced a strict liability in tort claim against Edison, alleging that the power company’s electricity and its lines were defective and unreasonably dangerous in certain designated respects, and that as a direct and proximate result of the condition of the electricity in the power lines, plaintiff was injured. Counts IV and V alleged wanton and wilful misconduct on the part of both Edison and the park district.

Defendants filed a motion to strike and dismiss plaintiff’s complaint and plaintiff responded. A hearing was held on January 13, 1983, and resulted in the granting of defendants’ motion to dismiss with prejudice all five counts of plaintiff’s complaint. At the hearing, it was stipulated that the transmission lines were at least 30 feet above the ground.

Plaintiff thereafter filed a motion for leave to file an amended complaint, attaching a copy of a proposed amended pleading thereto. Counts I and II of the proposed amended complaint contained the additional allegation that at the time in question the minor plaintiff, together with another boy of approximately the same age, was playing with a metal spool wrapped with a very long length of bare copper wire of approximately one pound in weight. They were unraveling the copper wire from the spool by taking turns throwing the spool into the air while plaintiff held the copper wire with one hand. It further alleged that the power transmission lines carried approximately 69,000 volts of electrical current and were located approximately 30 feet from the ground. In amended count III, plaintiff abandoned her theory based upon strict liability in tort and sought to hold the utility company liable on the grounds that the maintenance of high voltage wires through a public playground constituted an inherently dangerous enterprise for which Edison was absolutely liable. Noting that the amended complaint still failed to state a cause of action, the trial court denied the motion. The instant appeal followed that ruling.

On appeal plaintiff first contends that the trial court erred in holding that counts I and II of his amended complaint failed to state a cause of action. The trial judge’s dismissal was based upon his conclusion that, as a matter of law, it was not reasonably foreseeable that a child would throw a heavy copper wire spool close enough to the park’s elevated power lines to cause injury. Because the occurrence itself was unforeseeable, the defendants had not assumed the type of unreasonable risk for which liability would attach. Plaintiff first argues that Illinois courts have regarded foreseeability solely as a factual issue to be determined by the jury as part of its proximate cause decision. The factor of foreseeability is an appropriate consideration for a court only as a means of precluding liability where the injury was too remote, a result of an intervening cause, or not reasonably anticipated by the ordinary person. (See Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366.) Since the facts of the instant case were not so extreme that a jury could never conclude that the consequences were reasonably foreseeable, the plaintiff reasons that the judge exceeded his authority by dismissing plaintiffs complaint as a matter of law. See Winnett v. Winnett (1974), 57 Ill. 2d 7, 13.

Plaintiff also maintains that the trial judge’s analysis of the merits of the foreseeability issue was faulty. He urges that the trial court misunderstood the requirements of proximate cause by finding that it was necessary that the exact method or precise manner in which the injury occurred be reasonably foreseeable.

A review of the record does confirm that in dismissing counts I and II of the complaint, the trial judge stated in substance that where property was set aside as a public playground the park district and the utility company would be held to recognize that certain rights for children exist in the use of the premises that are far greater than would be permitted in other areas not so set aside, and that under the pleadings it would be reasonably foreseeable that a child might do something that would involve activity off the ground such as flying a kite or model aircraft tethered with a control wire, without appreciating the danger of such activity. The trial court concluded, however, that throwing a wire in the air was not like throwing a football or baseball, and found that it was not reasonably foreseeable that a child of relatively tender years would throw a wire 30 feet or more in the air. On this basis, the judge dismissed counts I and II of the complaint as not stating causes of action.

In dismissing the plaintiff’s complaint, the trial judge obviously focused upon the particular manner in which the plaintiff was injured. However, plaintiffs argue that the “foreseeability” requirement does not refer to the method of injury. (Blue v. St. Claire Country Club (1955), 7 Ill. 2d 359, 364; Del Raso v. Elgin, Joliet & Eastern Ry. Co. (1967), 84 Ill. App. 2d 344, 362; Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276, 285, aff'd (1974), 57 Ill. 2d 19; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 669; Restatement (Second) of Torts sec. 435(1) (1965).) Plaintiff argues that as long as the resulting event was foreseeable, the manner in which it occurred was irrelevant. The trial judge was consequently mistaken in considering the particular means by which the plaintiff was injured, even under the guise of making a foreseeability determination.

Defendants’ counterargument consists of an assertion that foreseeability is an element of the court’s duty determination as well as an element of the jury’s proximate cause decision. (Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907.) According to the defendants, when the trial judge concluded that plaintiff’s injury was not reasonably foreseeable, he had properly determined, as a matter of law, that defendants owed no duty to protect plaintiff from such an unusual occurrence. (See Cunis v. Brennan (1974), 56 Ill. 2d 372; Mieher v. Brown (1973), 54 Ill. 2d 539; Restatement (Second) of Torts sec. 435(2) (1965).) And when the issue is expressed in terms of duty rather than proximate cause, attention should be focused on the nature and limits of defendants’ obligations rather than on a chain of events, which beg to be confused with actual cause. (Newmark v. Hartman (1982), 109 Ill. App. 3d 379, 382.) Thus, the defendants conclude that the court’s determination of the existence and scope of defendants’ duty to plaintiff, that is, whether the parties stood in such a relationship to another that the law imposed a duty upon one for the other’s benefit, was a legal issue appropriately resolved by the court. Cunis v. Brennan (1974), 56 Ill. 2d 372, 374; Mieher v. Brown (1973), 54 Ill. 2d 539, 541.

The parties’ divergent views regarding the proper role of “foreseeability” in negligence claims is understandable considering the somewhat contradictory precedent on this issue. More recent precedent, however, indicates that Illinois courts have become willing to treat “foreseeability” as a factor in both the court’s duty determination and the jury’s proximate cause determination. (Bloomingdale State Bank v. Capitol Bank (1983), 116 Ill. App. 3d 132, 134; Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907; Laflin v. Estate of Mills (1977), 53 Ill. App. 3d 29, 33.) Consequently, the defendants’ contention that “foreseeability” is solely a consideration in the jury’s proximate cause analysis is incorrect. See Cunis v. Brennan (1974), 56 Ill. 2d 372, 375; Barnes v. Washington (1973), 56 Ill. 2d 22, 29; Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 375.

Despite these more recent cases, the appropriate role to be played by this “foreseeability” factor, especially in the context of the court’s duty determination, is still not entirely clear. Perhaps the most disruptive influence on what the appellate courts have perceived as guiding precedent has been the supreme court’s opinion in Cunis v. Brennan (1974), 56 Ill. 2d 372. In Cunis, an automobile collision threw plaintiff, a passenger in a car, 30 feet onto a public parkway, where his leg was impaled by a municipal drain pipe. The court dismissed plaintiff’s complaint on the basis that he had failed to establish that the defendant was under a duty to guard against such an unforeseeable occurrence. In so ruling, the court assimilated the factor of “reasonable foreseeability” into its determination of legal duty, thereby permitting courts to dismiss, as a matter of law, negligence complaints arising out of occurrences which were “freakish or fantastic” or “tragically bizarre.” See also Mieher v. Brown (1973), 54 Ill. 2d 539; Barnes v. Washington (1973), 56 Ill. 2d 22.

From an analytical perspective, the Cunis decision seems to meld into one what had previously appeared to be two distinct problems in negligence theory — the unforeseen plaintiff problem and the problem of the foreseeable injury resulting from unforeseen means. The Illinois Supreme Court began its opinion by relying primarily upon the time-honored case of Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 449, 162 N.E. 99, in which Justice Cardozo eloquently devised a formula for imposing a limitation of foreseeability upon the particular persons to whom a defendant owed a duty of care. The Cunis court proceeded to use the Palsgraf reasoning to limit the defendant’s liability to the particular plaintiff because of the manner in which that plaintiff was injured. As Justice Goldenhersh observed in his dissenting opinion, if the same plaintiff had been injured by the city drainpipe while walking along the parkway, he would have had a valid negligence claim since a municipality clearly owes a duty to exercise reasonable care in maintaining its parkways for use by a class of persons who themselves demonstrate ordinary care; it was only the bizarre manner in which plaintiff was injured which made his harm “unforeseeable.” Thus, in a sense, the injured party in Cunis was treated like an unforeseeable plaintiff because of the unforeseen manner in which he was injured. See Case Comment, Tort Liability—Cunis v. Brennan, A Defendant Has No Duty To Protect A Plaintiff Injured by Defendant’s Negligent Conduct Where Plaintiff’s Injury Was Not Reasonably Foreseeable under the Circumstances, 6 Loy. U. Chi. L.J. 482 (1975); see also Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 375.

While under the particular facts of Cunis, the court’s ultimate result seems appropriate, the rule of law which emerged from that case seemingly limits application of the well-established principle of tort law that the particular manner or method by which a plaintiff is injured is irrelevant to a determination of the defendants’ liability for negligence. (See Blue v. St. Claire Country Club (1955), 7 Ill. 2d 359; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366; Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276, aff’d (1974), 57 Ill. 2d 19; Przybylski v. Yellow Cab Co. (1972), 6 Ill. App. 3d 243; Del Raso v. Elgin, Joliet & Eastern Ry. Co. (1967), 84 Ill. App. 2d 344; Restatement (Second) of Torts sec. 435(1) (1965); 57 Am. Jur. 2d Negligence sec. 59 (1971); see Annot., 100 A.L.R.2d 942, sec. 5(c) (1965).) It is generally accepted that where the plaintiffs injury resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort expectable, unforeseeability of the exact developments and of the extent of loss will not limit liability. (Petition of Kinsman Transit Co. (2d Cir. 1964), 338 F.2d 708.) For example, if a ship owner fails to clean petroleum out of his oil barge moored at a dock, he has created an undue risk of harm through fire or explosion. The fact that a fire is ignited by the unusual event of lightning striking the barge does not relieve the ship owner from liability to foreseeable plaintiffs who are injured. See Restatement (Second) of Torts sec. 442B, Illust. 1 (1965); see also Annot., 100 A.L.R.2d 942 (1965).

Although the approach evidenced in Cunis appears to conflict with more traditional tort jurisprudence, some subsequent decisions have distinguished or failed to follow that case in order to achieve a desired result. For example, in Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, Justice Goldenhersh, who dissented in Brown, Cunis, Win-nett and Barnes, wrote an opinion which addressed foreseeability primarily in terms of causation, not duty. Citing the principle that it is unnecessary for a defendant to foresee with precision the nature of the injurious occurrence, the court acknowledged the validity of plaintiff’s negligence claim despite the unusual forklift accident in which plaintiff was involved. Likewise in Kenny v. Lakewood Engineering & Manufacturing Co. (1979), 85 Ill. App. 3d 790, defendant’s uncommon method of unloading a trailer with a forklift did not negate his claim. The court stated that defendant’s exact conduct need not be entirely foreseeable to constitute the legal cause of plaintiff’s injury. In Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, aff’d (1978), 73 Ill. 2d 100, the plaintiff was hit by an intoxicated driver after the former’s car stalled near an unlighted city intersection. In finding the city could be held liable to plaintiff for failure to ensure working street lights at the intersection, the court stated that it was unnecessary that the precise nature of the occurrence be foreseeable. In Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, this court expressly reasoned that they did not find the “extraordinary cause and effect described in Cunis to be analogous” to the case and they relied instead upon the contrasting approach presented in the Lewis decision.

Other cases indicate a willingness on the part of the judiciary to stretch “foreseeability” to rather unusual consequences in order to find a duty owed to plaintiff. For instance, in Laflin v. Estate of Mills (1977), 53 Ill. App. 3d 29, the plaintiff was injured when he fell trying to escape from a fire in his house which defendant started. The court, obviously concerned with reaching a just result, found the sequence of events leading to plaintiff’s injury foreseeable as a matter of law. (See also Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563 (a plaintiff using defendant’s stairs with crutches caught the tip of a crutch in a crack and fell. The court found the particular occurrence foreseeable).) Some decisions have cited Cunis as authority, yet proceeded to focus upon the foreseeability of the ultimate harm a plaintiff incurred, rather than upon the foreseeability of the manner in which plaintiff was injured. These decisions attempt to apply “foreseeability” in its more traditional sense; meaning, foreseeability of a general type of injury to a particular class of plaintiffs. Cunis, however, suggested a narrower concept of foreseeability, referring to the foreseeable risk of a particular injury arising in a particular way. (See Turkington, Foreseeability And Duty Issues In Illinois Torts; Constitutional Limitations To Defamation Suits Under Gertz, 24 De Paul L. Rev. 243, 259 (1975) .) For example in Walsh v. A.D. Conner, Inc. (1981), 99 Ill. App. 3d 427, the court, in analyzing the foreseeability of plaintiff’s fall from a ladder discussed only the reasonable likelihood of such a fall occurring. The manner by which plaintiff slipped off the ladder was addressed only in terms of plaintiff’s contributory negligence, not in terms of the foreseeability of plaintiff attempting that particular means of ascending the ladder. See also Greene v. City of Chicago (1976) , 48 Ill. App. 3d 502, aff'd (1978), 73 Ill. 2d 100.

Because of these apparent inconsistencies, the proper application of the Cunis “foreseeability” test would seem to require a return to a basic analysis of the duty determination in negligence claims. Of paramount importance is the fundamental understanding that the legal concept of “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 356; see Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907; Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 261-62.) The judge’s function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, as the Cunis opinion notes, the imposition and scope of a legal duty is dependent not only on the factor of foreseeability (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375) but involves other considerations, including the magnitude of the risk involved in defendant’s conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant. See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348; Barnes v. Washington (1973), 56 Ill. 2d 22, 29; Lance v. Senior (1967), 36 Ill. 2d 516, 518; Bloomingdale State Bank v. Capitol Bank (1983), 116 Ill. App. 3d 132, 135.

While foreseeability is thus a proper matter for a court to consider in making its duty determination, the sounder approach would be to recall that the duty issue is broad in its implication and it is only the jury's negligence determination which need be strictly confined to the facts of the particular case. (Mieher v. Brown (1973), 54 Ill. 2d 539, 544, citing Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18 (1961).) In other words, foreseeability is a determinative consideration only where a particular occurrence is so extreme that, as a policy decision, it would be unwise to require defendant to guard against it. In the majority of cases, where varying inferences are possible from the facts, a court should permit the jury to decide the foreseeability issue, including the foreseeability of the particular cause and effect of plaintiff’s injury, as a factual matter in its proximate cause determination. (Cf. Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 7-8; Winnett v. Winnett (1974), 57 Ill. 2d 7, 12-13.) This approach would strike a sound balance between inviting trial courts to invade the jury’s province on what is essentially a factual matter, and permitting a sympathetic jury to find an event foreseeable in even the most bizarre cases.

Applying this approach to the instant case, the question for determination by this court is whether Warren Nelson’s electrical injuries were so unforeseeable an occurrence that the trial court could properly conclude that the defendants owed him no legal duty of protection. While Illinois precedent includes a line of cases involving accidental electrocution or injury by power transmission wires, the facts in each case are the determinates of the “foreseeability” of the particular injury and thus the majority of these cases are of limited value in analyzing the instant scenario.

In support of their position, the defendants cite several decisions in which it was found that a defendant power company or landowner was not responsible for the electrical injury sustained by the particular plaintiffs. (See Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App. 3d 1064; Scaife v. Kansas City Power & Light Co. (Mo. App. 1982), 637 S.W.2d 731; Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456.) In the Clinton case, a 15-year-old boy was electrocuted by transmission wires over his family’s yard. The lines were clearly visible from the ground and approximately 221/2 feet in height. Apparently, the youth had brought a 25-foot aluminum pole into contact with the uninsulated power lines, causing his electrocution. In dismissing plaintiff’s claim, the court noted that unlike several cases plaintiff cited (Merlo v. Public Service Co. (1942), 381 Ill. 300; Austin v. Public Service Co. (1921), 299 Ill. 112; Ploense v. Illinois Power Co. (1971), 2 Ill. App. 3d 874), the defendants in Clinton were not expressly aware, nor should they have been expected to anticipate, that a 15-year-old boy would come into contact with the unobstructed wires over his home. The court also stated that while it was difficult to find local precedent with analogous facts, a Missouri case was similar. In Foote v. Scott-New Madrid-Mississippi Electric Cooperative (Mo. App. 1962), 359 S.W.2d 40, a 16-year-old boy was electrocuted when he threw a can attached to a copper wire over an uninsulated transmission line adjacent to his family’s rural home. The power line was clearly visible and approximately 251/2 feet above the ground. In order not to repudiate the doctrine that power companies are not absolute insurers of public safety, the Missouri court felt obliged to place limits upon the extent of duty owed by power companies, and it dismissed plaintiff’s claim for failure to show the existence of a duty. See Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App. 3d 1064, 1071.

It must be noted, however, that a crucial fact in the Clinton court’s decision was that the plaintiff, in both that case and in the Foote case, was injured on the grounds of a private residence. The court distinguished the Merlo and Austin cases on the basis that those disputes involved occurrences happening on public thoroughfares where it was foreseeable that persons would come into contact with power lines. (Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App. 3d 1064, 1071.) For example, in the Austin case, a 13-year-old boy was killed when he touched defendant’s electrical line which was stretched above a public bridge. The youth had climbed on top of the bridge and walked across a beam to reach a bird’s nest. The supreme court conceded that the defendant did not have a duty to insulate its entire-electrical system, but in this instance it could have reasonably anticipated that workmen or service linemen might lawfully be in a position to come into contact with the lines. Likewise, in Martens v. Public Service Co. (1920), 219 Ill. App. 160, a seven-year-old boy was electrocuted when he threw a ball of string containing copper wire over power lines in a public street. Although the defendants argued that this was not a foreseeable accident, the court rejected the defendant’s contention and recited the maxim that defendant was required to anticipate the legal use of the public way by the general public, including children. Martens v. Public Service Co. (1920), 219 Ill. App. 160, 164-65; see also Annot., 69 A.L.R.2d 9, sec. 5(e) (1960) (liability for injury to children at play when coming into contact with electrical lines); Annot., 91 A.L.R.3d 616, sec. 4(a) (1979) (liability for injury to or death of child from electric wire encountered while climbing tree).

The defendants in the instant case contend that the cases cited by Nelson are distinguishable because many of them involved instances where the power company had been expressly put on notice of the plaintiff’s forthcoming proximity to the electrical lines. (See Ploense v. Illinois Power Co. (1971), 2 Ill. App. 3d 874; Troszynski v. Commonwealth Edison Co. (1976), 42 Ill. App. 3d 925; Martens v. Public Service Co. (1920), 219 Ill. App. 160; McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242.) However, the lack of express notice of plaintiff’s particular park activities in the instant case would not seem to be a valid, nor logical, factor to distinguish the instant dispute from the cases favoring plaintiff. Warren Nelson was injured in a public playground, where defendants should have reasonably anticipated both the presence of children and their creative and innumerable playtime activities; no express notice is necessary where these objective facts suffice to put a defendant on notice of plaintiff’s proximity to the electrical wires. Young Nelson was rightfully in a public area which was designated as a playground for children of all ages. If defendant Edison chose to continue its dangerous activities such as the transmission of high voltage electricity in close proximity to an area which they have leased to a park district, it must be charged with a duty of protection commensurate with the risks involved. Because of the nature of the electrical business and highly charged wires, an electric utility company owes a duty to see that such wires are properly placed and/or properly insulated where the conditions and circumstances indicate that persons might come into reasonable proximity to those wires. (See German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 982-84; Ploense v. Illinois Power Co. (1971), 2 Ill. App. 3d 874, 879; Merlo v. Public Service Co. (1942), 381 Ill. 300; Austin v. Public Service Co. (1921), 299 Ill. 112.) Similarly, the defendant park district owed a duty to the public and the plaintiff not to operate a public park under these circumstances. Under the rulings of the aforementioned cases, it cannot be said that plaintiff’s injuries, caused by tossing a copper wire near high voltage uninsulated power lines in an open playground, were so objectively unforeseeable as to warrant dismissal of his claim because of a failure to show the existence of a legal duty. See Annot., 69 A.L.R.2d 9, sec. 5(e) (1960); Annot., 91 A.L.R.3d 616, sec. 4(a) (1979).

In addition to the foreseeability of the instant occurrence, the other factors relevant to a court’s duty determination, including matters of public policy and social consideration, also favor the imposition of a duty upon the defendants for the instant occurrence. First, the likelihood of an injury from the power line has already been made apparent by the previous discussion. Considering the height, location, and voltage of the wires, there was clearly some chance of contact with them and the resulting injury from any such contact would inevitably be severe. Second, the magnitude of the defendants’ burden in reducing the risk of electrocution or injury is not as onerous as defendants imply. Because of the particular facts involved in the instant case, neither Edison nor the park district would become an absolute insurer against all accidents. It is not such a great burden for the defendants to insure that high voltage electrical wires in the open area of a public playground — an area in which children have been tacitly invited to use the air space — are either insulated, placed underground, or redirected around such air spaces. Finally, while preventive measures would necessarily result in some economic and social impact, the aforementioned alternatives available to the defendants would not create undue costs or problems. The facts of the instant case require only a limited holding that in the erection, maintenance, and placement of high voltage electrical wires in public playgrounds, power companies and land occupiers are charged with a duty to children to provide safe air space. Duty is not a static concept but must adapt to changing notions and policy decisions. Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357.

Although the parties do not argue the issue in their briefs, our examination of the instant dilemma also requires at least an abbreviated mention of the negligence doctrines announced in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, and recently reviewed in Cope v. Doe (1984), 102 Ill. 2d 278, 285-86. We find it sufficient under the facts of the instant case, however, to simply observe that the facts well pleaded in counts I and II of plaintiff’s amended complaint, together with all reasonable inferences favorable to him, are sufficient at the pleading stage to establish that defendants, as owners and possessors of the land, knew that children frequented and played upon the premises and that under the total circumstances as shown by the pleadings, a dangerous condition existed which created a reasonably foreseeable risk of harm to children which the defendants under the law had a duty to remedy. (See Cope v. Doe (1984), 102 Ill. 2d 278, 285-86; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 941.) This conclusion is necessarily founded upon our foregoing analysis that the scope of the defendants’ duties included an obligation to guard against injuries which were “reasonably foreseeable” from the park activities in which the defendants invited children to participate. See Cope v. Doe (1984), 102 Ill. 2d 278, 285-86.

Plaintiff’s original count III sought relief against Commonwealth Edison based upon the theory of strict liability in tort. The trial court dismissed this count on the ground that electricity was not a “product” as that term is used in strict liability in tort cases. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 463-65.) Plaintiff does not contest that ruling but on appeal asserts that in count III of his amended complaint he properly stated a cause of action against the defendant utility on the grounds that in transmitting high voltage electricity, the defendant was engaged in an inherently and intrinsically dangerous activity and is absolutely liable for damages which flow therefrom without regard to negligence.

While the plaintiff is correct in noting that Illinois courts have characterized electricity as a “ '*** silent, deadly and instantaneous force ***’ ” (Merlo v. Public Service Co. (1942), 381 Ill. 300, 314; Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 1067), such precedent does not mandate the imposition of absolute liability upon electrical power companies. Certainly, the distribution of electrical energy requires power companies to exercise a high degree of care (McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242; German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977; Ploense v. Illinois Power Co. (1971), 2 Ill. App. 3d 874); however, the concept of absolute liability is reserved only for abnormally dangerous activities for which no degree of care can truly provide safety. (See Restatement (Second) of Torts sec. 519 (1981).) Absolute liability has not been imposed on power companies in Illinois because of the obvious social and economic burdens, and Illinois courts have frequently echoed the principle that power companies are not absolute insurers of public safety. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 313; Clinton v. Commonwealth Edison (1976), 36 Ill. App. 3d 1064, 1068; Austin v. Public Service Co. (1921), 299 Ill. 112, 119; see also 26 Am. Jur. 2d Electricity, Gas & Steam sec. 59 (1966).) There is a clear distinction between requiring a defendant to exercise a high degree of care when involved in a potentially dangerous activity and requiring a defendant to absolutely insure the safety of others when engaging in an ultrahazardous activity; Illinois has held electrical power companies only to the former standard. The doctrine of absolute liability is consequently inapplicable to the present situation.

Plaintiff’s last point of contention in this appeal concerns the propriety of the trial court’s dismissal of her wanton and wilful negligence counts against the defendants. Inasmuch as the court determined that plaintiff’s complaint failed to state a cause of action based upon mere negligence, the court’s similar dismissal of the wanton and wilful counts was the logical course of action. However, since we have concluded that the trial court erred in dismissing the plaintiff’s negligence counts, the plaintiff’s wanton and wilful counts should not have been dismissed. See Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 1067.

We affirm the dismissal of count III of plaintiff’s original complaint and the denial of leave to plaintiff to file count III of his proposed amended complaint. We reverse the dismissal of counts I, II, IV and V of plaintiff’s complaint and that portion of the trial court’s order which denied plaintiff leave to file an amended complaint as to counts I, II, IV and V, and we remand the cause to the trial court for further proceedings.

Affirmed in part; reversed in part and remanded with directions.

LINDBERG and HNVERZAGT, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CESAR CORREA, Defendant-Appellee.
    First District (4th Division)
    No. 83—765
    Opinion filed May 3, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
    Consuelo E. Bedoya, of Chicago (Dennis A. McKinney, Jr., of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

The State appeals from the judgment of the circuit court of Cook County which granted the petition of Cesar Correa (petitioner) under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.) to vacate his guilty plea to narcotic charges and for a new trial. The trial court granted the petition because it determined that the petitioner’s plea had been involuntarily entered as a result of ineffective assistance of counsel when his trial attorney erroneously represented to him that his conviction would not render him subject to deportation from the United States because his wife was a United States citizen. The State’s appeal raises two issues: (1) whether the petitioner was entitled to relief under the Act even though his petition was filed after his release from prison on the charges and (2) whether the petitioner’s trial attorney’s erroneous representation was sufficient grounds to grant the post-conviction petition.

We conclude that the Act permits the relief sought and that the petitioner’s trial counsel’s erroneous advice constituted ineffective assistance of counsel which rendered his plea involuntary. Accordingly, we affirm the trial court’s judgment granting the post-conviction relief sought.

On June 29, 1981, the petitioner, a non-United States citizen, pleaded guilty to three counts of delivery of a controlled substance (cocaine) and was sentenced to three concurrent terms of three years’ incarceration in the Illinois State Penitentiary. He was released from prison on August 13, 1982, and shortly thereafter was informed by the United States Immigration and Naturalization Service that deportation proceedings would be instituted against him because of his Illinois drug convictions. On December 27, 1982, he filed a petition under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.), alleging that his guilty plea had not been voluntarily entered because his trial counsel had erroneously informed him that deportation proceedings could not be brought against him if he pleaded guilty to the drug charges.

The State first moved to dismiss the petition on the grounds that the Act permits relief only if the petition is filed while the defendant is imprisoned or serving a term of probation. After a hearing on this issue, the court denied the motion.

At the post-conviction hearing the petitioner’s trial counsel, Cyrus Yonan, gave testimony which corroborated petitioner’s claim that Yonan had told him a guilty plea could not lead to deportation proceedings. Specifically, Yonan testified that in a conference with his client regarding the propriety of pleading guilty, the petitioner asked what effect this would have on his status as an alien. Yonan initially responded that he “did not know what immigration would do in reference to his status.” Yonan added, however, that he had represented “a lot of people who had been aliens, and none of them had been deported.” The petitioner then told Yonan that his wife was a United States citizen. Yonan related that, “I then said to him, if your wife is an American citizen, then the plea of guilty would not affect your status. You probably would be picking up her status as an American citizen. And I felt at that time in point his position in the United States would not be jeopardized.”

On cross-examination, Yonan maintained that he had so informed the petitioner:

“Q. Did you tell him definitively he wouldn’t be deported?
A. I said don’t worry about it. Nothing to worry about.
Q. Did you check the law?
A. No, I didn’t.
Q. You said before you didn’t know much about immigration?
A. When he told me his wife was an American citizen, I felt on that basis it would not affect him.
Q. But you didn’t tell him definitely he would not be deported?
A. I told him you have nothing to worry about. I am almost positive.
Q. That is speculative.
MR. BLOOM: Objection
THE WITNESS: Whatever it was, I told him I felt in my own heart he had nothing to worry about.”

The trial court determined that “[t]he question before me is whether this is a voluntary plea, whether there was incompetency of counsel in misadvising his client.” The court noted that “Mr. Yonan was frank with his client. He said he wasn’t familiar with the immigration laws, but he vouched an opinion about other matters he had been involved in. He also expressed an opinion that *** aliens [being] married to American citizens somehow relieves the aliens of the penalty of the law.” The trial court concluded that “in this case, the defendant has served his sentence. He has paid the penalty provided by Illinois law. However, he is now confronted with the federal proceedings which he thought when he pled guilty would not arise. Therefore I will have to conclude his plea was not voluntary.” The court vacated the defendant’s guilty plea and his conviction, and set the case for a new trial upon defendant’s waiver of a reading of the indictment. This appeal by the State followed.

I

The State attempts to characterize the trial court’s ruling that the Act permits a defendant to seek post-conviction relief subsequent to his release from imprisonment as an unsupported expansion of the Act. It is the State’s contention that the Act and its jurisprudential interpretation provide for relief only where the petitioner is serving his term of imprisonment or probation at the time his petition is filed.

Section 122 — 1 of the Act (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1) provides in relevant part:

“Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.”

The State argues that the term “imprisoned in the penitentiary” should be construed as a limitation on a defendant’s right to seek relief, so that under the Act this remedy may be pursued only while the individual is actually serving his term of sentence. We disagree.

The Act permits a petition for post-conviction relief to be filed while the individual is serving a term of sentence, be it incarceration or probation. (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1; see People v. Montes (1980), 90 Ill. App. 3d 355, 412 N.E.2d 1363.) Parole is an integral part of the sentence (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1), having “consequences in the nature of control over the defendant’s conduct.” (People v. Placek (1976), 43 Ill. App. 3d 818, 819, 357 N.E.2d 660.) As a result, a post-conviction petition may be filed and the hearing thereon held while the individual is released but on parole from his conviction. (People v. Placek (1976), 43 Ill. App. 3d 818, 819, 357 N.E.2d 660; People v. Smalley (1975), 33 Ill. App. 3d 677, 678, 338 N.E.2d 193.) The record reveals that the petitioner here was on parole from his narcotics convictions at the time he filed his petition.

Furthermore, the Illinois Supreme Court has determined that the legislature enacted the term “imprisoned in the penitentiary” in order to permit “persons convicted of serious crime, that is, crimes punishable by imprisonment in the penitentiary, to avail themselves of the provisions of this remedial statute.” (People v. Davis (1973), 54 Ill. 2d 494, 496, 298 N.E.2d 161; see also People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164 (misdemeanants entitled to post-conviction relief similar to that provided in Act).) Thus it follows, as the court said in People ex rel. Palmer v. Twomey (1973), 53 Ill. 2d 479, 484, 292 N.E.2d 379, “that his term of imprisonment has ended does not of itself serve to bar the institution of post-conviction proceedings.” In fact, section 122 — 1 of the Act specifically provides that a petition may be filed within 20 years after rendition of final judgment. (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1.) The defendant’s completion of his sentence does not automatically bar the court’s consideration of the merits of his petition so long as it is filed within the time period specified in the Act applicable at the time of final judgment of the defendant’s guilt. (People v. Wallace (1972), 8 Ill. App. 3d 587, 290 N.E.2d 6; see also People v. Lynn (1984), 102 Ill. 2d 267 (completion of sentence does not render moot challenge of conviction itself since nullification of a sentence may have important consequences to a defendant).) We believe, therefore, that the term “imprisoned in the penitentiary” denominates the kinds of convictions from which post-conviction relief may be sought, rather than the time period in which the petition must be filed.

For the reasons set forth above, we conclude that the trial court’s denial of the State’s motion to dismiss the petition was appropriate.

II

The State contends that the trial court committed reversible error by failing to determine whether defense counsel’s erroneous advice constituted ineffective assistance of counsel. In addition, the State maintains that the facts in this cause do not support a conclusion that the conduct of petitioner’s trial counsel amounted to incompetency of counsel.

A

We find unpersuasive the State’s contention that the trial court applied the incorrect standard. Initially it must be noted that the trial court did essentially conclude that the conduct of petitioner’s trial counsel amounted to ineffective assistance of counsel. Moreover, the court’s consideration of the voluntariness of petitioner’s guilty plea was wholly appropriate. Although incompetence of counsel is the proper conceptual framework by which to resolve whether a defendant should be granted post-conviction relief because of his defense attorney’s misrepresentation or misconduct during the defendant’s decision to plead guilty (People v. Owsley (1978), 66 Ill. App. 3d 234, 383 N.E.2d 271), close scrutiny of this general framework reveals that a consideration of the voluntariness of the plea is an integral part of that analysis.

Generally, ineffective assistance of counsel will be found where the defendant’s attorney was actually incompetent and this incompetence caused the defendant substantial prejudice without which the outcome would have been different. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) In our view, in the context of an attorney’s representation of a defendant during the entry of a guilty plea, the substantial prejudice which must be shown is essentially whether the defendant’s plea was involuntary. The defendant’s plea must have been made in reasonable reliance upon the attorney’s incompetence and it is this reliance which must have caused the plea to be involuntary. People v. Burton (1970), 46 Ill. 2d 135, 138, 262 N.E.2d 917.

The case of People v. Owsley (1978), 66 Ill. App. 3d 234, 383 N.E.2d 271, upon which the State relies in support of its claim that voluntariness of the plea should not be an issue, does not present a contrary view. Rather, Owsley is illustrative that the appropriate conceptual framework implicitly includes an analysis of whether the defendant’s plea was involuntary. In Owsley the trial court dismissed without a hearing the defendant’s post-conviction petition requesting vacation of her guilty plea and a new trial on the grounds that her trial counsel misrepresented to her during a conference regarding plea negotiations the minimum time in which she would become eligible for parole, work release, and weekend furlough. In reviewing this judgment, the appellate court first determined that the applicable standard was whether the petitioner had received ineffective assistance of counsel in entering her plea of guilty rather than whether the plea had been involuntarily entered. The court went on to observe, nevertheless, that a plea of guilty is constitutionally valid only when it is knowingly and intelligently made, and that a defendant can decide to plead guilty only after he has learned when eligibility for parole or other “freedom-related” benefits will accrue. The court then concluded that a hearing was appropriate in order to determine the validity of the petitioner’s allegations that her trial counsel had misinformed her, because these contentions, as stated in her petition and supporting affidavit, were not palpably incredible and if proven could constitute ineffective assistance of counsel.

Deportation is without question a significant collateral consequence of a criminal conviction likened to “the equivalent of banishment” (Fong Haw Tan v. Phelan (1948), 333 U.S. 6, 10, 92 L. Ed. 433, 436, 68 S. Ct. 374, 376), and the “savage penalty” of “a life sentence of exile” (Jordan v. De George (1951), 341 U.S. 223, 243, 95 L. Ed. 886, 898, 71 S. Ct. 703, 714 (Jackson, J. dissenting)), of which an alien defendant should be advised by his counsel prior to entry of his plea. (Commonwealth v. Wellington (1982), 305 Pa. Super. 24, 451 A.2d 223; Edwards v. State (Fla. App. 1981), 393 So. 2d 597.) This obligation is imposed upon defense counsel because he “is in a much better position to ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger.” (Michel v. United States (2d Cir. 1974), 507 F.2d 461, 466.) Thus, where defense counsel has unequivocally represented to his client that such plea will not result in his deportation and the defendant has relied upon this patently erroneous advice in deciding to plead guilty, post-conviction relief is appropriate to permit the defendant to plead anew and take full advantage of his right to a trial wherein his guilt must be proven beyond a reasonable doubt. See United States v. Parrino (2d Cir. 1954), 212 F.2d 919, 922, cert. denied (1954), 348 U.S. 840, 99 L. Ed. 663, 75 S. Ct. 46 (Frank, J. dissenting); see also United States v. Briscoe (D.C. Cir. 1970), 432 F.2d 1351; United States v. Shapiro (7th Cir. 1955), 222 F.2d 836.

B

The State also disputes the trial court’s judgment on the grounds that the evidence adduced at the post-conviction hearing was insufficient to prove ineffective assistance of counsel. We disagree.

After considering the evidence presented by the petitioner and arguments presented by both parties, the trial court concluded that the petitioner had relied upon his trial counsel’s unequivocal but erroneous advice that his marriage to a United States citizen would bar his deportation from this country in spite of a narcotics conviction. Our standard of review is whether this conclusion was manifestly erroneous. People v. Bracey (1972), 51 Ill. 2d 514, 517, 283 N.E.2d 685; People v. Corder (1982), 103 Ill. App. 3d 434, 436, 431 N.E.2d 701.

It stands as undisputed that the representations made by the petitioner’s defense counsel were incorrect. Deportation shall be imposed where the individual has been convicted of, inter alia, “any law or regulation governing or controlling the *** exchange [or] *** giving away *** of *** coca leaves.” (8 U.S.C. sec. 1251(a)(11) (1982).) That the individual convicted of such offense is married to a United States citizen does not automatically bar his deportation. (See 8 U.S.C. sec. 1182 (1982); see also De Figueroa v. Immigration & Naturalization Service (7th Cir. 1974), 501 F.2d 191, 195.) The State maintains that the statements of petitioner’s trial counsel were mere estimates rather than unequivocal representations, such that the petitioner could not have reasonably relied thereon in entering his plea. We cannot conclude, however, that the trial court’s determination to the contrary was manifestly erroneous.

The trial court concluded that although petitioner’s attorney was initially unsure of the conviction’s effect on his client’s immigration status, he became certain that there would be no such adverse consequence when informed that petitioner was married to a United States citizen. The record supports the trial court’s conclusion that these latter statements were not merely estimates of the likelihood that petitioner would not be deported, but rather were more in the nature of unequivocal representations which created in petitioner a firm expectation which was subsequently unfulfilled. We believe this was sufficient to grant the relief requested.

For the reasons set forth above, the judgment of the trial court is affirmed.

Affirmed.

LINN, P.J., and JIGANTI, J., concur.