text:
    ESTHER GUIDE YOCHIM, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE PUBLIC SCHOOL TEACHERS’ PENSION AND RETIREMENT FUND OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 81-188
    Opinion filed April 19, 1982.

      John E. Angle, of Kirkland & Ellis, of Chicago, for appellant.
    Lawrence A. Poltrock and Gregory N. Freerksen, both of De Jong, Poltrock & Giampietro, of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, the Board of Trustees of the Public School Teachers’ Pension and Retirement Fund of Chicago, appeals from a decision of the circuit court reversing the finding of the Board of Trustees that the plaintiff’s husband, now deceased, was not mentally incompetent at the time he elected to receive a regular pension from the pension fund. The issues raised on appeal are: (1) whether the trial court applied the appropriate standard of review in its reversal of the administrative finding; and (2) whether section 17 — 123 of the Illinois Pension Code (Ill. Rev. Stat. 1977, ch. 108 1/2, par. 17 — 123) requires the return of the decedent’s contributions to the Pension Fund.

In May 1978, the plaintiff, Esther Guide Yochim, formally requested the Board of Trustees of the Public School Teachers’ Pension and Retirement Fund of Chicago for a refund of her husband’s contributions to the pension fund and tendered the $6,807.86 in pension payments that he had received before his death. She sought to establish that her husband’s election to receive a regular pension was void by reason of incompetency and, therefore, his estate was entitled to a refund of his contributions. Plaintiff also requested survivor’s benefits for herself of $300 per month. The board agreed to hear evidence on whether Dr. Yochim was mentally incompetent at the time he elected to receive a regular pension.

After two evidentiary hearings, the board unanimously voted to deny plaintiff’s claim that she was entitled to a refund of her husband’s contributions to the pension fund. The plaintiff filed this suit in the circuit court of Cook County seeking review of the board’s action pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.). The trial court reversed the decision of the board and awarded the plaintiff a survivor’s pension and the balance of decedent’s contributions to the pension fund.

The plaintiff’s husband, Dr. Ralph Yochim, taught in the Chicago public schools for 40 years. He had a Ph.D. in music and prior to his retirement he taught music at Lake View High School. His mandatory contributions to the pension fund totalled approximately $25,000. On May 23,1977, Dr. Yochim, accompanied by his wife, visited the pension fund office and elected to receive a regular pension after his retirement at the close of the 1976-77 school year. On November 5,1977, Dr. Yochim died of heart failure following surgery to remove a brain tumor. He was 61 years old.

The decedent’s physician, Dr. John Mullan, testified on behalf of the plaintiff. Dr. Mullan is a neurosurgeon and chairman of the department of neurosurgery at the University of Chicago and director of the Brain Research Institute. He had been treating Dr. Yochim since 1973 when he operated on Dr. Yochim to remove a brain tumor. Dr. Mullan stated that it was not safe to remove the entire tumor and, therefore, the tumor would continue to grow and eventually require another operation. Although Dr. Yochim’s physical condition improved substantially after the operation, Dr. Mullan believed that the return of his intellectual capacities in terms of concentration, memory and judgment was limited. Dr. Mullan wrote in 1974 that even though decedent returned to work, he imagined that Dr. Yochim was tolerated rather than appreciated.

The tumor began to grow and at the end of 1976 Dr. Mullan advised another operation. He testified that at that time decedent was slow to understand matters and took a long time to reach a decision. Dr. Mullan stated that decedent repeatedly changed his mind on whether to have the second operation and did not seem to understand the severity of his condition. He stated, however, that Mrs. Yochim was fully informed. Dr. Mullan stated that he saw the deceased in the spring of 1977 but that he did not remember or have records as to whether it was on or around May 23. He testified that as the tumor grew there was a corresponding deterioration in his physical and intellectual abilities. Dr. Mullan testified that Dr. Yochim’s behavior was usually correct. He also stated that since the decedent was a quiet, intelligent-looking man, anyone meeting with him would not be able to recognize his mental incapacities. Finally, Dr. Mullan testified that, in his opinion, since the operation in 1973 Dr. Yochim was not capable of making a decision of significant import for himself or his family. On cross-examination, Dr. Mullan stated that there were no tests to determine the amount of pressure on Dr. Yochim’s brain nor any tests to measure judgment. He stated that his comments on Dr. Yochim’s mental capacity were subjective and based upon his personal observations. Dr. Mullan also said that he accepted Dr. Yochim’s written consent to perform the 1977 operation.

Mrs. Yochim testified that in the months before her husband’s retirement, his coordination and balance worsened. She stated that he could not competently write checks or pay bills. She stated that he had difficulty keeping school records such as attendance reports and that she believed that his co-workers must have helped him complete these reports. She also testified that he was unable to make simple decisions such as deciding what to order in a restaurant.

Mrs. Yochim described the two meetings she and her husband had with the director of the pension fund, Edna Fanning. Mrs. Yochim testified that they first met with Mrs. Fanning in October 1976. Mrs. Yochim stated that she told Mrs. Fanning that her husband had brain surgery and was scheduled for another operation. They discussed Dr. Yochim’s retirement and the various pension options available. On May 23,1977, Dr. and Mrs. Yochim returned to the pension office and met with Mrs. Fanning. At this meeting Dr. Yochim elected to receive a regular pension. Mrs. Yochim testified that she completed the necessary forms and he signed them.

The principal of Lake View High School for the 1976-77 school year testified on behalf of the defendant. He stated that he had visited Dr. Yochim’s classroom several times and had met with him on three or four occasions. He stated that Dr. Yochim seemed to be doing a satisfactory job of teaching and that he had no reports of unusual behavior by Dr. Yochim. On cross-examination, he admitted that his opinion of Dr. Yochim’s teaching abilities was based partly on his knowledge of Dr. Yochim’s outstanding reputation in the Chicago public schools.

Edna Fanning, executive director of the pension fund, testified that during her two meetings with Dr. Yochim, he asked sensible questions, he seemed very interested in the answers, and he appeared to understand them. She explained to Dr. Yochim that he had four options on retirement: a regular pension, a reversionary pension, deferment in applying for a pension, and severance from the pension fund through withdrawal of his contributions. She stated that Dr. and Mrs. Yochim were very thorough in their questioning until they completely understood the pension options. Another employee of the pension fund, Katherine Wellons, testified that she met with Dr. and Mrs. Yochim on May 23,1977, during which time Dr. Yochim signed certain documents required for his pension application. She stated that Dr. Yochim’s demeanor seemed normal and his questions were appropriate.

The board held that the plaintiff had failed to prove that the decedent was incompetent on May 23, 1977, and the circuit court reversed this decision finding that it was against the manifest weight of the evidence. The court ordered a refund of Dr. Yochim’s contributions to the pension fund, less the amount of contributions attributed to the survivor’s pension and the sum of pension payments he received before death. The refund, then, totalled $15,135.18. The court also awarded the plaintiff a survivor’s pension and her right to this is not contested on appeal.

The defendant contends that the trial court exceeded the scope of review applicable to a final administrative decision by reweighing the evidence presented at the administrative hearing rather than limiting its review to a determination of whether the finding below was against the manifest weight of the evidence. (Hodges v. Board of Trustees (1979), 73 Ill. App. 3d 978, 392 N.E.2d 417.) The defendant also argues that the trial court incorrectly reasoned that lay testimony on competency must give way to expert testimony. The defendant asserts that lay testimony on competency is entitled to equal weight with that of expert testimony.

The plaintiff asserts that her medical testimony stands uncontradicted by the defendant because defendant’s witnesses only testified to whether Dr. Yochim’s behavior was normal. She argues that since defendant’s witnesses did not offer an opinion on the competency of Dr. Yochim, nor contradict the medical testimony of Dr. Mullan, the board’s rejection of Dr. Mullan’s testimony was arbitrary and against the manifest weight of the evidence.

The Administrative Review Act provides, “The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1977, ch. 110, par. 274.) The role of the reviewing court is limited to a determination of whether the findings of fact of the administrative agency are against the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Fractices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877.) The reviewing court will not overturn agency findings unless they are without substantial foundation in the record. (Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 363 N.E.2d 44.) We conclude that the trial court correctly applied this standard.

Defendant is correct in asserting that the testimony of physicians on competency is not entitled to any greater weight than that of laymen (In re Estate of Vardalos (1974), 24 Ill. App. 3d 520, 360 N.E.2d 568). The value of an opinion on competency, however, is measured by the facts and circumstances which form reasonable ground for the witness’ determination of mental capacity (Vardalos). The testimony of Dr. Mullan, a neurosurgeon and the decedent’s treating physician, is uncontradicted in the record. The testimony of the defendant’s witnesses support that of the doctor to the effect that Dr. Yochim appeared normal and asked numerous questions to hide his inability to comprehend what was being said. The record does not reveal that defendant’s witnesses had sufficient contact with Dr. Yochim to support their testimony of apparent competency in the face of Dr. Mullan’s medical knowledge of the deceased and his repeated opportunities to meet with the deceased. We conclude that the finding of the board of trustees is not supported by the record, and the trial court was correct in reversing its decision as against the manifest weight of the evidence.

The decision of the trial court to award the plaintiff a refund of contributions in the sum of $15,135.18 is also supported by section 17 — 123 of the Illinois Pension Code, which provides in pertinent part:

“If a teacher dies (a) in service, (b) after resignation or (c) after retirement but before receiving any pension payment, his estate shall be paid a refund of the amounts he contributed to the fund less (1) any former refund that has not been repaid, (2) the amount contributed for a survivor’s pension in the event such pension is payable under Sections 121 and 122 of this Article and (3) pension payments received.” (Ill. Rev. Stat. 1977, ch. IO8J2, par. 17 — 123.)

The defendant argues that we should not consider the statutory interpretation issue raised by the plaintiff because it was not raised below. The facts, however, do not support the defendant’s contention. In a letter to the plaintiff’s attorney dated May 26, 1978, the defendant raised the issue of the applicability of section 17 — 123 to the decedent.

The plaintiff contends that the intent of section 17 — 123 is to require a return of the decedent’s contributions to the fund after deducting the pension payments received and the contributions for a survivor’s pension. She argues that any other construction would render section 17 — 123(3) useless. The defendant contends that section 17 — 123 was intended to apply to the situation of a teacher who retires from the school system, draws a pension and then returns to active service. The defendant has conceded that under its interpretation a retired teacher would forfeit his entire contribution to the pension fund, accumulated over years of service, if he died after receiving one month’s pension payment.

We find no basis for the defendant’s interpretation in the language of section 17 — 123. Where the meaning of a statute is certain and unambiguous, the only legitimate function of this court is to give it effect as written. (Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227.) The provisions of section 17 — 123 are not so limited as the board suggests. We accept the construction adopted by the trial court which requires the return of decedent’s contributions less the amount contributed for a survivor’s pension and pension payments received.

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

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    FOXCROFT TOWNHOME OWNERS ASSOCIATION et al., Plaintiffs-Appellants, v. HOFFMAN ROSNER CORPORATION, Defendant-Appellee.
    Second District
    No. 81-540
    Opinion filed April 23, 1982.
    Timothy J. Reuland, of Lindner, Speers & Reuland, of Aurora, for appellants.

      William C. Murphy and J. Patrick Gallagher, both of Reid, Ochsenschlager, Murphy & Hupp, and Bruce A. Brown, of Goldsmith, Thelin, Schiller and Dickson, both of Aurora, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This suit began as a class action suit on behalf of the owners of townhouse condominiums built by Hoffman Rosner Corporation (hereinafter Hoffman Rosner). It was brought by the Foxcroft Townhome Owners Association (hereinafter Association) and those individuals who were formerly or were at the time of suit directors of the Association, individually and in their representative capacity on behalf of all the condominium owners. The defendant, Hoffman Rosner, is the builder and developer of the property known as Foxcroft.

The condominiums were built in the early 1970’s and the condominium declaration was filed in March of 1972. The Association was formed in April of 1972. Defects in the siding of the buildings were discovered in the spring of 1975. They are described in the complaint as “latent defects.”

In 1979, the plaintiffs began suit against Hoffman Rosner for damage due to the defective siding on the buildings which, they claimed, diminished the value of the property. Count I of the original complaint was a class action on behalf of all tenants of Foxcroft based on breach of the implied warranty of habitability (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31.) Count II was brought as a class action based on negligence in using defective siding or in negligently installing the siding. Count III was a class action based on an alleged breach of a fiduciary relationship which proceeded from the fact that Hoffman Rosner was the developer and incorporator and also the author of the condominium declarations and had filed the declarations on behalf of the condominium owners.

The defendant filed a motion to dismiss the complaint as a class action because of procedural deficiencies, also a motion to dismiss for failure to state a cause of action under the implied warranty theory of count I, for lack of privity under count II and for failure to state facts amounting to a fiduciary relationship under count III. The trial court, after further pleadings and arguments on the defendant’s motion to dismiss, dismissed counts II (negligence) and III (breach of fiduciary duty) for failure to state a cause of action. Subsequently, count I was dismissed as to those plaintiffs who were not the original purchasers from the defendant and who were, therefore, not in privity with the defendant.

The plaintiffs then filed an amended complaint. Count I of the amended complaint was brought as a class action on behalf of the original purchasers who are present owners, under a theory of breach of warranty of habitability; count II was brought on behalf of the original purchasers under a theory of negligence; count III was a class action suit on behalf of those who did not purchase directly from Hoffman Rosner but were subsequent purchasers from the original buyers. This count was based on negligence.

The trial court denied the motion to dismiss the amended complaint as to counts I and II and granted the motion as to count III. Hoffman Rosner subsequently settled with the original owners (the plaintiffs under counts I and II of the amended complaint) and the present appeal is only on behalf of those who purchased the units from the original owners and were not in privity with Hoffman Rosner.

In this appeal, the plaintiffs attempt to sustain their appeal as to the dismissal of counts I (implied warranty) and III (breach of fiduciary duty) of the original complaint, as well as bringing an appeal on the dismissal of count III of the amended complaint (based on negligence). The defendant contends that the issues under counts I and III of the original complaint cannot be raised in this appeal because, by pleading over after the original complaint was dismissed, in an amended complaint, the plaintiffs abandoned counts I and III of the original complaint and cannot now appeal the dismissal of those counts. We are inclined to agree. In the case of Coffey v. MacKay (1972), 2 Ill. App. 3d 802, this court held that the plaintiff could not appeal the dismissal of the original complaint after pleading over in an amended complaint. See also Moore v. Everett Snodgrass, Inc. (1980), 87 Ill. App. 3d 388, and Henkhaus v. Barton (1977), 56 Ill. App. 3d 767.

The plaintiffs invoke the decision of this court in Enlow v. Illinois Central R.R. Co. (1968), 103 Ill. App. 2d 269, which holds that where the trial court dismissed the original complaint on the merits, with leave to plead over, indicating that it would not accept the theory of the original complaint as stated, the plaintiff, in pleading over, on the basis suggested by the trial court, did not waive the dismissed counts of the original complaint.

In any event, however, the question of waiver is not determinative in this case for we are of the opinion that the trial court was correct in dismissing counts I and III of the original complaint on the merits.

As to count I (implied warranty of habitability), that theory rests squarely on Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, and in that case the supreme court construed the contract between the builder and his vendee to contain an implied warranty that the house being purchased from the builder would be “reasonably suitable for its intended use” as a dwelling. (76 Ill. 2d 31,41.) It is clear from the language of Petersen that the case was decided on the basis of a contract between the builder and the buyer of the house. There is no indication in the opinion that it might extend beyond the relationship of builder and initial purchaser from the builder. In using the analogy of the “merchantability” warranty under the Uniform Commercial Code, rather than stressing “habitability,” the opinion retains the privity concept. The implied warranty of habitability arises out of a contract between the builder and the initial buyer and there is no hint in Petersen that it arises out of a general duty to build a reasonably fit house, by reason of which the builder would be liable to remote purchasers, that is, the general public, having no privity with him.

Nor can the plaintiffs here, being subsequent purchasers, recover under a theory of warranty made to the original purchaser for the benefit of a third-party subsequent purchaser. In the recent case of Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, Altevogt sued both Brinkoetter, the original owner of the house, and Hinton, the contractor who built it. The supreme court in reviewing the case held that the action against Brinkoetter was barred by the statute of limitations but considered at some length whether the count against Hinton, the contractor who actually built the house, could be maintained on a theory of implied warranty that Hinton would build the house in a reasonably workmanlike manner and whether this would inure to the benefit of Altevogt as a third-party beneficiary. After an extensive review of the cases involving implied promises for the benefit of a third-party beneficiary, the court came to the conclusion that since, in this case, there was nothing in the record to show that Hinton had any knowledge that Brinkoetter would sell the house to another person, there was not sufficient identification of a third-party beneficiary or a class of beneficiaries to make it a contract for the benefit of any and all subsequent purchasers. In discussing the necessary connection between the original promisee and the third-party beneficiary, the court quoted as follows from the leading case of Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252:

“ ‘The rule is, that the right of a third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability must affirmatively appear from the language of the instrument when properly interpreted and construed. The liability so appearing can not be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability. [Citation.]’ 346 Ill. 252, 258.” Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 54-55.

In commenting on that language, the court said in Altevogt-.

“While some other jurisdictions might view the matter differently, Illinois, as shown by the Carson Pirie Scott decision, holds that a third party is a direct rather than an incidental beneficiary only if the contracting parties have manifested in their contract an intention to confer a benefit upon the third party.” 85 Ill. 2d 44, 54.

The court went on to hold that the allegations in Altevogt’s complaint, which set out merely that Hinton in his building contract with Brinkoetter “ ‘impliedly warranted that said residence would be constructed in a reasonably workmanlike manner’ ” and knew that Hinton ‘knew that said residence was not to be inhabited by THOMAS B. BRINKOETTER, but was to be held out for sale to unidentified prospective buyers’,” were not sufficient allegations to constitute a third-party contract for the benefit of Altevogt. Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 52.

In the case before us, we have much the same situation. In contending that the subsequent purchasers from the original condominium owners were third-party beneficiaries of the implied warranty by Hoffman Rosner of a reasonable fitness for habitability, or at least, that the buildings were constructed in a reasonably workmanlike manner, the plaintiffs, who are not in privity with Hoffman Rosner, are asserting the same theory as did Altevogt against Hinton, relying on Hinton’s implied warranty to Brinkoetter. The complaint does not specifically state that the nonprivity buyers are third-party beneficiaries, but we must assume this to be the theory under which recovery is sought on their behalf as they are admittedly not direct beneficiaries.

For the reasons set forth above, we do not accept this theory of recovery for the subsequent buyers and we think the trial court properly dismissed this count on the merits, irrespective of the question of waiver raised by the amended complaint.

As to count III of the original complaint — based on a theory of fiduciary relationship — we see no basis for this count under the facts alleged. The complaint asserts a fiduciary relationship between all buyers, both those in privity and those not in privity with Hoffman Rosner, by virtue of the fact that Hoffman Rosner caused the real estate on which Foxcroft is situated to be subjected to certain “declarations, covenants, conditions and restrictions,” including the covenants, conditions and restrictions of the Foxcroft Townhome Owners Association, recorded the articles of incorporation of the Association, and drafted and recorded the Association bylaws. This count recites that by reason of these acts of the developer the plaintiffs “reposed trust and confidence in the developer and, because of the developer’s control over and relationship with the plaintiffs by virtue of the drafting and recording of said documents, the developer stands in a fiduciary relationship to the plaintiffs.” The mere drafting and recording by Hoffman Rosner of the condominium declarations, Association bylaws, etc., is not sufficient to create a fiduciary relationship between Hoffman Rosner and the condominium owners as to the quality of workmanship and materials in the buildings. The original owners who worked with Hoffman Rosner on the declarations, covenants, conditions and restrictions may have had a right to rely on the documents being properly drafted from a legal standpoint and promptly and properly recorded by Hoffman Rosner as required by law, but these acts and responsibilities were entirely separate from any responsibility for the quality and reliability of the building workmanship. The existence of a fiduciary relationship based on the facts alleged in this count is a mere conclusion, not supported by the facts alleged, and we think the trial court properly dismissed this count of the original complaint on the merits.

The third count of the amended complaint — sounding in negligence — remains for consideration in this appeal. This count is based on the theory that there is a general duty on the part of a builder or developer to build in a reasonably workmanlike manner and if he fails to do so he commits tort through his failure to perform such duty and is liable to any subsequent owner of the building who can prove he was damaged by such defects. Thus, the builder or developer would be liable to any buyer, however remote in time or sequence of ownership, for any defect or deficiency in the building which could be traced to the original construction. The developer or contractor would have the same general duty to all subsequent buyers as the driver of an automobile has to all other drivers on the highway to drive in a manner so as not to injure them. While this may at first blush seem to be a reasonable proposition, the ramifications of it as applied to a contractor or developer are very dubious, since it would prolong the builder’s liability indefinitely. Bearing in mind the prolongation of liability implicit in the discovery rule for liability for negligent torts we can, without being fanciful, easily imagine the suits, countersuits, setoffs and indemnity actions which can arise over a period of time from the sale of a building to several successive buyers, each of whom claims to have been damaged by a defect he discovered sometime after he bought the building and for which he ultimately looks to the builder for redress.

The plaintiffs point out that the doctrine of privity for liability in tort has been dispensed with in Illinois not only in strict liability cases such as Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, but in cases not involving strict liability such as Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, and Rozny v. Marnul (1969), 43 Ill. 2d 54. Pippin was a personal injury case, and the circumstances were so different and unusual as to have little relevance here. However, Rozny, being a case involving economic loss due to negligent misrepresentation, has more relevance in its facts. The plaintiffs’ brief quotes from Rozny as follows in attempting to diminish the concept of privity in negligent tort cases:

“To eliminate any uncertainty still remaining after Suvada v. White Motor Co., 32 Ill. 2d 612, 617, we emphasize that lack of direct contractual relationship between the parties is not a defense in a tort action in this jurisdiction. Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.” 43 Ill. 2d 54, 62.

However, the scope of the duty owed in the Rozny case (negligent warranty as to the accuracy of a plat of survey) and other cases of negligent misrepresentation, such as Glanzer v. Shepard (1922), 233 N.Y. 236, 135 N.E. 275 (negligent misrepresentation as to a quantity of beans), and Ultramares Corp. v. Touche (1931), 255 N.Y. 170, 180, 174 N.E. 441, 444-45 (negligent certification of an inaccurate audit), was very narrow and specific. It was not a general duty, and the tort rested on misrepresentation of a particular fact, not on negligent performance of a general duty. The case before us is not a strict liability case, and the other cases cited involve both negligence and misrepresentation. The theory of the so-called negligence count we consider here rests on a general indefinite duty to “exercise due care in the development and construction of Fox-croft, so that the buildings and units thereof, particularly the units of the class represented in this Count, including, but not necessarily limited to the exterior surfaces and siding thereof, would be constructed in a good and workmanlike manner, would be reasonably suited for their intended use as that use is set forth and contemplated in said [condominium] documents, and would be habitable.” As thus phrased, it is obvious that the scope of the “duty” is so broad as to be almost indefinable in limit. Nor is it distinguishable in its effect from the implied warranty of habitability recited in count I of the original complaint, which was dismissed.

The case is, in its facts, very much like that of Mellander v. Kileen (1980), 86 Ill. App. 3d 213. There the subsequent purchaser of a house sued the contractor who built it for the original buyer for breach of warranty because of a defective roof. The appellate court dismissed the suit for lack of privity. The only difference we discern between that case and the case before us is that the plaintiffs in the present case amended their complaint to add a count in which certain words are inserted such as “negligence,” “negligent breach of duty,” and “duty to exercise due care,” to create an action sounding in negligence rather than in contract. This court in Kramp v. Showcase Builders (1981), 97 Ill. App. 3d 17, where the succeeding owner sued the plumber who installed the septic system of the dwelling, likewise dismissed the count based on implied warranty of habitability for lack of privity. To reject those cases and embrace the case at hand based on the distinction that in the present case the pleader invoked the words of art usual to negligence cases, without any other substantial difference in the essential facts, would, we think, be out of step with the law in this developing field. The addition of the concept of a “general duty” is too nebulous a ground to support a distinction between the cases mentioned above and the case at hand on the ground that the case before us is a tort case requiring no privity. The alleged loss in this case is purely an economic one and in connection with purely economic losses the words of Justice Moran in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 86, seem apt:

“Our conclusion that qualitative defects are best handled by contract, rather than tort, law applies whether the tort theory involved is strict liability or negligence. Tort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence of the nature described above. The remedy for economic loss, loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental cause, on the other hand, lies in contract. As Dean Prosser has stated:
‘There can be no doubt that the seller’s liability for negligence covers any kind of physical harm, including not only personal injuries, but also property damage to the defective chattel itself, as where an automobile is wrecked by reason of its own bad brakes * * *. But where there is no accident, and no physical damage, and the only loss is a pecuniary one, through loss of the value or use of the thing sold, or the cost of repairing it, the courts have adhered to the rule * * * that purely economic interests are not entitled to protection against mere negligence, and so have denied the recovery.’ Prosser, Torts sec. 101, at 665 (4th ed. 1971).”

In this case, the damage complained of was not sudden but was a gradual deterioration of the siding, which split open or came apart or fell off over a period of years. This is a purely economic loss, not a specific casualty, accident or misrepresentation reviewable under tort theory so as to dispense with the privity requirement.

For the reasons set forth, we affirm the judgment of the circuit court of Kane County.

Judgment affirmed.

SEIDENFELD, P. J., and REINHARD, J., concur.


text:
    HINCKLEY-BIG ROCK SCHOOL DISTRICT NO. 429, Plaintiff-Appellant, v. THE VILLAGE OF SUGAR GROVE et al., Defendants-Appellees.
    Second District
    No. 81-596
    Opinion filed April 23, 1982.
    Richard L. Cooper, of Geneva, for appellant.
    Thomas W. Grant, of Yorkville, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Hinckley-Big Rock School District No. 429 (hereafter District) appealed from the judgment of the circuit court of Kane County dismissing its complaint for a declaratory judgment in which it asked that an annexation ordinance of the village of Sugar Grove and the consequent rezoning of certain property be declared invalid. The District also asked for an injunction enjoining a proposed development of certain land pursuant to such annexation ordinance.

The District has territory in Big Rock Township and in the village of Hinckley, and its territorial boundary is adjacent to the western boundary of the township of Sugar Grove, in which is situated the village of Sugar Grove.

In November of 1980, a tract containing 75 acres of land lying within the District and within Big Rock Township, which had previously been zoned F-Farming, was annexed to the village of Sugar Grove under an ordinance of that village authorizing such annexation and rezoning the tract for development into 83 residential lots and 11 acres of light industrial use. The District contends that this violates the official plan of Kane County, which calls for low density housing with lots of 40,000 square feet. In its complaint the District alleged that under the preannexation agreement between the village of Sugar Grove and the owner of the 75-acre tract, the landowner would try to disconnect the tract from the District and annex it to another school district, Kaneland School District No. 302, by which the plaintiff District would lose acreage which contributes substantial revenue to the District, since the disconnection would diminish the assessed valuation of the District.

The defendant, village of Sugar Grove, and the owner and developer of the tract of land in question, moved to dismiss the suit for declaratory judgment on the ground that the action was improper, since an annexation of contiguous territory by a municipality can only be questioned by a writ of quo warranto, not, as here, by a declaratory judgment suit. The basis of this contention is found in Edgewood Park #2 Homeowners Association v. Countryside Sanitary District (1969), 42 Ill. 2d 241, which was a suit in declaratory judgment by a homeowners’ association to contest the act of the sanitary district in annexing certain residential territory and incorporating it into the sanitary district. The complaint, as here, sought a declaration that the annexation passed by the sanitary district was invalid and further sought an injunction to restrain the sanitary district from asserting jurisdiction over the territory and collecting service charges therein. The circuit court dismissed the suit and the appellate court affirmed, holding that the suit was improper because quo warranto is the proper remedy for questioning an annexation by a municipal corporation. The supreme court on appeal upheld the decision of the appellate court, holding that the only form of action for questioning an annexation was by quo warranto. The supreme court said that a declaratory judgment action is not a concurrent remedy.

In its motion to dismiss, the defendant, village of Sugar Grove, relies on the Edgewood Park case and other Illinois cases holding likewise. (See Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456; People ex rel. Kirby v. City of Effingham (1976), 43 Ill. App. 3d 360.) The District counters with the argument that what it is actually aiming at in this suit is not to question the annexation — which it concedes can only be done by quo warranto — but rather to question the Sugar Grove Zoning Ordinance and that the present suit is “a zoning suit patterned after the complaint and concept of Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392.” In that case, Barrington Hills brought a suit in declaratory judgment challenging the annexation of certain unincorporated land by the Village of Hoffman Estates and its rezoning for the purpose of building thereon a large outdoor theatre. Barrington Hills and South Barrington, also a plaintiff, are within V¡í miles of the proposed construction. The appellate court affirmed the trial court’s dismissal of the suit on the ground that the allegations of the plaintiffs that they would suffer additional expense, pollution of their air and diminution of property values was not sufficient to constitute them aggrieved persons having a real interest, since they did not allege that they would be required to furnish water, sewer or any other service to the proposed outdoor theatre and that, therefore, they lacked standing to maintain the suit. Upon review, the supreme court reversed, holding that the appellate court’s view of the matter had been too narrow and that the effects of Hoffman Estates’ rezoning on Barrington Hills and South Barrington portended “direct, substantial and adverse effects upon the plaintiff municipalities in the performance of their corporate obligations, thus giving them a real interest in the subject matter of the controversy.” 81 Ill. 2d 392, 398.

The District relies heavily on the Barrington Hills case; however, we see important differences between that case and the one we consider here While the District contends this suit is a zoning suit, it appears from the wording of the complaint itself that the District is primarily concerned with the question of annexation — specifically, with the prospect of the land in question being detached from the District. The annexation agreement is attached to and made a part of the complaint and one of the allegations in the complaint is as follows:

“The Pre-Annexation Agreement contemplates that the owner of the property in question will endeavor to disconnect the property from Hinckley-Big Rock School District 429 and annexing it to Kaneland School District 302. If successful, the Hinckley-Big Rock School District would lose acreage that contributes substantial revenue and no children to the District by diminishing the assessed valuation of the District. * *

Thus, it appears that the prospect of losing territory which produces tax revenue without any children to serve is a main concern of the District, and this is clearly not a zoning consideration.

Moreover, in Barrington Hills, the contemplated zoning was for a very intensive and unusual use which would clearly cause changes and dislocations in the community without any corresponding advantage to the plaintiff municipalities. In the case before us, the contemplated use is a reasonable and normal one — mostly single-family residential and a few acres of light industrial occupancy — not the intensive and possibly disruptive use anticipated in the Barrington Hills case.

We feel, therefore, that the Barrington Hills case is not a helpful precedent in deciding the question here before us, even if the present case is considered as a challenge to the zoning of the land in question, rather than as a challenge to the annexation. In its order dismissing the District’s complaint in declaratory judgment, the trial court also ruled that as a matter of law the village’s zoning ordinance “supercedes the County Zoning Plan and cannot be attacked by the Plaintiffs.”

While contending that the present action was properly dismissed as a suit questioning an annexation through the impermissible method of a declaratory judgment suit, rather than by quo warranto, the village raises the preliminary question of the District’s standing to question the zoning ordinance of the village. The village relies on this court’s decision in Dato v. Village of Vernon Hills (1965), 62 Ill. App. 2d 274. In that case, we ruled that school districts had no right to intervene in a zoning case under the authority of section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 26.1), which delineates the situations in which a party may intervene, and that a 1963 amendment to the Municipal Code — section 11 — 13—20—giving the school district the right to appear and be heard in any hearing before a zoning commission, did not give the school district authority to intervene in a zoning suit. Two appellate court decisions since then have disagreed with this view. In Board of Education v. County of Woodford (1974), 19 Ill. App. 3d 1078, the reviewing court noted that the Dato case had not considered a provision in the School Code of 1961— section 10 — 2 (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 2), which reads as follows:

“The directors of each district shall be a body politic and corporate, by the name of ‘school directors of district No........ county of.....and State of Illinois,’ and by that name may sue and be sued in all courts and places where judicial proceedings are had.”

The Woodford court, in a two-to-one decision, held that the above-quoted section of the School Code (which had not been discussed in the Dato case) was authority for the filing of a declaratory judgment suit by the school board in a zoning case, saying:

“In our opinion the grant of power to a school board as a body politic and corporate to sue and be sued in all courts and places where judicial proceedings are had is broad enough to encompass authorization to institute and pursue this litigation.” (19 Ill. App. 3d 1078, 1081.)

Justice Simkins dissented, agreeing with Dato and questioning the majority’s interpretation of section 10 — 2 of the School Code as giving “a general, unrestricted grant of authority to school districts to engage in litigation concerning zoning # 19 Ill. App. 3d 1078, 1082.

In Adams v. County of Cook (1980), 86 Ill. App. 3d 68, the appellate court agreed with the Woodford decision. The Adams case involved a petition to intervene by a school district whose school was adjacent to property recently rezoned for a special use. The court said:

“We agree with Woodford that the School Code’s general grant of authority allows a board of education to sue or be sued in zoning cases. It logically follows, therefore, that if the board of education had the capacity to bring the instant suit, then it should have the capacity to intervene.” 86 Ill. App. 3d 68, 72.

Even conceding, however, that section 10 — 2 of the School Code, noted above, the effect of which was not considered in the Dato case, is a sufficiently broad grant of authority to give the school district standing to initiate or intervene in a zoning suit, we do not find adequate grounds for such a suit in this case and we are of the opinion the real purpose of the suit is to undo the annexation agreement. We note the inconsistency of the complaint in alleging that “[t]he Pre-Annexation Agreement contemplates that the owner of the property in question will endeavor to disconnect the property from Hinckley-Big Rock School District 429 and annexing it to Kaneland School District 302,” while other paragraphs of the complaint alleged the burdens of increased teachers’ staff and overcrowding due to the rezoning of the property for single-family residential use. Obviously, if the District really fears that the land in question is going to be detached from its territory following annexation, then it is not going to incur the burdens caused by increased enrollment, such as additional teachers and a new school building.

At oral argument, the possibility of diminished revenue was stressed by counsel as injuring the District’s corporate capacity, but this has only to do with the annexation, an issue we agree with the trial court should not be considered in this declaratory judgment suit. While an annexation and subsequent detachment of the territory might diminish the District’s revenues, a zoning change is not going to decrease revenue — actually quite the opposite will occur if the land is not detached. The possibility of diminished revenue, therefore, cannot be considered here, since it would only result from the annexation and the present suit cannot be used to challenge the annexation.

Many of the averments in the complaint are general in nature and pertain to a change in the township environment, a variation from the Kane County Official Plan, changes in land use from agricultural to residential, and the anticipated burden on township roads. In view of the withdrawal of the township and the road commissioner from this appeal and disregarding the question of diminished revenue, since it is purely related to annexation, it appears that it is only the prospect of increased school population which might comport with the holding in Barrington Hills in causing a substantial and direct effect on the District’s corporate capacity. Changes in population patterns in rural communities, however, are commonplace these days and should be anticipated by any school district encompassing undeveloped land. We do not think the inevitable change in population distribution should be regarded as a basis for invalidating a neighboring municipality’s ordinance. In answering the contention in the Barrington Hills case that “according plaintiffs standing to sue will invite chaos in the relationships between municipalities and flood the courts with zoning litigation,” the supreme court said:

“Our holding, however, is not so broad, since it conditions a municipality’s standing to challenge the zoning decisions of other governmental units upon a clear demonstration that it would be substantially, directly and adversely affected in its corporate capacity.” 81 Ill. 2d 392, 397-98.

Clearly, the holding in Barrington Hills is not to be interpreted as giving carte blanche to school districts to question the zoning ordinances of neighboring municipalities. To give standing to question another governmental unit’s zoning the effect on the plaintiff must be adverse, substantial and direct. The only allegations as to rezoning left to the District after eliminating the allegations of the township and the road commissioner and the purely annexation question of diminished revenue, as adversely affecting the District in its corporate capacity are that (a) by increasing enrollment it may necessitate the construction of another school and (b) it may require hiring another teacher or possibly two, at a cost of $12,000 each annually. The averments (c) and (d) in the complaint that it will cost the taxpayers additional taxes and that the District “will be unable to provide an adequate elementary education for the many additional children as required by the Constitution and Statutes of the State of Illinois” we disregard entirely, (c) not being an effect on the corporate capacity of the District and (d) being purely conclusionary, speculative and self-serving.

Nor do we regard the allegation that the District will be required to build a new school building as so adversely, substantially and directly affecting the District in its corporate capacity that it is thereby given standing to challenge the village of Sugar Grove’s zoning ordinance. A school district has no right to inhibit a municipality’s growth on the ground that a change in zoning would disturb the status quo whereby the District has within its boundaries revenue producing lands without children to serve. This state of affairs is not a vested right to be preserved by litigation. Disregarding the District’s unusual situation whereby it receives revenue from land which exacts no service in return, the development of unimproved land normally cannot be counted as such an adverse phenomenon as to amount to a substantial and adverse effect on a school district. In the course of events it is an expected and natural change which thousands of school districts have faced without resorting to suits and injunctions. It is not the privilege of any community having vacant or unimproved land within its borders to be ever free from the unsettling effects of population growth and economic change. We doubt that the supreme court intended the Barrington Hills decision to give a school district power to chill the normal development of contiguous undeveloped land. The possible necessity of building another school building and hiring an extra teacher or two does not seem to us sufficiently adverse, substantial and direct in its effect to overcome the village’s right to annex and rezone contiguous rural land for residential use. Even if the case may be regarded as raising a zoning issue, rather than merely challenging an annexation, we think its zoning aspect falls far short of the functional dislocation and economic loss required under Barrington Hills to justify challenging a neighboring municipality’s zoning ordinance.

The judgment of the circuit court of Kane County dismissing the District’s suit in declaratory judgment is affirmed.

Judgment affirmed.

SEIDENFELD, P. J., and REINHARD, J., concur.


author: JUSTICE REINHARD

text:
    ROBERT B. LARSON, JR., et al., Minors, by Marie Larson, their Mother and Next Friend, Plaintiffs, v. HELEN A. BUSCHKAMP et al., Defendants.—(HELEN A. BUSCHKAMP et al., Counterplaintiffs-Appellants, v. ROBERT B. LARSON, Counterdefendant-Appellee.)
    Second District
    No. 81-610
    Opinion filed April 26, 1982.

      Stanley J. Davidson and Michael F. Hendrick, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellants.
    Leo J. Sullivan, III, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from an order of the trial court dismissing a counterclaim for contribution brought by defendants Helen A. Buschkamp and Keystone Printing Service, Inc. (Keystone), against Robert B. Larson, father of the minor plaintiffs herein. Suit was brought on behalf of the minor plaintiffs by their mother against defendants Buschkamp, Keystone and Larson. Buschkamp and Keystone filed a counterclaim for contribution against Larson. Larson filed motions to dismiss both the original complaint against him and the counterclaim on the basis of the parent-child tort immunity doctrine. The trial court initially granted the motion to dismiss the complaint brought against Larson by his minor children, and after reviewing briefs and considering arguments of counsel, the trial court also dismissed the counterclaim for contribution. This interlocutory appeal pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) only seeks review of the dismissal of the counterclaim for contribution against Larson.

The allegations in the pleadings and the court proceedings below are briefly summarized. On August 15, 1978, Robert Larson was driving his car in a northerly direction along Milwaukee Avenue, near the intersection with Grand Avenue in Lake Villa, Lake County, Illinois. In the car, as his passengers, were his children, Robert Jr., Ronald and Russell Larson, all unemancipated minors. The Larson car collided with a car owned by Keystone and operated by its employee, Helen Buschkamp, which was traveling in a southerly direction. As a result of the collision the three Larson children were injured.

On August 15, 1980, Marie Larson, as mother and next friend of the Larson children, filed a complaint alleging a cause of action for negligence against Helen Buschkamp, Keystone and Robert Larson. The complaint alleged that both defendant drivers were guilty of the negligent operation of their respective motor vehicles.

On November 13, 1980, Buschkamp and Keystone filed a counterclaim seeking contribution from Robert Larson, plaintiffs’ father. The counterclaim alleged that Larson was guilty of negligence in the operation of his motor vehicle by driving at an excessive rate of speed, failing to keep a proper lookout, failing to control his vehicle, failing to apply his brakes, failing to yield the right-of-way, failing to decrease the speed of his vehicle to avoid a collision, and otherwise being negligent and careless in his conduct. It further alleged that if judgment is entered against them and in favor of the plaintiffs, that pursuant to section 2(a) of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)), allowing for contribution among joint tortfeasors, they were entitled to contribution from Larson commensurate with his degree of fault found to have contributed to the occurrence.

Larson moved to dismiss the original complaint against him based on parent-child tort immunity. Larson also moved to dismiss the third-party complaint against him based on this same immunity. Larson alleged that since he is not “subject to liability in tort” (see Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) for a direct suit by his children, he is not “subject to liability in tort” for purposes of contribution under the statute (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)).

On January 21, 1981, the trial court granted the motion to dismiss Larson as a defendant in the original suit. On July 8,1981, after reviewing briefs and hearing the arguments of counsel, the trial court granted the motion to dismiss the counterclaim for contribution. The trial court in a memorandum reasoned that since Larson was immune from suit by his children, he was not “subject to liability in tort” for purposes of the contribution among joint tortfeasors statute. (Ill. Rev. Stat. 1979, ch. 70, par. 302(a).) On August 3, 1981, the July 8, 1981, order was made final and appealable, pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)).

The sole issue to be determined on appeal is whether contribution may be sought under the pleadings here from a parent of an injured minor plaintiff where said parent’s alleged negligence contributed to the injuries. This question is similar to the issue determined recently by this court in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, appeal denied. In Wirth, this court held that even though Illinois provided for a statutory interspousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001), contribution may be had by a third-party tortfeasor against a negligent spouse. This court found that pursuant to the holdings in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, equity required that contribution be allowed against a joint tortfeasor spouse. (102 Ill. App. 3d 1074, 1082, 430 N.E.2d 236, 242.) Many of the same equitable considerations come into play in the case at bar as in Wirth. Furthermore, we note that Wirth dealt with a statutorily created tort immunity, whereas the parent-child tort immunity doctrine was created by the courts (Foley v. Foley (1895), 61 Ill. App. 577), and the court is free to modify and amend any doctrine which it creates. See Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 238, 403 N.E.2d 1256.

The parent-child tort immunity first appeared in American case law in the Mississippi case of Hewlett v. George (1891), 68 Miss. 703, 9 So. 885. The court there held, without citation of any authority, that a parent is immune from tort actions brought by his unemancipated minor children. The court determined that to hold otherwise would be against public policy favoring peace and harmony within the family unit. (68 Miss. 703, 711, 9 So. 885, 887.) The parent-child tort immunity doctrine was eventually adopted in a majority of the States. (Ingram and Barder, The Decline of The Doctrine of Parent-Child Tort Immunity, 68 Ill. B.J. 596 (1980).) The main reasons given for adopting the parent-child tort immunity are the following: (1) preservation of parental authority and family harmony; (2) prevention of depletion of family funds; and (3) the danger of fraud and collusion. In the last 50 years, however, some courts have narrowed or abrogated the doctrine indicating an apparent trend in the direction of permitting tort actions by minor children against their parents. See Annot., 41 A.L.R.3d 904 (1972), for a comprehensive analysis of the cases dealing with the question of parental liability for injury to an unemancipated child caused by a parent’s negligence, the origins of the doctrine, and its more recent development and modification.

In Illinois the parent-child tort immunity doctrine was first acknowledged by a court in Foley v. Foley (1895), 61 Ill. App. 577. The continued existence of this court created doctrine was recently recognized by the Illinois Supreme Court in Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538, and Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323. However, the Illinois courts have interpreted and modified the doctrine several times. In Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525, our supreme court held that the parent-child tort immunity doctrine was justified for suits based upon mere negligence, but should not be a bar to a suit for wilful and wanton misconduct. (7 Ill. 2d 608, 619, 131 N.E.2d 525, 531.) The parent-child tort immunity doctrine was also modified in Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778, where this court stated that when the family relationship has been dissolved by death, there is no reason to apply the parent-child immunity. (2 Ill. App. 3d 844, 846, 277 N.E.2d 778, 779.) The doctrine was also modified in Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, where the court stated that where the facts “charged occurred during the exercise by both the father and the child of his individual rights on the public streets and with no direct connection with the family relationship ° * * reason and justice require that the immunity rule should not stand as an insuperable bar to redress for injuries occasioned by the exercise of those rights.” (100 Ill. App. 2d 199, 206, 241 N.E.2d 12, 15.) Also found to be outside the family relationship is the duty to keep trees and shrubs trimmed so a driver has a clear view of the street and sidewalk. (Cummings v. Jackson (1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127.) Found to be within the family relationship, thus barring suit, is the parent’s maintenance of carpeting on a stairway (Cosmopolitan National Bank v. Heap (1970), 128 Ill. App. 2d 165, 262 N.E.2d 826) and a family trip to determine what college one of the children wants to attend. (Eisele v. Tenuta (1980), 83 Ill. App. 3d 799, 802, 404 N.E.2d 349.) Most recently, this court held that when a child is suing a parent for mere negligence, the complaint must specify that the injury occurred in a situation outside the scope of the family relationship. (Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 403 N.E.2d 1256.) Thus, while we conclude that in Illinois the courts continue generally to give vitality to the parent-child tort immunity doctrine as a consequence of public policy considerations favoring the promotion of family harmony and the prevention of intrafamily litigation and strife (see Gerrity v. Beatty (1978), 71 Ill. 2d 47, 49, 373 N.E.2d 1323), the rule has been modified where the purpose of the doctrine will not be served.

Although the parent-child tort immunity doctrine appears to have been narrowed in Illinois, we have found no Illinois case which has considered the question of its application to a suit for contribution against a parent by an alleged tortfeasor. As we observed in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, appeal denied, interspousal tort immunity is a procedural, not a substantive, bar to actions between spouses. (See Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390-91, 396 N.E.2d 528.) Further, we held that the words “subject to liability in tort” contained in the contribution statute (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) were not intended by the legislature to bar an action for contribution by a joint tortfeasor against plaintiff’s spouse. For the same reasons we hold here that the doctrine of parent-child tort immunity is not a substantive bar to actions between parent and child, nor does the contribution statute itself prevent such an action for contribution.

What we must now determine is whether there are any prevailing “public policy” considerations pertinent to the relationship of parent and child which should prevent application of the desirable policy exhibited by our contribution statute for the equitable distribution of loss among those parties responsible. The defendant father, Larson, contends that parent-child tort immunity should be viewed differently than interspousal tort immunity. He argues that the natural bonds between parent and child should not be disturbed by a contribution action involving the parent. Larson urges that such an action may endanger the mutual trust and respect demanded by the parent-child relationship. He states that “[w]hile divorce may dissolve the relationship between spouses, it does not dissolve the relationship of parent and child.” This court does not believe that an action for contribution will endanger the parent-child relationship. As we noted above, the courts in Illinois in several cases have already restricted the application of the doctrine and sanctioned direct parent-child tort suits in certain circumstances. (See Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525; Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12.) Other jurisdictions which have abolished the parent-child tort immunity doctrine have met the family disruption argument by reasoning that the injury itself, and not the consequent suit, is the factor which may upset the family unit. (Williams v. Williams (Del. 1976), 369 A.2d 669; Falco v. Fados (1971), 444 Pa. 372, 282 A.2d 351.) The widespread use of liability insurance mitigates against the possibility that such suits disrupt the domestic peace or deplete the family’s financial resources. (Williams v. Williams (Del. 1976), 369 A.2d 669; France v. A.P.A. Transport Corp. (1970), 56 N.J. 500, 267 A.2d 490.) These practical realities mitigate against our giving great weight to the argument of disruption of the bond between parent and child which may result from contribution action against a parent by another tortfeasor.

Larson also contends that allowing an action for contribution against a parent will have the practical effect of encouraging intrafamily litigation. The result, he contends, will be that a parent may have to give evidence of the child’s negligence and raise issues which may mitigate and discredit the child’s damages or claimed injuries. As stated above, we doubt whether this would disrupt the family. Moreover, the goal of equitable apportioning of damages among all culpable parties outweighs the speculative harm which Larson posits. See Perchell v. District of Columbia (D.C. Cir. 1971), 444 F.2d 997.

Examination of cases from other jurisdictions indicates generally that in those States which have disallowed an action for contribution from a spouse, parent or someone else immune from direct suit, the basis for this bar is the principle that the right to contribution is dependent upon the injured party having a cause of action against the person from whom contribution is sought. Thus, the right of contribution is a derivative right, and the original immunity is a substantive bar. (See Welter v. Curry (1976), 260 Ark. 287, 539 S.W.2d 264; Ennis v. Donovan (1960), 222 Md. 536, 161 A.2d 698.) However, in other cases which have specifically considered the issue of contribution from a parent, the parent-child tort immunity doctrine applicable in direct suits was found to be only a procedural bar to an action and did not prevent contribution from a parent. Quest v. Joseph (Fla. App. 1980), 392 So. 2d 256, appeal pending, Fla. Sup. Ct., Docket No. 60-237; Walker v. Milton (1972), 263 La. 555, 268 So. 2d 654.

We perceive no overriding public policy considerations present in a contribution action against a parent which compel us to reach a different result from that held in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, appeal denied, which allowed a contribution action against a spouse. This conclusion also follows logically from the decisions in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which sought to apportion damages for tort injuries as equally as possible among those who were responsible.

While we do note that defendant Larson appears to argue additionally that there is a difference between the parent-child tort immunity and interspousal tort immunity based upon the parental duty “to warn, supervise, educate and care for children,” the pleadings in the counterclaim do not allege negligent supervision of the child by Larson. In other jurisdictions, where an allegation of negligent supervision by a parent either in a direct suit by a minor against a parent or in an action for contribution against a parent, the rule of parental immunity has been preserved. (See Schneider v. Coe (Del. (1979), 405 A.2d 682; France v. A.P.A. Transport Corp. (1970), 56 N.J. 500, 267 A.2d 490; contra, Quest v. Joseph (Fla. App. 1980), 392 So. 2d 262, appeal pending, Fla. Sup. Ct., Docket No. 60-237.) However as this issue is not before us, we need only find that, under the pleadings as presented here, contribution may be sought from a parent of an injured minor plaintiff where the parent’s alleged negligence contributed to the minor’s injuries.

The order of the circuit court of Lake County granting defendant Larson’s motion to dismiss the counterclaim for contribution is hereby reversed and remanded.

Reversed and remanded.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    SHARON VALDEZ et al., Plaintiffs-Appellants, v. THE CITY OF OTTAWA et al., Defendants-Appellees.—(GERRY KAMMERER et al., Defendants.)
    Third District
    No. 81-621
    Opinion filed April 22, 1982.
    HEIPLE, J., specially concurring.

      Jack Hansel, Mike Braun, Kenneth A. Leshen, and Bernard A. Poskus, all of Prairie State Legal Services, Inc., of Ottawa, for appellants.
    John A. Hayner, of Warren, Hayner & Baxter, P. C., of Ottawa, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiffs filed suit against the defendants, alleging they denied the plaintiffs due process when they seized and destroyed the plaintiffs’ automobile. The trial court granted the defendants’ motion for summary judgment and the plaintiffs appeal.

There is no serious dispute over the facts. Robert Valdez, a plaintiff and the owner of a 1966 Pontiac LeMans, left the automobile on the shoulder of Frontage Road (south of Interstate 80 and just west of Illinois 23) in La Salle County in May of 1979 when it suffered mechanical problems. At the time, the car displayed valid license plates that were registered to the plaintiff at his current address. Sometime later, the Ottawa Police Department placed a sticker on the car. The sticker said the automobile would be towed unless it was moved.

The record is unclear on the length of time the vehicle remained on the shoulder, although the parties agree it was approximately one week. When this week had passed, the Ottawa Police Department authorized Kammerer’s Auto Wrecking (the proprietors, Gerry and Robert Kammerer, are also defendants in this action) to tow the vehicle and store it on their property.

A friend of the plaintiffs spotted the car at Kammerer’s Auto Wrecking and relayed this information to them. Sharon Valdez, Robert’s wife and a party to this suit, called Kammerer’s to find out if they would allow her husband to work on the car in their lot. Kammerer’s denied permission to do so and told Sharon Valdez that a $70 towing fee had to be paid before she and her husband could move the vehicle. Mrs. Valdez asked if they could pay the towing fee after they claimed the car, but Kammerer’s would not permit it. She explained to Kammerer’s that she and her husband could not afford the towing fee, but that they did want the car. Kammerer’s said they would hold the car until the plaintiffs could pay the fee.

In late May, the plaintiffs purchased a 1969 Oldsmobile. Mrs. Valdez went to Kammerer’s lot and removed the plates from the Pontiac in order to transfer them to the newly purchased Oldsmobile. Mrs. Valdez told Gerry Kammerer that she still wanted the Pontiac.

Six weeks later, Kammerer’s requested a disposition permit from the police department. Thomas Kossaris, an Ottawa police officer and a defendant in this action, unsuccessfully tried to telephone the plaintiffs concerning the disposition of the car. Subsequently, the police department issued the permit, and Kammerer’s destroyed the automobile in July 1979. Other than Kossaris’ phone call, the police made no attempt to contact the plaintiffs.

The plaintiffs began this action in November 1979. Their amended complaint asks for damages for the loss of the vehicle, and bases its prayer for relief on the fourteenth amendment to the United States Constitution, 42 U.S.C. sec. 1983 (1976), section 2 of article I of the Constitution of the State of Illinois, and Section 4 — 201 et seq. of the Illinois Vehicle Code (Ill. Ann. Stat., eh. 95*2, par. 4 — 201 et seq. (Smith-Hurd 1971 and Cum. Supp. 1981)).

The plaintiffs moved for summary judgment on the issue of liability, and the defendants moved for summary judgment on all issues. The trial court granted the defendants’ motion, finding the plaintiffs left their vehicle unattended for so long that they had constructive notice that the police would tow the car. The court also found the plaintiffs abandoned the vehicle, thus preventing an action for damages for its loss. As to Kossaris, the court granted his motion for summary judgment, ruling that he was not the chief of police during the periods of time material here and that he was immune from suit under the doctrine of qualified immunity. The plaintiffs now appeal.

The principal issue in this appeal is whether the defendants violated the plaintiffs’ constitutional rights when they seized their automobile without giving them prior notice of the seizure. The fourteenth amendment provides that:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const., amend. XIV, sec. 2.)

Congress, under its fourteenth amendment powers, prohibited any deprivation of constitutional rights by any person acting under color of State law:

“Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.” 42 U.S.C. sec. 1983 (1976).

Due process is not an inflexible standard and “does not require a trial-type hearing in every conceivable case of government impairment of private interest.” (Cafeteria & Restaurant Workers Union v. McElroy (1961), 367 U.S. 886, 894, 6 L. Ed. 2d 1230, 1236, 81 S. Ct. 1743, 1748.) Nonetheless, due process requires that “at a minimum ” ” deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 313, 94 L. Ed. 865, 873, 70 S. Ct. 652, 656-57.) The notice must be reasonably calculated to convey the necessary information and to afford the interested parties a reasonable time for a hearing. (339 U.S. 306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657.) Those parties must be given notice and an opportunity before the deprivation takes place, unless there exists extraordinary circumstances requiring immediate action to protect a valid governmental interest. (Boddie v. Connecticut (1971), 401 U.S. 371, 378-79, 28 L. Ed. 2d 113, 119, 91 S. Ct. 780, 786; Fuentes v. Shevin (1972), 407 U.S. 67, 81-82, 32 L. Ed. 2d 556, 570-71, 92 S. Ct. 1983, 1994-95.)” Furthermore, there is no question that ownership of an automobile and continued access to it is a property interest within the protection of the fourteenth amendment (Stypmann v. City & County of San Francisco (9th Cir. 1977), 557 F.2d 1338, 1342), and whether the deprivation will be permanent or temporary is immaterial. (Fuentes v. Shevin (1972), 407 U.S. 67, 82, 32 L. Ed. 2d 556, 571, 92 S. Ct. 1983, 1995.) Towing a car without prior notice to the owner is a violation of due process rights.

In the case at bar, the defendants invaded the constitutional rights of the plaintiffs when it seized, towed and refused to relinquish the auto before payment of a towing fee. The city does not seriously contest the necessity for due process when it seizes and tows vehicles. The question, therefore, is whether the defendants gave the plaintiffs adequate notice that the car would be towed or whether an extraordinary situation existed necessitating immediate seizure and removal of the vehicle.

On the latter question, there is no evidence in the record that the plaintiffs’ auto posed any substantial danger to traffic as it rested on the shoulder of the road. Because this case is before us on summary judgment, we take all factual inferences most favorable to the plaintiffs. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397.) The road is near an International Harvester plant and the Hines Lumber Company, indicating that high speed travel is unusual. The car was parked completely on the shoulder. The fact that the police saw no need to disturb the car for at least one week is a strong indication that no emergency existed.

The city places primary reliance on the trial court’s finding that the plaintiffs had constructive notice of the possible seizure and tow. The city argues the plaintiffs should have known that if they left the car on the shoulder of the road long enough, the police would tow it away. The tow sticker the police attached to the car is additional evidence of the plaintiffs’ notice. This argument is without merit. The auto was currently registered and the police had the plaintiffs’ name and address. Notice must be reasonably calculated to actually apprise the property owner of the opportunity to contest the government’s proposed action. If the plaintiff’s residence is readily and easily available, as is true here, the city may not rely on fortuitous or constructive notice to satisfy the due process clause. (See Robinson v. Hanrahan (1972), 409 U.S. 38, 40, 34 L. Ed. 2d 47, 49, 93 S. Ct. 30, 31; Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 316-18, 94 L. Ed. 865, 874-75, 70 S. Ct. 652, 658-59.) At a minimum, notice by certified or registered mail would have been appropriate in the instant case. Mullane.

This does not necessarily mean the State may never remove a vehicle before giving the owner notice. Clearly there are circumstances where a vehicle may be parked in a manner that endangers public safety or impedes efficient movement of traffic. For example, a vehicle may be blocking traffic, parked on a snow route during a snow emergency or standing on the shoulder of an interstate highway for a prolonged period of time. It is not possible or desirable to detail every conceivable situation in which an automobile may be towed without prior notice to the owner. The guiding principle must always be whether or not the vehicle, as it stands, jeopardizes public safety by either creating an unsafe condition or significantly hindering the efficient movement of traffic. The towing of parked vehicles that do not fall within these categories without pre-tow notice and opportunity for a hearing violates the fourteenth amendment to the Constitution.

If an auto is towed without prior notice to the owner, due process requires prompt notice and an opportunity to a hearing before the government makes any disposition of the vehicle. Additionally, the owner must have an opportunity to contest the seizure and tow before he can be required to pay any charges or fees. “Seizure of property without prior hearing has been sustained only where the owner is afforded prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause.” (Stypmann v. City ir County of San Francisco (9th Cir. 1977), 557 F.2d 1338, 1344 (statute which requires paying of storage and towing fees before a vehicle can be recovered held invalid). Accord, Huemmer v. Mayor & City Council of Ocean City (4th Cir. 1980), 632 F.2d 371.) In the case at bar, therefore, the defendants violated the plaintiffs’ right to due process when they destroyed their automobile without any notice, even if immediate seizure and tow was proper.

The plaintiffs also appeal from the trial court’s summary judgment in favor of Officer Kossaris. The trial court ruled that, contrary to an allegation in the complaint, Kossaris was not chief of police at the time of the events complained of (though he holds that position now), and that he was immune from suit under the doctrine of qualified immunity. The plaintiffs correctly argue that the defendant’s position within the police department is immaterial to his liability under 42 U.S.C. sec. 1983. Kossaris’ liability is predicated on his own actions and decisions. If the defendant acted under color of State law and deprived the plaintiffs, of a constitutional right, he is liable under section 1983. Gomez v. Toledo (1980), 446 U.S. 635, 640, 64 L. Ed. 2d 572, 577, 100 S. Ct. 1920, 1923.

Moreover, the individual defendants can assert qualified immunity only by showing they acted in good faith and with probable cause. (Pierson v. Ray (1967), 386 U.S. 547, 554-57, 18 L. Ed. 2d 288, 295-96, 87 S. Ct. 1213, 1217-19.) These subjective and objective elements of qualified immunity should be examined by a trier of fact after all the evidence is presented, rather than by appellate review of a summary judgment. It is worth noting, however, that the liability of the individual defendants is relatively unimportant in this case. The city of Ottawa is also a defendant in this case, and it cannot assert qualified immunity as a defense to liability under section 1983. Owen v. City of Independence (1980), 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398.

Finally, the plaintiffs appeal the trial court’s denial of their motion for summary judgment against the city on the issue of liability. The resolution of the defendant’s liability is better left to the trial court after all evidence is presented to the trier of fact. As the plaintiffs concede in their brief, the record before this court is skeletal.

The trial court’s finding of summary judgment in favor of the defendants is reversed and the cause is remanded for trial.

Reversed and remanded.

STOUDER, J., concurs.

JUSTICE HEIPLE,

specially concurring:

In early May of 1979, plaintiffs’ 1966 Pontiac conked out while being operated on Frontage Road in Ottawa. The car was abandoned on the shoulder of the road by the plaintiffs. Sometime later, the Ottawa police discovered the car and placed a tow sticker on the windshield. The sticker contained language to the effect that the automobile would be towed away unless moved by the owner. A full week or more elapsed after the tow sticker was placed on the windshield. Then, the police authorized Kammerer’s Auto Wrecking to tow the vehicle and store it in their auto salvage yard.

At no time did the police or the junkyard ever contact the plaintiffs to advise them that the car was going to be towed or, after the fact, that the car had been towed. The owners, however, had actual notice of the tow after the car was in the junkyard. During the approximate period of two months that the car was in the junkyard, Mrs. Valdez twice visited the yard, once to find out if her husband could work on the disabled car in the junkyard, and again to remove the license plates from the car to place them on a different car. Despite actual notice as to the actual location of the car and the fact that the plaintiffs could remove it if they would pay a $70 towing fee, the plaintiffs took no other action.

Later, in July, the junkyard owners destroyed the car after first obtaining a destruction permit issued by the Ottawa Police Department. No notice of the application for the permit, the issuance of the permit, nor the impending destruction of the car was given to the owners prior to the destruction.

The only real issue in this appeal is whether plaintiffs were entitled to notice and an opportunity to be heard prior to the destruction of their property. They were. Failure to so advise them was clearly wrong. I cannot agree, however, with the breadth of the language which my colleagues choose to acknowledge this entitlement.

My colleagues assert that: “Towing a car without prior notice to the owner is a violation of due process rights.” Such proposition is false. It is not a correct statement of the law. To bolster their assertion, the majority cite Boddie, a case involving State welfare assistance; and Fuentes, a replevin case, neither of which bears any relationship to the facts of the case at hand.

The police and the towing company acted reasonably and within the letter of the law in towing away the plaintiffs’ car after it had been abandoned in an inoperable condition along the shoulder of the road. There is no statute, State or Federal, that would have required the Ottawa Police Department to give advance notice of this tow.

Although appellants have cited the ruling of a Federal district judge supporting their rationale, such a decision is neither controlling nor authoritative so far as the Illinois courts are concerned. And the rationale of that decision is not persuasive. No reported case from an Illinois reviewing court has been cited which supports the plaintiffs’ position. Nor has a supporting decision been cited from our Seventh U.S. Circuit Court of Appeals or the United States Supreme Court. The absence of such authority is not surprising. A rule of law which would require advance notice to the owner of a vehicle which had been abandoned on a public right-of-way that would require the government to give advance notice of a proposed tow would be a radical departure from existing law, practice and precedent. Such advance notice would serve no useful purpose either public or private. A requirement of pre-tow notice could, indeed, be detrimental to both public and private interest in the use of the public ways.

Section 4 — 201 et seq. of the Illinois Vehicle Code addresses the problems of abandoned, lost, stolen, or unclaimed vehicles. (Ill. Rev. Stat. 1979, ch. 95*2, par. 4 — 201 et seq.) This statute makes it clear that nobody has the right to leave his car on a public thoroughfare unclaimed and unattended indefinitely. In fact, the Ottawa police were empowered to tow plaintiffs’ vehicle once it was left unattended for more than 24 hours. Ill. Rev. Stat. 1979, ch. 95%, par. 4 — 203(c).

When, however, the city and the junkyard owners combined their efforts to destroy the car without giving notice of the impending destruction and affording the owners an opportunity to contest such destruction, the defendants went too far. The destruction of the car in this case deprived the plaintiffs of both procedural and substantive due process of law under both the Illinois and the United States constitutions.

Accordingly, I concur with the reversal and remand.

I further agree that any liability of defendant Kossaris requires an examination of the defense of qualified immunity which he claimed. (Scheuer v. Rhodes (1974), 416 U.S. 232, 245, 40 L. Ed. 2d 90, 102, 94 S. Ct. 1683, 1691.) The applicability of such defense turns on the question of Officer Kossaris’ good faith, a question of fact.

Limited to the views expressed above, I concur with the reversal and remand directed by the majority.

       The special concurrence complains that Boddie and Fuentes do not have any relationship to this case, because those cases did not involve towing of automobiles. This point is not relevant. Boddie and Fuentes rest on a basic rule of constitutional law that transcends whatever peculiar rights or interests may be at stake in those cases: Government may not interfere with certain private rights and interests without first utilizing reasonable notice and a meaningful opportunity to be heard or act. See, e.g., Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (due process requirements attach to the right to attend public school and be free from arbitrary suspension); Wisconsin v. Constantineau (1971), 400 U.S. 433, 27 L. Ed. 2d 515, 91 S. Ct. 507 (due process requirements apply to government actions interfering with an individual’s reputation); Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (due process requirements attach to beneficiary interests of trusts); and a myriad of other situations.