author: Mr. PRESIDING JUSTICE KASSERMAN

text:
    THE CITY OF BELLEVILLE, Plaintiff-Appellant, v. M. W. KESLER, Defendant-Appellee.—THE CITY OF BELLEVILLE, Plaintiff-Appellant, v. M. W. KESLER, Defendant-Appellee.
    Fifth District
    Nos. 80-417, 80-418 cons.
    Opinion filed November 2, 1981.

      Patrick M. Flynn, of Belleville, for appellant.
    LeChien and Associates, Ltd., of Belleville, for appellee.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, city of Belleville, appeals from the order of the circuit court of St. Clair County finding its ordinance regulating signs to be unconstitutional.

On March 5, 1980, defendant, M.W. Kesler, was charged with two violations of the city of Belleville’s sign code. He was charged with having a free-standing sign in a B-l (multifamily) district, in violation of section 53.34, chapter 53 of the ordinances of the city of Belleville (Belleville, Ill., Sign Code, ch. 53, art. IV, §53.34 (1977)). Defendant was also charged with allowing a free-standing sign to project into a public right-of-way and allowing a free-standing sign to be closer than five feet to the side lot line, in violation of section 53.23(a) and (b), chapter 53 of the ordinances of the city of Belleville (Belleville, Ill., Sign Code, ch. 53, art. III, §53.23(a) and (b) (1977)). Defendant’s motion to dismiss the charges on the grounds that the sign code was unconstitutional was granted, and plaintiff appeals.

The record indicates that defendant was the owner of certain property located at 409 Mascoutah Avenue in Belleville, Illinois. He purchased the property in October 1979. At the time he purchased the property, a sign advertising the previous owner’s business was located on the lot. Kesler took a sign from his previous business, painted it to indicate the change in business location, and erected the sign on the Mascoutah Avenue lot in November 1979. Under Belleville’s sign code, the sign on Kesler’s property was defined as a “free-standing sign,” that is, “a street graphic supported by one (1) or more uprights, poles or braces placed in or upon the ground; or a street graphic supported by any structure erected primarily for the display and support of the street graphic.” Belleville, Ill., Sign Code, ch. 53, art. I, §53.02 (1977).

In December 1979, the city of Belleville passed a new zoning ordinance for the area in which Kesler’s property was located. The new zoning ordinance changed the area from commercial zoning to multifamily (B-l) zoning. The sign code does not permit commercial advertising or free-standing signs in a B-l district. Section 53.34 of the sign code provides in pertinent part:

“In any A-2 (two-family residence) or B-l (multi-family residence) zoning district street graphics may contain only identification information, not commercial advertising. Non-exempt street graphics in these districts shall be either window graphics or flush-mounted.”

In the trial court, defendant urged that the sign code was unconstitutional because it deprived him of property without due process of law. He contends that the passage of the zoning ordinance purported to make illegal certain signs which previously were in conformity with the sign code. Defendant further contended that plaintiff was without authority to regulate defendant’s sign because it was not located upon a vacant lot nor upon a building. Defendant relies on section 11 — 80—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 80—15), which provides:

“The corporate authorities of each municipality may license street advertising by means of billboards, sign boards, and signs and may regulate the character and control the location of billboards, sign boards, and signs upon vacant property and upon buildings.”

The trial court entered an order finding the sign code unconstitutional as it applied to defendant. The court found that an owner of a building being used for lawful business has a right to continue the business in its present location, including the right to affix a business sign to the building. The court further found that many of the specific requirements of the sign code pertaining to sign dimensions, height, square footage, and location were unreasonable. The trial court concluded that, taken as a whole, the sign code was arbitrary and unreasonable and not related to the public health, welfare, and safety.

Plaintiff appealed, contending that the sign code is constitutional and that it was improper for the trial court to rule on the constitutionality of the entire sign code when the constitutionality of only a portion of the code was in issue.

It is a well established axiom that “one may not complain of a statutory provision which does not affect him.” (Spalding v. City of Granite City (1953), 415 Ill. 274, 283, 113 N.E.2d 567, 572), and that a court may not “determine the constitutionality of the provisions of an act which do not affect the parties to the cause under consideration” (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 259, 263 N.E.2d 833, 839, cert. denied (1971), 401 U.S. 928, 28 L. Ed. 209, 91 S. Ct. 924. (Cf. Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 570, 376 N.E.2d 1382, 1385.) Accordingly, the trial court erred in declaring the entire sign code unconstitutional when only sections 53.23(a) and (b) and 53.34 were at issue.

Plaintiff next urges that defendant’s reliance on section 11 — 80—15 of the Illinois Municipal Code is misplaced due to the fact that plaintiff enacted the sign code pursuant to its home rule authority under article VII, section 6 of the Illinois Constitution. We agree. Plaintiff’s sign code, of which the trial court took judicial notice, was expressly enacted under the city’s home rule authority; plaintiff’s enactment of the sign code which is the subject of this controversy is a proper exercise of the city’s power of regulation thereunder.

Additionally, we do not agree with the trial court’s conclusion that plaintiff’s sign code was unconstitutional because it was arbitrary, unreasonable and not related to the public health, welfare and safety.

Sign ordinances and zoning ordinances regulating signs have been held to be a constitutional exercise of a city’s authority when related to a public interest. (State Street Properties, Inc. v. Zoning Board of Appeals (1973), 12 Ill. App. 3d 98, 298 N.E.2d 239.) Here, defendant’s sign is alleged to have projected into the public way, creating a potentially hazardous situation which the city has an interest in eliminating. (Cf. State Street Properties, Inc. v. Zoning Board of Appeals.) Therefore, we conclude that section 53.23(a) of the city of Belleville’s sign code, which prohibited a free-standing sign from projecting into the right-of-way, is a proper exercise of the city’s authority.

With respect to defendant’s contention that section 53.23(a) unconstitutionally deprives him of his property without due process of law, we conclude that such objection is without merit. The city may eliminate a nonconforming use in the interest of public safety; it has a duty to keep the public way free from obstructions which may be hazardous to the public safety and which tend to delay or obstruct the public in the use of the streets and sidewalks. (Cf. State Street Properties, Inc. v. Zoning Board of Appeals.) Further, as stated in People ex rel. Herman Armanetti, Inc. v. City of Chicago (1953), 415 Ill. 165, 112 N.E.2d 616, an abutting owner has no inherent right to operate its business in or upon the streets of a city, and the right to erect and maintain a sign projecting over a public way is permissive only and may be withdrawn at any time. We conclude, therefore, that with regard to the charge that defendant allowed his sign to project into the public way, the trial court erred in dismissing plaintiff’s complaint charging defendant with violating section 53.23(a) of the city’s sign code on the grounds that it was unconstitutional.

Further, it has been established that the role of aesthetics in zoning is an element of the public health, safety and welfare. (City of Champaign v. Kroger Co. (1980), 88 Ill. App. 3d 498, 410 N.E.2d 661.) Thus, a sign ordinance validly may regulate the size and location of a sign on the basis of enhancing the appearance of the community as well as protecting the public from injury due to the potentially hazardous location of a sign; consequently, section 53.34 of plaintiff’s sign code is not an unconstitutional enactment on the grounds that it was not related to public welfare.

Defendant is also charged with permitting a free-standing sign to be closer than five feet to his side lot line in violation of section 53.25(b) of the sign code and with having a free-standing sign in a multifamily district in violation of section 53.34 of the code. The trial court held that these sections of plaintiff’s sign code unconstitutionally provided for the immediate discontinuance of a nonconforming use of defendant’s property without compensation.

Although we have previously stated that the city properly may prohibit a sign from projecting into the public way and may terminate the intrus; 7 onto the public way without compensation, the same may not be said oí * ,e sign code provisions regulating the location of free-standing signs 01 * he owner’s lot and prohibiting free-standing signs in multifamily zones. ' bus, defendant correctly asserts that in these two respects, the sign in íestion constitutes a nonconforming use which may not be terminate. without just compensation (see Annot., 80 A.L.R. 3d 630, 650 (1977)) owever, his reliance on this general principle of law as indicating the une istitutionality of plaintiff’s sign ordinance in the instant case is misplac i.

Pla tiff’s ordinance defines a “sign” in the following terms:

“ . sign is any object, device, display or structure or part thereof s: • sated outdoors which is used to advertise, identify, display, or a¡ :act attention to an object, person, institution, organization, b .siness, product, service or event related to the premises on v sich the sign is situated * 0 *. The term ‘sign’ includes, but is not limited to every ° " free-standing sign;4,00 whether affixed to a building or erected elsewhere on the premises.” (Belleville, Ill., Sign Code, ch. 53, art. I, §53.02 (1977).)

Section 7 — 3 of the zoning ordinance, passed in December 1979, provides for the continued existence of nonconforming structures. This section provides:

“Any lawful structure which exists on the effective date of this ordinance but which could not be erected under the terms of this ordinance because of restrictions on lot size, height, setbacks or other characteristics of the structure or its location on the lot may lawfully remain, ” " (Belleville, Ill., Zoning Ordinance, No. 3675, art. VII, §7 — 3 (1979).)

A “structure” is defined in the zoning ordinance as “anything constructed, assembled or erected on the ground, or attached to something having a fixed location on the ground.” (Belleville, Ill., Zoning Ordinance, No. 3675, art. II, §2 — 2 (1979).) It is apparent that a free-standing sign qualifies as a “structure” under these definitions. Therefore, if defendant is able to establish that his sign existed and was in conformity with the sign code prior to the passage of the new zoning ordinance, it lawfully may remain. Otherwise, the sign would not qualify as a nonconforming use and would • be in violation of the sign code. In either event, defendant’s objection to the constitutionality of sections 53.23(b) and 53.34 of plaintiff’s sign code is without merit.

For the foregoing reasons, we reverse the order of the circuit court of St. Clair County and remand this cause for further proceedings not inconsistent with this opinion.

Reversed and remanded.

KARNS and WELCH, JJ„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE KARNS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM PAUL GARLIN, Defendant-Appellant.
    Fifth District
    No 80-219
    Opinion filed November 13, 1981.

      John H. Reid and Charles M. Leonhard, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John H. Ward, State’s Attorney, of Taylorville (Gillum Ferguson and Nicholas B. Svalina, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

Defendant, William Paul Garlin, appeals from a judgment of conviction in the Circuit Court of Christian County entered on a jury verdict finding him guilty of the offenses of burglary and theft over $150. He was sentenced to concurrent terms of imprisonment of 4)z years and 3 years, respectively.

On appeal, defendant raises the following issues: (1) whether he was denied a fair trial by the admission of certain testimonial and physical evidence suggestive of prior criminality; (2) whether the trial court erred in denying his tendered instruction on the offense of theft under $150; (3) whether the trial court erred in denying his motion in limine to preclude his impeachment by a prior conviction; and (4) whether he is entitled to additional credit against his prison sentence for time spent in custody.

On March 6, 1978, defendant was charged by information with the burglary of the home of Frank Marcogliese and the theft of several items of Marcogliese’s personal property. At that time, a warrant was issued for defendant’s arrest but defendant could not be located within the State. On June 20, 1978, defendant was arrested in Oregon pursuant to a fugitive warrant from Christian County. Defendant was released from custody on July 5, 1978, because Christian County apparently failed to comply with the Oregon extradition procedures. In June 1979, defendant was apprehended in Florida on a parole violation based on the burglary and theft charge. It is unclear from the record whether the Florida arrest was effected on June 8 or June 25. Thereafter, defendant was transferred to Illinois and released on bond pending trial.

At the trial, Frank Marcogliese testified that on February 27, 1978, at approximately 8 p.m., he and his wife returned to their home located in Kincaid, Illinois, after having been out since 5 p.m. Approaching the back door, Marcogliese observed that the door knob had been removed. Marcogliese then entered the house and examined all the rooms. The only room that had been disturbed was the front bedroom where the dresser drawers had been emptied onto the floor. Marcogliese stated that he immediately noticed that his guns and ammunition kept in the dresser were missing. Upon further examination, Marcogliese found the following items missing: a watch, a movie camera and about $10 taken from a toy bank. All the doors and windows were locked when Marcogliese and his wife left their home earlier that evening. Marcogliese did not know defendant.

In addition to the facts related above, Marcogliese testified as to the value of the personal property that was missing. Marcogliese stated that the three missing guns were purchased for a total of $383.95. On objection of defendant, the judge instructed the jury that the evidence was admitted to prove the original purchase price and not to prove the value of the guns at the time the offense was committed. Marcogliese testified that he was familiar with the value of guns in that he had owned guns for 20 years, purchased at least a dozen guns, read gun magazines and attended gun auctions. Over objection of defendant, Marcogliese stated that in his opinion the total value of the guns on the date the offense was committed was $500; the value had increased because one gun had become a collector’s item. Marcogliese further testified that about $10 had been taken from a toy bank. No evidence was presented concerning the value of the other missing items. None of the personal property has been recovered.

Michael Rora testified that on February 27, 1978, at about 7 p.m. or 7:30 p.m., while passing the Marcogliese home he noticed something jump out in front of him. Rora stated that he turned on his bright headlights and saw a man, about 15 yards away, carrying a sack over his shoulder. Rora testified that he had a good opportunity to view the individual because his headlights shone directly on the man’s face. Rora further testified that he identified defendant from a group of five photographs shown to him at the sheriff’s office on March 3, 1978, and, again, on September 30, 1979. Rora was not acquainted with the defendant.

Detective Wise of the Christian County sheriff’s department testified that he went to the Marcoglieses’ home after report of the burglary. He first examined the back door and found that the lock on the doorknob had been broken. He stated that after examining the entire house, the only room which appeared disturbed was the southwest bedroom. In the bedroom, Wise observed the contents of the dresser drawers scattered about the room. Wise found a toy bank lying on the bed which he later brought to the sheriff’s department to dust for latent fingerprints. He explained that he obtained a lift from the bank and compared it to several of the fingerprints on file at the Christian County Correctional Center before determining that the latent fingerprint was the defendant’s. Thereafter, Wise brought the latent print and defendant’s known prints to Cecil L. McDougall of the Illinois State Crime Lab. Wise testified that McDougall made an enlargement and comparison of the prints. Wise further testified that he identified 12 matching characteristics from the enlarged latent prints and defendant’s known prints. After having been qualified to testify as a fingerprint expert, Wise stated that, in his opinion, the latent print taken from the toy bank was the left ring finger of the defendant.

Wise also testified that he obtained a photograph of defendant and four other individuals with similar appearances from the Correctional Center’s files, the photographs having been taken at a previous time. On March 3, 1978, and again on September 30, 1979, Wise showed these photographs to Rora at the sheriff’s office. Wise testified that on both occasions Rora identified the defendant.

Cecil L. McDougall, fingerprint examiner at the Illinois State Crime Lab, testified concerning his qualifications as a fingerprint expert. He then explained the procedures employed in fingerprint analysis. Mc-Dougall stated that, in his opinion, the latent print was the left ring finger of defendant.

Prior to the testimony of Wise and McDougall, the State presented the testimony of Michael Anderson and Daris L. Boaden. Michael Anderson testified that he had been employed by the Christian County sheriff’s department from 1975 through 1978, to work the booking desk during the evening. He identified defendant’s photograph and fingerprint card and testified that he had prepared them incident to the arrest of defendant on October 22, 1977.

Daris L. Boaden, sheriff of Christian County, testified that it was his department’s regular procedure to take photographs and fingerprints of all persons that were arrested. He identified defendant’s photograph and fingerprint card. Boaden also explained that the numbers written on the placard under the photograph referred to the year, month and the number of the “prisoner.” In response to the prosecutor’s question, Boaden stated that he had known defendant at least six years. Defense counsel did not object to any of the questions asked of Boaden.

At the close of the State’s case, all five photographs and the defendant’s fingerprint card were admitted into evidence. The fingerprint card was an arrest card prepared by Anderson on October 22,1977. The judge instructed the jury that the description of the offense, #77-T-17084, from Sangamon County, meant that the arrest was on a traffic charge originating in Sangamon County.

Testifying on his own behalf, defendant stated that at the time of the offense he lived with his father in Bolivia, Christian County. At the time of trial, defendant was living with his wife in Springfield. Defendant admitted that he had been convicted previously of burglary as a result of a guilty plea. Defendant denied burglarizing the Marcogliese home and stated that he was uncertain as to his whereabouts at the time the offense was committed.

Defendant’s initial contention on appeal is that he was denied a fair trial by the admission of certain evidence which suggested he had a criminal history. In this regard, defendant first assigns as error the admission of his photograph, commonly referred to as a “mug shot,” which was dated prior to the date of the instant offense. Defendant did object to the introduction into evidence of the photograph in a pretrial motion, and, again, in his post-trial motion. The ground of objection, however, was that the pretrial photographic identification procedure employed by the police was suggestive. Defendant did not object on the basis now urged on appeal. Where an objection to evidence is based on a specific ground, all grounds not specified are waived. (People v. Killebrew (1973), 55 Ill. 2d 337, 303 N.E.2d 377.) We find that Killebrew is controlling, and, therefore, conclude that defendant has waived the ground of objection now claimed.

In Killebrew, the defendant objected at trial to the introduction of his photograph and four others from a pretrial photographic display on the ground that an adequate foundation had not been established. On appeal, the defendant claimed that the trial court erred in admitting his photograph because it was suggestive of defendant’s prior criminal activities. The Supreme Court held that defendant’s objection to the photographs on the ground of no foundation waived the ground urged for the first time on appeal. The court reasoned that the admission of defendant’s photograph did not constitute plain error under their Rule 615(a) (73 Ill. 2d R. 615) in light of all the circumstances of the case, particularly the character of the photograph and defendant’s failure to object to the in-court identification on appeal.

The photograph in Killebrew and the photograph complained of here were “mug shots.” Although, unlike the photograph in Killebrew, defendant’s photograph was dated prior to the date of the instant offense, this distinction is not critical. As the court noted in Killebrew, the rationale of the procedural waiver rule is to provide for the timely resolution of evidentiary questions at trial. Indeed, defendant here concedes that the prejudicial effect of the mug shot could have been obviated by removing the date prior to its introduction into evidence. Defendant cannot urge on appeal this objection which he admits could have been resolved in the trial court. In addition, as in Killebrew, defendant did not challenge the in-court identification on appeal. Finally, the evidence is not so closely balanced as to require consideration of defendant’s objection. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Defendant’s fingerprint was found on an object inside the Marcogliese home. Rora’s testimony placed defendant near the scene of the crime. Defendant asserted an alibi defense, but did not establish what he was doing at the time the burglary was committed. Therefore, we decline to apply the plain-error rule to the facts of the instant case.

Defendant next contends that Sheriff Boaden’s testimony was improper because it implied that defendant had engaged in a prior course of criminal conduct. Boaden stated that he had known defendant for at least six years. This contention is not argued as an independent source of error, but as a compounding of the error of admitting defendant’s mug shot. No objection was made to Boaden’s testimony at the trial, nor was any error assigned to the admission of this evidence in defendant’s post-trial motion. Therefore, defendant has waived this objection.

Defendant further argues that the trial court erred in admitting his fingerprint card on file at the Correctional Center and that this error was compounded by the testimony laying the card’s foundation. We note that this evidence was objected to at trial and assigned as error in defendant’s written post-trial motion. Generally, evidence of other crimes committed by a defendant is not admissible. An exception exists, however, where the evidence is relevant to prove an issue of motive, intent, identification, absence of mistake or modus operandi. (People v. Rhodes (1980), 81 Ill. App. 3d 339, 401 N.E.2d 237, aff'd (1981), 85 Ill. 2d 241, 422 N.E.2d 605.) Here the fingerprint card suggested that defendant had a prior arrest record. The fingerprint evidence, however, was necessary to prove the identity of defendant as the perpetrator of the crime. Defendant denied that the latent prints taken from the toy bank were his. Defense counsel cross-examined Detective Wise at length concerning the accuracy of the fingerprint evidence and attacked the reliability of this evidence in closing argument. The identity of defendant was clearly an issue in the case, and the fingerprint card was properly admitted to prove this issue.

In addition, we note that defendant’s allegation of prejudice is speculative. The trial judge informed the jury at the time the fingerprint card was admitted into evidence that the arrest referred to a traffic charge from Sangamon County. The judge also admonished the jury during instructions that the evidence was admitted solely to prove the issue of identification. Defendant admitted on direct examination in his own defense that he had been convicted of burglary in 1974, a more serious offense than the traffic charge indicated on the fingerprint card. We cannot presume that the jury ignored the evidence at trial and adjudicated defendant’s guilt on the basis of a prior arrest for a traffic violation.

The testimonial evidence of which defendant complains was Detective Wise’s statement that he had known of defendant for several years. Wise’s testimony did not refer to any specific prior criminal acts of defendant and his statement did not suggest perforce prior criminal activities. On the basis of the record before us, we conclude that the admission of this evidence did not constitute reversible error.

The second issue raised on appeal is whether the trial court erred in denying defendant’s tendered instruction on the offense of misdemeanor theft. Defendant argues that the evidence of the value of the stolen property was not so convincing as to preclude a misdemeanor theft verdict, had the jury been instructed on that offense, and, that by refusing defendant’s tendered instruction, the trial court invaded the province of the jury as fact finder.

This precise issue was raised in People v. Miles (1977), 45 Ill. App. 3d 758, 360 N.E.2d 165. The defendant in Miles was convicted of felony theft for stealing 19 hams from a supermarket. At trial, the store employees testified that the retail value of the hams was $215.65 with the store markup on such goods being about 25%. The appellate court held that the trial court did not commit reversible error by refusing to instruct the jury on misdemeanor theft. The court reasoned that no evidence was introduced at trial tending to prove the lesser rather than the greater offense.

Here, defense counsel objected to Marcogliese’s testimony as to the value of the stolen property on the ground that Marcogliese was not an expert. No evidence was introduced, however, tending to prove that the value of the stolen property was less than $150, rather than above $150. We find that the trial court did not err in refusing to instruct the jury on misdemeanor theft.

Defendant next contends that the trial court abused its discretion in denying his motion in limine under People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. To support this contention, defendant urges that the court misapplied the Montgomery test as demonstrated by the court’s following statement:

* * This particular case, because it is a burglary and theft charge of a residence, and the 1974, 74 — CF—76A, Christian County Circuit Court case, conviction of burglary and theft, is likewise of a residence, it’s within the ten year period which of course is the fourth test of Montgomery. ” ° e I think the similarity and the probative value do outweigh the potential danger of unfair prejudice. * * *”

Other portions of the record demonstrate that the trial judge was aware of the potential for prejudice in the admission of defendant’s prior conviction and that he considered various factors enumerated by the supreme court in Montgomery. It is clear from Montgomery that the admission into evidence of a prior conviction of the defendant for purposes of impeachment is within the discretion of the trial court. In addition, similarity between a prior conviction and the crime charged does not necessitate exclusion of the evidence. (People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330.) We conclude from the record in the instant case that the trial court correctly admitted the evidence of defendant’s prior conviction.

The final issue raised on appeal is whether defendant is entitled to further credit against his prison sentence in addition to the seven days granted by the trial court. Defendant argues that he is entitled to an additional ninety days’ credit pursuant to section 5 — 8—7 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—7). The State concedes that defendant is entitled to additional credit to the extent that the pretrial custody resulted from the instant offenses. At a pretrial hearing, the prosecutor stated that defendant’s arrest in Oregon and in Florida were both based on the charges pending in Christian County. Defendant was arrested in Oregon on June 20,1978, and released on July 5, 1978. It is unclear from the record whether defendant was arrested in Florida on June 8, 1979, or June 25, 1979. Therefore, we remand with directions to the trial court to determine the amount of time defendant spent in pretrial custody and to adjust the credit against his sentence accordingly.

For the foregoing reasons, we affirm the judgment of conviction and remand with directions.

Affirmed and remanded with directions.

KASSERMAN, P. J., and JONES, J., concur.


text:
    DON MEEKER, Plaintiff-Appellant, v. TOMMY PAYNE et al., Defendants-Appellees.—(THOMAS GRAY et al., Defendants.)
    Fifth District
    No. 80-395
    Opinion filed November 2, 1981.
    — Rehearing denied December 1, 1981.

      Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Elmer Jenkins, of Benton, for appellees.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

The plaintiff, Don Meeker, appeals from an order dismissing his complaint against defendants, Tommy Payne, Ray Everett Odom and Vera Odom, and from a subsequent order denying his motion for leave to amend his complaint.

The plaintiffs pleadings allege the following facts. On March 14, 1971, in order to settle a pending lawsuit brought by the plaintiff, defendant Tommy Payne agreed to sell to plaintiff, certain real estate located in Franklin County. The next day, both parties entered into a stipulation concerning the agreement in open court, and the trial court dismissed the case. A few days later, Mr. Payne refused to honor the agreement and tore up the written contract upon which it was based. On April 29, 1971, plaintiff filed an affidavit with the recorder of deeds of Franklin County setting forth the above facts, attaching a copy of the written contract, and indicating an intention to bring suit on the contract.

On August 6, 1971, Mr. Payne filed suit to quiet title. Plaintiff responded by filing a counterclaim for specific performance of the contract. These proceedings were designated as case No. 71-CH-13. Later that month, while the case was still pending, Mr. Payne contracted to sell the real estate to Thomas Gray. On October 28,1971, the trial court in case No. 71-CH-13 ruled in Mr. Payne’s favor on his complaint to quiet title and against Mr. Meeker on his counterclaim for specific performance. On November 24, 1971, Mr. Payne conveyed the surface of the real estate to Mr. Gray who, in turn, made a conveyance to Ray Everett Odom and Vera Fay Odom the same day. In November of 1971, the Odoms executed and recorded a mortgage in favor of Federal Land Bank of St. Louis.

In Payne v. Meeker (1973), 10 Ill. App. 3d 986, 295 N.E.2d 239, filed March 29, 1973, this court entered judgment reversing the trial court’s decision in case No. 71-CH-13 and directed that Mr. Meeker’s counterclaim for specific performance regarding the surface of the realty be granted. The trial court so ordered on March 29,1974.

Subsequently, on August 9, 1974, the Odoms executed and recorded a mortgage in favor of Farmers Home Administration of the United States Department of Agriculture. On February 14, 1975, Vera Fay Odom conveyed her interest in the realty to Ray Everett Odom.

On September 4, 1980, plaintiff instituted the present lawsuit which sought equitable relief from all the above named parties who purported to have conveyed or acquired an interest in the property. The defendants, Mr. Payne and the Odoms, filed a motion to dismiss the plaintiff’s complaint, alleging, inter alia, that: (1) the trial court’s judgment in case No. 71-CH-13 barred the present action against Mr. Payne under the doctrine of res judicata; and (2) plaintiff’s failure to stay the proceedings, as provided for in Supreme Court Rule 305(i) (Ill. Rev. Stat. 1979, ch. 110A, par. 305(i)), precluded him from attacking the Odoms’ interest in the property. The trial court entered an order on September 19, 1979, dismissing the present complaint against Payne and the Odoms with prejudice to the plaintiff. On October 17,1979, plaintiff filed a motion for leave to amend his complaint which the trial court denied on the ground that its dismissal order of September 19 was a final and appealable order.

On appeal, the plaintiff first contends that the trial court erred in ordering the present cause dismissed as to Mr. Payne under the doctrine of res judicata. We agree. The trial court’s order specifically adopted defendant’s argument in the motion to dismiss which states that the trial court’s decision in case No. 71-CH-13 bars the present action against Payne. This is erroneous because the original ruling in case No. 71-CH-13 was reversed by this court in Payne v. Meeker. Since the judgment of the trial court had been reversed, it was a nullity and could not afterwards be pleaded in bar as an adjudication. (Dodge v. Thomas (1916), 272 Ill. 80, Ill N.E. 601; Stubbings v. Durham (1904), 210 Ill. 542, 71 N.E. 586.) Therefore, the trial court’s order dismissing plaintiff’s complaint against defendant Payne must be reversed.

The plaintiff next urges that the trial court incorrectly ruled that Illinois Supreme Court Rule 305(i) (Ill. Rev. Stat. 1979, ch. 110A, par. 305(i)) precluded him from proceeding against the Odoms. We agree.

Supreme Court Rule 305(i) provides in pertinent part as follows:

“If a stay is not perfected within 30 days of the entry of the judgment appealed from, or within any extension of time granted under subparagraph (a) (2) of this rule, the reversal or modification of the judgment does not effect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed e (Ill. Rev. Stat. 1979, ch. 110A, par. 305(i).)

It is established that in the original suit between Payne and Meeker, which is the basis of the present case, the judgment was entered on November 8, 1971, and that the deed from Payne to Gray and the deed from Gray to Odom were recorded on November 24, 1971. Further, it appears that a post-trial motion was filed December 6, 1971, and denied by the trial court on January 21, 1972. Notice of appeal was filed February 14, 1972. Therefore, it cannot be said that the Odoms acquired title to the real estate in question after the judgment became final; and, as a consequence, Supreme Court Rule 305(i) is not applicable.

Moreover, we observe that there was no evidence before the trial court in the instant case that Mr. and Mrs. Odom were not nominees of a party to the first proceeding. An appeal will not be held to be moot under Supreme Court Rule 305(i) in the absence of proof in the record that the parties claiming the benefit of Rule 305(i) were not parties to the litigation or acting as nominees for parties to the litigation. (Arnold v. Leahy Home Building Co. (1981), 95 Ill. App. 3d 501, 420 N.E.2d 699; Avondale Savings and Loan Association v. Amalgamated Trust and Savings Bank (1979), 78 Ill. App. 3d 244, 397 N.E.2d 121; Glen Ellyn Savings and Loan Association v. State Bank of Geneva (1978), 65 Ill. App. 3d 916, 382 N.E.2d 1267.) Therefore, without some showing that the Odoms were not acting solely as nominees of a party to the first suit, the trial court erred in dismissing the complaint on the grounds that Supreme Court Rule 305(i) precluded plaintiff from seeking specific performance against defendants other than defendant Payne.

The last issue raised by the plaintiff is whether the trial court erred in dismissing his complaint with prejudice. The defendants argue that since the order dismissing the complaint was “with prejudice to the plaintiff,” it therefore was a final order which prevented an amendment of the complaint. We note, however, that the policy of the law is to favor a hearing of a litigant’s claim on the merits. (Ill. Rev. Stat. 1979, ch. 110, par. 4.) Further, a decision of the trial court to allow or refuse a litigant’s request to amend the pleadings is subject to review under an abuse of discretion standard. (Schlossberg v. E. L. Trendel & Associates, Inc. (1978), 63 Ill. App. 3d 939, 380 N.E.2d 950; People ex rel. Hamer v. Board of Education (1970), 130 Ill. App. 2d 592, 264 N.E.2d 420.) We hold that the trial court, under the factual situation established by the pleadings, abused its discretion in dismissing plaintiff’s complaint with prejudice and denying the plaintiff an opportunity to amend.

Here, plaintiff alleges facts which indicate that Mr. Payne induced plaintiff voluntarily to dismiss a pending lawsuit in return for Mr. Payne’s agreement under a written contract to sell plaintiff the realty involved in this case. Defendant Payne ignored this legal obligation and took steps to divest himself of the property. This court found that agreement specifically enforceable and observed that it would be unconscionable to allow Mr. Payne capriciously to disregard his obligation which he had stipulated to in open court. (Payne v. Meeker.) The decisions of the trial court upon which the current appeal is based would enable Mr. Payne to so disregard the obligation placed upon him by this court; therefore, we reverse and remand the cause with directions to allow plaintiff to amend his complaint.

For the foregoing reasons, the judgment of the circuit court of Franklin County dismissing the complaint against Tommy Payne, Ray Everett Odom and Vera Fay Odom is reversed and the cause is remanded with directions to grant plaintiff leave to amend his complaint and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

KARNS and WELCH, JJ., concur.


text:
    BETTY RUFFIN, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
    Fifth District
    No. 80-457
    Opinion filed November 3, 1981.

      Tyrone C. Fahner, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellants.
    Dennis W. Shevlin, of Relleville, for appellee.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Defendants, the Illinois Civil Service Commission (Commission) and the Illinois Department of Transportation (Department), appeal from the judgment of the circuit court of St. Clair County reversing the Commission’s decision to discharge plaintiff, Retty Ruffin, from her employment as a highway maintainer in the Department. Two issues are raised on appeal: (1) whether the circuit court had jurisdiction to review the Commission’s decision to discharge; and (2) whether there was sufficient cause to warrant plaintiff’s discharge.

On April 24, 1979, the Department began discharge proceedings against plaintiff alleging that she violated the “Work Policies for Maintenance and Traffic Negotiated Rate Personnel” by intentionally furnishing a false doctor’s statement to substantiate a request for a leave of absence and by misrepresenting facts so as to obtain such absence during a work emergency period. On August 7, 1979, a hearing was had before the Commission, and plaintiff was ordered discharged.

The record indicates that on January 11, 1979, James Friederich, a personnel manager with the Department, conducted an “exit interview” with plaintiff after she had submitted notice of her resignation. Plaintiff, who had a very good work record during the previous four years, told Mr. Friederich that she had found another job and planned to resign. On January 16, 1979, the day her resignation was to become effective, plaintiff telephoned Mr. Friederich and informed him that she desired to withdraw her resignation and, instead, requested a leave of absence. When Mr. Friederich told plaintiff to submit the reason for her leave request in written form, she sent a letter, which stated:

“This letter is in regards to the resignation I turned in to be effective 1-16-79. I truly regret not explaining my personal problem which prompted me to do as I done [sic]. But I would like to withdraw my resignation only to be replaced with a leave of absence [s/c]. My reason is that I had to be off at least a month due to the illness of my brother that lives out of state. He was involved in a car accident which paralyzed him from the accident. And doctors requested to see the family to make arrangements for permanent care which he would have to have. Myself and one other sister is [sic] the only family left. My mother and father are deceased and we are the ones that can take care of family problems. And I had to make a quick decision which I was under a little pressure and made a hasty decision. I had planned to find another job. But after I had arrived it wasn’t as much as I expected, or as hard an arrangement to make. But if I can have a leave, and I do know it’s at a bad time. [Sic.] But please give it your best of understanding. I am sorry to cause this kind of decision at such a bad time. But please understand if possible. I can be reached at area code 213-733-6971 address 4307 W. 28th Apt. 207, Los Angeles, California. I will be returning to work on February 16 if it can be approved.”

Plaintiff’s request was approved by the Department on the condition that when she returned to work, she furnish a doctor’s statement describing her brother’s condition and her need to be in California.

On February 9, 1979, Gary Smith, an administrative manager with the Department, received a letter dated February 6, 1979, purporting to be from a Dr. William Meyer, a neurologist specialist at UCLA Medical Center in Los Angeles, California, which stated:

“The family of my patient. [Sic.] Mr. Willie Ruffin. [Sic.] was requested by me Dr. Wm. Meyer for preparations for long term care for paralasis [sic] sustained in an automobile accident. The arraingements [sic] has been [s/c] properly made for his type of care. The progress of his conditionat [sic] this time is listed as stable.”

Because of obvious grammatical errors and the unprofessional appearance of the doctor’s letter, Mr. Friederich became suspicious that it was not genuine. He telephoned the UCLA Medical Center and was informed that there was no neurologist on the medical staff named William Meyer. Mr. Smith then confronted plaintiff with this information and gave her two weeks to provide the Department with additional information concerning the nature of her brother’s illness and the reason for her California visit. Although plaintiff protested that she need not supply such confidential data, the Department subsequently received a letter from plaintiff’s brother, Willie E. Ruffin, indicating that plaintiff had visited him in California on January 16, 1979, at his request and at the request of the doctor. The letter stated that plaintiff’s brother was not treated at the UCLA Medical Center but was treated at home by a Dr. William Meyer, whom he could not now locate. The Department introduced evidence that no person by the name of William Meyer was licensed to practice medicine in California.

Plaintiff gave testimony in her own behalf. She stated that as a highway maintainer she was responsible for plowing and salting the streets and highways during the winter months and for routine maintenance the rest of the year. She stated that the reason for her resignation was to relocate in California and that on January 12, 1979, the day after her interview with Mr. Friederich, she left for California and arrived the next day. She related that she stayed in California nine or 10 days.

Plaintiff testified that her brother was in an automobile accident in 1975 in Dayton, Ohio, in which he suffered head injuries, numbness and possible paralysis. According to plaintiff, her brother moved to California in February 1978. Plaintiff stated that her brother suffered recurring physical and mental problems as a consequence of his accident. Plaintiff related that upon her arrival in California, her brother informed her that he was feeling well. Plaintiff stated that at that point, she decided it was no longer necessary for her to remain in California but that she, nevertheless, requested a 30-day leave of absence because she had only a little information from her brother’s doctor concerning his condition. Plaintiff admitted that she was aware of the fact that at the time she requested her leave of absence the Department was operating under emergency conditions due to the winter season.

The hearing officer determined all issues of credibility against plaintiff and found that she had misrepresented the reasons for requesting a leave of absence. The disciplinary action recommended by the hearing officer was that plaintiff be given a 90-day suspension in addition to the 30-day suspension which was initially imposed.

On September 20, 1979, the Commission entered an order which concurred in the factual findings of the hearing officer but ordered that plaintiff be discharged from the Department. The Commission’s decision was mailed to plaintiff on September 21, 1979, by certified mail.

Subsequently, plaintiff’s attorney sent a letter to the circuit court clerk’s office in St. Clair County expressly requesting that an enclosed complaint be filed. The letter informed the clerk’s office that enclosed were the complaint and five copies, a $40 check to cover filing fees, and a $19.80 check for service of process upon the Department. The letter was marked “Received 10-22-79” and file stamped “Oct 22 1979.” The record indicates that the complaint was originally file stamped October 22,1979, but the “Oct 22” was subsequently deleted and replaced by the date “Nov 1.”

On August 27, 1980, the circuit court reversed the Commission’s decision to discharge plaintiff, finding that although the Commission’s factual findings were supported by the manifest weight of the evidence, the Commission had abused its discretion in imposing discharge as a sanction. The circuit court remanded the cause to the Commission with directions to reinstate the hearing officer’s sanction of a 90-day suspension.

Defendants first contend on appeal that the circuit court lacked jurisdiction to review the Commission’s decision because the complaint indicates that it was not filed within the 35-day time limit prescribed by section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267). Defendants, relying on Varnes v. Dougherty (1976), 39 Ill. App. 3d 476, 350 N.E.2d 6, maintain that plaintiff had until October 26,1979, to file her complaint but that the record indicates that the filing occurred November 1, 1979. Plaintiff urges that the complaint was actually filed October 22, 1979. Having examined the record before us, we conclude that the complaint was filed within the time limit set forth in the Administrative Review Act.

It is evident from the record that the file stamp date had been changed from “Oct 22” to “Nov 1.” Nevertheless, in the absence of leave of court, no one has authority to file documents as of any other date than that on which they are received. (Cf. Radloff v. Haase (1902), 197 Ill. 98, 64 N.E. 557; 1 Nichols, Illinois Civil Practice §380, at 406 (1976).) To alter the date upon which a complaint is filed is to alter the rights of the parties, and this may not be done without judicial approval. Radloff v. Haase.

It is evident from the record that plaintiff’s attorney caused the complaint to be delivered to the clerk’s office, along with the appropriate fees, on October 22, 1979. However, in spite of the fact that the cover letter forwarding the complaint was file-marked “Oct 22,1979,” the filing of the complaint itself was delayed until a check for the proper amount of the sheriff’s fees was received, plaintiff having forwarded a check in excess of the amount due the sheriff. It is apparent that plaintiff’s complaint was actually filed by her on October 22, 1979. The absence of the filing date in no way alters that fact. We therefore conclude that plaintiff’s complaint was timely filed.

The remaining issue presented for review is whether the conduct of the plaintiff constituted sufficient cause for discharge. Defendants contend that the facts conclusively establish that plaintiff violated work rules by falsifying her employment records for the purposes of obtaining a leave of absence during emergency conditions. Defendants urge that such action constitutes legal ground for discharge. Plaintiff contends that in light of her past work record and the importance of public employment, her actions do not warrant such a sanction.

The applicable law relating to this issue was recently stated by this court in Sutton v. Illinois Civil Service Com. (1981), 94 Ill. App. 3d 134, 418 N.E.2d 791. There it was stated:

“Section 11 of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63b111) provides that no duly appointed employee shall be discharged except for ‘cause.’ Inasmuch as cause is not defined in the statute, whether conduct is sufficient cause for discharge is generally for the Commission to determine. However, unlike findings of fact, agency determinations of cause are not prima facie true and correct and are subject to judicial review. Substantial deference must be given the Commission’s ruling on what constitutes cause. (Dept. of Mental Health v. Civil Service Com. (1980), 86 Ill. App. 3d 1072, 408 N.E.2d 775.) However, the Commission’s determination may be overturned if based on trivial, arbitrary or unreasonable grounds. (Fox v. Civil Service Com. (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201; Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, aff'd (1976), 69 Ill. 2d 27, 370 N.E.2d 511.) ‘Cause’ has been defined as some substantial shortcoming which renders continuance in office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and sound public policy recognizes as a good cause for no longer holding the position. (Fox v. Civil Service Com.; Parkhill v. Civil Service Com. (1978), 58 Ill. App. 3d 291, 374 N.E.2d 254.) Employment history has a bearing on the issue of cause. (Kreiser v. Police Board; Fox v. Civil Service Com.) Thus, cause must properly balance employee’s interests in avoiding dismissal not warranted by the facts and the State’s interest in maintaining efficiency through the prompt removal of employees who presently contribute to inefficiency because of past conduct. Fox v. Civil Service Com.” (Sutton v. Illinois Civil Service Commission (1981), 94 Ill. App. 3d 134, 137, 418 N.E.2d 791, 793.)

Consequently, under the standard established in Sutton, the Commission’s decision to discharge plaintiff cannot be overturned unless the reasons for such discharge are trivial, arbitrary or unreasonable. It is apparent, however, that the Commission, rather than the judiciary, is better able to determine the effect that an employee’s conduct will have on the proper operation of his or her department. Jones v. Civil Service Com. (1979), 80 Ill. App. 3d 74, 76, 399 N.E.2d 256, 258.

In the instant case, the plaintiff knowingly disregarded Department rules, provided falsified information to her employer, and was absent during a critical work period when she was most needed. We conclude that the evidence justifies plaintiff’s discharge on two grounds. First, she has displayed a lack of truthfulness, honesty, and integrity, which a public agency is entitled to expect from its employees. (Bruno v. Civil Service Com. (1962), 38 Ill. App. 2d 100, 110, 186 N.E. 108, 113.) Further, plaintiff’s conduct constituted neglect of duty. See Battle v. Illinois Civil Service Com. (1979), 78 Ill. App. 3d 828, 832, 396 N.E.2d 1321, 1325.

While the plaintiff’s past work record is good, it cannot be said to outweigh the serious misconduct which occurred in this case. Therefore, we reverse the trial court’s determination that the Commission abused its discretion in discharging plaintiff.

Plaintiff’s reliance on Fox v. Civil Service Com. is misplaced. In Fox, the court concluded that a Department of Revenue investigator’s use of profanity towards certain taxpayers did not constitute cause for discharge where there was provocation, the employee had a good work record, the behavior amounted to overzealousness rather than neglect of duty or intentional misconduct, and there was a department policy of selective enforcement against the use of profanity. The facts in the case at bar are not comparable. Here, the evidence establishes an intentional violation of Department rules which resulted in the absence of an employee during a time when all Departmental personnel were needed. Under these circumstances, we cannot say that the Commission’s decision to discharge plaintiff from public employment was based on trivial, arbitrary or unreasonable grounds.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed, and the order of the Civil Service Commission is reinstated.

Reversed.

HARRISON and WELCH, JJ, concur.


author: Mr. JUSTICE WEBBER

text:
    JANA NIEMANN, a Minor, by Madeline Niemann, her Mother and Next Friend, Plaintiff-Appellant, v. VERMILION COUNTY HOUSING AUTHORITY, Defendant-Appellee.
    Fourth District
    No. 17033
    Opinion filed November 13, 1981.

      Eugene A. Jobin, of Scheele, Serbiand & Boyle, Ltd., of Chicago, for appellant.
    Sebat, Swanson, Banks, Lessen & Garman, of Danville (Ralph J. Swanson, of counsel), for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff brought a second amended complaint seeking to recover from the Vermilion County Housing Authority damages alleged to have been incurred as a result of defendant’s negligence in failing to maintain the common areas of a housing project under its control. Defendant’s motion to strike and dismiss the complaint for failure to state a cause of action was granted and judgment against the plaintiff was entered on February 9,1981.

Since judgment was entered on the pleadings, the well-pleaded facts alleged in plaintiff’s complaint must be taken as true and will be recited as the facts of the case.

On March 29, 1978, plaintiff was injured while playing in the common areas of a housing project, owned and maintained by defendant, in which she lived with her parents. The injury occurred while plaintiff was playing with another child who also lived in the project. The children were playing on a stack of debris which defendant had accumulated and stacked, permitting it to remain for some time. Although defendant knew children frequented the common areas, no steps were taken to limit access to the pile of debris. During the course of play the other child removed a stick from the pile and struck plaintiff in her right eye, causing serious injuries which have resulted in significant visual loss and will require future medical treatment.

Count I of plaintiff’s second amended complaint alleged that defendant had violated statutory duties to keep the common areas clean and safe pursuant to the United States Housing Act of 1937, and regulations thereunder. (42 U.S.C. § 1404a et seq. (1976); 24 C.F.R. §801.101 et seq. (1975).) Count II alleged that defendant was negligent in failing to keep the areas clean under common law duties applicable to all landlords.

Defendant attacked plaintiff’s complaint on two grounds. First, defendant argued that a stick is not an inherently dangerous object and the harm alleged was not reasonably foreseeable. Second, defendant argued that leaving a stick in a common area was not such a condition as to cause defendant reasonably to foresee that an intervening cause, plaintiff’s playmate, would cause injury to the plaintiff.

The issue presented for review thus narrows to whether the trial court erred in dismissing plaintiff’s second amended complaint for failure to state a cause of action on the basis that the injuries were not reasonably foreseeable. In order to state a cause of action sounding in negligence, it is necessary to allege a duty, a breach of that duty, and an injury proximately caused by the breach of duty. We are of the opinion that, for the following reasons, the trial court was correct in dismissing plaintiff’s complaint. In addressing the issue we first turn to count II.

Prior to Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, this case would have been decided by application of the attractive nuisance doctrine. That doctrine imposed liability on owners of land when children who were lured onto the land by some agency or condition which the landowner suffered to exist were injured thereby.

Although Kahn did away with the attractive nuisance doctrine, it did not follow that liability would not attach for injuries to children resulting from a condition on one’s land. Where the owner or possessor of land, or one who creates a dangerous agency or condition upon the land, fails to exercise ordinary care for the safety of children who foreseeably trespass upon the land, and where a child is injured, a breach of duty occurs. Thus foreseeability became the basis of liability, rather than attraction, in cases of injuries to children. The foreseeability of harm creates a duty in the owner or occupier of land to remedy an agency or condition which could cause injury to children.

This duty arises when four requirements which can be gleaned from Kahn are satisfied. First, the owner knows young children frequent the area. Second, there is a dangerous or defective condition present on the land. Third, the condition or agency is likely to cause injury because of a child’s immaturity or inability to appreciate the risk. Fourth, the expense of remedying the condition, or guarding against injury, is slight compared to the risk of harm to children. (Trobiani v. Racienda (1968), 95 Ill. App. 2d 228, 238 N.E.2d 177.) These requirements place Illinois law squarely in accord with the Restatement (Second) of Torts §339 (1966). Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.

Since 1955 there have been numerous cases dealing with the Kahn doctrine. Although the cases are in accord that a duty arises when the four Kahn requirements are satisfied, there has been disagreement as to the type of agency or condition which will give rise to the duty to remedy or guard.

An early line of cases held that the issue of foreseeability of harm can be determined as a matter of law. These cases are based on a characterization of the agency or condition causing the injury as “inherently dangerous.” (Donehue v. Duvall (1968), 41 Ill. 2d 377, 243 N.E.2d 222; Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 219 N.E.2d 483; Cole v. Housing Authority (1979), 68 Ill. App. 3d 66, 385 N.E.2d 382; Landman v. M. Susan & Associates, Inc. (1965), 63 Ill. App. 2d 292, 211 N.E.2d 407; Stewart v. DuPlessis (1963), 42 Ill. App. 2d 192, 191 N.E.2d 622.) Under those cases a plaintiff’s case could be dismissed if the injuring agency or condition was not alleged to be inherently dangerous (Donehue; Landman; Stewart); or defendant’s motion for judgment non obstante veredicto could be granted. Driscoll.

These cases represent a departure from the Kahn doctrine by adding the “inherently” element to the dangerous or defective condition. It must be remembered that Kahn is concerned with the question of duty; breach, proximate cause and damage are the same under Kahn as in any negligence case. In the case of an inherently dangerous object, the duty would be the same to all persons, whether adults or children. The difference would appear in the context of contributory (now comparative) negligence, or misuse. The adult plaintiff might be charged with negligence because of his superior knowledge of the propensities of the inherently dangerous object, while in the case of the child plaintiff the matter approaches almost a res ipsa loquitur situation.

We therefore believe that a more systematic and logical analysis of the duty requires that a division be made between inherently dangerous objects and ordinarily innocuous objects. In the instant case we cannot say as a matter of law that a stick is inherently dangerous, and we must therefore examine what is required of a plaintiff in order to raise a duty on the part of a defendant when children are involved with an ordinarily innocuous object.

More recent cases have recognized two situations when dealing with an ordinarily innocuous instrumentality. First, when there exists a condition which children generally would appreciate, no duty arises. Second, when additional circumstances are present which make a seemingly innocuous object dangerous and children, by reason of their immaturity are unable to appreciate the risk, a duty does arise. This distinction is well summed up in Corcoran:

“As Kahn sets forth, -a dangerous condition is not that which creates an unreasonable risk of harm to the general class of persons who might frequent the premises. It is one which is likely to cause injury to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved. The essence of the Kahn principle is to impose a duty upon those owning or occupying land to remedy conditions which, although considered harmless to adults, are dangerous to children who foreseeably wander onto the premises.
On the other hand, the Kahn principle should not be construed to impose a duty on owners or occupiers to remedy conditions the obvious risks of which children generally would be expected to appreciate and avoid. Even if an owner or occupier knows that children frequent his premises, he is not required to protect against the ever-present possibility that children will injure themselves on obvious or common conditions.” 73 Ill. 2d 316, 326, 383 N.E.2d 177, 180.

The recent cases following Corcoran recognize that an innocuous condition, although not in and of itself dangerous, may become so when joined with other nondangerous situations or instrumentalities. (Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 404 N.E.2d 918.) Thus, the rule is not that it is the defectiveness or dangerousness of the agency or condition which makes the injury foreseeable. Rather, it is the knowledge of the presence of children, the type of agency or condition, and the surroundings which make up the dangerousness that makes the injury foreseeable and thereby establishes the duty to remedy.

A plaintiff’s complaint must, therefore, in order to allege a duty, state sufficient allegations to factually establish that an innocuous condition or agency has combined with some other surroundings or circumstances which render it dangerous to children. The trial court must be able to conclude that the condition exposes children to risks greater than they encounter normally. (Corcoran; Prince v. Wolf (1981), 93 Ill. App. 3d 505, 417 N.E.2d 679.) This plaintiff has failed to do.

Plaintiff has merely alleged that a pile of debris presents a dangerous condition to children. The complaint is insufficient to allow the trial court to determine if other conditions existed which made the condition dangerous to children. Thus, defendant’s duty was one of ordinary care only.

The second amended complaint, therefore, falls within the second class of cases described by Corcoran, those which children generally would be expected to appreciate and avoid. It therefore fails to state a cause of action under either ordinary negligence, or under Kahn as expounded in Corcoran. The trial court was correct in dismissing count II.

We now turn to count I which requires less discussion. Plaintiff alleged that defendant was negligent in failing to maintain the common areas pursuant to statutory duties.

Violation of a public safety measure is prima facie negligence, even though it is a regulation adopted pursuant to statute. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497; Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) However, count I must fail as well.

We are not persuaded that the regulation cited by plaintiff is a public safety measure. The particular section cited by plaintiff in count I (24 C.F.R. §801.101 (1975)) deals only with the applicability and scope of section 23, Housing Assistance Payment, regulations. An examination of section 801.101 reveals that the regulations on policy and procedure apply only to the making of housing assistance payments pursuant to an Annual Contributions Contract.

Moreover, the only regulation which even remotely relates to plaintiff’s allegation of duty is found in section 800.103(q). That section provides that the local housing authority shall make “inspections prior to leasing and inspections at least annually to determine that the units are maintained in decent, safe, and sanitary condition * ° (Emphasis added.) (24 C.F.R. §800.103(q) (1975).) A failure to comply is a default of the Annual Contributions Contract.

We do not read this regulation as imposing more than a contractual obligation. Further, plaintiff did not allege a failure to make the required inspections.

Finally, section 800.103(p) requires that the owner perform all ordinary and extraordinary maintenance. We do not believe that this section places any greater duty to remedy upon an owner of land than does the common law. Thus, having determined that plaintiff failed to allege a common law duty, plaintiff’s complaint has no greater strength on the basis of these regulations.

Moreover, plaintiff did not raise this issue on appeal, and it is therefore waived under Supreme Court Rule 341(e)(7). 73 Ill. 2d R. 341(e)(7). '

Since neither count of the second amended complaint alleges a duty, it fails to state a cause of action. Therefore, the trial court was correct.

Affirmed.

TRAPP, P. J., and MILLS, J., concur.


author: Mr. JUSTICE LONDRIGAN

text:
    LaBARGE, INC., Plaintiff-Appellant, v. CORN BELT BANK, Trustee, et al., Defendants-Appellees.
    Fourth District
    No. 17126
    Opinion filed November 13, 1981.

      Robert W. Scott, of Swain, Johnson & Card, of Peoria, for appellant.
    Alan L. Sternberg, of Pratt, Larkin, Sternberg & Finegan, P. C., of Blooming-ton, for appellees.
   Mr. JUSTICE LONDRIGAN

delivered the opinion of the court:

Plaintiff appeals the trial court’s order dismissing its lawsuit against defendants on the basis that the statute of limitations had expired prior to the filing of the lawsuit.

On June 14, 1979, plaintiff filed a complaint for foreclosure of a mechanic’s lien alleging that plaintiff, a subcontractor, entered into an oral contract with Bill V. Martin Construction Co. to furnish materials used in the construction of a subdivision in McLean County. Plaintiff alleged that it had completed its contract on September 10, 1977.

Though the complaint was filed within the applicable two-year statute of limitations contained in the mechanics’ liens act (Ill. Rev. Stat. 1979, ch. 82, pars. 7, 9), defendant Corn Belt Bank, trustee under the provisions of a trust agreement to secure payment of mortgages on the lots in the subdivision, was never served with a copy of the suit.

The applicable statute of limitations expired September 10,1979. On September 29, 1980, defendant Corn Belt Bank filed a motion to dismiss the case pursuant to Supreme Court Rule 103(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 103(b)). Prior to a hearing on that motion, plaintiff moved for voluntary dismissal without prejudice pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52). The motion was heard and allowed by the trial court without objection by defendant on December 3, 1980.

On January 23, 1981, plaintiff commenced the present action under the authority of the limitations statute (Ill. Rev. Stat. 1979, ch. 83, par. 24a).

On January 29, 1981, Corn Belt Bank was served with process and filed a motion to dismiss on February 5, 1981, claiming that the statute of limitations had run prior to service.

After a hearing on the motion, the court dismissed plaintiff’s case on the basis that plaintiff had not been diligent in serving summons upon defendant in the original action. The trial court reasoned that since the action would have been dismissed with prejudice under Supreme Court Rule 103(b) had defendant’s motion been heard before plaintiff’s motion for voluntary dismissal under section 52 of the Civil Practice Act, the second suit, could not be maintained in light of the plaintiff’s dilatory tactics.

Plaintiff has appealed the trial court’s order, which contains the requisite Supreme Court Rule 304(a) finding (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)).

Plaintiff argues that it is entitled to refile its lawsuit and maintain this subsequent action despite the running of the statute of limitations under the authority of section 24 of the limitations statute (Ill. Rev. Stat. 1979, ch. 83, par. 24a). Section 24 states in relevant part:

“In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if 9 9 “ the action is voluntarily dismissed by the plaintiff, 0 0 0 whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff 999 may commence a new action within one year or within the remaining period of limitation, whichever is greater 9 9 9 after the action is voluntarily dismissed by the plaintiff 9 0

In this case, it is clear that plaintiff’s subsequent lawsuit was filed within one year after plaintiff took a voluntary dismissal of its complaint in the prior suit. Nevertheless, defendant argues that the trial court’s dismissal of the subsequent lawsuit was proper because the previous voluntary dismissal was taken in response to a motion by defendant to dismiss the cause with prejudice under Supreme Court Rule 103(b). Supreme Court Rule 103(b) provides:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” Ill. Rev. Stat. 1979, ch. 100A, par. 103(b).

Defendant claims, and plaintiff does not dispute the fact, that had a hearing been held on defendant’s motion, plaintiff’s first cause of action would have been subject to dismissal with prejudice which would have barred the subsequent lawsuit. (Hanna v. Kelly (1980), 91 Ill. App. 3d 896, 414 N.E.2d 1262.) The thrust of defendant’s argument is that it may avoid the subsequent lawsuit by asserting a lack of diligence on the part of plaintiff in the first lawsuit even though plaintiff comes within the letter of section 24 of the limitations statute.

While there appears to be an older series of Illinois cases which treat a motion to dismiss under Supreme Court Rule 103(b) by evaluating and measuring all that occurred between the time of filing of the first suit and service of summons in the second suit refiled under section 24 (see Franzese v. Trinko (1976), 38 Ill. App. 3d 152, 347 N.E.2d 844; Brown v. Burdick (1974), 16 Ill. App. 3d 1071, 307 N.E.2d 409; Ray v. Bokorney (1971), 133 Ill. App. 2d 141, 272 N.E.2d 836), these decisions appear to have been overruled by subsequent supreme court holdings in Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585, and Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796. In Franzese and Aranda, the supreme court endorsed the theory that section 24 of the limitations statute extends an absolute right to a plaintiff to file a complaint at any time within one year after the voluntary dismissal of its prior lawsuit irrespective of the fact that plaintiff may not be a “diligent suitor.” In that regard, the supreme court stated in Franzese-.

“ ‘Courts have no legislative powers, and their sole function is to determine and, within the constitutional limits of the legislative power, give effect to the intention of the lawmaking body. We will not and cannot inject provisions not found in a statute, however desirable or beneficial they may be.’ (Droste v. Kerner, 34 Ill. 2d 495, 504.) We find no basis for engrafting upon section 24 an intent on the part of the General Assembly to exclude from its ambit all but the ‘diligent suitor.’ ” 66 Ill. 2d 136, 140, 361 N.E.2d 585, 587.

While it is obvious that plaintiff, in this case, comes within the letter though not the spirit of section 24, we conclude that he is nevertheless entitled to refile his cause of action within one year following a voluntary dismissal irrespective of his failure to exercise reasonable diligence to obtain service on defendant prior to the expiration of the applicable statute of limitations.

While we agree with defendant that it is obvious that the motion for voluntary dismissal was filed to avoid dismissal with prejudice, that fact alone is not dispositive. Section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52), relating to voluntary dismissal, states in part:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof.”

The relevant question then becomes whether plaintiff’s motion for voluntary nonsuit after a motion to dismiss under Supreme Court Rule 103(b) is “before trial or hearing.”

Though no Illinois cases on point have been called to our attention, we conclude upon examination of analogous case law that Supreme Court Rule 103(b) motions do not involve a trial or a hearing within the meaning of section 52 of the Civil Practice Act.

In North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664, the court held that a hearing or trial did not begin at the time a section 45 motion concerning defects in pleadings was heard. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) In Hale v. Ault (1980), 83 Ill. App. 3d 78, 403 N.E.2d 635, the court held that rulings on motions for summary judgment do not come within the purview of section 52 of the Civil Practice Act and did not interfere with plaintiff’s absolute right to dismiss the cause of action.

The only type of pretrial motion that apparently will be considered to have occurred after a trial or hearing begins are motions made under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). (Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 60 N.E.2d 442.) Section 48 motions involve involuntary dismissal based upon certain defects or defenses including lack of jurisdiction, lack of legal capacity, res judicata, running of the statute of limitations, and others. None of the enumerated bases upon which motions can be made under section 48 would encompass a lack of diligence in service of process covered by Supreme Court Rule 103(b) motions. We therefore hold that motions filed under the authority of Supreme Court Rule 103(b) do not constitute “a trial or a hearing” within the meaning of section 52 of the Civil Practice Act.

Defendant attempts to distinguish this case from Franzese and Aranda on the basis that those cases were premised upon dismissals for want of prosecution and not for failure to secure service on the respective defendants. That distinction, however, does not appear to be material since it is theoretically possible that a case may be dismissed for want of prosecution, in part, because service has never been accomplished upon a defendant. We conclude that the only condition precedent which plaintiff must demonstrate in order to rely upon section 24 is that the original action was filed within the applicable statute of limitations.

Finally, though we appreciate the trial court’s concern over plaintiff’s tactics, we conclude that the trial court was in error insofar as it raised the specter that plaintiff could use section 24 to endlessly refile new cases against the defendant. As plaintiff correctly points out, Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 385 N.E.2d 62, precludes that possibility. In Smith, the court determined that section 24 only permits one additional filing after the first suit has been dismissed.

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

Reverséd and remanded.

WEBBER and MILLS, JJ., concur.