author: Mr. PRESIDING JUSTICE ROMITI

text:
      In re MARRIAGE OF GARY DAVID FRIEDMAN, Petitioner-Appellee, and CAROLYN J. FRIEDMAN, Respondent-Appellant.
    First District (4th Division)
    No. 80-2677
    Opinion filed September 24,1981.

      James O’Brien, of Spagat & O’Brien, Ltd., and Beermann, Swerdlove, Woloshin, Barezky & Berkson, both of Chicago (Miles N. Beermann, Howard A. London, and James O’Brien, of counsel), for appellant.
    Arvey, Hodes, Costello & Burman and Kaufman & Litwin, Ltd., both of -Chicago (Stuart Litwin, Charles J. O’Connor, and Rosemarie J. Guadnolo, of counsel), for appellee.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Respondent Carolyn Friedman appeals from a judgment of the circuit court of Cook County modifying the custody provision of a judgment of dissolution of marriage so as to change the residence of her son, Jonathan, from her home to that of his father, petitioner Gary Friedman. The sole issue on appeal is whether the judgment of the trial court was contrary to the manifest weight of the evidence.

We affirm.

The parties were married in February 1965. They had two children: Gregory, born May 28, 1967, and Jonathan, born August 5, 1970. On February 14, 1978, the parties obtained a judgment of dissolution of marriage from the circuit court of Du Page County. Incorporated in the judgment was a marital settlement agreement which provided in part that the parties would share joint custody of the children but they would reside with Carolyn until it was in the children’s best interest that they reside elsewhere. On April 30, 1979, an agreed order was entered in the circuit court of Du Page County providing that Greg was to reside with Gary. This action was instituted on July 29, 1980, when Gary filed a petition to modify the judgment of dissolution of marriage so as to allow Jonathan to reside with him.

At the hearing on the petition the following pertinent evidence was introduced. Gary, a partner in a Chicago law firm, testified that he was remarried in February 1980. He lived in a three-bedroom condominium on Lake Shore Drive in Chicago with his wife, Johnna, her young daughter, and Greg. Jonathan resided with his mother, Carolyn, in Northbrook.

In February 1979, Gary returned to his office and found Greg there. Greg told him Carolyn had dropped him off and he was to live with Gary. The next day, according to Gary, Carolyn told him that Greg was his problem now, that she could not and would not deal with him. She had not previously told Gary she was bringing Greg over or that he was to live with Gary on a permanent basis. Subsequently Gary learned from a psychologist at Greg’s school that she had had discussions with Carolyn over several months concerning Greg’s deteriorating attitude, behavior, and scholastic performance. The psychologist had designed a special academic program for Greg, but Carolyn did not agree with it.

Gary testified that during this period Greg had been failing all his subjects, was 20 pounds heavier, and was not involved in any extracurricular activities at school. He was generally sullen and withdrawn. According to Gary, at the time of trial Greg had lost the extra weight, was engaged in extracurricular activities, and had become confident, articulate, and outgoing. There was no material dispute at trial concerning Greg’s improvement after moving in with Gary. Indeed Carolyn’s attorney conceded to the trial court that:

“There is no dispute. All of the psychiatric reports indicate Greg was a troubled child, no ifs or buts about it. Nobody disputes that and nobody disputes he has done better living with his father.”

In September 1979 Greg was enrolled at the Anshe Emet Hebrew Day School. Gary testified that Jonathan would also attend this school if he obtained custody of him. The teacher-student ratio at Anshe Emet was 12 to 1, with a support staff which included a child psychiatrist, a psychologist, and a learning disability teacher. Several boys at the summer camp attended by Jonathan were his age and were enrolled at the school in his grade so that he would have several friends there were he to enroll. Included in the school’s regular curriculum were Hebrew and historical and cultural matters related to Jewish culture. Gary testified that it was important to him that Jonathan and Greg become familiar with the traditions of Judaism. Johnna’s daughter was also taking this course.

Gary testified that Jonathan had been staying with him two to four weekends a month, all summer in 1978 and 1979, five to six weeks in the summer of 1980, and during Christmas, Thanksgiving and Easter holidays, except for last Easter. During the summers Jonathan attended summer camp (eight weeks in 1978 and 1979, four weeks in 1980). While living with Carolyn Gary customarily had not gotten home from work until 7 or 8 p.m. and he worked at the office two or three Saturdays a month. However he had subsequently changed his habits so that he was getting home shortly after 5 p.m. and worked only about one in five weekends. During the summer he would take off one weekday to be with his sons.

Johnna Friedman testified that she had majored in elementary education at the University of Arizona and had taught for six years. She was married in 1964 and divorced in 1975. Her only child from that marriage would be 10 in October 1980. According to Johnna her daughter and Gary’s two sons got along well. She had noted that Greg had improved since he came to live with them. She had worked with him on doing his homework properly. Johnna stated she would be happy to have Jonathan live with them; she already considered him a part of the family. She also expressed a willingness to participate in therapy for him.

The trial judge conducted in camera interviews with Jonathan and Greg. Both boys indicated they got along well with each other. Jonathan told the judge that he wished to live with his mother.

Gary also presented the testimony of two expert witnesses, Dr. Marshall Falk and Dr. Jack Arbit. Dr. Falk testified he was a medical doctor specializing in psychiatry. He served as a professor of psychiatry at the Chicago Medical School and had written 18 articles in the field. In the past five years he had been appointed about 20 times to act as a consultant or expert witness on behalf of the circuit court of Cook County. In this instance he was hired by Gary to evaluate Jonathan.

In a period from April 19, 1980, to July 12, 1980, Falk had nine half-hour sessions with Jonathan. He saw him alone because he believed the presence of an adult, particularly a parent, would influence Jonathan’s attitudes. The sessions were conducted over an extended period because Falk wished to see whether Jonathan’s agitation and depression were related to the stress of the interviews or instead constituted a chronic situation.

Falk first elicted from Jonathan a history of his family situation. Falk observed that in relating this the only time Jonathan showed enthusiasm or spontaneity was when he described his father and his relationship with him. Jonathan thought that because his brother had gone to live with his father it was his duty to stay with his mother. However, when he discussed his mother he became extremely agitated. He also exhibited this agitation constantly when the litigation was discussed. He was in tears and spoke in an almost inaudible voice, giving the impression that he lacked self-esteem. According to Falk, the significance of Jonathan being enthusiastic when discussing his relationship with his father was that this was something he enjoyed. In contrast,, the agitation when discussing his mother was an extension of his fear and guilt over what would happen if he left her.

Toward the beginning of June Falk became concerned about the depth of pathology that Jonathan might have and he referred him to a psychologist, Dr. Arbit, for testing. (Dr. Arbit testified at the hearing, and we discuss that testimony later in this opinion.) Dr. Falk testified that the test results confirmed his own finding, that Jonathan was suffering from severe low esteem and was anxious and depressed because of his feelings of guilt and his current environment. He felt guilty about leaving his mother and felt an obligation to stay because she would be lonely when he left, Falk also believed that because of Jonathan’s relationship with his grandmother (who Falk had determined from interviewing Jonathan was primarily caring for him) and his mother he did not have a male role model with whom he could come in contact on a daily basis. As a result he confided in his brother, a relationship which Falk found to be unusual between two boys three years apart.

It was Falk’s opinion that Jonathan needed a male role model whom he could emulate and look up to. If there was no change in circumstances Jonathan’s condition of agitation and depression would worsen as he grew older. However, if he were to reside with his father and older brother Falk believed his condition would improve. He would start to develop a normal relationship with his father and would develop more self-esteem. But because Jonathan’s guilt feelings were currently pervasive he would still need psychiatric or psychological help. In summary, Falk believed that Jonathan’s physical and mental health would best be served if he were to reside with his father and older brother.

In a written report submitted to the court Falk stated his belief that Jonathan wished to reside with his father. On cross-examination Falk stated that in reaching this conclusion he did not disregard the fact that on three occasions Jonathan expressed a desire to live with his mother. But Falk attributed this stated wish to Jonathan’s feelings of guilt about his mother rather than being an expression of his actual wishes. Falk also did not believe it was normal for a nine-year-old boy to be as anxious as Jonathan was in the íüá-month period of his evaluation, even under the circumstances. His low self-esteem, if related to being in a doctor’s office, should have abated after a period of time. Falk conceded that to evaluate the total environment, which he would do as a court-appointed psychiatrist, it would be helpful to evaluate all the people involved. (He had also interviewed Greg, but none of the other principals.) However he saw his function as evaluating only Jonathan.

Falk’s report was also admitted into evidence and contained substantially the same information and conclusions as were elicited from him at the hearing.

Dr. Jack Arbit, a clinical psychologist, had been engaged in the active practice of psychology for 25 years. He had taught for 23 years at Northwestern University Medical School and for five years at Loyola University Medical School. He served as the director of psychological testing at Northwestern Memorial Hospital and as the director of behavioral neurology at Loyola University Hospital. Arbit had published 20 to 30 articles in the field, primarily concerning diagnostic assessment and evaluation in psychological and neurological diseases.

Arbit’s evaluation of Jonathan was predicated on the use of psychological tests. He had examined, evaluated, and tested Jonathan for about half a day on June 12, 1980. He first spoke with Jonathan for 25 to 40 minutes, explaining the procedures and asking some questions about his personal and family life. Then tests were administered by an examiner under Arbit’s direction and supervision. The tests and their results were described by Arbit as follows.

The Wexler test, an intelligence test, established that Jonathan possessed superior intellectual ability. However Arbit believed that the score achieved was lower than Jonathan’s optimal capability because of memory difficulties related to his very high level of anxiety.

The Wide Range Achievement Test, a basic measure of scholastic achievement, showed Jonathan to be superior in some areas but in the bright/normal range in others. Again Arbit believed some scores were reduced by anxiety which he did not attribute to the testing itself.

The Rorschach Psychological Test, which measures aspects of personality such as anxiety, depression, self-concept, needs, and motives, established that Jonathan was psychologically impoverished compared to what would be expected of one with his superior intellect. His creativity or originality was not at the expected level. Arbit attributed this to anxiety related to Jonathan’s negative self-concept.

The Michigan Picture Story Test, measuring how one feels about one’s self in relation to others, led Arbit to believe that the source of Jonathan’s anxiety, which had appeared throughout the testing and observation, was related to his very poor masculine identity. This engendered feelings of inadequacy and inferiority and a lack of vitality.

Finally in the Human Figure Drawing Test, in which the subject was asked to draw pictures of himself and his family and to identify those drawings, Jonathan drew pictures of his father, brother, and step-mother. Arbit believed this indicated Jonathan identified his family as being that of his father.

After the testing Arbit reviewed the test results with Jonathan, who was cooperative and responsive but very anxious. Jonathan told Arbit he preferred to live with his father although he knew this would make his mother lonely. He also looked forward to living with his brother.

Based on all the testing it was Arbit’s conclusion that Jonathan suffered from a “chronic level anxiety secondary to feelings of inadequacy and inferiority and concerns about his masculinity.” Arbit believed that if Jonathan were to live with his father he would lose his anxiety over a period of time. In a written report which was admitted into evidence Arbit also stated:

“Without some alternation [sic] in this feeling of being less manly, less competent, less capable than the man he wishes to be one will see continuing, increasing and debilitating feelings of anxiety, distress and developmental disturbances through the adolescent and young adult years.”

On the court’s own motion Dr. Ilse Judas was appointed to interview the parties and the children and to prepare a written report of her findings. This report was admitted into evidence and Dr. Judas also testified as the court’s witness.

Judas testified that she was a physician specializing in psychiatry, psychoanalysis, child psychiatry, and child psychoanalysis. She had been engaged in private practice in these areas since 1955. She also lectured at the University of Chicago School of Medicine, where she trained psychiatric residents in child psychiatry. She had published eight to 10 articles in that field.

Judas conducted individual interviews with Gary, Carolyn, Johnna, Greg, and Jonathan. She also conducted a group interview with all those people except Johnna. The interviews occurred in early September 1980.

In her report to the court Judas stated that her conclusions were based solely on these interviews, in which she had evaluated the current mental functioning of the interviewees. She had also, in the interviews with Gary and Carolyn, reviewed their personal developmental history as well as those of their children. Judas wrote that she had read the other reports submitted to the court but discounted them because they were not based on an understanding of the development and personality structures of the parents and child involved. Thus, her conclusions were based only on her own psychiatric evaluation.

Judas found Gary to be a well-controlled man, somewhat on the depressed side, who was able to admit to difficulties without denial. He at times became overly angry but had the capacity to look at and deal with his feelings. She found him to be the more mature of the two parents.

Carolyn, according to Judas, was unable to admit to difficulties and to deal with feelings and evidenced a pervasive use of denial. Judas found her to be impulsive and lacking insight into herself.

Judas found Johnna to be mature and in touch with her feelings, enjoying a good marriage with Gary.

Judas’ evaluation of Jonathan was that he was basically depressed and anxious. He confided only in his brother. She believed his condition’s origins were in deprivation in his early childhood. She believed psychiatric treatment for him was essential and would probably be prolonged. She also believed Carolyn could not support such treatment because of her inability to deal with her own feelings. However, she believed that Gary and Johnna would be able to emotionally support treatment. Judas also concluded that Jonathan’s undue dependence on Greg would best be broken by having the two boys live in the same household. If Jonathan continued to live with his mother Judas predicted that the most likely outcome would be a constricted, depressed youngster, not functioning up to his academic or social capacity. She also foresaw the possibility that he would become stuck in his present stage of development, making for later difficulties in sexual identification.

Based on these findings Judas recommended that Jonathan reside with his father, with continuing visitation with his mother, and that he receive psychiatric treatment for his depression and anxiety.

In testimony at the hearing Judas explained further some of the conclusions in her report. She stated that although the roots of Jonathan’s depression went back some time the present situation also contributed to it. She believed that because Carolyn could not admit that she had problems she would be unable to support Jonathan in his therapy and would give in to his desire not to be treated. Judas also testified that in mothering capacities she saw Carolyn as having difficulty with every child. The crucial aspects of Carolyn’s personality with respect to her children were impulsiveness, complete denial, and externalization. She blamed things on Gary or Greg, never herself. Her inability to deal with anger was huge. Judas also believed that Greg’s relationship of father-confessor to Jonathan was not in Jonathan’s best interest, but adults must stop it and Carolyn was not capable of doing so. It was Judas’ belief that the custody change should be made quickly; postponement would cause further damage to Jonathan.

Carolyn presented no expert testimony at the hearing but did introduce into evidence one expert’s report, that of Dr. Melvin Seglin, a physician specializing in psychiatry. He had been in the private practice of adult and adolescent psychiatry since 1955. He had served as a consultant to four hospitals and had taught and supervised residents in psychiatry at three of those hospitals. He was certified by the American Board of Psychiatry and Neurology.

Seglin interviewed the parties, their two children, and Johnna. He found Jonathan to be anxious and somewhat depressed, but attributed this to the stress of the custody dispute. Jonathan expressed what Seglin found to be a genuine desire to live with his mother, a desire uninfluenced by Carolyn’s persuasion. Seglin did acknowledge that one factor was Jonathan’s feeling of guilt about leaving Carolyn. However, he believed that the main reason for Jonathan’s desire to remain with his mother was that he felt more comfortable with her and in the current setting where he was performing well in school. Seglin recommended that Jonathan remain with Carolyn, but also strongly recommended that he obtain immediate therapy.

Sharon Rudnick, a neighbor of Carolyn, testified that she had known Carolyn for about 7 years, although not socially. Her son was a good friend of Jonathan, and she saw Jonathan every few weeks. He seemed well adjusted, somewhat quiet but very polite and very happy in his surroundings with his mother and grandmother. Carolyn seemed to be an extremely concerned and caring person. On cross-examination Rudnick testified that in her 11 years in the neighborhood she had been in the Friedman home two or three times.

Susan Novy had been a next-door neighbor of the Friedmans for eight years. Her children often played with Jonathan. He was a quiet, very bright, happy little boy who played well with the children. She believed his relationship with Carolyn to be very good, and she perceived Carolyn as a very good mother. Carolyn’s mother, who cared for Jonathan when Carolyn was at work, also appeared to Novy to be a very concerned grandmother who had a good relationship with Jonathan. On cross-examination Novy stated that in her opinion Gary was a good father and had a good relationship with Jonathan.

Suzanne Behr, a counselor at Wood Oaks Junior High School in Northbrook, testified that two years earlier in conversations with Carolyn about Greg’s scholastic problems she found Carolyn to be concerned and cooperative. She had also found Gary to be cooperative and concerned about Greg.

Carolyn also introduced into evidence Jonathan’s school records from kindergarten through the fourth grade. His grades for the last year were mainly B’s and C’s. In a comprehensive achievement test taken in 1980 Jonathan’s scores placed him, in a national survey, from the top 33% to the top 3% of those examined. Comments by Jonathan’s fourth grade teacher which were contained in these records indicated that he usually appeared happy and exhibited self-confidence, sometimes showed self-discipline, and usually cooperated in class activities.

In its decision the trial court ordered that Jonathan’s residence be changed to that of his father and also recommended therapy and counsel-ling for Jonathan. Although the court also ordered that the joint custody provision of the original divorce decree be retained, it is clear that the change in physical custody ordered by the court was pursuant to section 610(b) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 610(b); In re Marriage of Gargus (1981), 97 Ill. App. 3d 598,423 N.E.2d 193; In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 412 N.E.2d 49.) Section 610(b) provides:

“(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”

By its terms this section requires a two-step approach to the modification of prior custody judgments. The court must first determine whether one of the statutory prerequisites listed in subsections (b)(1) through (b)(3) exist. In this case only (b) (3) is applicable. Assuming that prerequisite is established then the court must determine whether the modification is necessary to serve the best interest of the child. (In re Marriage of Gargus (1981), 97 Ill. App. 3d 598, 423 N.E.2d 193; In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 412 N.E.2d 49.) Clearly section 610(b) creates a presumption in favor of the present custodian, thus promoting the important factors of stability and continuity in the child’s life. (In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499.) But once a trial court has determined that the presumption has been overcome in the light of the factors set out in the statute we will disturb that determination on review only where the trial court’s decision was contrary to the manifest weight of the evidence or amounted to an abuse of its discretion. In re Custody of LaMarca (1979), 78 Ill. App. 3d 26, 397 N.E.2d 31; Caulkins v. Caulkins (1979), 68 Ill. App. 3d 284, 385 N.E.2d 1117.

In its modification order the trial court found, under 610(b), that:

“a) a change has occurred in the circumstances of the minor child, JONATHAN,
b) that this modified order is necessary to serve the best interests of both children, particularly JONATHAN; and
c) that JONATHAN’S present environment endangers seriously his mental and emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”

In a subsequent order, denying respondent’s post-trial motions to vacate its judgment and for a new trial, the court made additional findings which it incorporated in its original order. These included a finding that:

“Jonathan requires therapy and counselling because of serious emotional and mental problems corroborated by the doctors and respondent mother.”

And later, in denying respondent’s post-trial motion for a stay of the judgment, the trial court stated:

“I am still convinced that the best interests of the child are being served by the change in his residence because there was clear and convincing evidence that under the environment with the mother psychiatric treatment was ineffective.”

It is clear from these findings and statements of the court that it placed great credence in the findings of Dr. Judas. She concluded on the basis of her interviews that Jonathan was depressed and anxious and in need of immediate psychiatric treatment. She also concluded that Carolyn, who could not recognize her own problems, would be unable to provide the necessary support for Jonathan in obtaining help for his problems. According to Judas failure to obtain this therapy would have a deleterious effect on Jonathan’s development. She thus recommended that he reside with Gary and Johnna, who she believed would be able to provide the necessary support for him in his treatment.

Carolyn cites the testimony of her neighbors who found that Jonathan was a normal, happy child who played well with their children. She also cites Jonathan’s school records, which showed him to have a good academic record. Those records also included the summary conclusions of his fourth grade teacher tending to indicate that he was responsible and well-adjusted in school. Certainly these were factors for the trial court to consider. But they must be weighed against the fact that all of the experts who examined Jonathan tended to contradict this sanguine view of his emotional health. Dr. Falk found him to have low self-esteem and to be in a state of agitation and depression. He recommended residence with Gary and psychiatric treatment. Dr. Arbit found him to have a very high level of anxiety and a negative self-concept. He also found that this resulted in. Jonathan not achieving his academic potential. He concluded that if Gary obtained custody Jonathan would lose his anxiety. Even Carolyn’s expert, Dr. Seglin, who recommended that Jonathan remain with her, also found him to be anxious and somewhat depressed and recommended therapy for him. On the basis of this evidence, which could not have been available to the court which entered the agreed order awarding physical custody of Jonathan to Carolyn in 1978, the trial court was justified in concluding that Jonathan’s present environment seriously endangered his mental and emotional health and that any harm likely to be caused by a change of physical custody was outweighed by its advantages.

The trial court in its order also found that the fact that Jonathan and Greg had been separated was a substantial change in circumstances and that it was in the best interests of both of them that they remain together as a family unit. Carolyn contends that the evidence did not substantiate this separation as a cause of harm to Jonathan. We do not reach that issue because we have found that the evidence of Jonathan’s need for psychiatric counseling and the trial court’s conclusion that this could not be accomplished while he remained with his mother provided a sufficient basis for establishing the prerequisites of section 610(b).

As we have noted, once the findings satisfying that section are made the court then is required to evaluate whether a modification of custody is in the best interest of the child. Among the factors to be considered by the court are those contained in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602), which provides:

“(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.”

Clearly the court considered the wishes of Jonathan’s parents, and his own wishes were ambiguous. No threat of physical violence by either potential custodian was suggested in the record. But the overriding consideration, which relates to all the remaining factors, is the court’s finding that Jonathan could not obtain needed psychiatric treatment effectively in his mother’s custody. This finding necessarily had a direct impact on the factors of Jonathan’s interaction with "his family, his adjustment to his home, school and community, and his mental health. Evaluation of these factors in the light of the trial court’s finding provides ample support for the court’s conclusion that it was in Jonathan’s best interest to reside with his father.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.

       The corroboration by Carolyn perceived by the court apparently came when in a pretrial motion she sought a continuance to allow her and Jonathan to obtain therapy. As a result of this motion she was again interviewed by Dr. Judas who concluded that she still was unable to support such therapy.


source: Caselaw Access Project

author: Mr. JUSTICE WHITE

license: Public Domain

text:
    NATIONAL TEA COMPANY, Plaintiff-Appellant, v. GAYLORD DISCOUNT DEPARTMENT STORES, INC., et al., Defendants.—(GAYLORD DISCOUNT DEPARTMENT STORES, INC., Defendant-Appellee.)
    First District (3rd Division)
    No. 79-2044
    Opinion filed September 30, 1981.

      Clausen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (James T. Ferrini and Robert E. Gilmartin, of counsel), for appellant.
    Kiesler & Berman, of Chicago (Clinton J. Feil and Robert L. Kiesler, of counsel), for appellee.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, National Tea Company (National), appeals from orders of the circuit court of Cook County granting summary judgment to defendant, Gaylord Discount Department Stores (Gaylord). National originally brought suit against Gaylord and two of Gaylord’s licensees, Diane Costume Jewelry and Strathmax Corporation (hereinafter Diane and Zayre, respectively) for property damage resulting from a fire which occurred in a building occupied by Gaylord, its licensees, and National. The complaint alleges as to each defendant exclusive control of the premises in which the fire took place and contains as to each two counts, one stating that the fire would not have occurred but for the defendant’s negligence — in essence seeking recovery under the theory of res ipsa loquitur — the other alleging that the defendant was guilty of certain specific acts of negligence including:

“(g) carelessly, negligently and improperly installed, operated, controlled and maintained certain lighting fixtures in the store room area so as to allow the light ballast therein to ignite, thereby causing a great and destructive fire to occur, which fire did occur.”

All of the defendants in their answers denied these allegations and after some discovery all filed motions for summary judgment. In response to Gaylord’s motion, National filed the affidavit of its expert, Roy A. Matin, which stated that in his opinion one of the fluorescent light fixtures above the Zayre and Diane storage area failed and ignited the fire. The motions of the licensees, Diane and Zayre, were granted on the basis that neither had custody nor control of the lighting fixtures nor duty to maintain them. National has not appealed from those judgments.

The trial court, on May 3,1979, entered partial summary judgment in favor of Gaylord on all of count I based on res ipsa loquitur and on all of count II charging specific acts of negligence except subparagraph (g) set out above. In the order, the trial court found that there was no just reason to delay enforcement or appeal. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) On October 19, 1979, the trial court disposed of the remaining charge, entering final judgment for the defendant, Gaylord, and against the plaintiff, National. National on appeal seeks reversal of the orders granting Gaylord’s motion for summary judgment.

Gaylord initially contends that the partial summary judgment order became final and appealable at the time it was entered on May 3,1979. It is argued that because National filed no appeal from that order within the permissible 30-day time period (Ill. Rev. Stat. 1979, ch. 110A, par. 303(a)), the validity of the order cannot now be reviewed. Plaintiff argues in response that the order of May 3, 1979 was not a final order as it was bottomed on res ipsa loquitur and as such does not operate to dispose of any issue or theory of recovery in the case. We agree.

Where the bases of recovery for separate counts are different, and where the trial court finds that there is no just reason for delaying enforcement or appeal, the dismissal of a count is appealable because it disposes of a distinct cause of action. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 295 N.E.2d 41.) However, merely because the dismissal order contains a finding that there is no just reason for delaying enforcement or appeal, does not mean that the order is final and appealable if the order is not in fact final. Where summary judgment is directed to a pleading founded upon res ipsa liquitur, and there are other counts pending, the summary judgment does not constitute a final order and cannot immediately be appealed. (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 344 N.E.2d 461; Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 390 N.E.2d 1270.) “A final order is one which either terminates the litigation between the parties on the merits or disposes of the rights of the parties upon the entire controversy or some definite part thereof.” (Cohen v. Sterling Nursing Home, Inc. (1978), 57 Ill. App. 3d 162, 372 N.E.2d 934; Smith v. Interstate Fire & Casualty Co. (1977), 47 Ill. App. 3d 555, 362 N.E.2d 38; Rizzo v. Board of Fire and Police Commissioners (1975), 33 Ill. App. 3d 420, 337 N.E.2d 735.) Res ipsa loquitur is not a separate theory of recovery; rather, it is a rule of evidence which gives rise to an inference or presumption of negligence by circumstantial evidence. 58 Am. Jur. 2d Negligence §475, 516 (1971); Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-50, 207 N.E.2d 305; Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 403 N.E.2d 470.

Counts I and II were both predicated on the theory of negligence. Therefore, summary judgment as to the res ipsa count did not determine the merits of a distinct cause of action or serve to terminate any party’s rights. It was merely a ruling by the trial judge that the facts would not support a presumption of negligence. It was not until the order of October 19, 1979, was entered granting summary judgment in favor of Gaylord on National’s allegations of specific negligence that the earlier order became final and appealable. For these reasons, we conclude that the judgment order of October 19, 1979, and the partial summary judgment order of May 3 on count I are reviewable at this time.

It is National’s position that Gaylord owed National a duty of care arising out of Gaylord’s control and right of control over the fire-causing instrumentalities, the fluorescent light fixtures. The trial court in the order of October 19, 1979, found, as is necessary in summary judgments, that there were no genuine issues of fact remaining between the parties. National’s complaint alleges Gaylord occupied and had exclusive possession and control of the premises containing the fixtures. Gaylord’s answer denies this, creating issues of fact. Resolution of those issues if adverse to National would terminate its right to proceed on both count I, which sounds in res ipsa loquitur, and count II, which sounds in specific acts of negligence. By what process then had those issues been resolved, and on what basis was the resolution in favor of Gaylord and against National? Gaylord asserts here that control of the light fixtures and the electrical ballasts contained therein can be gleaned from three things: the lease, the license, and the light bulbs. We examine the three to determine if they or any of them determine the issue of whether Gaylord controlled the light fixtures.

Gaylord occupied the premises under a lease from Klefstad Engineering Company, Inc., and contends that Klefstad, the lessor under the terms of the lease, had the duty to maintain the light fixtures. Generally, under Illinois law, a tenant or occupier of leased premises, and not the owner, is responsible for injuries from a defective condition of the demised premises. (Hardy v. Montgomery Ward ir Co. (1971), 131 Ill. App. 2d 1038, 267 N.E.2d 748.) In absence of a lease provision to the contrary, Gaylord, the tenant in possession, would be responsible for injury or damage caused by a defective condition of the demised premises. Where a landlord has turned over possession and control to a tenant he is not liable to third persons for injuries sustained as the result of alleged negligence of a tenant or a tenant’s employees. (Richardson v. Bulk Petroleum Corp. (1973), 11 Ill. App. 3d 655, 297 N.E.2d 405.) In support of Gaylord’s contention that its lessor, Klefstad, had the duty to maintain the light fixtures, we are referred to a lease dated July 14, 1961, under which the property was demised to Gaylord. The lease provides in pertinent part:

“The Lessor further covenants and warrants to make all structural repairs to the building for the period of the lease. 0 0 0 Lessor will also furnish all necessary electric light and power service lights, including proper wiring, in the premises, and gas pipes for gas service, and the Lessor will at its own expense, supply any apparatus, appliances or materials not peculiar to or necessitated by Lessee’s occupancy except those items which are specifically stated in the plans and specifications which are to be furnished by Lessee, and will do any repairing or rebuilding in or about the leased premises which may be required or ordered by law or lawful authority. It is further covenanted that the Lessor will install adequate water and electrical supply and chimney outlets and provide a suitable heating plant, air conditioning, lighting fixtures, floors, toilets and plumbing.” (Emphasis added.)

Gaylord correctly states that within the four corners of the lease there is no basis to assert that Gaylord had control of the electrical ballasts alleged to have caused the fire. But the statement stands the law of Landlord and Tenant on its head. The issue is, does anything in the lease relieve Gaylord, the tenant in possession, of its duty to maintain the premises in good repair. The lease clearly gives Gaylord exclusive possession of the rented premises. However, Gaylord maintains that the lease shifts the obligation to maintain the light fixtures to Klefstad, the lessor, through the lessor’s covenant to make all structural repairs to the building for the period of the lease. We do not find this provision supportive of Gaylord’s position. An applicable analysis was made in Hardy v. Montgomery Ward & Co. (1971), 131 Ill. App. 2d 1038, 267 N.E.2d 748, wherein the court held that plaster which fell from the ceiling and struck a customer in the tenant’s store was of an interior, nonstructural nature. It was cosmetic or superficial; it did not fall within the concept of structural, which extends only to such objects as floors, joists, rafters, walls, partitions, studs, supporting columns and foundations. Plaster, the Hardy court said, was not part of the structure but rather fell from the structure. By the same token, the lighting fixtures were not part of the structure but were merely affixed to the structure. If the lessor were to be obligated to repair fixtures, the lease could have and would have plainly so stated.

The lease further provides that Klefstad, the lessor, will also furnish all necessary electric light and power service lights, including proper wiring. However, we do not conclude from this language that Klefstad retained a duty to conduct regular inspection and maintenance of the light fixtures after the premises were leased to Gaylord. The language does not relieve Gaylord of the responsibility which normally flows from its position of lessee in possession to maintain the premises, including the light fixtures, in good condition.

Part of the premises leased from Klefstad by Gaylord were occupied by Gaylord’s licensees, Diane and Zayre. Both National and Gaylord refer to the licensing agreements in interpreting the Gaylord-Klefstad lease. Although it is not clear how licenses with third parties could affect a landlord-tenant relationship established by a written lease, we examined the agreements. Suffice it to say we found nothing therein which would relieve lessee Gaylord of the duty to maintain the light fixtures and place that duty on the lessor.

Light bulbs throughout the store, including the areas in question, were frequently changed by Gaylord’s stockboys. From this and other evidence, National argues that Gaylord maintained and thereby assumed responsibility for the lighting fixtures. Gaylord responds that under this logic any tenant who changes a light bulb on leased premises assumes control and responsibility for the entire light fixture. This conclusion need not be reached for appellant to prevail. There is no doubt that liability may arise out of a negligent act committed by one who has possession and control of property without regard to the character of his interest in that property. (Conway v. Epstein (1964), 49 Ill. App. 2d 290, 200 N.E.2d 16.) Evidence that Gaylord employees changed the bulbs, and that Gaylord caused repairs to be made to the electric fixtures was at least some evidence rebutting Gaylord’s denial of control of the fixtures. It cannot truly be said that there is no material issue of fact between the parties as to control of the fixtures. On the contrary, we find sufficient questions of fact to require denial of Gaylord’s motion for summary judgment unless support therefor is found elsewhere.

Gaylord further asserts that the undisputed facts show Gaylord was not guilty of negligence, because no course of conduct reasonably available to it would have prevented the fire occurring in the manner described by National’s own expert. On this basis, it is contended that the trial court did not err in granting Gaylord’s motion for summary judgment.

Roy A. Martin, an electrical engineer who testified as an expert witness for National, stated on deposition that in his opinion one of a group of 12 lights failed, and ignited a fire which spread to the rest of the store. At the time of the fire the building and presumably some of the lights were 10 years old. The average life of ballasts in these lights was 7 to 12 years. Some die very quickly; some live far longer. Symptoms of impending failure are flickering and a strong odor of hot asphalt compound dripping from the fixture. While the majority of ballasts do produce these warning signs of failure, some do not. Mr. Martin testified that ballast failure can result from several factors in addition to age including: leaving burned out light tubes in place causing overheating, and failing to clean the fixture. He testified that there should be periodic inspections of the lamp sockets and internal wiring, and that the fixtures should be examined for drippings or tar spots.

The record indicates that there was a fire in a ballast shortly before the fire in question and about a year before sparks and fire required Gaylord to call in an electrician. Gaylord’s assistant manager stated that ballasts have a tendency, after they get old, to fail and that sometimes they would get so hot they could catch on fire. National argues Gaylord had the affirmative obligation, in view of its recognition of the dangers presented by aged ballasts and in view of the signs of impending disaster which it had observed (the prior fires), to replace the ballasts or, at the very least, to conduct the very necessary maintenance and inspections. Apart from age, the ballasts were dangerous if not properly maintained. Bulbs had to be promptly replaced upon burnout. The responsibility was Gaylord’s and, as explained by Mr. Martin, Gaylord’s failure to change bulbs could cause fire. Also, dirt had to be removed. Additionally, impending failure would be revealed by tar spots and drippings, and those could be observed only upon inspection.

Since at times these fixtures fail without warning, Gaylord submits that there was no course of conduct reasonably available to it which could have prevented the fire.

“Could closer or more frequent inspections have made a difference? Gaylord submits that even if Mr. Martin himself and eleven other equally qualified electrical engineers were standing on ladders carefully examining each of these ballasts, one minute prior to the alleged failure of one of the twelve ballasts, they could not have known, without some symptoms, that there would be a failure.
Even with the above suggestions, daily replacement of electrical ballasts or a battery of engineers or the use of ballast watchers, Gaylord could not guarantee the prevention of a fire such as the one allegedly caused by an electrical ballast. Such ballasts can and do fail spontaneously.”

Does the fact that these light fixture ballasts at times fail spontaneously and without warning relieve defendant of the duty to inspect and maintain them properly? We think not. Regular inspection could certainly prevent fires from occurring in the majority of the fixtures which give the warning signals of flickering and the smell of hot tar. There was evidence that removing burned-out bulbs and avoiding the collection of excessive dirt could reduce the chances of fire. Gaylord points out that even if all of the preventive steps suggested by National’s expert were taken, this still could not guarantee the prevention of the fire. The fixture which caused the fire nonetheless could have gone undetected. It cannot be said but for Gaylord’s failure to take the preventive measures the fire would not have occurred. This alone, however, cannot insulate Gaylord from liability. A similar claim was made by defendants in Maryland v. Manor Park Real Estate & Trust Co. (4th Cir. 1949), 176 F.2d 414. There the complaint charged that a tenant’s death of typhus transmitted by means of the bite of a flea from an infected rat was caused by the negligence of defendant in failing to take adequate measures to exterminate the rats on the premises. The trial court ruled that there must be proof that but for defendant’s negligence the deceased would not have contracted typhus and died. The United States Court of Appeals rejected this and held:

“ [T]he final conclusion that the government must be relieved from liability because of the possibility that the death-bearing rat might have survived all efforts to eliminate it cannot be upheld. It is true that a defendant’s liability for negligence may not be based upon mere surmise or speculation, but it is equally true that findings based upon a preponderance of evidence may not be avoided by indulging in mere conjecture. * * * In the language of the Restatement of Torts, §432 Comment c, if the actor’s negligence, either of act or omission, results in harm of the sort from which the duty was designed to protect the other, his negligence may be regarded as a substantial factor in bringing about the harm in spite of the fact that the same harm might possibly have been sustained had the actor not been negligent.”

In the case at bar the acts or omissions of Gaylord could be regarded as substantial factors in bringing about the fire in spite of the fact the evidence shows that the fire might possibly have occurred even if Gaylord had not been negligent. The plaintiff is not required to exclude every other possible cause of the accident. Causation is a question of fact for the jury. Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383.

We do not find as did the trial court that on the basis of admitted facts that the issues of control, negligence and causation undergirding plaintiff’s claims were foreclosed as a matter of law. The orders granting summary judgment are therefore reversed and the case remanded.

Reversed and remanded.

RIZZI, P. J., and McGILLICUDDY, J., concur.


author: Mr. PRESIDING JUSTICE KASSERMAN

text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellee, v. JOSEPH C. SMITH et al., Defendants-Appellants.
    Fifth District
    No. 80-402
    Opinion filed October 1,1981.

      Earl L. Vuagniaux, P. C., of Edwardsville, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Roy E. Frazier, Assistant Attorney General, and R. Eric Robertson, Special Assistant Attorney General, of counsel), for appellee.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

This is an interlocutory appeal taken pursuant to Supreme Court Rule 308(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 308(a)) from an order entered in a condemnation proceeding. The defendants, Joseph C. Smith and Láveme O. Smith, are owners of certain property sought to be condemned by the petitioner, the Department of Transportation (hereinafter Department). The defendants seek review of a pretrial order entered by the trial court which found, as a matter of law, that they were precluded from using their easement to develop the property sought to be condemned for commercial and residential purposes. We reverse and remand.

On December 30, 1971, the Department filed a petition to condemn 31 acres of a 202-acre tract of primarily farm property located in Madison County. Sometime later, on November 16,1979, the trial court entered an order denying defendants’ “motion to determine nature of access” created by an easement connecting their property to a public road. The trial court granted the Department’s oral “motion to determine legal limitations on access.” The defendants filed a motion to reconsider which alleged, inter alia, that they were granted an easement appurtenant for purposes of allowing commercial and residential access to a subdivision to be developed by them. It was further alleged that a portion of the property was zoned for commercial use, that Madison County officials would have approved a subdivision which would utilize the easement as a means of ingress and egress to New Douglas Road, and that the county would have rezoned the remainder of defendants’ property for commercial and residential development within a reasonable time. Subsequently, after hearing arguments of counsel, the court denied the motion to reconsider.

On December 6, 1979, the Department filed a pretrial motion which sought a ruling by the trial court that the access rights of the defendants to New Douglas Road were limited, as a matter of law, so as to prohibit such access from being used for purposes of developing a commercial and residential subdivision. In support of its motion, the Department filed a memorandum of law in which it maintained that it would be an impermissible burden on the servient tenement to allow the easement to be used as an access to a commercial and residential subdivision; that the Illinois Plat Act (Ill. Rev. Stat. 1979, ch. 109, par. 1 et seq.) prohibited the defendants from platting a road on their easement, and that certain rules and regulations of Madison County prohibited the use of the defendants’ easement for purposes of developing the property for commercial ^md residential use. The trial court granted the Department’s motion. The propriety of this ruling is at issue on appeal.

Defendants argue that a landowner in a condemnation case is entitled to a preliminary hearing on the question of reasonable probability of obtaining a variance from local ordinances, rules and regulations for the purpose of utilizing his land for commercial and residential development. Specifically, defendants maintain that they should have been allowed to present evidence on the probability that their easement could be used as a means of access to New Douglas Road so as to enable them to further develop the property which the Department sought to condemn. The Department reasserts the position taken by it in the court below and contends that defendants were precluded, as a matter of law, from using their easement for such purposes.

Where property is taken for public use, the owner of such property is entitled to just compensation, which is the fair market value of the property at its highest and best use on the date the petition for condemnation is filed. (Department of Public Works ir Buildings v. Association of Franciscan Fathers (1977), 69 Ill. 2d 308,371 N.E.2d 616.) If the property’s most profitable use is made unavailable due to governmental restrictions, Illinois courts have held that it is proper to consider such use in determining just compensation so long as there is a reasonable probability of obtaining relief from the government in the foreseeable future. (Lake County Forest Preserve District v. Petersen (1981), 93 Ill. App. 3d 731, 417 N.E.2d 862; Lombard Park District v. Chicago Title & Trust Co. (1968), 103 M. App. 2d 1, 242 N.E.2d 440.) The underlying rationale of these decisions is that a jury, in determining the compensation to be awarded for the taking of property sought to be condemned, should have available to it all information which private parties would consider in negotiating a sale on the open market. (Lake County Forest Preserve District v. Petersen.) We find this reasoning persuasive in the case at bar and hold that the trial court should have conducted a pretrial hearing to determine the sufficiency of the evidence regarding the reasonable probability of developing the subject property for commercial and residential use. Lake County Forest Preserve District v. Petersen; Department of Transportation v. Janssen (1975), 34 Ill. App. 3d 244, 339 N.E.2d 359.

The Department, however, maintains that no evidentiary hearing was required in this case since certain legal limitations upon the defendants’ easement prevented its use for purposes-of-developing the property for commercial and residential use. It therefore asserts that the trial court correctly ruled, as a matter of law and without the consideration of evidence, that the defendants were precluded from developing the property. We disagree.

The Department claims that the use of the easement for purposes of developing the appellants’ dominant tenement would materially increase the burden of the servient tenement so as to prevent such use. The Department offers two arguments in this regard. First, the Department suggests that an easement appurtenant may not be extended by the owner of the dominant estate to accommodate other lands which he may own and for which the easement was not intended. While we accept this position as an accurate statement of law (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 192 N.E.2d 384), we do not perceive the rule to be applicable in the instant case since the defendants do not seek to extend the easement to lands other than the dominant tenement. The Department’s second contention apparently is that to allow the defendants’ easement to be used for ingress and egress to a commercial and residential development would constitute a misuse of the easement granted. This assertion fails to consider defendants’ specific allegation that it was the intent of the parties to the easement that it would be used to provide access to a subdivision to be developed by the defendants. If such allegation is proved, there would be no misuse of the easement. Therefore, the trial court on remand should consider evidence on this issue, construe the easement in accordance with the intention of the parties (see Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865), and make a determination, based on the evidence, as to whether the use of the easement as a means-of access to developed property was beyond the use intended by the grantor of the easement.

The Department next contends that, under section 9 of the Illinois Plat Act (Ill. Rev. Stat. 1971, ch. 109, par. 9), the defendants were required to plat any proposed road to be built upon the easement and that this could not be accomplished unless the defendants were the fee simple owners of the tract of land. This position is without merit. While it is true that any road which might be built by the defendants must be platted, it does not follow that fee simple ownership is a prerequisite to such plattingr Indeed, the language of section 9 suggests a contrary conclusion. The statute reads in pertinent part:

“Whenever any highway, road, street, alley, public ground, toll-road, railroad, reservoir or canal is laid out, located, opened, widened or extended, or its location altered, it is the duty of the commissioners, authorities, officers, persons or corporations, public or private, laying out, locating, opening, widening, extending or altering the same, to make a plat, showing its width, courses and extent, and making reference to known and established corners or monuments. * * *. The plat shall be recorded in the office of the recorder of the county in which the premises are taken or used, or any part thereof, are situated ” ” Ill. Rev. Stat. 1971, ch. 109, par. 9.

The statute by its terms imposes the duty to plat new or altered roads on the party which seeks to open or alter such roads. It makes no mention of any ownership requirement. The manifest intent of the above quoted section is to require any party, regardless of what interest they may have in the property, who opens or alters a road, street, etc., to make and record a plat thereof. A court cannot read into a statute words which are not within the plain intention of the legislature as determined from the statute itself. (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313.) We conclude that section 9 of the Illinois Plat Act applies to parties holding an easement establishing a right-of-way who plan to construct or alter a road. Hence, the Department’s second argument must be rejected.

Finally, the Department urges that section 402, paragraph 7 of the Madison County rules and procedures covering plats, subdivisions and vacations (Board of Supervisors of Madison County, Rules and Procedures Covering Plats, Subdivisions and Vacations in Madison County, Illinois §402(7) (1956)) prohibits private road access to defendants’ subdivision as a matter of law. This provision states in part:

“Private roads and streets shall be permitted only when the sub-divider submits sufficient evidence to the Committee that there can be no Public interest in such private road or street. A subdivision of four lots or less may be provided with a private street or road * • V”

The resolution adopting the aforementioned rules and procedures defines “Committee” as the Zoning and Subdivision Control Committee of the Board of Supervisors. Board of Supervisors of Madison County, Resolution Adopting Rules and Procedures Covering Plats, Subdivisions and Vacations in Madison County, Illinois §2(3) (1956).

It is argued that defendants cannot show that the public would have no interest in any means of access to the proposed subdivision since the subdivision would contain public streets dedicated by the defendants and the only access from these streets to a public road would be by means of defendants’ private easement. This contention, however, ignores the fact that under this provision it is for the Zoning and Subdivision Control Committee to determine whether or not there is a public interest in a private street or road. Whether the committee would allow the private road proposed in this case or reject it by applying this or any other county rule or regulation cannot be determined on the record before us. We find that the trial court erred in refusing to consider evidence concerning whether the county authorities would grant or deny the proposed access road on a private easement.

We are of the opinion that this cause should be remanded for consideration of evidence on whether the county authorities would permit development of the property for commercial and residential use. As was noted in Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App. 2d 1, 6, 242 N.E.2d 440, 443, “[l]ong before subdivision and development become an actuality, the land may have a value substantially greater than its present value for agricultural purposes, and such value is existent and very real for informed sellers and buyers.” Upon remand, the burden of proof will be on defendants, and if the possibility of developing the property is speculative, it should not be considered by the jury in determining the value of the condemned property. Department of Transportation v. Western National Bank (1976), 63 Ill. 2d 179, 347 N.E.2d 161; Lombard Park District v. Chicago Title & Trust Co.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


author: Mr. JUSTICE LINDBERG

text:
    RUTH L. FOURNIER, Plaintiff-Appellant, v. 3113 WEST JEFFERSON PARTNERSHIP et al., Defendants-Appellees.
    Second District
    No. 81-124
    Opinion filed October 6,1981.
    John W. Werner, of Oak Brook, for appellant.
    Robert S. Soderstrom, of McKenna, Storer, Rowe, White & Farrug, of Chicago, and John C. Norton, of O’Reilly and Cunningham, and Peregrine, Stime, Newman and Ritzman, Ltd., both of Wheaton, for appellees.
   Mr. JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Ruth L. Fournier, brought this action for injuries suffered as a result of a slip and fall at the Twin Oaks Shopping Cénter. She appeals from orders of the circuit court of Du Page County denying her motions to vacate summary judgments for defendant, Pepper Construction Company (Pepper), and Joliet Construction Company (Joliet), and judgment of dismissal for defendant, 3113 West Jefferson Partnership (3113).

Plaintiff filed a complaint on August 2, 1978, alleging that she sustained damages for personal injuries which occurred on August 4, 1976, due to the alleged defective design and construction of a wheelchair ramp at the shopping center. She named as a defendant, among others, Chicago Title and Trust Company (Chicago Title) as trustee for the legal ownership of the real property. Chicago Title was served with process on August 7, 1978. Suit was also brought against Pepper, the general contractor for construction of the shopping center, and Joliet, a subcontractor for the construction of the ramp and sidewalk.

Chicago Title and Trust Company moved for summary judgment, alleging that as trustee it had no beneficial or possessory interest in the land and did not own or operate the premises as stated in the complaint. On July 13, 1979, the court granted the motion. Then on December 5, 1979, plaintiff filed an amended complaint which added 3113 as a defendant. 3113 moved to dismiss the amended complaint on the ground that the statute of limitations had expired. Pepper and Joliet filed motions for summary judgment, alleging, inter alia, that the general rule is that independent contractors are discharged for liability for the construction of premises once the work is completed and accepted by the owner. The trial court granted the motion to dismiss in favor of 3113. It also allowed summary judgment in favor of Pepper and Joliet. No just reason for delay in the enforcement or appeal of these orders was found. Plaintiff’s motion to vacate the summary judgments and the dismissal was denied, and she has appealed.

Plaintiff contends that the trial court erred in applying the accepted work doctrine created by the Illinois Supreme Court in Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 139 N.E.2d 275. The Paul Harris court held that “where an independent contractor is employed to construct or install any given work or instrumentality, and has done the same and it has been accepted by the employer and the contractor discharged, he is no longer liable to third persons for injuries received as the result of defective construction or installation.” (10 Ill. 2d 28, 40, 139 N.E.2d 275, 282-83.) Three exceptions to the rule of nonliability were recognized in Paul Harris:

“(1) where the thing dealt with is imminently dangerous in kind, such as explosives, poisonous drugs, and the like, (2) where the subject matter of the contract is to be used for a particular purpose, requiring security for the protection of life, such as a scaffold, and (3) where the thing is rendered dangerous by a defect of which the constructor knows but deceitfully conceals, and which causes an accident when the thing is used for the particular purpose for which it was constructed.” (10 Ill. 2d 28, 40, 139 N.E.2d 275, 282-83.)

Plaintiff has attempted to avail herself of all three exceptions. But she failed to present to the trial court the argument that the facts of this case fall within the second and third exceptions. Therefore, we need only deal with the issue of whether the wheelchair ramp in question was imminently dangerous in kind. Bansch v. Donnelly (1979), 77 Ill. App. 3d 922, 396 N.E.2d 869.

The Paul Harris doctrine has metamorphosed since its inception. The general rule of nonliability for independent contractors was a corollary to the doctrine of privity of contract. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) As the shield of privity has eroded (see Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182), likewise has the accepted work doctrine been more honored in its exceptions than its general application. (See Johnson v. Equipment Specialists, Inc. (1978), 58 Ill. App. 3d 133, 373 N.E.2d 837.) The supreme court in Hunt v. Blasius synthesized the development of this area of tort law and concluded that the general rule of nonliability had been discarded.

Instead, Hunt examined the liability of an independent contractor under traditional negligence principles. Hunt held:

“Liability in negligence arises only if the independent contractor has breached a duty owed to persons whose injuries proximately resulted from the breach.® * ®
An independent contractor owes no duty to third persons to judge the plans, specifications or instructions which he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them.” (74 Ill. 2d 203, 209, 384 N.E.2d 368, 371.)

The trial court’s granting of summary judgment in Hunt was affirmed since the complaint failed to allege that the specifications were so flawed that the independent contractor-defendant should have been put on notice that the product was dangerous and likely to cause injury.

The plaintiff in the case at bar alleged that the wheelchair ramp which caused her injury was placed perpendicular to the sidewalk and was designed and constructed with a sloping surface lower than the surface of the sidewalk to which the ramp was transverse. She further averred that the defendants, including Pepper and Joliet, were negligent in one or more particulars: (1) negligent design and construction of the ramp transverse to the path of travel on the sidewalk, (2) negligent location of the ramp, (3) negligent failure to mark the location of the ramp, (4) negligent failure to warn plaintiff of the existence and location of the ramp, and (5) negligent failure to erect a barrier along the sides of the ramp.

It is clear that these allegations fail to meet the requirement of Hunt. There is no allegation that the specifications should have put the contractors-defendants on notice that the project was dangerous. Neither are the facts such that a court might infer that the specifications “were so glaringly dangerous” that Pepper and Joliet should have refrained from complying with them. (Hunt, 74 Ill. 2d 203, 210, 384 N.E.2d 368,371.) We hold that no duty was owed by Pepper and Joliet to third-party plaintiffs. Therefore, the trial court properly granted summary judgment in their favor.

Plaintiff next contends that the trial court erroneously dismissed her complaint against 3113 for her failure to comply with section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(4)). We disagree. Section 46(4) provides:

“A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute * * * limiting the time within which an action may be brought or right asserted, if all of the following terms and conditions are met: (a) the time prescribed or limited had not expired when the original action was commenced; (b) failure to join the person as a defendant was inadvertent; (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; and (e) it appears from the original and amended pleadings that the cause of . action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading * * (Emphasis added.)

Service of summons was not had upon Chicago Title until August 7, 1978, over two years beyond the date the cause of action occurred. Our courts have consistently held that in order to come within the scope of the section the proper party who, is joined after the limitations period must have acquired the requisite knowledge, within the limitations period. (Jackson v. Navik (1974), 17 Ill. App. 3d 672, 308 N.E.2d 143.) Even if we were to assume that Chicago Title, immediately upon being served, notified 3113 of the complaint, that knowledge would come too late for compliance with section 46(4). The argument that knowledge is presumed from the date of the filing of the original complaint without regard to the date defendant is served has been rejected by the courts. (See Jackson.) Thus the trial court acted properly in dismissing 3113.

Plaintiff further argues that it is sufficient that agents of the defendant knew of her injury and of her intent to sue prior to the running of the period. But section 46(4) requires knowledge “that the action is pending” and clearly contemplates more than an awareness that an action may be pursued at some future point.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

VAN DEUSEN and NASH, JJ-, concur.


author: Mr. JUSTICE HEIPLE Mr. JUSTICE STOUDER,

text:
      In re MARRIAGE OF JANE Z. SWANSON, Petitioner-Appellant, and ROBERT A. SWANSON, Respondent-Appellee.
    Third District
    No. 80-688
    Opinion filed September 25,1981.

      STOUDER, J., dissenting.
    Timothy J. Howard, of Kavanagh, Scully, Sudow, White & Frederick, P. C., of Peoria, for appellant.
    Ronald C. Tenold, of Standard and Tenold, of Monmouth, for appellee.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

This cause involves the end of a marriage. Jane Swanson and Robert Swanson were married just shy of 30 years. As in many dissolution cases, the courts are asked to resolve the final, legal remnant of that union — the parties’ property interests. This one presents those questions.

Jane Swanson, the petitioner, is 65 years old and in good health. Jane and Robert were married July 2,1949. A college graduate, the petitioner works for the Illinois Medical Society as a secretary. She has held such position for almost 40 years. At times, her job has required her to work in Chicago during the week, from whence she returned to Monmouth on the weekend. During the course of their marriage, Mrs. Swanson did not engage in any tasks connected with the operation of her husband’s farm. She did, however, perform domestic duties such as meal preparation, laundry, and cleaning. Presently, she resides with her mother in Monmouth in Illinois. At the time of the hearing, her retirement plans were uncertain.

The respondent, Robert Swanson, is 57 years old, enjoying good health. Presently, he resides in Arkansas with another woman. He is a high school graduate. From 1945 to 1960 he worked a Warren County farm with his father. After working in a paint store, he started his own farm implements business in 1963. In 1969 he became a real estate salesman, and later a broker, his present occupation.

The parties accumulated a sizable estate which is comprised of marital as well as nonmarital property. The trial judge, in a meticulous, well-designed order, made the following disposition:

Stocks, bonds, and personal property, valued at $26,394, amounted to Jane Swanson’s nonmarital property. Robert Swanson’s nonmarital estate was priced at $340,660.

Six parcels of land make up the farmland distributed between the parties. Because the division of this real property forms the primary disagreement between the parties, a short history of its acquisition is necessary.

In January 1947, Robert and his father, Neis Swanson, bought a 78.69-acre farm (tract I), as joint tenants. The purchase price, $21,800, was made by equal cash payments by both men, and a mortgage to the Federal Land Bank for $9,700. A 1.3-acre piece (tract II) was purchased outright as joint tenants by Neis and Robert in July 1953. 36.94 acres (tract III) were purchased by Robert and his father in December 1954. To finance the purchase money, $3,000 cash was advanced, and a $19,000 mortgage obtained from the Federal Land Bank. Part of the mortgage money was used to pay off the existing debt on tract I. A new mortgage covering tracts I and III was executed. The elder Swanson, as well as Jane and Robert, all signed the note. Title, again in joint tenancy, was in the men’s names. In August 1959, father and son, as joint tenants, purchased 8.27 acres (tract IV). A loan for the purchase price was obtained from a bank in Monmouth. Neis Swanson died in 1963. On January 5, 1967, Robert and Jane purchased a 70-acre farm in joint tenancy. To do so they borrowed $73,685 from the Federal Land Bank. A portion of this loan paid off the indebtedness on tract III. Payment of this new loan was secured by mortgages covering tracts I, III, and V. The final property, covering 2.7 acres (tract VI), was purchased by Robert, in his own name, in October 1976.

The trial judge concluded Robert Swanson’s nonmarital property included all of tract I and undivided one-half interests in tracts II, III, IV, and VI (approximately 104 acres). The remaining land (94 acres) was then divided evenly between the parties as marital property.

On appeal Mrs. Swanson claims such distribution is erroneous for two reasons. Because she executed and incurred potential liability of the note financing the purchase of tract III, petitioner argues, she contributed to the purchase of tract I and therefore this land has become marital property to which she is entitled at least in part. Such a result is warranted, she contends, because the new loan used to purchase tract III paid off the prior mortgage on tract I. She makes a similar argument with respect to the loan to purchase tract V which extinguished the debt on tract III. Secondly, she says the division of the marital estate is inequitable.

The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) provides that a trial judge, when dividing a marital estate, classify its components as either marital or nonmarital property. He must then assign to each spouse his or her nonmarital property, and ultimately make an equitable distribution to the parties concerning their marital property. Section 503(b) of the Act says that all property acquired by either spouse after the marriage and before judgment of dissolution is presumed to be marital property. (Ill. Rev. Stat. 1977, ch. 40, par. 503(b).) This presumption is not impaired by the manner in which title to the property is held (In re Marriage of Rodgers (1981), 85 Ill. 2d 219). Nonetheless, the evidentiary impact of this presumption may be negated in light of those ways which the statute so provides. Ill. Rev. Stat. 1977, ch. 40, pars. 503(a)(1) through (6).

The trial court found the disputed farmland to be the result of joint efforts of father and son. We agree. But neither the fact of a partnership nor the additional purchases of farmland nullifies the presumption that such acreage is marital property. Whether such land was acquired with a view of enlarging the farming enterprise is irrelevant in originally characterizing it as marital property. Such acquisition or contribution of a party to the retention of a marital asset is only meaningful in the final equitable distribution of all marital property. Ill. Rev. Stat. 1977, ch. 40, par. 503(c)(1).

By placing the farm acreage in a series of joint tenancy deeds with his son, Neis Swanson was thereby distributing his property by “gift, deviseebequest, or descent” (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(1)). The trial judge so found, and upon examination of the record, we do not believe such conclusion manifestly erroneous. It cannot be ignored that such a practice has, throughout the years, been a frequent technique of “devising” property. The father’s dying intestate is consistent with such a plan. We recognize that creation of survivorship rights in a joint tenant is not technically a “devise” or a “bequest.” Neither can we be oblivious to the intent of the parties when interests are created by deed (Tindall v. Yeats (1946), 392 Ill. 498) or the inheritance qualities a joint tenancy estate actually possesses. The succession of joint tenancy deeds reflects a testamentary disposition on the part of Neis Swanson. We believe the trial judge quite discerning in acknowledging this for what it plainly was, and interpreting the statute in a flexible manner. Accordingly, we affirm the division of the marital and nonmarital estates.

Likewise, we are unpersuaded by petitioner’s entreaties that her contributions to the purchase of the farm acreage altered the character of such property from nonmarital to marital property. This so-called “transmutation theory” has had a mixed reception in the Rlinois appellate courts (compare Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, with In re Marriage of Preston (1980), 81 Ill. App. 3d 672), and in any event, we deem it inapplicable in this cause. Tract I was purchased prior to the marriage by father and son as joint tenants. It is clearly nonmarital property. (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(6).) When the subsequent mortgage was negotiated on tract III, the fact Jane Swanson became potentially liable on the note securing the mortgage, by itself, does not change the earlier resolution that tract I is nonmarital in character. This is also true with respect to the identical argument petitioner advances concerning the mortgage securing payment for tract III. The record is barren of any evidence which shows that at the time either mortgage was executed that Robert or Neis Swanson intended to create a new estate in Jane Swanson or anyone else with respect to such farmland (In re Marriage of Drennan (1981), 93 Ill. App. 3d 903, 907, citing Stark v. Stark (Mo. App. 1976), 539 S.W.2d 779, 782). Therefore, no error occurred in the division of the marital and nonmarital estates of either party.

The petitioner’s second complaint concerns what she perceives as the trial judge’s inequitable distribution of the marital estate (Ill. Rev. Stat. 1979,- ch. 40, par. 503(c)). This argument, although frequently advanced, is, as in most cases, without substance.

A trial court’s property distribution will be sustained unless in its disposition an abuse of discretion occurs. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 36-37.) In dividing the property in “just proportions,” a trial judge is required to consider 10 statutory factors. In this cause, the trial court, in a deliberate, step-by-step fashion, did just that. Consideration was given to the petitioner’s contributions as a homemaker, the addition of her salary, and her inactivity with respect to the operation of the farm properties. Her career, and continued employment, and her present and anticipated income were weighed with respect to whether an award of maintenance should be granted. In this respect, the trial judge made a thorough and proper property division. Merely because the parties did not receive equal shares of all the assets of the marriage does not make such distribution erroneous.

Finally, the petitioner urges that refusal to grant her a rehearing was an abuse of discretion. As part of her motion, she attached affidavits and deeds purporting to establish Mr. Swanson lied.about the extent of his real estate holdings in Illinois and Arkansas. We believe the trial court’s denial of this motion was wrong. Thus, corrective action is required.

The record shows, quite probably, that Mr. Swanson, during discovery, lied about 20 acres of land in Warren County which he owned with his mother as a tenant in common. Apparently, he succeeded to this interest when his father died intestate. The effect of this nondisclosure, however, would not change the property distribution, since such an interest descended to him- by operation of law. Thus, it would be his nonmarital property. (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(1).) The same cannot be said, however, of the Arkansas deeds.

The hearing distributing the property was held October 3, 1979. Robert moved to Arkansas in November 1977. All the deeds were executed on land in Garland County, Arkansas. The first, dated January 30, 1978, indicated Robert Swanson as grantee. The other two, dated March 31,1979, and December 15,1979, named him as grantor. Throughout discovery and trial, Mr. Swanson claimed ownership in only the nine parcels of land the trial court eventually distributed.

The new evidence is not so conclusive as to warrant a new trial. (Raster v. Wildermuth (1969), 108 Ill. App. 2d 288.) If Mr. Swanson did own such property, it would be presumed to be marital property. Although respondent challenges the diligence with which petitioner’s counsel sought such proof, we do not feel that any such lack of care is sufficient to override the interests sought to be preserved by a rehearing. Since property interests cannot be divided properly if not ascertained, remanding this cause is necessary. Therefore, on remand, the trial court is instructed to hold an evidentiary hearing limited to the extent of respondent’s property holdings in Arkansas. If required, a subsequent order disposing of such property shall be entered.

For the reasons stated, the judgment for dissolution of marriage is affirmed. The supplemental judgment for disposition of property is affirmed and this cause is remanded with directions.

Affirmed and remanded with directions.

BARRY, J., concurs.

Mr. JUSTICE STOUDER,

dissenting:

I disagree in part with the conclusions of my colleagues. I agree the case should be remanded for further consideration of the circumstances surrounding the appellee’s ownership of property previously undisclosed to the appellant. However, I would also remand this case for reconsideration of the division of property because I believe the trial court erred in classifying substantial portions of the farmlands as nonmarital property.

At the outset, I agree the decisions of our appellate courts are in hopeless disarray on the subject of whether nonmarital property changes its character when marital property is combined with it. Since some of these cases are presently pending before the Illinois Supreme Court, it is anticipated the conflicts may be in the process of resolution. The majority of the court in this case have followed that line of cases which hold that if property is initially nonmarital property it forever retains that characterization even though the property may be substantially increased in value by combination with marital property or income. Contrary to the majority, I believe that the enhancement or increase in value of nonmarital property by combination with marital property should change the character of the property to marital property.

Of course the Marriage and Dissolution of Marriage Act does not use the term “transmutation,” nor indeed does the Act even by way of general principle offer much assistance or guidance. We are in an evolutionary phase of changing our traditional concepts of dividing property when a marriage has ended. We can say however that there is no estate or interest in property denoted marital or nonmarital. The old ways of owning property remain the same, and while we may speak loosely of the marital estate or the nonmarital estate, we are not describing any special interest in property but only a manner or method of resolving disputes regarding the division of such property upon termination of a marriage. As is often the case, courts tend to adopt new ideas slowly and just as often tend to apply the new ideas as if no changes were made and old concepts continue with their viability unaltered.

Under the former law we were concerned with legal ownership and special equities. The present law focuses on the economic aspects of marriage as a shared enterprise, a mutual endeavor, a domestic partnership or an economic unit. In a very real sense the economic health and benefits resulting from the efforts of both ought to be considered as belonging to both in broad terms, and whether property should be regarded as derived for the benefit of the economic community and therefore marital property ought not depend on the financial contribution of each party but should be viewed as the joint benefit of combined effort.

I do not make these observations particularly in defense of any theory of property division but rather to suggest that our primary concern should be the economic benefits of the marriage which under the circumstances of cases such as this one are not necessarily related to matters of time of acquisition and title to real estate, but rather the inquiry should be directed toward the basis of the values at the time division is required. Where, as in this case, the operation of the farm was a part of the economic activity of the marriage unit and the farms were paid for substantially from marital income, it seems to me the farms should have the characteristics of marital property.