text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD KLAUB, Defendant-Appellant.
    Third District
    No. 3—84—0354
    Opinion filed February 5, 1985.
    Michael E. Brandt, of Peoria, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Peter M. Tumminaro, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Ronald Klaub, appeals from his conviction for driving while license revoked. (Ill. Rev. Stat. 1983, ch. 95V2, par. 6— 303.) The sole issue on appeal is whether, under the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1983, ch. 95V2, par. 1—100 et seq.), the defendant, at the time of his arrest, was legally operating a motor vehicle in Illinois. We have in this case no disagreement over the facts. Rather, this is a case which turns solely on statutory construction.

In January 1974, the defendant was a resident of Illinois. In that month, the defendant’s Illinois driver’s license was revoked following his conviction for operating a motor vehicle while under the influence of drugs. Under that revocation, as later extended, the defendant was not eligible until May 1983 to be reissued an Illinois driver’s license. Sometime around September 1976, the defendant moved from Illinois to Indiana. While he was a resident of Indiana the defendant obtained and maintained an Indiana driver’s license. In September 1983, the defendant moved from Indiana back to Illinois.

On November 11, 1983, the defendant was operating a motor vehicle in Illinois when he was issued a Uniform Traffic Citation for the instant offense. At the time of his arrest, the defendant did not have a valid Illinois driver’s license. The defendant did possess an Indiana driver’s license. The State has presented no challenge to the defendant’s representation that his Indiana driver’s license was then valid. We, therefore, presume that license was valid.

Section 6—303(a) of the Code defines the offense of which the defendant was convicted. That section provides, in relevant part, that a person is guilty of driving while his license to drive is revoked if he operates a motor vehicle on an Illinois highway when his license, or the privilege to obtain a license or permit, is revoked as provided by the Code. (Ill. Rev. Stat. 1983, ch. 951/2, par. 6—303(a).) The trial court found that the defendant’s Illinois driver’s license was revoked at the time of the instant arrest.

The defendant argues that at the time of his arrest he was driving lawfully in Illinois, as he then possessed a valid foreign license which was entitled to recognition under the Code. In order to review the defendant’s argument, we set out the several statutes relevant to the defendant’s argument.

Section 6—102 of the Code provides, in relevant part, that:

“7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country.” Ill. Rev. Stat. 1983, ch. 95V2, par. 6—102(7).

The defendant acknowledges that section 6—210 of the Code also applies to the instant case. Section 6—210 provides, in relevant part, that after any resident’s or nonresident’s license to operate a motor vehicle in Illinois is revoked under the Code, he shall not operate a motor vehicle in Illinois until he obtains a license as permitted under the Code. Ill. Rev. Stat. 1983, ch. 95x/2, par. 6—210(1).

Also pertinent here are the provisions of the Driver License Compact (the Compact) (Ill. Rev. Stat. 1983, ch. 95x/2, par. 6—700 et seq.). The Compact, to which both Illinois and Indiana are party States, is incorporated as part of the Code. (Ill. Rev. Stat. 1983, ch. 95x/2, pars. 1—100, 1—117.) It has the stated purposes of promoting compliance with motor vehicle operation regulations and making more equitable the reciprocal recognition of licenses to drive and eligibility therefor. Ill. Rev. Stat. 1983, ch. 951/2, par. 6—701(b).

The Compact also includes specific licensing provisions relevant to the defendant’s argument. Under the Compact, upon receipt of an application for a license to drive, a party State will ascertain whether the applicant ever held a driver’s license from another party State. (Ill. Rev. Stat. 1983, ch. 95x/2, par. 6—704.) A party State may not grant an application of a person who has a party State’s license currently revoked for a violation, unless it is one year after the revocation and the application is permitted by law. Further, the Compact specifically empowers a party State’s licensing authority to investigate and then to deny, on the grounds of safety, a license to such an applicant. Ill. Rev. Stat. 1983, ch. 95x/2, par. 6—704(2).

The defendant asserts that to decide this case we must read together sections 6—102(7) and 6—210 of the Code and provisions of the Driver License Compact. He further asserts that we must resolve in his favor any ambiguity or apparent inconsistency in relevant statutes. According to the defendant’s argument, he was issued a valid driver’s license by Indiana. Because both Illinois and Indiana are party States to the Compact, the defendant argues, Illinois must recognize his valid Indiana license under the 90-day grace period of section 6—102(7). Thus, the defendant concludes, at the time of his arrest he was legally operating a motor vehicle in Illinois notwithstanding the prior revocation of his Illinois driving privileges.

The State disagrees that the defendant in the instant case was covered by the grace period of section 6—102(7). The State argues, rather, that the grace period does not apply to a person whose Illinois driving privileges have been revoked and not restored pursuant to section 6—208 of the Code. (Ill. Rev. Stat. 1983, ch. 95x/2, par. 6— 208.) Under section 6—208, the Secretary of State shall not issue a driver’s license to a person whose license was revoked unless that person applies for a license and, thus, discloses his revocation history. Section 6—208 provides that such a person may apply for relicensing after the cause for revocation is removed. He also may apply after expiration of one year from the date of revocation and upon payment of a special reinstatement fee. The section further provides that the Secretary shall not issue such an applicant a license except if the Secretary is satisfied, following an investigation, that to grant the applicant a driver’s license will not endanger the public safety or welfare. Ill. Rev. Stat. 1983, ch. 95x/2, par. 6—208. See also Ill. Rev. Stat. 1983, ch. 95x/2, pars. 6-103(3), 6-118(g).

To decide this case, we must reconcile these statutes. On the one hand, we consider section 6—303 of the Code, which prohibits driving in Illinois by a person whose Illinois driver’s license is revoked, and section 6—208, which reflects the continuing nature of the revocation sanction and sets requirements for relicensing in Illinois. On the other hand, we consider the provisions of the Driver License Compact and the grace period of section 6—102(7), both of which support Illinois’ recognition of foreign licenses to drive.

To reconcile the statutes here we first consider whether the defendant was prohibited by section 6—210 from driving in Illinois. After the defendant’s Illinois license was revoked, section 6—210 of the Code prohibited the defendant from driving in Illinois “until a license is obtained when and as permitted under [the Code].” (Ill. Rev. Stat. 1983, ch. 95x/2, par. 6—210.) However, the Driver License Compact is part of the Code. Therefore, when the defendant was issued a valid Indiana license he was issued a license satisfying the requirement of section 6—210.

Secondly, we consider the Code’s objective of ensuring that only qualified and safe drivers be entitled to operate motor vehicles on Illinois highways. We find, in that regard, that the Compact provides essentially the same safeguards for issuance of a license to a driver who has had his license revoked as are found in the comparable Illinois procedures under section 6—208 of the Code. Consequently, we find that in this case the Code’s safety objective is met through reliance on the Compact, as incorporated by the Code.

Lastly, we note that we construe penal statutes strictly in favor of an accused. People v. Isaacs (1967), 37 Ill. 2d 205, 226 N.E.2d 38.

Ultimately, then, we conclude that here the relicensing requirements of section 6—208 are subordinate to the comparable relicensing provisions of the Compact. Because the defendant possessed a valid license from a party State to the Compact, as a new Illinois resident he was entitled to the benefit of the section 6—102(7) grace period. Therefore, at the time of his arrest the defendant was driving lawfully in Illinois.

Accordingly, the judgment of the circuit court of Tazewell County is hereby reversed.

Reversed.

HEIPLE and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    RAYMOND GRIMWOOD, Plaintiff-Appellant, v. TABOR GRAIN COMPANY, Defendant-Appellee.
    Third District
    No. 3—84—0379
    Opinion filed February 14, 1985.

      Robert A. Morelli, of Telford & Morelli, Ltd., of La Salle, for appellant.
    Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff-appellant, Raymond Grimwood, brought this action against the defendant-appellee, Tabor Grain Company, to recover for personal injuries suffered when he fell off his motorcycle after turning onto the entranceway of the defendant’s plant. Count I of the plaintiffs amended complaint alleged negligence on the part of the defendant, and count II alleged wilful and wanton misconduct. The trial court granted summary judgment for the defendant on both counts.

The facts pertinent to this appeal are as follows. The plaintiffs father, Clifford Grimwood (Mr. Grimwood), was employed by the defendant at its grain elevator in Long Point. On June 21, 1984, Mr. Grimwood was at the elevator working on the defendant’s equipment. Mr. Grimwood was not scheduled to work that day, a Sunday, and the elevator was not open for business. At about noon, the plaintiff drove his motorcycle to the defendant’s elevator to remind his father to come home for lunch. The plaintiff was not employed by the defendant. As the plaintiff turned onto the defendant’s driveway, he hit a series of potholes and ruts and fell to the ground, injuring himself.

On several occasions before the accident, the plaintiff had visited his father at the defendant’s grain elevator during both working and nonworking hours. Other members of Mr. Grimwood’s family had also visited Mr. Grimwood at work. Mr. Grimwood was never told by his supervisor that members of his family should not visit him at the plant. During the plaintiff’s prior visits to the elevator, he had traveled over the driveway. However, he had never traveled over the driveway on his motorcycle. The plaintiff had known for approximately one year of the driveway’s bad condition. He saw the potholes and ruts as he turned onto the driveway on the day he was injured.

The plaintiff’s first contention is that summary judgment was improperly granted as to count I (negligence) because there were questions of material fact as to his status on the defendant’s property. He also maintains that the trial court was incorrect in determining that he was not an invitee.

Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1983, ch. 110, par. 2-1005(c).

In Illinois, under the so-called “premises doctrine,” the duty a property owner owes to a person who enters his premises depends on whether the entrant is an invitee, licensee, or trespasser. (Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 380, 410 N.E.2d 21, 21.) A landowner must exercise reasonable care for the safety of an invitee, but must only refrain from wilfully and wantonly injuring a licensee or a trespasser. Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 87, 343 N.E.2d 261, 264.

A person is an invitee if: (1) he enters the premises of another by express or implied invitation; (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land; and (3) there is a mutuality of benefit or a benefit to the owner. (Madrazo v. Michaels (1971), 1 Ill. App. 3d 583, 586, 274 N.E.2d 635, 638.) A licensee is a person who goes on the premises of another with the owner’s express or implied consent “to satisfy his own purposes rather than for the mutual benefit of himself and the owner or a purpose connected with the business in which the owner is engaged or permits to be carried on upon the premises.” (Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 87, 343 N.E.2d 261, 264.) A trespasser is a person who enters the premises of another without permission or invitation. 36 Ill. App. 3d 83, 87, 343 N.E.2d 261, 264-65.

Initially, we note that the common law distinction between invitees and licensees as affecting the duty owed by a property owner to entrants has been abolished by the Premises Liability Act (Act) (Ill. Rev. Stat., 1984 Supp., ch. 80, par. 301 et seq., eff. Sept. 12, 1984). Although neither of the parties has raised the question of whether the Act applies to this appeal, we find that it should not be applied retroactively to this case. “ ‘Legislative enactments are, in the absence of express language which provides otherwise, construed as prospective and not retrospective.’ ” (In re Estate of Krotzsch (1975), 60 Ill. 2d 342, 345, 326 N.E.2d 758, 760.) Here, the legislature has made no provision for retroactive application.

Returning to the plaintiff’s first contention, we find that, as a matter of law, the plaintiff was a licensee. An invitee is one whom a property owner invites onto his premises; a licensee merely enters property with the owner’s consent. Here, the plaintiff was not invited by the defendant to visit his father. The defendant may have permitted or acquiesced in the plaintiff’s prior visits. However, mere tolerance or acquiescence does not constitute an invitation. (See Prosser, Torts sec. 61 (4th ed. 1971).) Furthermore, the plaintiff admits that there was no direct economic benefit to the defendant from his visit. We believe that if there was any noneconomic benefit to the defendant it was simply too remote to confer invitee status upon the plaintiff.

We hold, therefore, that there was no genuine issue as to any material fact regarding the plaintiff’s status on the defendant’s property. The defendant was entitled to judgment as a matter of law on count I.

The plaintiff’s second contention is that the trial court erred in granting summary judgment as to count II (wilful and wanton misconduct).

The plaintiff does not appear to contend that a material question of fact exists as to whether the defendant breached its duty to refrain from wilful and wanton misconduct. Rather, he argues that since the doctrine of contributory negligence has been abolished in Illinois (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886), it is time to go a step further and abolish the rule that no duty to warn of obvious conditions is owed to a licensee.

In effect, the plaintiff is really asking us to abolish the common law distinction between the duty owed by a property owner to invitees and licensees. Subsequent to the plaintiff’s injury and appeal, this distinction has been abolished by the Premises Liability Act (Ill. Rev. Stat., 1984 Supp., ch. 80, par. 301 et seq., eff. Sept. 12, 1984). However, the legislature, as mentioned above, made no provision for applying the Act retroactively. We are aware of no reason why we should apply the Act to this case.

Here, there is no question of wilful and wanton misconduct by the defendant. The plaintiff had traveled over the defendant’s entranceway numerous times prior to the accident. He had known about the condition of the driveway for approximately one year. He actually saw the potholes and ruts as he turned onto the driveway on the day he was injured. Thus, the condition of the driveway was not hidden or concealed from the plaintiff. The fact that the plaintiff had actual knowledge of the condition of the driveway did not, as the plaintiff argues, constitute a basis for contributory negligence. Rather, it obviated the need for a warning.

We hold, therefore, that there was no genuine issue as to any material fact regarding whether the defendant breached its duty to the plaintiff. The defendant was entitled to judgment as a matter of law on count II.

For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE STROUSE

text:
    ALFONSO MARTINEZ, Plaintiff-Appellant, v. PHILLIP SCANDROLI, Defendant-Appellee.
    Second District
    No. 84—14
    Opinion filed February 5, 1985.

      Joseph L. Polito, of Loves Park, for appellant.
    Thomas E. Greenwald, of Rockford, for appellee.
   JUSTICE STROUSE

delivered the opinion of the court:

Plaintiff, Alfonso Martinez, appeals from orders of the circuit court of Winnebago County which denied his request for a continuance and entered a directed verdict in favor of defendant, Phillip Scandroli. Plaintiff asserts on appeal that the denial of a continuance was an abuse of the trial court’s discretion and that the court lacked authority under the circumstances to direct a verdict. The complaint was filed on October 22, 1980, alleging that plaintiff sustained serious personal injuries in an automobile accident with a vehicle driven by defendant. Plaintiff demanded trial by jury. On May 12, 1983, following completion of pleading and discovery, plaintiff’s attorney moved to withdraw as counsel. The motion was granted on May 27, 1983, and plaintiff was allowed 21 days in which to secure other counsel. Plaintiff, appearing pro se, was allowed additional extensions of 14 days each on June 24 and July 7, 1983. On the latter occasion, the case was certified ready for trial as of August 1.

The case was set for jury trial on August 22, 1983, but on August 19 plaintiff obtained a continuance to September 26. Plaintiff retained new counsel in early September. On September 9, 1983, counsel appeared for defendant and was advised that the case remained set for jury trial on September 26. On September 19, plaintiff sought a further continuance, representing that he had not had sufficient time to prepare. The motion was denied on September 23. On September 26, the scheduled trial date, plaintiff renewed the motion in the morning when the case was called, and it was denied. The venire was present in the courtroom at 12 p.m., when the trial judge recessed and advised the venire to return at 1:30 p.m. At 1:30 p.m., plaintiff’s counsel asserted that as he had only recently been retained he had had an inadequate opportunity to prepare for trial. The trial court again denied the motion and directed that trial proceed. Plaintiff then informed the court that necessary witnesses, including two medical experts, were unavailable or could not be reached, that he was totally unprepared and that he would not be ready to proceed if a jury were selected. Defendant then moved for a directed verdict, and the court, upon plaintiff’s representation that it would be meaningless to select a jury in the case, granted the motion.

The decision to grant or deny a motion for continuance is addressed to the sound discretion of the trial court and should not be overturned on appeal unless that discretion has been abused. (Huber v. Reznick (1982), 107 Ill. App. 3d 529, 543; City of Chicago v. Southgate Corp. (1980), 86 Ill. App. 3d 56, 59.) A critical factor in the review of such rulings is whether the party which sought the continuance showed diligence in proceeding with the cause. (Trillet v. Bachman (1981), 96 Ill. App. 3d 477, 481; Marshall v. Henning (1980), 91 Ill. App. 3d 180, 182.) Once a cause is reached for hearing, no motion for continuance is to be heard without sufficient excuse being shown for the delay in so moving (87 Ill. 2d R. 231(f)), and the movant is then required to present especially grave reasons to support his request. (Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 656.) Where no reason exists for substitution of counsel, a party should only be allowed sufficient time for his counsel to prepare, not for each subsequent counsel he may seek to prepare independently. Roberts v. McDaniel (1959), 22 Ill. App. 2d 485, 490.

We conclude in this case that no abuse of discretion has been shown. The cause had been continued repeatedly following withdrawal of plaintiff’s original counsel in May 1983 and had been certified ready for trial on August 1. The initial trial date was once continued, and substitute counsel was informed on September 9 that the case remained set for trial approximately two weeks thereafter. Plaintiff’s further request for continuance failed to document why there was insufficient time to prepare for trial, nor what steps had been taken to contact necessary witnesses. There was no indication that the case was complex or difficult to prepare, or that plaintiff’s preparation was frustrated by any unique or unforeseeable intervening circumstances. Further, in view of plaintiff’s failure to present an affidavit as required by Supreme Court Rule 231(a) (87 Ill. 2d R. 231(a)), there was no basis for a continuance on account of the alleged absence of material evidence. (Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 1003.) We therefore hold that plaintiff’s motion for continuance was properly denied. See Roberts v. McDaniel (1959), 22 Ill. App. 2d 485, 490-91.

Nevertheless, we cannot agree with the trial court' that a directed verdict could properly be awarded in defendant’s favor. Defendant relies upon Gaines v. Chicago Ry. Co. (1929), 255 Ill. App. 30, 32, and In re Estate of Herhold (1913), 182 Ill. App. 477, 481, for the proposition that the refusal by a plaintiff to present any evidence once the case has been called for trial warrants the award of a directed verdict in favor of the defendant. However, the law in Illinois is that trial has not begun when no jury has been selected, no prospective jurors have been examined or sworn and counsel has made no opening statement. (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 309.) In the present case, unlike those upon which defendant relies, a directed verdict was awarded before the jurors were selected or other procedures indicative of the commencement of trial had been held. We do not believe that the statement by plaintiff’s attorney that it would be meaningless to select a jury alters this result, particularly when he states that he does not waive any right to appeal the court’s ruling. Upon consideration of the purposes served by the award of a directed verdict and the standard by which an award should be judged (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510), we hold that the trial court is not authorized prior to the commencement of trial to grant a directed verdict as a sanction, even though such a motion may have been granted if the case proceeded to trial.

In accordance with the views set out above, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

LINDBERG and SCHNAKE, JJ., concur.


author: JUSTICE EARNS

text:
    STEVE EWING, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 5-84-0217
    Opinion filed February 15, 1985.

      W. A. Armstrong, of Mitchell & Armstrong, Ltd., of Marion, for appellants.
    Jona Goldschmidt, of Carbondale, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

Ewing filed a multicount complaint against appellant Liberty-Mutual Insurance Company, alleging that Liberty and its insured, Ewing’s employer, had acted in concert to cause damage to plaintiff by committing certain acts related to his on-the-job injury and workers’ compensation recovery. A confusing procedural history is involved in this case, including the dismissal of two prior appeals concerning Ewing’s complaint. Remaining for our consideration is the question of whether plaintiff’s third count, a bad-faith action against Liberty, can be allowed to stand. The circuit court of Williamson County held that Ewing had stated a cause of action for breach of the duty of good faith owed by Liberty to Ewing and certified its ruling pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). Because we believe that a substantial ground for difference of opinion exists in the court’s ruling and that an immediate appeal may materially advance the ultimate termination of the litigation, we granted Liberty’s petition for leave to appeal the denial of its motion to dismiss.

The allegations of the complaint can be summarized as follows:

Ewing was injured in April 1980 while performing his duties as a deliveryman for United Parcel Service, Inc. (UPS). He applied for and received workers’ compensation benefits during treatment and convalescence for knee and leg injuries. In July 1981 Ewing was informed by an agent of UPS that no alternate employment position would be made available. The following month, at the direction of UPS, Ewing was examined by Dr. George Scheer, who had been retained by Liberty as the insurer of UPS to evaluate Ewing’s condition and ascertain the extent of his disability. Scheer’s opinion was that Ewing was able to return to his former position. Ewing balked, advising UPS that his treating physicians recommended that he should not resume his duties as a driver.

In September 1981 Ewing was advised by UPS that he must return to his former job or that his workers’ compensation benefits would be terminated. On September 14, Ewing returned to the job and was reinjured that day while attempting to enter a UPS truck. Subsequent to this injury and during the course of negotiations relative to his workers’ compensation claim, Ewing filed for unemployment benefits because he was unable to support his family. The application was actively resisted by UPS, who argued that Ewing could return to his delivery job. The protest was overruled in Ewing’s favor.

Other events which gave rise to Ewing’s lawsuit included the asserted practice on the part of Liberty and UPS of not rehiring employees who had filed workers’ compensation claims or employees who sustained substantial injuries whether or not a claim was filed. In March 1982 an arbitration hearing took place to rule upon Ewing’s grievance against UPS for not providing him with alternate employment, apparently in violation of a union contract. A UPS representative appeared at the hearing and falsely testified that Ewing was not disabled and could work at his former job. Ewing additionally complained that his request for Dr. Scheer’s records was denied by UPS despite its knowledge that Ewing was investigating a malpractice claim against Scheer. Ewing’s efforts to obtain the desired records were also frustrated by Liberty, and Ewing later learned that Scheer was a paid official of the insurer. All of these actions were said to be deliberate attempts to force Ewing’s resignation or to compel him to resume his old job, and to have caused severe emotional distress and economic losses.

A fair reading of the complaint yields several allegations which purport to describe actionable conduct on the part of Liberty. Ewing complained that Liberty acted together with his employer to coerce him to resume a job which he was physically unable to handle by threatening him with loss of benefits. Ewing further asserted that the two companies jointly maintained a practice and policy of failing to rehire employees who had filed for workers’ compensation benefits or who had sustained substantial injuries. Finally, Ewing charged Liberty with deliberately failing to honor his request for the medical records of the physician engaged by Liberty to examine Ewing and evaluate his condition, .^he complaint concludes that these actions amounted to a breach of Liberty’s duty of good faith and fair dealing, and led to plaintiff’s continuing loss of wages.

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recovery. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226.) We are required to interpret the allegations of the complaint in the light most favorable to the plaintiff and ascertain whether they are sufficient to state a cause of action. (Curtis v. Birch (1983), 114 Ill. App. 3d 127, 448 N.E.2d 591.) Stripping the instant complaint of conclusions and inferences, we find no facts which can form the basis for a cause of action against Liberty under any theory advanced by Ewing.

The cause of action stated in the complaint and the most apparent theory of liability is tortious breach of good faith and fair dealing. Ewing relies on Ledingham v. Blue Cross Plan for Hospital Care (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75. This court’s decision in Ledingham has been criticized in subsequent appellate decisions, and there exists in the courts of this State a disagreement as to the existence and the limits of a “bad faith” action in light of the provisions of section 155 of the Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 767). It is unnecessary to decide here whether Liberty is statutorily protected from Ewing’s charge of tortious misconduct, because the actions and events described in the complaint unequivocally fail to support a conclusion of bad faith on the part of Liberty.

Ewing’s charges and imputations concerning Liberty are substantially premised upon the dispute involving the extent of his injuries and the resulting job status. Ewing sought and was denied alternative employment because his employer accepted the opinion of Liberty’s medical expert, who evaluated Ewing’s condition and, in contradiction to Ewing’s chosen physicians, recommended that he was able to return to his former employment as a delivery person. The employer therefore advised the plaintiff that his benefits would be terminated and that he was required to return to his former position.

After Ewing did so and was reinjured, he negotiated through his attorney a full settlement of his workers’ compensation claim, which was duly paid in a lump sum. Ewing did not allege that Liberty refused or delayed payments, or that the settlement which compromised the dispute related to the injuries was prejudicial, damaging, coerced, or unreasonably effected in any manner. Assuming for the sake of argument that Liberty is responsible for the employer’s actions and decisions in this case, it cannot be charged with bad-faith conduct. Insurers operating under a duty of good faith and fair dealing remain entitled to exercise their rights in a legally permissible way. (Fisher v. Fidelity & Deposit Co. (1984), 125 Ill. App. 3d 632, 640, 466 N.E.2d 332, 339.) The employer and Liberty justifiably relied and acted upon the medical opinion in handling Ewing’s claim and in negotiating a settlement of the bona fide dispute concerning his injuries and employment.

As to the allegations concerning the medical reports, we are persuaded by Liberty’s arguments that the records remained available to the plaintiff during the pendency of his workers’ compensation dispute. Even if Liberty should be required to acquiesce in the plaintiff’s demands for the records, Liberty’s culpability in failing to do so does not amount to actionable misconduct.

Ewing alternatively urges that his complaint should be interpreted as stating a cause of action under section 138.4(h) of the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.4(h)). That section provides:

“It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.
It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.”

In answer, we reiterate that the complaint lacks sufficient averments to state a cause of action for wrongful conduct, because by the plaintiff’s own inferential admissions, each of Liberty’s actions was effected pursuant to a justifiable course of conduct to compromise bona fide disputes, which were, in fact, settled.

Ewing’s allegations cannot sustain a cause of action. The order of the circuit court is reversed, and the court is directed to dismiss Ewing’s complaint.

Reversed and remanded with directions.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE HARRISON

text:
    ALAN M. HUX, Plaintiff-Appellant, v. GEORGE W. WOODCOCK et al., Defendants-Appellees.
    Fifth District
    No. 5-84-0496
    Opinion filed February 15, 1985.
    Bowen, Miller & Tungate, of Olney, for appellant.
    Morris Lane Harvey, of Feiger, Quindry, Molt, Harvey, Fyie & Hawkins, •of Fairfield, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Alan Hux, plaintiff, appeals from a judgment of the circuit court of Wabash County dismissing with prejudice his two-count complaint against defendants George Woodcock and Richard Kline. In count I, which is directed against both defendants, plaintiff alleged that he and Woodcock were partners engaged in the practice of law during 1974 and 1975, and that Kline entered this partnership and engaged in the practice of law with plaintiff and Woodcock during 1976. Plaintiff further alleged in count I that the partnerships of Woodcock and Hux and Woodcock, Hux and Kline have been dissolved, and that defendants have since collected large amounts of money for work performed by the partnerships. Plaintiff seeks, among other things, an accounting as to all sums of money received by defendants “in connection with works performed in 1974, 1975, 1976 and • collected subsequent to January I, 1977.” In count II, directed only against Woodcock, plaintiff alleged that in 1975, Woodcock promised to give plaintiff one-half of Woodcock’s one-half interest in certain real property, provided that plaintiff would pay one-fourth “of all subsequent costs and payments”; that during 1975, 1976 and 1977 plaintiff paid one-fourth of all costs, expenses, taxes, and note payments connected with this property; that Woodcock failed to assign the promised one-fourth interest in the property to plaintiff; and that Woodcock sold his and plaintiff’s interest in the property in 1978. In count II, plaintiff sought an order directing Woodcock to pay plaintiff one-half of the proceeds received in the sale of the property, or, if Woodcock still owned the property, an order directing Woodcock to convey the promised interest in the land to plaintiff.

While the basis for the trial court’s dismissal of the complaint with prejudice is not stated in the court’s judgment, the record establishes that the court dismissed count I because of the failure of plaintiff to perform his obligations under an admitted agreement between plaintiff and Woodcock. In that agreement, according to the allegations of plaintiff’s complaint, plaintiff agreed to enter Woodcock’s law practice as a partner beginning January 1, 1974, and to pay Woodcock $44,500 for a 40% share of Woodcock’s interest in the practice. Plaintiff’s complaint further states that in December 1975 he paid Woodcock $4,978 as a principal payment and $3,115 in interest on the original $44,500 balance. An affidavit submitted by Woodcock indicates that plaintiff has made no other payments for his share of the partnership interest.

The Uniform Partnership Act (Ill. Rev. Stat. 1983, ch. IO6V2, par. 1 et seq.) has long been in effect in Illinois, and its provisions govern the relationship between the parties to this dispute. Section 43 of the Act (Ill. Rev. Stat. 1983, ch. 1061/2, par. 43) provides that “[t]he right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.” While the trial court in this case concluded that plaintiff’s failure to perform his agreement with Woodcock dictated the dismissal of that count of his complaint which sought an accounting, our analysis of the applicable law compels us to reject that conclusion. In Marcus v. Green (1973), 13 Ill. App. 3d 699, 708, 300 N.E.2d 512, the court recognized the general rule that one partner cannot sue another at law until there has been a settlement of the partnership affairs and a balance struck. The court also noted that there are exceptions to this rule, however, and that a partner may maintain an action against a co-partner absent an accounting in certain situations, including upon claims involving express personal contracts between the partners, and, also, upon claims involving the failure to comply with an agreement constituting a condition precedent to the formation of a partnership. (13 Ill. App. 3d 699, 708-09.) While Marcus is not factually similar to the instant case, the principles articulated therein furnish some guidance here. Allowing a partner to sue another partner on an express personal contract, notwithstanding that there has been no partnership accounting, affords legal recognition to the simple reality that partners may elect to deal with one another in matters not related directly, or at all, to the carrying on of partnership business, and that resolution of disputes arising from personal contracts between partners need not involve the partnership. While it may be pointed out that the agreement between plaintiff and Woodcock was for the plaintiff’s purchase of the partnership interest itself, this does not alter the conclusion that the agreement was a personal one, and not of the type requiring a partnership accounting as a prerequisite to its enforcement. The mere agreement to form a partnership did not of itself create the partnership (Wilson v. Campbell (1848), 10 Ill. 383, 402); rather, the partnership arose only when the parties actually “joined together to carry on a trade or venture for their common benefit, each contributing property or services, and having a community of interest in the profits.” (Peck v. Peck (1959), 16 Ill. 2d 268, 280, 157 N.E.2d 249.) Here, plaintiff’s complaint alleges facts which, if true, are sufficient to establish that he and Woodcock entered into a partnership in 1974, notwithstanding that plaintiff had not completed paying for his interest in the partnership. In view of the sufficiency of these allegations of the complaint, and of the applicable principles of partnership law, we conclude that count I of the complaint is sufficient to state a cause of action for an accounting, and that the trial court erred in dismissing it. This conclusion does not mean, of course, that Woodcock could not maintain an action against plaintiff in an effort to recover any amounts that may be owed to him pursuant to the parties’ personal agreement; rather, it means only that the possible existence of such an obligation on plaintiff’s part does not bar his statutory right to an accounting.

In dismissing count II of plaintiff’s complaint, the court relied on the Statute of Frauds relating to contracts for the sale of land. (Ill. Rev. Stat. 1983, ch. 59, par. 2.) Careful examination of count II reveals, however, that plaintiff does not allege that he and Woodcock entered into a contract with respect to the real estate in question, but, rather, alleges that Woodcock promised to give plaintiff an interest in the land if plaintiff paid one-fourth of all taxes, costs, expenses, and note payments connected with it. While a promise to make a gift in the future is normally unenforceable (Gustafson v. Lindquist (1976), 40 Ill. App. 3d 152, 155, 351 N.E.2d 280), we are of the opinion that count II of plaintiff’s complaint, v/hich must be liberally construed (Agee v. First National Bank (1979), 68 Ill. App. 3d 794, 796, 386 N.E.2d 899), is sufficient to state a cause of action under the doctrine of promissory estoppel. A party is estopped from denying the validity of a promise where it is made with the intent that it be relied upon, and, in reliance on the promise, the promisee puts himself in such a position that grave injustice would result if the promise is not kept. (Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907, 912, 382 N.E.2d 1250; Restatement (Second) of Contracts sec. 90 (1981).) A promise to make a gift may give rise to an estoppel when the promisee’s reliance on the promise is “foreseeable and reasonable and involves a definite and substantial change of position which would not have occurred if the promise had not been made.” (Restatement (Second) of Contracts sec. 90, comment f, at 246-47 (1981).) Here, count II of plaintiff’s complaint, liberally construed, sufficiently alleges that Woodcock promised to convey an interest in the real estate in question to plaintiff upon plaintiff’s payment of a share of the expenses connected with the property; that plaintiff, pursuant to this promise, paid these expenses; and that Woodcock did not keep his promise to make the conveyance. While it cannot be said at this stage whether invocation of the promissory estoppel doctrine is necessary to correct or prevent a grave injustice here, we hold that plaintiff has pleaded sufficient facts to state a cause of action, and that the court should not have dismissed count II of his complaint.

For the foregoing reasons, the judgment dismissing both counts of plaintiff’s complaint is reversed, and this cause is remanded to the circuit court for further proceedings not inconsistent herewith.

Reversed and remanded.

WELCH and EARNS, JJ., concur.


author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
      In re MARRIAGE OF DEVELIA HIGHSMITH, Respondent-Appellant, and LILA R. HIGHSMITH, a/k/a Montooth, Petitioner-Appellee.
    Third District
    No. 3—84—0119
    Opinion filed February 14, 1985.

      David W. Stuckel, of Harvey & Stuckel, of Peoria, for appellant.
    Michael E. Massie, of Massie & Steele, of Galva, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The issue here is whether an Illinois court had personal jurisdiction over a nonresident respondent in an action commenced by the respondent’s ex-wife seeking contempt sanctions for the respondent’s failure to comply with a child support order. Both the petitioner and child are Illinois residents. In 1970, the parties were divorced in California. The respondent was given custody of the couple’s minor child. In 1981, the respondent sent the child to live with respondent’s parents in Illinois and sent a notarized statement with the child which purported to grant custody to the grandparents. A few months later, the petitioner located the child and obtained a court order transferring custody to the petitioner. The order also directed that the respondent pay $45 per week as child support and that he cooperate in providing medical assistance and insurance. The respondent was served out of State but did not appear in the custody modification proceedings.

In 1983, the petitioner filed for a rule to show cause in the circuit court of Henry County, based on the respondent’s failure to pay child support. The respondent filed a special and limited appearance challenging the court’s personal jurisdiction. The court found that it had jurisdiction over the respondent because he had sent his daughter to Illinois, designated Illinois residents as her custodians and failed to support the child as ordered. The respondent was found in contempt and was ordered to pay $3,690 as child support and $131.55 in attorney fees.

The respondent’s sole argument on appeal is that the trial court lacked personal jurisdiction because his activities in Illinois did not satisfy the minimum-contacts test under the due process clause. The respondent’s argument is premature.

The Federal due process standard represents only the outer limits beyond which a State may not proceed to acquire jurisdiction over nonresidents. Therefore, long-arm jurisdiction questions in Illinois are resolved first by looking to the meaning of the Illinois long-arm statute. (Ill. Rev. Stat. 1983, ch. 110, par. 2—209.) Only in those instances where section 2—209 confers jurisdiction should courts take the second step and assure that the minimum requirements of due process have been satisfied. Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431; Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190.

The petitioner contends that the respondent has submitted to Illinois jurisdiction by failing to support his daughter, which constitutes a tortious act pursuant to section 2—209(a)(2) of the Code of Civil Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 110, par. 2— 209(a)(2)). The word “tortious” as used in the statute has been held not restricted to the technical definition of a tort, but has been defined to include any act committed in Illinois which involves a breach of duty to another which makés the one committing the act liable to plaintiff in damages. (Poindexter v. Willis (1967), 87 Ill. App. 2d 213.) Poindexter involved a paternity action in which the court held that the failure of a nonresident father to support an illegitimate child in Illinois constitutes a tortious act within the meaning of the statute.

Other courts have held that a parent’s failure to support his children, whether they are legitimate or illegitimate, is an actionable wrong under Illinois law. Evink v. Pekin Insurance Co. (1984), 122 Ill. App. 3d 246; Donlon v. Miller (1976), 42 Ill. App. 3d 64; see Higgenbottom v. Van Veiga (1978), 59 Ill. App. 3d 189.

The respondent argues that this court has recently declined to follow Poindexter, holding that nonsupport is not a tortious act under the long-arm statute. (People v. Flieger (1984), 125 Ill. App. 3d 604.) The respondent misinterprets Flieger.

In Flieger, we declined to follow Poindexter because the defendant in Flieger had no contact whatsoever with the State of Illinois. Therefore, asserting jurisdiction over the defendant would have violated the due process clause. Regardless of whether nonsupport was a tortious act, there was a constitutional bar to jurisdiction. We also found fault with the court’s reasoning in Poindexter. The problem was that the court was using the breach of a parental duty to establish jurisdiction over the defendant in an action brought to determine whether or not the defendant was in fact a parent. Thus, the Poindexter court assumed as true that which the plaintiff was seeking to prove, i.e., that the defendant was the father of the plaintiff’s child. We expressed no opinion in Flieger as to whether nonsupport is an actionable wrong under the tortious act provision of section 2—209.

Here, we have no doubt that the respondent has committed a tortious act. The respondent tried to avoid his parental obligations by sending his child to this State. The respondent expected that all care and support was to be furnished by the child’s grandparents in Illinois, yet it is not clear whether the grandparents had consented in advance to doing so. The respondent contributed nothing to the child’s support. Not only did the respondent refuse to support his child, his actions in shipping the child to Illinois were tantamount to abandonment. For purposes of the Illinois long-arm statute, the respondent has thus committed a tortious act, thereby submitting himself to the jurisdiction of the courts of this State.

We must next determine whether the assertion of jurisdiction in this case satisfied the requirements of due process. The respondent argues that the instant case should be governed by Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690, wherein the court held that the minimum contacts test of due process was not satisfied by the mere presence in the forum State of a nonresident father’s children.

Kulko is distinguishable. There, the parties were married in California and divorced in New York. The mother returned to California while the father remained in New York, where he had custody of the couple’s two minor children for nine months each year. Later, both of the children, of their own volition and with their parent’s consent, left their father’s home in New York and moved in with their mother in California. The mother sought to increase the father’s child support obligation, and the California court held that it had personal jurisdiction over the father. There was no allegation that the father was not supporting his children. The United States Supreme Court reversed, holding that the acquiescence of the father in his children’s desire to live with their mother was not enough to confer jurisdiction over the father in the California courts.

In the present case, the respondent’s daughter did not come to Illinois at her own request and with her mother’s consent. The respondent decided that he was no longer able or no longer cared to support his child and sent her to Illinois in the hope that respondent’s parents would care for her. There is nothing in the record showing that the petitioner was aware of or consented to this transfer. By placing the child with her grandparents instead of with her mother, the respondent created a situation which virtually guaranteed a custody and support dispute in the courts of Illinois. The respondent cannot simply dump his child in this State and expect to avoid the consequences.

By his own design, the respondent has attempted to use this State and its residents as a means to avoid his parental obligations. Therefore, we find that the respondent’s activity in connection with Illinois is sufficient to satisfy the minimum-contacts test under the due process clause. The judgment of the circuit court of Henry County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE STOUDER,

dissenting:

I must dissent from the majority opinion, because I do not believe that the Illinois long-arm statute (Ill. Rev. Stat. 1983, ch. 110, par. 2—209) applies under these circumstances or that sufficient minimum contacts exist here to satisfy the requirements of due process. For both reasons I would have reversed the trial court’s decision that it had personal jurisdiction over the defendant.

First, I do not agree that sending his daughter to live with his parents in Illinois was “tantamount to abandonment” and, therefore, constituted a tortious act. There is no evidence that the grandparents were unwilling to take custody of the child or that they did not voluntarily support her. If we consider the failure to support the child the tortious conduct, People v. Flieger applies. The majority rationale in this case, like the trial court’s in Flieger, presumes as true what the plaintiff is attempting to prove. Here, we must presume that defendant violated a legal obligation when in fact this proceeding was brought to determine what his legal obligations are. The question here is not whether this court can enforce the support order but whether the Illinois court had jurisdiction initially when it placed custody with the plaintiff and ordered the defendant to pay support. Because at that time no breach of a legal duty, i.e., the duty to support the child, had occurred, I would have held that jurisdiction over defendant cannot be established by section 2—209 of the Code of Civil Procedure of 1963, because, as in Flieger, there was no tortious conduct.

Nor do I believe that the minimum-contacts test was satisfied in this case. Unlike the majority, I find the facts in this case nearly identical to the facts in Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690. I would not have held, as the majority did, that by “dumping his child in this State” he consented to the jurisdiction of Illinois courts. This is precisely what happened when the father in Kulko sent his daughter to California to live with her mother. I read the Illinois Supreme Court in Boyer v. Boyer (1978), 73 Ill. 2d 331, 340, 383 N.E.2d 223, 226, to support my position that Kulko denies jurisdiction when the only contact with the forum State is the fact that the ex-wife and child reside there and defendant “derived no commercial or personal benefit from [their] presence * * * in Illinois.” (See also Duncan v. Duncan (1981), 94 Ill. App. 3d 868, 419 N.E.2d 700.) Furthermore, the Illinois Supreme Court in Boyer declined to decide whether failure to pay support constituted a tortious act in Illinois, because the minimum contacts test of Kulko was not satisfied. What I find most significant in the United States Supreme Court’s discussion in Kulko is the statement that not only could the wife “vindicate her claimed right in a New York court but also the uniform acts will facilitate both her prosecution of a claim for additional support and collection of any support payments found to be owed by appellant.” (Kulko v. Superior Court of California (1978), 436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701.) The acts referred to are the Revised Uniform Reciprocal Enforcement of Support Act. Illinois has adopted this act (Ill. Rev. Stat. 1983, ch. 40, par. 1201 et seq.) and has therefore manifested a substantial interest in “protecting resident children and in facilitating child-support actions on behalf of those children.” (436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701.) Therefore, this plaintiff could have resorted to the Uniform Act to obtain jurisdiction over the defendant, as the Illinois Supreme Court pointed out in Boyer, Having chosen not to do so, I believe, on the basis of the Supreme Court’s holding in Kulko and the Illinois Supreme Court’s interpretation of that holding in Boyer v. Boyer, that Illinois is not a “fair forum” to either force defendant to defend this action or suffer liability by default. 436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701.

I would have reversed the trial court’s finding that it had personal jurisdiction over the defendant.


author: JUSTICE BUCKLEY

text:
    RICHARD WANLAND et al., Plaintiffs-Appellants, v. JAMES BEAVERS et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2599
    Opinion filed February 4, 1985.
    James R. Stuber, of Park Ridge, for appellants.
    George E. Downs, of Palatine, for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

The present appeal arises out of an action brought by Richard and Theodor Wanland to recover rent under the terms of a residential apartment lease. Plaintiffs alleged that defendants James and Velma Beavers had leased the premises from them but were later forced to vacate the apartment after extensive flooding occurred on December 3, 1982. Plaintiffs further alleged that, pursuant to the terms of the lease, they repaired the apartment within seven days of the flooding, but defendants refused to reenter the premises or pay any further rent. Defendants denied that the premises were habitable and counterclaimed for damage to various items of personal property sustained as a result of the flooding. Defendants alleged that the sewer system in the apartment complex was in disrepair and inadequate, that plaintiffs were aware of a chronic flooding problem since flooding had occurred frequently in the past, and that plaintiffs allowed the sewer system to remain in disrepair after they were advised by the city of Elgin that the sewer system was inadequate and after the city had ordered them to repair it. Following a bench trial, judgment was entered in favor of defendants for $1,910 in damages plus costs. On appeal, plaintiffs contend: (1) that the judgment was against the manifest weight of the evidence; (2) that the trial court admitted improper evidence; and (3) that defendants were allowed to plead ordinance violations in an improper manner. We affirm.

Under the common law, a landlord is not liable for injury to the property of a tenant caused by defects in the demised premises absent an express warranty as to the condition of the premises or a covenant to repair. (See generally 52 C.J.S. Landlord & Tenant sec. 423(3)(a) (1968).) There is a well-recognized exception to this general rule in the case of latent defects which exist at the time of leasing. Where the landlord knows or should know of such a defect and where the defect could not have been discovered upon a reasonable examination of the premises by the tenant, the landlord will be held liable for damage to the property of the tenant occasioned by the latent defect. Hoffman v. King Resources Co. (1974), 33 Colo. App. 310, 520 P.2d 1052; cf. Thorson v. Aronson (1970), 122 Ill. App. 2d 156, 258 N.E.2d 33 (recognizing the latent defect exception in those cases resulting in personal injury to tenant); see generally 52 C.J.S. Landlord & Tenant sec. 423(3)(b) (1968); 49 Am. Jur. 2d Landlord & Tenant sec. 788 (1970).

Thus, the doctrine of caveat emptor is generally applicable to lease agreements, and it is the duty of the tenant to make an examination of the demised premises to determine their safety and suitability. However, the law imposes a duty on the landlord to disclose any latent defects in the premises where the defect is likely to cause injury to the person or property of the tenant and where the defect is not readily discoverable by the tenant. Failure to do so may constitute fraud or negligence resulting in landlord liability for injuries caused by concealment of the latent condition.

Applying these principles to the case at bar, we must reject plaintiffs’ contention that the judgment appealed from is contrary to the manifest weight of the evidence. The result urged by plaintiffs would only be proper where conclusions opposite to those reached by the trial court are clearly evident. (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 427, 431 N.E.2d 738.) Here, we do not find this to be the case.

Under the terms of the lease, plaintiffs had the option of repairing the leased premises within 60 days or of terminating the lease. The record reveals that while the flooding occurred on December 3, 1982, plaintiffs had failed to effect repairs necessary for human habitation as late as April 1983. Photographs of the leased premises taken by Velma Beavers sometime in April reveal that the apartment was incredibly filthy, with debris and mud covering most of the basement floor. There were mold, mildew and grime on various areas of the walls, floors, and carpets. The furnace was still partially disassembled and exposed wiring dangled from the unit. Exposed wiring could also be seen on a bathroom light fixture. Mrs. Beavers further testified that the apartment still reeked of must and moisture.

Mrs. Beavers’ testimony was corroborated by Mike Miliken, a building inspector for the city of Elgin. He testified that sometime in April he had accompanied Mrs. Beavers as she inspected the condition of the former apartment. He stated that at that time the furnace was in a state of disrepair, there was debris of every sort on the floor, there seemed to be a burnt out washer and dryer in the basement, and the premises were generally unkempt. Miliken further testified that he found numerous building code violations in the common areas of the building.

The record is also replete with evidence that plaintiffs’ building complex had a chronic flooding problem and that plaintiffs were aware of this condition. Both plaintiffs admitted on cross-examination that the apartment complex was located on a flood plain and that various parts of the complex had been flooded in the past. Richard Wanland acknowledged that the city of Elgin had a suit pending against him concerning the apartment complex but added he was working with the city to rehabilitate the apartments. Miliken testified that the apartment complex had flooded three or four times over the past two years. He further testified that three or four years ago the city of Elgin had instituted condemnation proceedings against the apartment complex because the recurrent flooding and inadequate drainage system represented a continuing problem for the city. Finally, Miliken stated that the city and the owners were working together to correct the problem and they eventually hoped to build a retaining wall to keep the water out of the apartment complex.

In view of the foregoing, we believe the trial court properly resolved the habitability issue; plaintiffs failed to demonstrate that the premises were sufficiently repaired for resumed occupancy by defendants. Accordingly, the lease terminated under its own terms and defendants were no longer obligated to pay rent.

Similarly, the record adequately supports the trial court’s judgment in favor of defendants for property damage sustained during the flood. Defendants clearly demonstrated the leased premises contained a latent defect—inadequate drainage with a resulting proclivity toward flooding. The flooding of December 3 was not an isolated occurrence attributable to unusually bad weather. Rather, this flood was symptomatic of a longstanding drainage problem, a problem so severe the city of Elgin felt compelled to initiate condemnation proceedings against the apartment complex. Plaintiffs were clearly aware of the nature and extent of this defect when they leased the premises, yet they failed to inform defendants of the flooding problems. Also, this condition is not one readily discoverable by a tenant during a reasonable inspection of the premises. Accordingly, the trial court properly found plaintiffs liable for the property damage sustained by defendants as a result of the latent defect in the leased premises.

Plaintiffs also contend that the trial court erred in making certain evidentiary rulings. If a party wishes to call in question the admissibility of testimony, it is his duty to object in apt time to obtain a ruling by the trial court. (Goldberg v. Capital Freight Lines (1943), 382 Ill. 283, 47 N.E.2d 67.) Failure to object must be considered as a waiver of the objection. (McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708.) Accordingly, plaintiffs must demonstrate both timely objection and an improper ruling by the trial court in order to prevail.

In the instant case, no trial transcript was provided by plaintiffs, only an agreed statement of facts and two affidavits. After reviewing this record, we find no indication that plaintiffs made a timely objection with regard to any of the matters presently complained of. Plaintiffs bore the burden of presenting a sufficiently complete record of proceedings at trial to support a claim of error and, in the absence of such a record, we must presume the trial court’s action was in conformity with the law. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) Accordingly, we reject plaintiffs’ second contention.

Finally, plaintiffs contend that defendants failed to plead ordinance violations in a proper manner. (See 87 Ill. 2d R. 133(a).) Plaintiffs argue that defendants’ counterclaim was based on a breach of a statutory duty and the ordinances of the city of Elgin relied on by defendants were never set forth in the pleadings. We disagree.

After reviewing the pleadings, we find defendants’ counterclaim was based on plaintiffs’ breach of the common law duty to inform defendants of latent defects in the demised premises, not a breach of a statutory duty. While evidence of building code violations was elicited at trial, this evidence went to the issue of premises habitability and plaintiffs’ knowledge that the apartment complex was subject to frequent flooding. Accordingly, defendants were not required to set forth each building code violation in their pleadings, since these violations were merely evidentiary facts. County of Cook v. Illinois Wine & Spirits Co. (1981), 93 Ill. App. 3d 710, 417 N.E.2d 812.

In view of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE McGLOON

text:
    WILLIAM K. MONSEN, Plaintiff, v. STEVEN DeGROOT, Defendant and Third-Party Plaintiff-Appellee (American Legion Post No. 1247 et al., Third-Party Defendants-Appellants).
    First District (1st Division)
    No. 83—3053
    Opinion filed February 4, 1985.

      Sherwin Greenberg, of Chicago, for appellants.
    Barry L. Kroll, Carol P. Woosley, Mark A. Miller, and Lloyd E. Williams, Jr., all of Jacobs, Williams & Montgomery, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

Third-party defendants American Legion Post No. 1247 and Kenneth Monsen appeal the denial of a motion to dismiss an amended third-party complaint for contribution. We granted this interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). Two issues were certified by the trial court. The first is whether an intoxicated person may seek contribution from a dramshop for injuries to another resulting from the intoxication. The second issue is whether the third-party complaint is governed by the one-year limitation provision of the Dram Shop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135).

We affirm.

On April 29, 1982, William K. Monsen filed an action against Steven DeGroot for damages for injuries sustained in an automobile accident which occurred on March 21, 1981. Monsen was a passenger in a car driven by DeGroot. On September 22, 1982, DeGroot filed a third-party complaint against American Legion Post No. 1247 and Kenneth Monsen seeking contribution.

The pertinent part of the amended third-party complaint alleged that DeGroot became intoxicated as a result of consuming alcoholic beverages served to him by the American Legion and its employee, Kenneth Monsen, and that the anto accident was caused by DeGroot’s intoxication. It further alleged that DeGroot was entitled to contribution under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.) and the Dram Shop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135.) The American Legion and Kenneth Mon-sen filed a motion to dismiss the amended third-party complaint. The motion was denied by the trial court.

The first question of law certified by the trial court is whether an intoxicated person may seek contribution from a dramshop. The American Legion contends section 6—21 of the Dram Shop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135) is the sole basis for an action against tavern owners and an intoxicated person is not included in the category of persons entitled to recover under the Act. The American Legion therefore concludes that a contribution action filed by an intoxicated person against a dramshop is also prohibited.

Our analysis of this issue begins with the pertinent provisions of the Contribution Among Joint Tortfeasors Act. Section 2 of the Act provides:

“[W]here 2 or more persons are subject to liability in tort arising out of the same injury to person or property *** there is a right of contribution among them ***.” (Ill. Rev. Stat. 1983, ch. 70, par. 302(a).)

This statute allows a defendant to shift part of the liability to another who is partly responsible for the loss and whose wrongful conduct proximately caused injury. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382; Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 444 N.E.2d 504.) The only requirement is that the same injury gives rise to liability in tort. Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 444 N.E.2d 504.

In Morgan, the court addressed an issue similar to that presented in the case at bar. In Morgan, plaintiff sustained injuries when the car in which she was riding collided with a truck owned by defendant and driven by defendant’s employee. Plaintiff filed a personal injury action against defendant Kirk Brothers, Inc. Defendant filed a third-party complaint against the dramshop which had allegedly served alcohol to the driver of the car in which plaintiff was riding and which allegedly caused the driver’s intoxication. In reversing the dismissal of the third-party complaint, the appellate court held that the Contribution Act allows a third-party action against one whose violation of the Dram Shop Act gives rise to liability. The court found that the third-party action was allowed despite the fact that the third-party plaintiff could not have recovered against the dramshop for his own injuries.

In this case, DeGroot is seeking contribution from the American Legion for the injuries suffered by plaintiff Monsen. Thus, the liability of DeGroot and the American Legion arises from the same injury. Unquestionably, the action filed by Monsen against DeGroot is a tort action. Additionally, a dramshop’s liability under the Dram Shop Act is tort liability. (Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 444 N.E.2d 504.) Based on the foregoing facts, we find that the third-party plaintiff DeGroot may seek contribution from the American Legion under the Contribution Act. Granted, DeGroot, the alleged intoxicated person, could not seek damages from the American Legion for his own injuries. (Holmes v. Rolando (1943), 320 Ill. App. 475, 51 N.E.2d 786.) However, as noted in Morgan, the fact that the third-party plaintiff could not recover against the dramshop does not bar the action for contribution.

In arguing that an intoxicated person is prohibited from seeking contribution from a dramshop, the American Legion relies on Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill. 2d 127, 295 N.E.2d 718, and McDonald v. Trampf (1964), 49 Ill. App. 2d 106, 198 N.E.2d 537. However, we find that neither of these cases is relevant to the issue presented for review. Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill. 2d 127, 295 N.E.2d 718, addressed the issue of whether a dramshop could seek indemnity from an intoxicated person. Unlike contribution, indemnity seeks to shift the entire burden of loss to another party. (See Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382.) The issue presented in Trampf was similar to that presented in the case at bar; however, Trampf was decided prior to the decision of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and the enactment of the Contribution Act. If Trampf had been decided under existing law, the result would have been different.

The American Legion further argues that allowing a contribution action by an intoxicated person against a dramshop violates the public policy underlying the enactment of the Dram Shop Act because it allows an intoxicated person to benefit from his own intemperance.

We reject this argument for two reasons. First, as noted by the trial court, a contribution action presupposes culpability of the party seeking it. Contribution is allowed under the statute and without such culpability, no action under the statute would lie. Second, the purpose of imposing liability on tavern owners under the Dram Shop Act is to discipline and punish owners and operators for the evils resulting from the sale of liquor. (Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill. 2d 127, 295 N.E.2d 718.) Allowing contribution actions based on violations of the Dram Shop Act is consistent with the Act’s purpose of holding tavern owners liable for injuries caused by an intoxicated person. In fact, disallowing contribution actions against dramshops could result in allowing a tortfeasor to escape liability when, by law, he may have been partially responsible for the loss. See Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 921, 444 N.E.2d 504, 509.

The second issue certified by the trial court is whether the third-party complaint is governed by the one-year limitation provision of the Dram Shop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135). The American Legion contends the one-year limitation applies because it is a condition precedent to recovery based on the Dram Shop Act.

We reject this argument because it is premised on the incorrect assumption that the third-party plaintiff DeGroot is seeking damages under the Dram Shop Act. A review of the complaint clearly indicates that the third-party action is based on the Contribution Act. It merely alleged that the American Legion’s liability for contribution, if any, arose from a violation of the Dram Shop Act. Because the third-party complaint was an action for contribution, we find that the limitations provisions of the Contribution Act control.

Section 5 of the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 305) provides:

“A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment by counterclaim or by third-party complaint in a pending action.”

In Laue v. Leifheit (1984), 105 Ill. 2d 191, the court interpreted this section in the following manner. Where no action is initiated by the injured party, a claim for contribution may be asserted in a separate action before or after payment. However, if an action is pending, as in the case at bar, the contribution claim must be asserted by counterclaim or third-party claim in the pending action. In this case, the contribution action was asserted in the pending action and thus was timely filed.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE LINN

text:
    ALBERT MORRIS, JR., Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—2343
    Opinion filed January 24, 1985.

      Cooney & Stenn, of Chicago (James E. Ocasek and Kathryn L. Fleischer, of counsel), for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Albert Morris, brought suit in the circuit court of Cook County against defendants, city of Chicago and police officer James Rowan, for injuries sustained when his car was struck by a Chicago police car driven by Rowan. At trial, after plaintiff had put on one witness, the trial court directed a verdict for defendants based on section 2—202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2—202). The court also denied plaintiff leave to amend his complaint to charge wilful and wanton conduct on the part of defendants.

On appeal, plaintiff attacks the directed verdict, contending that (1) the trial court erred in its determination that defendant Rowan was executing or enforcing a law at the time of the collision; and (2) the trial court erred by failing to put the issue of wilful and wanton negligence to the jury at the time the directed verdict was granted. Plaintiff also contends that (3) the defendants waived reliance on the statutory immunity; and (4) the trial court improperly denied plaintiff leave to amend his complaint to allege wilful and wanton negligence.

We affirm in part, reverse in part, and remand.

Background

This action commenced with the filing of plaintiff’s one-count complaint alleging that on February 5, 1976, he was injured when his parked car was struck from behind by a police car negligently driven by defendant Rowan. Defendants’ answer denied the negligence allegations and raised no affirmative defenses. The case proceeded to trial on the issues raised by the complaint and answer.

At trial, plaintiff’s first witness was defendant Rowan, called as an adverse witness. Rowan testified that on the night of February 5, 1976, he was on routine patrol in an unmarked police car. The car was equipped with a siren and flashing headlamps, but had no rooftop “Mars” lights. Rowan’s patrol area included the near north side of Chicago. Rowan was heading northbound on La Salle Street when he received an “in progress” call on the police radio. Rowan recalled that the call was for a man with a gun near the intersection of Oak and Orleans streets. Rowan proceeded to Oak Street with siren on and headlamps flashing.

Just before turning down Oak Street, Rowan turned off the siren, but left the flashing headlamps on. As he approached the intersection of Oak with Orleans, Rowan saw some police vehicles on the other side, but saw no other activity suggesting that a crime was being committed or that an arrest was being made. After coming to an almost complete stop at Orleans, Rowan drove slowly across the intersection. Rowan then began to apply the brakes, intending to pull up behind the first car parked in front of the other police vehicles at the scene. At this point, the car began to slide on a patch of ice. Rowan attempted to stop but could not. His car slid 25 feet and collided with the rear of plaintiff’s car. Rowan claimed that, although he looked carefully ahead before crossing the intersection, he did not see the patch of ice.

Rowan also testified that when an “in progress” call is received, a police officer assumes that a crime is in the process of being committed and responds accordingly.

■ After Rowan’s testimony, defendants moved for a directed verdict. Defendants claimed immunity from liability based on negligence under section 2—202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2— 202). The trial court heard argument relative to the motion and granted the directed verdict. According to the trial court’s findings, Rowan’s undisputed testimony showed that he was executing or enforcing a law when the collision occurred, and thus defendants were within the protection of the Tort Immunity Act.

The trial court also rejected plaintiff’s argument that defendants had waived reliance on the Tort Immunity Act by failing to raise it before trial. The court also denied plaintiff’s motion to allow him to amend his complaint to add allegations of wilful and wanton negligence on the part of the defendants, necessary to defeat the statutory immunity.

This appeal followed.

Opinion

I

This case comes before us in the rather odd posture of a verdict’s being directed prior to the close of plaintiff’s case, with said verdict being based on a statutory defense not raised in the pleadings. With this preface in mind, we turn to the plaintiff’s first contention concerning the propriety of directing a verdict based on the evidence that was before the court when the defense was first raised.

A motion for a directed verdict should be granted only when all of the evidence, when viewed in its aspect most favorable to the opponent of the motion, so overwhelmingly favors the movant that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Moreover, where there is no dispute concerning factual matters, and where no conflicting inferences can be drawn from the evidence, a question of law is presented justifying a directed verdict. Publication Corp. v. Chicago River & R.R. Co. (1977), 49 Ill. App. 3d 508, 514, 364 N.E.2d 523.

In the case at bar, uncontroverted evidence established that defendant Rowan- was responding to a radio report of a crime in progress when the collision with plaintiff’s car occurred. There was also uncontroverted evidence that defendant Rowan assumed that a crime was being committed when he received the radio report.

Plaintiff could produce no evidence to dispute these aspects of defendant Rowan’s testimony. Plaintiff, however, contends that since Rowan did not actually see a crime being committed and was not in the act of apprehending an offender when the collision occurred, the trial court’s directed verdict, finding that he was executing or enforcing a law, was error or, alternatively, presented a question for the jury. We cannot agree.

Section 2—202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2—202) provides that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton negligence.” The immunity provided by this section extends only to negligent acts or omissions done while in the actual execution or enforcement of a law and not to every act or omission done while on duty as a public employee. (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 33, 282 N.E.2d 144.) The question of whether a police officer is engaged in the execution or enforcement of a law is a factual determination which must, in every case, be made in light of the circumstances involved. Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 977, 331 N.E.2d 243.

Our review of the case law, however, does not lead us to the conclusion plaintiff urges here. The circumstances of this case show that defendant Rowan was responding to an actual call to enforce or execute the law. He was not merely on routine patrol (cf. Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 34), nor was he retreating from enforcing the law (cf. Thompson v. City of Chicago (1984), 128 Ill. App. 3d 59, 64-65). Instead, the undisputed facts show an unbroken effort on Rowan’s part to respond to a radio call of a crime in progress. We therefore conclude that the trial court correctly determined that defendant Rowan was executing or enforcing a law within the meaning of section 2—202, and properly directed a verdict on the issue of defendant’s negligence.

II

Plaintiff further contends that the directed verdict was improper because the trial court failed to allow the issue of wilful and wanton negligence, necessary to defeat the statutory immunity, to go to the jury. The arguments of both parties dwell on whether defendant Rowan’s testimony was sufficient to raise a question of wilful and wanton negligence. Our review of the record, however, convinces us that we need not reach this issue.

The issues in a case are created by the pleadings and allegations, to which the proof must correspond. (City of Chicago v. Harris Trust & Savings Bank (1977), 56 Ill. App. 3d 651, 653, 371 N.E.2d 1182.) Consequently, a party cannot have relief based on proof without allegations. Partel v. Harris Trust & Savings Bank (1982), 106 Ill. App. 3d 962, 966, 437 N.E.2d 1225.

In the instant case, plaintiff’s complaint only raised the issue of defendants’ negligence, and the cause proceeded to trial on that basis. During argument on the directed verdict motion, plaintiff never claimed defendant Rowan’s testimony raised a question of wilful and wanton negligence, nor did he argue such a claim should be put to the jury. Moreover, the trial court specifically concluded that it was compelled to direct a verdict because no allegations of wilful and wanton conduct were before the court. Under these circumstances, we believe that the trial court properly considered only those allegations before it at the time the motion for the directed verdict was made. Thus, we conclude that the trial court was not required, at that time, to put the issue of wilful and wanton negligence to the jury.

III

Plaintiff next argues that defendants waived reliance on the statutory governmental immunity by failing to raise the defense until after trial had begun. We first note that the defense was not raised at trial by way of a motion by defendants to amend their answer. However, the parties have treated the issue as such in their briefs before this court. As we perceive no substantive difference between what actually occurred in the trial court and a motion to file an amended pleading, we elect to do the same.

Plaintiff correctly points out that the statutory immunity provided for public employees executing or enforcing a law is an affirmative defense (Vines v. City of Chicago (1982), 110 Ill. App. 3d 1060, 1062, 443 N.E.2d 652), which under the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—613) should have been raised in the defendants’ answer. However, the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—616) also provides that “any time before final judgment amendments may be allowed on just and reasonable terms *** adding new *** defenses ***.”

Plaintiff also correctly points out that amendments during trial should not ordinarily be permitted if such amendments concern matters which the pleader knew at the time the original pleading was filed and for which the pleader offers no good reason for not having included in the original pleading. (First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396, 384 N.E.2d 30.) However, a motion to amend the pleadings is addressed to the sound discretion of the trial court, with the paramount consideration being whether the amendment furthers the interests of justice. (United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 857, 387 N.E.2d 1272.) Among the factors to be considered in determining whether or not a motion to amend the pleadings should be allowed are prejudice and surprise to the other party. (Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 230, 359 N.E.2d 745.) Thus, failure to timely plead an affirmative defense does not necessarily constitute waiver, and the trial court may exercise its discretion to permit a party to amend the answer to raise the affirmative matter. Uscian v. Blacconeri (1975), 35 Ill. App. 3d 80, 84, 340 N.E.2d 618.

In the present case, the affirmative defense of statutory immunity was interposed before final judgment. While we do not condone the actions of defendants in waiting until trial began to assert the defense, we cannot agree that, on this fact alone, plaintiff was surprised or prejudiced. Our review of the record shows that plaintiff was prepared to and did argue the merits of defendants’ directed verdict motion. In view of this fact, we conclude that defendants did not waive the statutory immunity defense by failing to raise it in their original pleadings.

IV

However, we do find merit in plaintiffs final contention that he was prejudiced by the trial court’s denial of leave to amend the complaint to allege wilful and wanton negligence.

As has already been noted, the Code of Civil Procedure requires that amendments to pleadings be made on “just and reasonable terms.” (Ill. Rev. Stat. 1983, ch. 110, par. 2—616.) When the trial court allowed defendants to raise the statutory immunity defense at trial, but then denied plaintiff the opportunity to meet that defense, the terms of granting defendants’ “amended pleading” were not truly reasonable and just.

Moreover, the trial court’s power to allow amendments to a complaint should be freely exercised so that a party may fully present his causes of action. (Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1106, 428 N.E.2d 1061.) Here, plaintiff had not finished putting on his case when the verdict was directed, and the trial court was apprised of this fact. Furthermore, the trial court made no finding concerning wilful and wanton negligence when it denied plaintiff leave to amend. Thus, the trial court impermissibly precluded plaintiff from fully presenting his claims against defendants.

Finally, we find no merit in defendants’ claim that plaintiff should not be allowed leave to amend because of prejudice to defendants. At the heart of defendants’ argument is the fact that a wilful and wanton negligence count may create a potential conflict between defendants requiring defendant Rowan to retain his own counsel. However, any prejudice defendants may suffer is directly attributable to their own tactics of waiting until trial to assert the statutory immunity. Thus, we conclude that the potential adversity between the defendants is irrelevant to the issue of whether plaintiff may amend his complaint.

Accordingly, the judgment of the trial court granting the directed verdict is affirmed. The judgment of the trial court denying plaintiff leave to amend the complaint is reversed, and the cause remanded with directions to allow plaintiff to amend his complaint to allege wilful and wanton negligence on the part of the defendants.

Affirmed in part, reversed in part, and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.