author: PRESIDING JUSTICE BUCKLEY

text:
    COSMOPOLITAN NATIONAL BANK, Trustee et al., Plaintiffs-Appellants and Cross-Appellees, v. THE COUNTY OF COOK, Defendant-Appellee and Cross-Appellant—(The Village of Richton Park, Intervening Defendant-Appellee and Cross-Appellant).
    First District (1st Division)
    No. 82—195
    Opinion filed August 8, 1983.

      CAMPBELL, J., concurring in part and dissenting in part.
    Daniel L. Houlihan & Associates and Kirkland & Ellis, both of Chicago (Daniel L. Houlihan, Sharon M. Sullivan, and Frank A. Winter, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and James F. Henry, Assistant State’s Attorneys, of counsel), for appellee County of Cook.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago (Marvin J. Glink and John B. Murphy, of counsel), for appellee Village of Richton Park.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The present appeal arises out of a declaratory judgment action brought to test the validity of a Cook County zoning ordinance and a denial by the county of a special use permit for operating a sanitary landfill. The plaintiffs include the trustee who holds legal title to the subject property, the beneficiary of the land trust, and John Sexton Contractors Co. (Sexton), the lessee of the subject property under a fill lease agreement. Under the terms of the agreement, Sexton was to develop the property as a sanitary landfill for general municipal refuse, excluding special waste, hazardous and toxic materials and liquid waste. The defendants in this case are Cook County and the village of Richton Park which was given permission to intervene in the trial court proceedings below.

The subject property is a parcel approximately 84 acres in size located in unincorporated Rich Township, Cook County, Illinois. The property is bounded on the east by Interstate Highway 57 (1-57), on the south by Sauk Trail, on the west by Central Road and on the north by gas pipeline, electric company and railroad rights of way.

The type of facility referred to as a sanitary landfill, which Sexton operated on the subject property for nearly two years and which it now seeks to resume operating, has been defined in the Illinois Environmental Protection Act as

“a facility *** for the disposal of waste on land *** without creating nuisances or hazards to public health or safety, by confining the refuse to the smallest practical volume and covering it with a layer of earth at the conclusion of each day’s operation ***.” (Ill. Rev. Stat. 1981, ch. 111½, par. 1003(x).)

The compacting and daily covering of refuse avoids the old-fashioned open dump problems of rodents, flies, odors and burning. The presence of a natural high-impermeability clay seal, supplemented by additional clay sealing when necessary, prevents the migration of liquids out of the landfill and thus protects underground water supplies from contamination. Sexton’s engineering design showed 10 trenches on the subject property were to be successively excavated and landfilled. Landfill operations were to cease after the last trench was filled approximately 10 years later, and the property was then to be developed for industrial and open space uses.

The present case has a lengthy legal and historical background which includes prior litigation. In order to fully appreciate the present posture of these litigants, that portion of the history which is relevant has been summarized.

On May 22, 1975, Sexton applied to the Illinois Environmental Protection Agency (EPA) for a solid waste management development permit to develop (not operate) the subject property as a sanitary landfill. On August 25, 1975, the permit was granted subject to a number of standard conditions, among them a condition which specified that the permit did not release Sexton from compliance with local zoning ordinances.

On September 26, 1975, the Illinois Supreme Court announced its decision in Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 343 N.E.2d 493, which invalidated the practice of issuing sanitary landfill permits subject to local zoning restrictions. The court cited its previous decision in O’Connor v. City of Rockford (1972), 52 Ill. 2d 360, 288 N.E.2d 432, and held that with respect to sanitary landfills local zoning jurisdiction was preempted by the Illinois Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111½, par. 1001 et seq.) and the EPA, which now had exclusive jurisdiction, was not authorized to delegate that responsibility to local zoning bodies.

In reliance on Carlson, Sexton never applied to the county for rezoning or a special use permit but continued to comply with EPA procedures for obtaining a permit to operate a sanitary landfill. The EPA required Sexton to submit responses on eight points dealing with environmental impact and engineering issues, and site suitability, land use and zoning issues. On June 15, 1976, Sexton submitted its responses on the EPA’s eight points and shortly thereafter Cook County and Richton Park submitted additional materials challenging Sexton’s responses. On September 13, 1976, after considering the materials in support and in opposition to the landfill, the EPA issued Sexton a second development permit, this one not subject to local zoning.

Nearly seven months later, on March 8, 1977, Cook County filed a complaint against Sexton alleging the development work was in violation of the county zoning ordinance and seeking to enjoin further development or operation of the sanitary landfill. Sexton pleaded several affirmative defenses in its answer, among them the defense that local zoning jurisdiction was preempted under Carlson and that the EPA now had exclusive jurisdiction over landfills.

During the pendency of this action, the EPA issued findings of fact with respect to its eight points. The agency found that Sexton had met all the requirements of the Environmental Protection Act and the rules and regulations of the Illinois Pollution Control Board, as well as all obligations necessitated by the EPA’s land use and site suitability review. These lengthy findings of fact may be summarized as follows: the underlying geology of the proposed site was suitable for landfill development; the engineering plans submitted by Sexton were adequate for landfill development and operation in an environmentally sound manner; the landfill was located so as to minimize scenic blight; the landfill was located so as to avoid any hazards to public health or safety and to minimize any offenses to the senses of persons residing, working, or traveling in the immediate vicinity of the site; the site was located so as to minimize incompatability with the character of the surrounding area; the location of the landfill was such that substantial depreciation of nearby property should not occur; there was a need in the area for a sanitary landfill and the need would grow more acute in the ensuing months; the landfill was located so as to avoid a continued adverse effect on the existing air and water quality; and the proposed site was well suited for its intended use as a landfill. The EPA also stated that Sexton had operated other landfills in the past in an environmentally safe manner and was considered a “good operator” by the agency. The EPA subsequently issued an operating permit to Sexton and landfill operations were commenced on September 28, 1977.

Shortly thereafter, on October 27, 1977, the circuit court ruled in favor of Sexton, holding that the EPA had exclusive jurisdiction over sanitary landfills and the county zoning jurisdiction had been preempted. A decree was entered dismissing the county’s complaint and enjoining the county from interfering with Sexton’s landfill operations. This dismissal was eventually appealed to the Illinois Supreme Court, which reversed in County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553. Distinguishing Carlson and O’Connor, the court held that under the 1970 Illinois Constitution a home rule unit has concurrent jurisdiction as to sanitary landfills with the EPA and the Illinois Pollution Control Board. On remand, the circuit court entered a preliminary injunction prohibiting Sexton from operating the landfill and granted the county’s motion for judgment on the pleadings on October 16, 1979. At this time, the landfill had been operated just under two years and was approximately 20% filled.

Following the circuit court action, Sexton applied to the county to reclassify a portion of the subject property (Parcel 1) from R-4 single-family residential to P-2 open space and the balance (Parcel 2) from R-4 single family to 1-1 restricted industrial. Application was also made for a special use permit to operate a sanitary landfill as an interim use. The Zoning Board of Appeals for Cook County held extensive hearings on the proposed zoning changes and special use permit during which Sexton and Richton Park presented numerous witnesses and submitted lengthy memoranda. On November 14, 1980, the zoning board issued a 71-page document of findings and recommendations to the Cook County Board of Commissioners. The zoning board made specific findings on numerous points and made recommendations based, in part, on the following considerations: the geology of the area and the proposed engineering design were suitable for landfill operations; the character of the subject property and surrounding property were suitable; there was a demonstrable need for a landfill at this site; a tax impact study showed a tenfold greater revenue to local taxing bodies by permitting the proposed zoning change; the effect of the prior sanitary landfill operations on nearby property, especially the showing of a comparable or better rate of land value appreciation for a residential subdivision nearest the landfill site when compared to another subdivision 2½ miles away; and the absence of any adverse effect on traffic patterns. The zoning board then recommended by a four to one vote that the rezoning and special use applied for be granted subject to certain conditions.

The Cook County board decided not to concur with the zoning board findings and voted to deny plaintiffs’ application for rezoning and special use. The plaintiffs in the present case then filed suit for a declaratory judgment that the county zoning ordinance was invalid as it prohibited the interim use of a sanitary landfill and the ultimate uses of Parcel 1 for open space and Parcel 2 for restricted industrial. The trial court held the county zoning ordinance invalid and void in that it prohibited light industrial and open space uses, but denied plaintiffs’ prayer for relief with respect to the sanitary landfill use. Plaintiffs appeal from that portion of the judgment upholding the denial of a special use permit to operate a sanitary landfill on the subject property. Defendants, Cook County and Richton Park, cross-appeal from that portion of the order holding the county zoning ordinance invalid insofar as it prohibits light industrial and open space uses on the property in question.

I

We will first address defendants’ cross-appeal dealing with the invalidation of the county zoning ordinance.

A zoning ordinance, like any other legislative enactment, is presumed valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) TMs presumption may be overcome by a property owner who shows by clear and convincing evidence that the ordinance as applied to him is unreasonable and arbitrary and bears no substantial relation to the public health, safety, morals, or welfare. County of Cook v. Priester (1976), 62 Ill. 2d 357, 368, 342 N.E.2d 41; Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53, 426 N.E.2d 1276.

As the court noted in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, among the factors to be taken into consideration when determining whether a zoning ordinance bears sufficient relation to the public health, safety, or welfare are the following: (1) the existing uses and the zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiff promotes the health, safety, morals, or welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property (hereinafter referred to as the La Salle National Bank factors). The validity of each zoning ordinance must be determined on its own facts and circumstances; no single factor is controlling. La Salle National Bank; Oak Park Trust & Savings Bank v. Village of Palos Park (1982), 106 Ill. App. 3d 394, 435 N.E.2d 1265.

Plaintiffs argue there is no substantial dispute that the present R-4 single-family residential zoning does not represent the highest and best use of the property. The county explicitly concedes as much and the comprehensive plans of both the county and Richton Park provide for this property to be ultimately zoned partly light industrial and partly open space. Furthermore, in invalidating the R-4 classification, the trial court entered favorable findings of fact on all of the six La Salle National Bank factors which are all supported by the record.

Nevertheless, a court has no power to rezone property from one classification to another. That is a legislative function. (Reeve v. Village of Glenview (1963), 29 Ill. 2d 611, 195 N.E.2d 188; Harris Trust & Savings Bank v. Duggan (1982), 105 Ill. App. 3d 839, 435 N.E.2d 130.) A zoning ordinance may be set aside only to the extent necessary to permit the specific use proposed by the landowner (Schultz v. Village of Lisle (1972), 53 Ill. 2d 39, 289 N.E.2d 614). Accordingly, in reviewing the validity of a zoning ordinance, a court should not inquire whether the property as presently zoned might be better zoned some other way. To do so would amount to judicial rezoning. The proper scope of review was correctly stated in La Salle National Bank v. City of Chicago (1970), 130 Ill. App. 2d 457, 460, 264 N.E.2d 799:

“The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find from clear evidence before it that the specific use contemplated by the owner is reasonable and may be permitted.” (Emphasis added.)

Defendants, cross-appellants argue that plaintiffs never committed themselves to any specific end use for the subject property and that the portion of the judgment voiding the zoning ordinance was so broadly drawn that it amounted to judicial rezoning. We agree.

The record reveals that Sexton had only committed itself to a specific interim use of the subject property as a sanitary landfill. Landfill operations were not to cease until approximately eight years later and plaintiffs only suggested methods by which the site might then be developed in accordance with light industrial and open space uses. The vagueness of plaintiffs’ end use plan was also reflected in the judgment entered below which provided that the zoning ordinance was void “insofar as it purports to prohibit *** light industrial use for Parcel 1 and open space use for Parcel 2 ***, all of said uses being in accordance with the evidence presented to this court.”

In effect, this judgment purports to rezone the property in question from R-4 to 1-1 light industrial and P-2 open space. Such judicial rezoning is beyond the power of the court which is required to frame its order with respect to a specific use contemplated by the owner. (See Dolton v. Village of Mundelein (1967), 86 Ill. App. 2d 245, 229 N.E.2d 681.) Accordingly, we reverse that portion of the judgment invalidating the Cook County zoning ordinance as being overly broad.

II

In denying plaintiffs’ prayer for relief with respect to the special use permit to operate a sanitary landfill, the court based its decision, in part, on the following Cook County zoning ordinance:

“No special use shall be recommended by the Zoning Board of Appeals unless said Board shall find:
1. That the establishment, maintenance, or operation of the special use will not be detrimental to or endanger the public health, safety, or general welfare.
2. That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood.
3. That the establishment of the special use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.
4. That adequate utilities, access roads, drainage and/or other necessary facilities have been or are being provided.
5. That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets. ***” 1976 Cook County Zoning Ordinance sec. 13.10 — 7.

The record reveals that the court first made findings of fact favorable to plaintiffs on each of the six factors set forth in La Salle National Bank. The court then stated that it was also necessary for plaintiffs to satisfy the county ordinance’s special use criteria before the special use of a sanitary landfill could be granted for the subject property. It then proceeded to make findings adverse to plaintiffs on ordinance points one and two.

Plaintiffs contend that the trial court erred in making its determination with reference to the county special use standards. They argue that the court should have limited its findings to the six La Salle National Bank factors and, since the court found entirely for plaintiffs on those factors, their prayer for relief with respect to the special use should have been granted.

We agree with plaintiffs’ assertion that a denial of a special use permit should be tested by the same standard as that used to review zoning decisions. The plaintiff must show by clear and convincing evidence that such denial bears no real or substantial relation to the public health, safety, morals, or general welfare. (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 324 N.E.2d 406; National Pride Equipment, Inc. v. Village of Niles (1982), 109 Ill. App. 3d 639, 440 N.E.2d 1053.) However, we cannot agree with plaintiffs’ contention that the court is restricted to the six La Salle National Bank factors when making this determination. As we have recently held in National Pride Equipment, Inc., a court may, in addition to traditional factors used in reviewing zoning decisions, take into account any and all standards for special uses established by a legislative body. (109 Ill. App. 3d 639, 644; see also La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 16-17, 325 N.E.2d 105.) Accordingly, we reject plaintiffs’ contention that it was error for the trial court to consider the special use standards set forth in section 13.10 — 7 of the Cook County zoning ordinance.

Plaintiffs alternatively urge us to reverse that portion of the judgment refusing relief with respect to the sanitary landfill special use as being against the manifest weight of the evidence. Plaintiffs argue that the overwhelming number of trial court findings favor them and that the two adverse findings on the county special use standards are internally self-contradictory as well as being unsupported by the record and inconsistent with other findings which are clearly supported. We agree.

The record reveals that the trial court made the following findings adverse to plaintiffs with respect to the two county special use standards:

“The evidence is that there has been no substantial diminution and impairment of property values within the neighborhood. Richton Park developed more when the land site was operating than when it wasn’t operating ***. However, this Court cannot say that the use of this property as a sanitary landfill will not be injurious to the use and enjoyment of other property in the immediate vicinity, to wit, the Village of Richton Park.
I do believe and I so find that the operation of this special use sanitary landfill will not endanger the public health, safety or general welfare. But I cannot say that Sexton has shown, by a clear preponderance of the evidence, that this special use as a sanitary landfill will not be detrimental to the public health, safety, or general welfare.”

The self-contradictory nature of these findings is apparent. But assuming arguendo this hurdle can be overcome, we find little in the record to support a finding of injury to the use or enjoyment of other property or detriment to the public health, safety, or general welfare.

The voluminous evidence entered on environmental impact clearly reveals that the landfill site was operated in an environmentally safe manner in the past and that it could continue to be safely operated in the future. The trial court, in making its determination of the six La Salle National Bank factors, stated that it was “convinced that the underlying geology of the subject property and the operation of the sanitary landfill would ensure the absence of harm to the public health and safety from leachate and methane migration.” The EPA also made extensive findings of fact, admitted into evidence at trial, on the environmental and engineering issues dealing with the protection of ground water, surface drainage and other hydrological factors, and additional findings on methane control, cover material and noise control. The agency found that the site could be operated in an environmentally safe manner before it issued an operating permit to Sexton and continually monitored the site afterwards. During the two years of landfill operations, the EPA made unscheduled monthly inspections of the site and never issued any violations or citations against Sexton. The county zoning board made an independent review of environmental safety, taking into account the two year operating history of the landfill, and found in favor of plaintiffs in its findings and recommendations to the county board. (These findings were also admitted into evidence and are part of the record on appeal.) At trial, the county conceded that, from an environmental perspective, the subject property is suitable for a landfill and the slight evidence presented by Richton Park to the contrary was properly given little weight by the trial court.

Defendants argue that evidence on the existence of offensive odors emanating from the landfill was sufficient to support the two findings adverse to plaintiffs on the county special use standards. Testimony on this point was elicited from five area residents who stated that there were strong odors, mostly in the summertime, which they found particularly offensive. All five witnesses also testified that they could obtain relief by going indoors and turning on their air-conditioners, indicating that whatever odors that did exist were not strong enough to be drawn in through air-conditioning units. It was also undisputed that during the summer months the prevailing winds were away from the residential areas.

The existence of strong and offensive odors is rebutted by testimony elicited on property values, building activity and real estate development during the period the landfill was in operation. The evidence reveals that substantial residential development took place just east of 1-57 during this period and that there was no significant difference in building activity between a subdivision close to the landfill and two simultaneously developing subdivisions that were substantially removed. Unrefuted testimony on property values revealed that during this same period property values in nearby residential developments appreciated at a rate equal or greater than those V-k miles from the landfill site. The willingness of people to purchase homes in those subdivisions closest to the landfill was also unaffected by the landfill operation. One developer admitted on cross-examination that 1978 was his second best year for home sales (the site was operated between September 28, 1977, and September 17,1979).

This testimony is based on objective facts and supports explicit trial court and county zoning board findings that building activity and surrounding land values were not adversely affected by the landfill operations. This building activity and appreciation of land values, as well as the sales record of a subdivision closest to the landfill, could not have occurred in this manner had conditions really been as the five witnesses described. In the face of this unrefuted objective evidence inconsistent with the presence of strong offensive odors, we find that the testimony of the local residents was inherently improbable and should have been rejected in this regard. Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 365, 438 N.E.2d 1217; Old Second National Bank v. Gould (1979), 75 Ill. App. 3d 839, 844, 393 N.E.2d 1356.

Defendants also argue that aesthetic considerations involving visual pollution and scenic blight are sufficient to support the adverse findings of the trial court. They contend that a matter of paramount importance is whether the subject property would be in substantial conformity with the surrounding uses in the vicinity.

This argument ignores the explicit trial court finding that “there is a recognizable and acceptable and significant zoning buffer between the landfill site and Richton Park.” This finding is well supported by the record. The undisputed evidence shows that 1-57 has proven to be a natural dividing line between trends east and west of that major highway. All the residential developments in Richton Park lie to the east of 1-57. The landfill is located to the west of 1-57 and is, in turn, bordered on its west by a Northern Illinois Gas Company facility, on its north by Commonwealth Edison high tension wires, a two-track railroad and a Daily Express truck terminal, and on its south by undeveloped farm land. The bulk of the property west of 1-57 remains vacant with the only uses of any predominance being industrial in character. A sanitary landfill would be in substantial conformity with such uses.

The physical separation of the landfill from single-family developments by a major interstate highway, coupled with the fact that a substantial single-family development occurred during the establishment and operation of the landfill, indicate the trial court was correct in finding an adequate zoning buffer. It should also be noted that none of the residents testified that they could see the landfill from their homes and the EPA findings and expert testimony reveal that the site was substantially screened by 1-57 and the earth berming on the landfill site. Consequently, we find that the trial court findings adverse to plaintiffs are unsupported by evidence of visual pollution or nonconforming use.

Finally, defendants argue that the relative gain to the public by prohibiting the landfill operation outweighs any hardship imposed upon plaintiffs and, therefore, the denial of the special use relief is not against the manifest weight of the evidence. This very point was explicitly addressed by the trial court when it resolved the fourth La Salle National Bank factor in favor of plaintiffs. The trial court stated:

“Unquestionably the denial of the special use sanitary landfill would result in some hardship by way of lessening of the value or the lessening of the profits to be gained by the owner of the landfill and the property on which it is being imposed, and unquestionably, equally, there would be some gain to the public by the preservation or reinstitution of another sanitary landfill.”

The trial court’s finding of significant economic loss to plaintiffs is well supported by expert testimony elicited at trial on the valuation of the subject property. The pressing need for landfill facilities in this area is also well documented in the Illinois Institute for Environmental Quality (IIEQ) 1975 report on solid waste management systems in northeastern Illinois, which was admitted into evidence at trial.

What we consistently fail to find in the record is any credible evidence of gain to the public by denying the special use of a sanitary landfill. The concern of those living in areas close to the landfill is understandable. The purchase of a home is the single largest investment that most people ever make. However, we can find little evidence that any real harm has been visited on the residents of the nearby subdivisions in the past or that they are likely to be harmed if landfill operations were to resume. On this point we find the following frequently quoted passage appropriate:

“[T]he use of property cannot be restricted or limited merely because neighboring property owners so desire, or because they think it might protect the value of their residences.” (Regner v. County of McHenry (1956), 9 Ill. 2d 577, 582, 138 N.E.2d 545.)

The restriction or limitation must also bear some reasonable relation to the public health, safety, or welfare. (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 324 N.E.2d 406.) Here, the evidence clearly shows that there has been no adverse impact on land values, land development, or willingness of people to purchase homes in the developments closest to the landfill during the two years the site was in operation. There have also been successive findings of fact by the EPA, the county zoning board and the trial court that the landfill site poses no threat to the environment. Accordingly, we cannot agree that denial of the special use can be based on the relative gain to the public outweighing the hardship imposed on plaintiffs.

In summary, we can find little evidence in the record to support the finding by the trial court that the sanitary landfill will be injurious to the use or enjoyment of other property in the immediate vicinity or that the landfill will be detrimental to the public health, safety, or general welfare. We find the trial court’s determinations on these two county special use standards to be both internally self-contradictory and inconsistent with other trial court findings clearly supported by the evidence.

It is established that while a trial court’s findings are entitled to great weight, it is still our duty to reverse when such findings are contrary to the manifest weight of the evidence. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399; Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057.) We believe that the two adverse findings were against the manifest weight of the evidence and also find plaintiffs have established by clear and convincing evidence that the denial of the special use permit by the county bore no substantial relation to the public health, safety, morals, or general welfare. Accordingly, we reverse that portion of the judgment denying the special use relief. We wish to make the limits of our decision so clear as to admit of no possible mistake. The above opinion approves the operation of a sanitary landfill as defined in the Illinois Environmental Protection Act above cited. Under no circumstances should the within opinion, or any language therein, be considered an approval for using the landfill as a disposal ground for hazardous or dangerous chemical waste products of any kind or description. It is thus anticipated that proper use of the landfill will not create any nuisance or hazard to public health or safety.

In view of the foregoing, we reverse that portion of the judgment voiding the R-4 zoning and permitting all 1-1 light industrial or P-2 open space uses on the subject property as being overly broad. We also reverse that portion of the judgment denying the special use of a sanitary landfill. On remand, we direct the trial court to enter judgment invalidating the zoning ordinance only to the extent that it prohibits the specific interim use of the proposed sanitary landfill.

Reversed and remanded, with directions.

GOLDBERG, J., concurs.

JUSTICE CAMPBELL, concurring in part and dissenting in part:

I concur in that part of the majority opinion reversing that portion of the judgment invalidating the Cook County zoning ordinance. I respectfully dissent from that part of the opinion which directs the trial court to enter a judgment invalidating the zoning ordinance to the extent that it prohibits the specific interim use of the proposed sanitary landfill.

Plaintiffs filed the instant action for declaratory judgment that the county zoning ordinance is invalid as it prohibits the interim use of the subject property as a sanitary landfill. Richton Park was permitted to intervene. The parties entered into a stipulation of facts and plaintiffs presented five witnesses who were either employees or experts. Defendants presented 19 witnesses, including former village officials, residents, and experts.

Prior to the court proceedings, hearings were held by the Cook County Zoning Board on May 9 and May 29, 1980, and June 10, 1980. The hearing covered 719 pages of transcripts. Plaintiffs presented five witnesses and Richton Park 12. In addition, 11 members of the public made unsworn statements. The zoning board recommended that the application to reclassify a portion of the subject property for a special use as a sanitary landfill be granted subject to certain conditions which plaintiffs accepted. The county board decided not to concur with the zoning board and voted to deny plaintiffs’ application for rezoning and special use.

The record disclosed that the subject property was purchased in 1974 and was operated as a landfill for approximately two years, from September 1977 through September 1979, and the site has approximately eight years of remaining life expectancy. At the time of purchase the purchaser was aware that the existing zoning prohibited landfills on the subject property.

The majority opinion appears to rest on the self-contradictory nature of the findings of the trial court as stated herein and the statement of this court that “[wjhat we consistently fail to find in the record is any credible evidence of gain to the public by denying the special use of a sanitary landfill.”

The oral findings of the trial court were based on the six factors set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, and the six special use standards in the zoning ordinance, section 12.10—7. In attempting to explain these findings the court commented as follows:

“In other words, gentlemen, what I mean to say by those lines, 2, 3, 4 and 5, is that I don’t believe, based on the evidence, I find on the evidence, that the operation of this special use sanitary landfill will not endanger the public health, safety or general welfare.
Now, I continue at line 5 to say, ‘But I cannot say that Sexton has shown, by a clear preponderance of the evidence, that this special use as a sanitary landfill will not be detrimental to the public health, safety or general welfare.’ I mean that as it stands. So what I am saying is that this should be corrected to indicate that, and I have corrected it on the transcript attached to Mr. Houlihan’s order, which I have signed, but I want that clearly understood so there is no dispute, that the language that I used in that order tracts the language of the special use ordinance of the County. So that you notice, when I finished up and made those statements, I was careful to tract that language.
So there is only, really, two aspects which, in my opinion, I have a question based on the evidence; and those are the aspects of the sanitary landfill being detrimental to the public health, safety or general welfare, and the aspect of the sanitary landfill being injurious to the use and enjoyment in the immediate vicinity [sic].
So only two aspects I have questions about, and that was basically because I wasn’t satisfied, and that was the reason for my denying the sanitary landfill use.
MR. HOULIHAN: So correcting then, if I understand the Court accurately, we delete in the first sentence of Paragraph 1, the word ‘not’; is that correct?
THE COURT: That’s correct, I am trying to make it as clear as I can. It’s a double negative the way I said it, and when I read it again, I know I wanted to — it might lead to some confusion in the Appellate Court. I don’t want there to be any confusion.”

It does appear that some confusion or contradiction may have resulted as reflected in the oral opinion of the court, but the trial court did re-emphasize that “I wasn’t satisfied” from the evidence in the two matters under discussion.

It would appear that this court has two choices if the findings of the trial court are not clear or in conflict: first, to attempt to reconcile the conflicting findings and to ascertain the meaning of the trial court from the record; or second, to remand this cause with directions for additional clarification as to the findings. One may argue that under the complicated factual situation and conflicting testimony presented in this case that the better approach would be to remand this cause for a resolution of the contested issues and not to substitute the judgment of this court for the trial court on disputed factual matters. The trial court is in a superior position to that of a reviewing court in such a situation, and the weight to be accorded testimony is a matter to be determined by the trial court. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.

Some of the testimony of defendants included the testimony of the former village planner for Richton Park from 1974-1978, Dudley Onderdonk, who emphasized that from an aesthetic point of view, the dust, debris and odors emanating from the landfill were a blighting influence. Urban planner Judson Allen indicated that on the question of visual pollution, both the general visual impact of the site from 1-57, as well as the presence of the methane gas flares burning from the property would have a negative influence on the area and that the gas smells when it burns.

George Arquilla, a land developer in the south suburban area, and the principal developer of the Lakewood Subdivision and Lakewood Unit 14 Subdivision, the two developments immediately adjacent to this landfill site, testified that he began to market the area toward the end of 1978 and the early part of 1979 and sales dropped approximately 72% and one of the big problems was the landfill.

Other witnesses included neighboring home owners who testified based upon past experience as to the periodic and continuing presence of foul and offensive odors in the area as having an adverse effect on the quality of life. Nineteen other persons were present in court. The majority opinion has found that “the testimony of the local residents was inherently improper and should have been rejected in this regard.”

Plaintiffs’ witness, Richard Eldredge, a professional civil engineer and a consultant in waste management, testified that the purpose of the flaring is to burn the odors so that they are less noticeable. In response to questioning on the matter of odors he stated as follows:

“A. The practice of flaring gas at a landfill is for the purpose of odor control. The methane gas as it’s emitted brings with the CO 2 and the malodorous gases which are about one percent of the contents of the gas generated, and the purpose of flaring is to incinerate, or bum these odors so that they are least noticeable.
Q. In spite of all that, it is possible for malodorous gases to escape and be smelled in a neighboring vicinity?
A. It is possible that someone would, at times, smell an odor in the vicinity, yes.
Q. And it’s not an appealing odor, is it?
A. It depends upon whether you make your money that way or not, I guess.
Q. Well, for somebody who has to live around there, it’s not an appealing odor, is it?
A. I would say not.”

Other testimony included that of Frank Farrell, former village president of Richton Park from May 1973 until April 1981, who was questioned concerning community opposition to the proposed landfill and responded that “on two separate occasions, we received petitions signed by residents of the Village, in one instance I think about 2,000 signatures, and in the other approximately 900 signatures.”

This court has not attempted to review or summarize all of the evidence presented at trial to support its conclusion or to support the statement that “we can find little evidence in the record to support the finding by the trial court that the sanitary landfill will be injurious to the use or enjoyment of other property in the immediate vicinity or that the landfill "will be detrimental to the public health, safety, or general welfare.”

As the record indicates, a great deal of disputed and conflicting evidence on crucial issues was heard and considered relating to the character of the subject property, the make-up of the surrounding neighborhood, the highest and best use of the land, the effect on valuations, the existing zoning and uses of nearby property, and the suitability of the site for a sanitary landfill. Both parties presented expert opinion testimony in support of the respective contentions resulting in a substantial difference of opinion., Where testimony is contradictory in a trail without a jury, the weight to be accorded testimony is a matter to be determined by the trial court and its findings will not be disturbed unless clearly against the manifest weight of the evidence. (See La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) The burden was on plaintiffs to prove by clear and convincing evidence that the proposed use was reasonable and that the denial of a special use application was arbitrary and unreasonable. (Racith Corp. v. Zoning Board of Appeals (1981), 95 Ill. App. 3d 716, 420 N.E.2d 620; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) The trial court specifically found that based upon the evidence the plaintiffs had failed to discharge their burden. The results of the majority opinion serve to relieve plaintiffs of their burden and to suggest that an opposite conclusion, to permit the re-opening of the landfill, was apparent by clear and convincing evidence. (See Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 426 N.E.2d 1276.) I do not agree that this court should substitute its judgment on matters of proof as to particular facts and findings contrary to that of the trial court.

I find that the trial court’s findings are amply supported by the record and were not clearly erroneous and this conclusion is warranted under the facts of this case. I therefore think that the judgment of the trial court denying the special use of a sanitary landfill should be affirmed.

[

      At this time the EPA stated its position to be that all land use and site suitability data should be presented to the agency for review so that it could undertake its responsibilities pursuant to Carlson.

      The conditions related to a sanitary open use remaining on Parcel 1 for a period of five years after completion of the filling and the minimum quantities of impermeable clay (10 feet) which was to underlie the lowest portion of refuse in the landfill.

      The IIEQ was a research agency established by the Illinois Environmental Protection Act and no longer exists. In 1978 its functions were assumed by the Illinois Institute for Natural Resources. Ill. Rev. Stat. 1979, ch. 96½, par. 7401.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    JANE GUEBARD, Plaintiff-Appellant, v. GERALD A. JABAAY, M.D., et al., Defendants-Appellees.
    Second District
    No. 82 — 371
    Opinion filed August 3, 1983.

      James A. Geraghty, of Wheaton, and Paul J. Bargiel, of Doss, Puchalski, Keenan & Bargiel, Ltd., of Chicago, for appellant.
    James S. Mills and Gates W. Clancy, both of Geneva, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Jane Guebard, appeals from a judgment entered on a jury verdict in favor of defendants, Gerald A. Jabaay, M.D., and Glen Ellyn Clinic, in a medical malpractice action.

Plaintiff originally filed her complaint on August 16, 1972, against the defendants. She alleged that in January 1971 she had injured her right knee in a down-hill skiing accident and thereafter came under the care of Dr. Jabaay, an orthopedic surgeon employed by the Glen Ellyn Clinic. When conservative treatment failed to alleviate her condition, Dr. Jabaay recommended surgery involving a Hauser procedure, which was performed at Loyola University Hospital, in May-wood, Illinois, on June 22, 1971. When this surgery did not yield the desired improvement, Dr. Jabaay performed a second Hauser procedure on plaintiff’s right knee at the Central Du Page Hospital on October 6, 1971. This second surgery was also unsuccessful and she alleged her knee was left in worse condition than it had been before the operations. Plaintiff alleged that defendants had negligently treated her and sought $500,000 in damages for her resulting condition, which required surgery a third time.

Subsequently, plaintiff learned that the first Hauser procedure had been substantially performed by Dr. Angelí, then a first-year resident at Loyola University Hospital. Dr. Angelí and Loyola were joined as defendants, and counts were later added alleging that Dr. Angelí had performed the first Hauser procedure without plaintiff’s knowledge or consent while she was unconscious, as breach of contract, battery and res ipsa loquitur. In a prior appeal, Guebard v. Jabaay (1978), 65 Ill. App. 3d 255, 259-60, this court held that plaintiff’s fourth amended complaint against Dr. Angelí and Loyola Hospital was barred by the applicable two-year statute of limitations, because they were not joined as party-defendants until some 2V2 years after plaintiff should reasonably have discovered that she had a cause of action against Dr. Angelí and his hospital employer.

On remand, the case against Dr. Jabaay and the Glen Ellyn Clinic was submitted to the jury on two theories: (1) The absence of informed consent to the first Hauser procedure performed essentially by Dr. Angelí, then a first-year resident; and (2) the absence of informed consent to the second Hauser procedure performed by Dr. Jabaay. Plaintiff withdrew counts alleging breach of contract and battery.

Prior to verdict the plaintiff filed a fifth amended complaint in three counts; the first count essentially alleging that before the first Hauser operation defendants failed to inform plaintiff that Dr. Angelí, a first-year resident, would perform the surgery; and that before the second surgery defendants failed to inform plaintiff of the risks of the proposed treatment and alternatives to redoing the Hauser procedure. The second count charged defendants with willful and wanton misconduct. The third count was based on proof of the defendants’ liability under a theory of res ipsa loquitur for negligence in the performance of the first operation. The court refused to instruct the jury on res ipsa.

The jury returned a verdict for the defendants and against the plaintiff. The plaintiff’s post-trial motion for a judgment n.o.v. or a new trial was denied, and she appeals.

The First Surgery

Plaintiff initially contends that she did not give her informed consent to having Dr. Angelí perform the first Hauser procedure, under Dr. Jabaay’s guidance, to correct the lateral dislocation of her patella in Loyola University Hospital on June 22, 1971. A written consent to operate was apparently executed by Jane Guebard in the presence of Dr. Angelí, the first-year resident, at 5:48 p.m. on June 21, 1971. She testified that she read the form and understood it before signing it. The signed form authorized Drs. Main, Blair, Jabaay, Huncke, “and such assistants as are assigned to the case to perform a Hauser procedure, right knee ***” (emphasis added).

Relying on the opinion testimony of her expert, Dr. Compere, and an A.M.A. article from August 1969, she argues that her surgeon, Dr. Jabaay, was ethically and legally bound to inform her of the substitution of a five-year resident for a board-certified orthopedic surgeon. Dr. Angelí was in the first of a four-year residency and had not previously performed the Hauser procedure. Plaintiff further contends that the resulting medial dislocation of the patella was proximately caused by Dr. Jabaay’s failure to inform plaintiff of the risks involved in having the relatively inexperienced Dr. Angelí perform the Hauser procedure.

A physician has a duty to inform patients of the foreseeable risks and results of a given surgical procedure, and the reasonable alternatives to such procedure. (Magana v. Elie (1982), 108 Ill. App. 3d 1028, 1031; Taber v. Riordan (1980), 83 Ill. App. 3d 900, 904; Green v. Hussey (1970), 127 Ill. App. 2d 174, 183.) The physician has a duty to disclose to the patient those risks, results or alternatives that a reasonable medical practitioner of the same school, in the same or similar circumstances, would have disclosed. (Magana v. Elie (1982), 108 Ill. App. 3d 1028, 1032; Miceikis v. Field (1976), 37 Ill. App. 3d 763, 767.) The failure of the physician to conform to the professional standard of disclosure must be proved by expert medical evidence and failure to disclose must proximately cause plaintiff’s injury. Magana v. Elie (1982), 108 Ill. App. 3d 1028, 1032; Ziegert v. South Chicago Community Hospital (1981), 99 Ill. App. 3d 83, 92; Taber v. Riordan (1980), 83 Ill. App. 3d 900, 904.

In a number of decisions, whether a signed form constituted effective consent to treatment has been held to present a proper question of fact for the jury. See Cross v. Trapp (W. Va. 1982), 294 S.E.2d 446, 460; Garone v. Roberts’ Technical & Trade School, Inc. (1975), 47 A.D.2d 306, 309, 366 N.Y.S.2d 129, 133, quoting Moore v. London (1968), 29 App. Div. 2d 666, 666, 286 N.Y.S.2d 319, 320; Rainer v. Community Memorial Hospital (1971), 18 Cal. App. 3d 240, 257, 95 Cal. Rptr. 901, 911; Annot., 89 A.L.R.Sd 32, 48 (1979). See also Carman v. Dippold (1978), 63 Ill. App. 3d 419, 426.

If Dr. Angelí was simply an “assistant” he did not need to obtain plaintiff’s consent to operate. (See Harnish v. Children’s Hospital Medical Center (1982), 387 Mass. 152, 159, 439 N.E.2d 240, 245.) Dr. Jabaay testified that to him “assistant” meant “helper.”

It is difficult to conclude that there was a question of fact for the jury to decide whether Dr. Angelí acted as an “assistant.” The report of the operation in handwriting notes that the surgery was done by the resident, Dr. Angelí, with other typewritten references indicating Dr. Jabaay was the “assistant.” The record reveals that Dr. Angelí performed many of the steps detailed in the report of the operation. There is evidence in the testimony of Dr. Jabaay, however, that Dr. Jabaay participated in various ways, that he went over the procedure with Dr. Angelí prior to the operation; he and Dr. Angelí agreed on the transfer site for reattachment of the tubercle; he helped to test the site by manipulation while Dr. Angelí held the tubercle in place at the site, and he felt and tested the tracking of the patella while Dr. Angelí held and manipulated the leg. Further, he manipulated the leg while Dr. Angelí placed stitches in the medial side of the retinaculum and Dr. Jabaay sutured the skin with subcutaneous stitches. He also observed and supervised the entire procedure.

There was additional testimony that a “one man operation” would be “rather dangerous.”

It appears from the evidence that Dr. Angelí was the primary performer of the surgery, albeit under direction and supervision at a “teaching hospital.” The consent could be said to contemplate that someone other than Dr. Jabaay would principally perform the surgery since other doctors were named even prior to his name on the consent form. It would not appear, however, that the jury could properly decide that plaintiff had been informed and consented to the extent of Dr. Angelí’s participation.

The doctrine of informed consent has been held not to apply, however, where, as here, the patient has given informed consent to surgical procedure which is performed by a surgeon other than the surgeon specifically authorized to operate. (Perna v. Pirozzi (1982), 182 N.J. Super. 510, 515, 442 A.2d 1016, 1019. See also Zimmerman v. New York City Health & Hospitals Corp. (1983), 91 A.D.2d 290, 291-92, 458 N.Y.S.2d 552, 554.) The authorities appear uniformly to agree that where an unauthorized surgeon operates, he commits a technical trespass to the patient resulting in the intentional tort of battery. (Pratt v. Davis (1906), 224 Ill. 300, 305; Perna v. Pirozzi (1982), 182 N.J. Super. 510, 515, 442 A.2d 1016, 1019, citing Louisell and Williams, Medical Malpractice sec. 8.09, at 220 (1974); 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers sec. 197, at 329-30 (1981); L. Riskin, Informed Consent: Looking for the Action, 1975 U. Ill. L.F. 580, 582.) Even the opinion relied on by plaintiff, Buie v. Reynolds (Okla. App. 1977), 571 P.2d 1230, 1236 (Brightmire, P.J., specially concurring) states “[t]he wrongful act renders the one who performs the surgery without consent guilty of a battery ***.” However, plaintiff elected to withdraw counts alleging battery and breach of contract, and chose to rely solely on the wrong theory of informed consent. This was so even after plaintiff at the close of all the proofs filed her fifth amended complaint ostensibly for the purpose of conforming the pleadings to the proofs.

Even if plaintiff did not consent to Dr. Angelí performing the surgery, once the counts of battery and breach of contract against these defendants were withdrawn, there was no basis under a theory of informed consent for the jury to return a verdict against defendants for the first surgery. The withdrawal of the earlier pleadings removed them from consideration, and left the issues in the same status as though the withdrawn pleadings had not been filed. (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 164.) Plaintiff may have had a cause of action for battery against Dr. Angelí, but in the first appeal (Guebard v. Jabaay (1978), 65 Ill. App. 3d 255, 259-60) it was decided that the suit was time-barred.

We conclude that, although plaintiff did not consent to have Dr. Angelí primarily perform the surgery, she has no remedy under her pleaded theory of the lack of “informed consent” as to the first operation.

The Second Surgery

Next plaintiff argues that defendants did not obtain her informed consent to the second Hauser surgery performed in Central Du Page Hospital on October 6, 1971. She relies on her nontreating expert, Dr. Compere, who testified on direct examination that she was not adequately informed as to her condition, the proposed treatment, and material risks to give her informed consent. Plaintiff also identifies as salient: (1) Dr. Jabaay intended to perform a comparatively simple surgery known as a “reefing” procedure to correct a medial dislocation, which had developed after the first surgery, until he indicated to her between 9-10 p.m. on the evening prior to surgery that he wanted to redo the Hauser procedure; (2) plaintiff was too upset by this disclosure to give her consent that night and executed a form authorizing the treatment at 8 a.m. the following morning only after she may have already been under pre-operation medication; (3) Dr. Jabaay never informed plaintiff that she had osteoporosis, or softened bone tissue, which could allow the bone plug to pull away easily from the bone and prevent the second surgery from being successful; and (4) plaintiff was never informed that an alternative treatment involving removal of the patella (knee cap), known as a patellectomy, would yield the desired improvements in function.

Dr. Jabaay testified that he informed plaintiff that there was the risk that after the second surgery lateral dislocation could recur; that there was an increased risk of infection; and that plaintiff would be in a cast again and have to do certain post-operative exercises to strengthen leg muscles. He did not tell her about the softened bone at the surgery site because he did not consider it a “major problem.”

Defendants contend that Dr. Compere’s opinion was couched in terms of a personal opinion only, not in the required terms of what a “reasonable local medical practitioner” (emphasis added) would have done in the same or similar circumstances.

To evaluate a physician’s disclosure of information to his patient relative to whether that patient gave an informed consent to a proposed medical procedure, the courts have adopted various standards; (1) the reasonable physician or national standard, (2) the community or local practice standard, and (3) the patient-need standard. See Cross v. Trapp (W. Va. 1982), 294 S.E.2d 446, 450-51; Annot., 88 A.L.R.Sd 1088 (1978).

The reasonable physician or national standard simply measures the standard of physician disclosure by what a reasonable physician would disclose under the same or similar circumstances. (Ziegert v. South Chicago County Hospital (1981), 99 Ill. App. 3d 83, 92.) This is the rule in Illinois and remains the majority rule today. (See Cowman v. Hornaday (Iowa 1983), 329 N.W.2d 422, 425; see also Harnish v. Children’s Hospital Medical Center (1982), 387 Mass. 152, 156 n.4, 439 N.E.2d 240, 243 n.4 (collecting cases from 13 other jurisdictions).) This rule substitutes a national standard of reasonable and ordinary care for the traditional locality standard. (Cross v. Trapp (W. Va. 1982), 294 S.E.2d 446, 451, citing 82 W. Va. L. Rev. 251, 275 (1979).) Since Illinois follows the reasonable physician or national standard (see Green v. Hussey (1970), 127 Ill. App. 2d 174, 184), defendants’ argument that plaintiff’s expert testimony was not properly phrased in terms of the local practitioner standard fails.

Defendants also argue that there was no proof that plaintiff would have submitted to patellectomy had Dr. Jabaay informed her of this alternative treatment before the second surgery. Defendants apparently contend that Dr. Jabaay’s failure to obtain her consent, assuming that it was not informed, was not the proximate cause of plaintiff’s condition following the second surgery. The bone plug had pulled out and the patellar tendon had detached, requiring surgery a third time to remove a piece of bone and the screw. According to Dr. Jabaay, the bone plug could have pulled out because there was softening of the bone at the site of surgery, or because of a post-operative infection, or because of a “mushy” cast.

According to plaintiff, she did not learn that a patellectomy was an alternative treatment until she went to another physician after the second unsuccessful surgery. Her nontreating expert, Dr. Compere, testified without contradiction that a patellectomy had been found “most successful” in treating her condition, which included increased chrondomalacia or degeneration of the articular cartilage as a result of the scraping of the detached patella; that the patella is part of the ex-tensor apparatus, but can be removed and the leg will “usually” retain “good function.” In view of this substantially uncontradicted testimony, we are unable to conclude that there is sufficient proof that plaintiff’s consent to the second Hauser procedure was informed.

Even though the informed consent may have been defective, plaintiff’s resulting condition must have been proximately caused by the absence of informed consent. (Green v. Hussey (1970), 127 Ill. App. 2d 174, 185.) The majority rule is that causation in informed consent cases is determined by an objective standard, what a prudent person in plaintiff’s position would have decided if adequately informed. (Crain v. Allison (D.C. App. 1982), 443 A.2d 558, 563 n.14; Dessi v. United States (E.D. Va. 1980), 489 F. Supp. 722, 729 (applying Virginia law); Reiser v. Lohner (Utah 1982), 641 P.2d 93, 98 n.18.) The plaintiff’s testimony, while relevant, will be assessed under a reasonableness standard. (Dessi v. United States (E.D. Va. 1980), 489 F. Supp. 722, 729.) If disclosure would not have changed the decision of a reasonable person in the position of the patient, there is no causal connection between nondisclosure and his post-operative condition; if, however, disclosure would have caused a reasonable person in the position of the patient to refuse the surgery or therapy, a causal connection is shown. (Sard v. Hardy (1977), 281 Md. 432, 450, 379 A.2d 1014, 1025.) Otherwise, the physician is put in “ ‘jeopardy of the patient’s hindsight and bitterness.’ ” Sard v. Hardy (1977), 281 Md. 432, 449, 379 A.2d 1014, 1025, quoting Canterbury v. Spence (D.C. Cir. 1972), 464 F.2d 772, 790-91.

Here plaintiff did not testify as to what she would have hypothetically done. Certain testimony militates in favor of a patellectomy. Plaintiff had some osteoporosis, which Dr. Jabaay chose not to disclose, and she had a smaller than normal femoral condyle, which the testimony showed would make patella dislocation more likely to recur. Nonetheless, the Hauser procedure was also a good treatment and plaintiff’s expert, Dr. Compere, testified that he did not believe he had ever had any bad results from a Hauser procedure. Moreover, although a patellectomy would usually allow the leg good functioning, plaintiff would not have been able to lead as active a sports life as she might have been able to lead with successful Hauser surgery. The jury may also have been influenced by the fact that when plaintiff had surgery a third time, Drs. Fox and Kolb did not perform a patellectomy despite Dr. Fox’ note that plaintiff was “probably a case for [a] patellectomy.” We therefore conclude that a jury question was formed by the evidence. The verdict on this issue was not against the manifest weight of the evidence.

Res Ipsa

Finally, the plaintiff argues that the trial court erred in refusing, as a matter of law, to apply the doctrine of res ipsa loquitur to the first Hauser procedure. Plaintiff primarily relies on the undisputed testimony that prior to the first operation she had a lateral (outside) dislocation of her patella, while after surgery she had a medial dislocation (inside). Dr. Compere, plaintiff’s expert, essentially testified that such a secondary medial dislocation is a rare and unusual occurrence.

The res ispa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was injured (1) in any occurrence that would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of the defendant(s), and (3) under circumstances indicating the injury was not due to any voluntary act of neglect on the part of the plaintiff. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 272; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 394.) The doctrine is applicable in medical malpractice actions. (Spidle v. Steward (1980), 79 Ill. 2d 1, 6; Walker v. Rumer (1978), 72 Ill. 2d 495, 500.) The duty of the trial court in the first instance is to decide whether, as a matter of law, the res ipsa loquitur doctrine applies at all. (Spidle v. Steward (1980), 79 Ill. 2d 1, 7.) Factual disputes presenting credibility questions or requiring evidence to be weighed as to the res ipsa loquitur requirements should not be decided by the trial judge as a matter of law. (Spidle v. Steward (1980), 79 Ill. 2d 1, 10.) The introduction of some evidence of negligence does not bar the doctrine of res ipsa where the cause of the injury is not conclusively established thereby. Kolakowski v. Voris (1980), 33 Ill. 2d 388, 397-98.

• Plaintiff’s testimony clearly meets two of the three elements of res ipsa. Her own conduct did not contribute to causing the medial subluxation or dislocation. Also, defendants were in control during surgery and were in the better position to explain what occurred. The determination which must be made as a matter of law is whether plaintiff produced evidence that “ ‘the occurrence is such as in the ordinary course of things would not have happened’ ” in the exercise of proper care. Walker v. Rumer (1978), 72 Ill. 2d 495, 500.

“Ordinarily” is the key concept of res ipsa loquitur. (Quin v. George Washington University (D.C. App. 1979), 407 A.2d 580, 583.) An inference of negligence cannot be based solely on the fact, however, that a rare and unusual result followed treatment of surgery. (See Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 526-27.) The expert testimony must establish that the rare and unusual condition, more probably than not, resulted from defendant’s negligence. Spidle v. Steward (1980), 79 Ill. 2d 1, 10. See also Contreras v. St. Luke’s Hospital (1978), 78 Cal. App. 3d 919, 931, 144 Cal. Rptr. 647, 655.

Dr. Compere testified from medical reports and X rays that the result of the first surgery “would not have required a second operation” if ordinary care had been used. He based his conclusion on the result, however, and did not state any deviation by Dr. Jabaay from the standard Hauser procedure.

Dr. Jabaay testified that plaintiff’s condyles were “very flat,” making it difficult to get her knee-cap to stay in. Dr. Sofield, defendants’ expert, testified from plaintiff’s medical records and X rays that the condyles of the femur were “too low,” not “well-developed” or “too short,” concluding that “it’s easy enough for them to dislocate one way or the other ***.” Dr. Compere, plaintiff’s expert stated on cross-examination that plaintiff had “a little smaller” condyle than expected for a person of her size and that this anatomical problem can cause recurrent dislocation even without having had an injury “in some cases.”

Dr. Compere did not directly testify that the dislocation is more likely the result of negligence than the congenital condition involving the shallow condyles. His testimony, however, that if the Hauser operation had been properly done the second operation would not have been necessary offers a strong inference that it was his opinion that the first Hauser operation was not properly performed.

In addition, plaintiff testified that Dr. Jabaay had admitted that in the first surgery he made a “mistake” and moved the knee “a quarter of an inch too far.” Also, Dr. Jabaay’s report of the second operation indicates that “[apparently the tibial tubercle had been transplanted too far medially.” Dr. Sofield testified that medial dislocation occurs when the ligament is anchored too much to one side.

This testimony offered some specific evidence of negligence in the movement of the tibial tubercle in the first surgery which resulted in too much medial displacement. The evidence did not conclusively establish, however, that the injury resulted from this specific act of negligence. The testimony, therefore, did not of itself deprive plaintiff of the right to rely on the inference of general negligence arising from the doctrine of res ipsa loquitur. Kolakowski v. Voris (1980), 83 Ill. 2d 388, 397.

We conclude that Dr. Compere’s testimony was sufficient to show that the result of the first Hauser surgery “ordinarily” would not have occurred without negligent antecedents. (Spidle v. Steward (1980), 79 Ill. 2d 1, 9.) In Spidle, the surgeon admitted after the operation that he “operated a little too soon.” From this, the majority found that a reasonable person could conclude that plaintiff’s expert believed that the injury more probably than not resulted from defendant’s negligence and that, if believed, this was evidence of more than a mere unusual occurrence, so that the jury could have inferred negligence under res ipsa loquitur. Here we find a similar admission by Dr. Jabaay- in his statements that he moved the knee or tibial tubercle a little too far, with further evidence, considered in a light most favorable to plaintiff, that could allow a reasonable person to conclude that plaintiff’s expert believed that the injury more probably than not resulted from defendant’s negligence. Spidle v. Steward (1980), 79 Ill. 2d 1,10.

We also conclude that the evidence here is of more than a mere unusual occurrence and though controverted involves a factual dispute which should not be decided by the trial judge as a matter of law but submitted to the jury. Spidle v. Steward (1980), 79 Ill. 2d 1, 10.

Our decision in Taber v. Riordan (1980), 83 Ill. App. 3d 900, 906-07, cited by defendants is distinguishable on its facts. Res ipsa loquitur was held inapplicable in Taber because the plaintiff had an undisputedly serious congenital hip defect with hip damage and pain before the complained of surgery; further evidence clearly showed that complications involving the femoral nerve could arise absent any negligence on the part of the operating physician. Also, in Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 526-27, the doctrine was held inapplicable because, even if the complication which the plaintiff suffered was rare and unusual, there were no specific acts of negligence, merely differences in the exercise of individual judgment; and it was clear to the court under the evidence that the expert testimony showed that the doctor did not believe that plaintiff’s injury more probably than not resulted from defendant’s negligence.

The judgment of the trial court is reversed as to its dismissal. of the res ipsa loquitur portion of the complaint. The judgment entered on the verdict of the jury as to counts I and II of the complaint against the defendants based on the violation of the doctrine of informed consent both as to the first and second operations is affirmed. Count III of the complaint as amended is remanded to the circuit court of Du Page County for further proceedings consistent with this opinion.

Reversed in part and remanded for a new trial; affirmed in part.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re APPLICATION OF PEOPLE ex rel. AUDREY WALGENBACH, COUNTY COLLECTOR-(School District No. 158, McHenry County, et al., Plaintiffs-Appellees, v. Palatine National Bank, Trust No. 953, et al., Defendants-Appellants).
    Second District
    No. 82 — 818
    Opinion filed August 3, 1983.
    Richard J. Szura, of Abbamonto, Szura & Binder, of Cary, for appellants.

      Allyn J. Franke, of Brydges, Riseborough, Morris, Franke & Miller, of Chicago, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendants, tax objectors, appeal from a McHenry County circuit court judgment which interprets section 20 — 2 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 2) to allow a school district to incur an indebtedness and issue bonds as evidence thereof to increase the amount of money in the school district’s existing working cash fund. Section 20 — 2 provides, “For the purpose of creating a working cash fund, the school board of any such district may incur an indebtedness and issue bonds as evidence thereof ***.” (Emphasis added.)

The boards of education for School Districts Nos. 158 and 200 levied property taxes to pay the principal and interest for working cash fund bonds issued to increase the amount of their existing working cash funds. District No. 158 issued $425,000 in bonds on September 1, 1978, when it had $12,037 remaining in its working cash fund; District No. 200 issued $1,650,000 in bonds on December 1, 1978, when it had $54,704 in its working cash fund. Defendants objected to these tax levies on their property in McHenry County for 1979 and to the entry of a judgment fixing the correct amount of their property tax in a sum in excess of the amount to which no objections were made. Defendants argued that since the school districts previously created working cash funds, they could not issue new bonds to replenish their funds and thus could not levy new taxes to pay the principal and interest on those bonds.

The trial court rejected defendants’ arguments finding that the school boards could issue new bonds to produce new funds as required and denied the defendants’ objections. Defendants appealed.

Article 20 of the School Code authorizes school districts with populations less than 500,000 inhabitants to create, maintain, and administer working cash funds to enable “the district to have in its treasury at all time sufficient money to meet demands thereon for ordinary and necessary expenditures ***.” (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 1.) “For the purpose of creating” this fund, the school board of the district may incur an indebtedness and issue bonds as evidence thereof in an amount limited by a specified formula; before or at the same time that the bonds are issued, the school board must levy a direct annual property tax to generate sufficient money to pay the principal and interest on the bonds. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 2.) To issue bonds, the school board must adopt a resolution of its intent to do so and. publish notice of this intent; if 20% or more of the voters petition that the proposition be submitted to a vote, an election must be held and the proposition must receive majority support. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 7.) To provide money for the fund, the school board may also levy annually a working cash fund property tax. Ill. Rev. Stat. 1981, ch. 122, par. 20 — 3.

Sections 20 — 4 and 20 — 5 of the School Code direct and limit the use of the working cash fund by establishing a reimbursement procedure whereby money borrowed from the fund to pay necessary and ordinary expenditures is replaced with money that is collected by taxes or otherwise for the purposes to which the fund money had-been borrowed. (Ill. Rev. Stat. 1981, ch. 122, pars. 20 — 4, 20 — 5.) The fund may be abolished by resolution of the school board. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 8.) A school district which has abolished or abated its fund may create a new one. Ill. Rev. Stat. 1981, ch. 122, par. 20 — 9.

Defendants argue that the phrase “[f]or the purpose of creating” a fund found in section 20 — 2 limits a school board’s authority to issue bonds only to create the fund, not to increase the amount of money in it. The school districts respond that the word “create” has a broader meaning than to establish as in the sense of an original inception; rather, according to the districts, it means to achieve different levels in the fund through a series of steps which increase the amount of the fund. They further argue that construing the section as defendants advocate would defeat the legislature’s intent and lead to an absurd result which, if taken to its logical conclusion, would prohibit a school district with only $1 remaining in its fund from issuing new bonds but allowing a school district without any money remaining in its fund to recreate a fund and issue bonds in any amount.

The first canon of statutory interpretation is to ascertain and give effect to the legislative intent as expressed in the statute. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46.) Provisions of a statute should be read in light of the statute as a whole. (Winks v. Board of Education (1979), 78 Ill. 2d 128, 135.) The legislative intent usually appears from a consideration of the statute’s language which affords the best means of its exposition. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194.) The words used in a statute are assumed to have been intended to retain their ordinary and popularly understood meaning. (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 215.) If the legislative intent can be ascertained from the language of the statute, the language prevails and will be given effect; a court may not declare that the legislature did not mean what the plain language of the statute imports. Western Na tional Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.

A court, however, is not bound by the literal language found in a statute where the language would defeat the legislature’s obvious and clearly expressed objective or purpose. (People v. McCoy (1976), 63 Ill. 2d 40, 45.) Words may thus be modified, altered, or supplied to obviate repugnancies or inconsistencies with the legislative intent. (People v. Bratcher (1976), 63 Ill. 2d 534, 543.) As this court stated in People v. Gibson (1981), 99 Ill. App. 3d 616, “courts are generally cautious about adding words to a statute, [but] *** will read into the meaning of a statutory provision a qualifying or expanding expression [which is] plainly implied by the general context of the enactment, which has been palpably omitted and which is essential to prevent the legislative purpose from failing in one of its important aspects.” (99 Ill. App. 3d 616, 620.) Where two constructions of a law are available, the one which would produce absurd results and render the operation of the law difficult should be avoided. Balmes v. HIABFOCO, A.B. (1982), 105 Ill. App. 3d 572, 575.

The present statute is unambiguous. The word “create” means to bring into being, to cause to exist, or to produce. (Black’s Law Dictionary 330 (5th ed. 1979).) For purposes of bringing into existence a fund where one does not exist, the statute authorizes the school board to incur an indebtedness and issue bonds as evidence of this indebtedness. It does not authorize a school board to later increase its indebtedness and issue new bonds once the fund already exists. Contrary to the school districts’ assertions, this construction comports with the legislative intent as expressed in article 20 of the School Code.

Reading article 20 as a whole reveals the legislature’s intent of stabilizing school finances by authorizing a school board to establish an internal source whereby a school may borrow money to pay for its ordinary and necessary expenditures. (Schwartz, Illinois School Finance — A Primer, 56 Chi-Kent L. Rev. 831, 849, 856 (1980).) The reimbursement procedure requiring school boards to replace money borrowed from the fund with revenue collected for the specific purpose for which the fund money was applied creates a revolving fund. (Mathews v. City of Chicago (1930), 342 Ill. 120.) This procedure evinces that the legislature contemplated that the amount of money in the fund would not be depleted but rather would remain fairly constant.

While article 20 provides that the initial source of the fund would come from the issuance of bonds, the legislature apparently recognized that the amount of money in the fund may become inadequate and thus provided two remedies. Section 20 — 3 allows a school board to levy annually a working cash fund tax in a prescribed formula. (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 3.) This levy constitutes the only means to increase the amount of money in an existing fund. In Mathews v. City of Chicago (1930), 342 Ill. 120, the supreme court explained this procedure where it stated:

“The raising of a fund by the sale of bonds to meet the deficit and the establishment from the proceeds of such sale of a revolving fund, to be increased from time to time, if necessary, by a levy of taxes, may be a novel scheme, but it is not different in principle from the raising each successive year of a fund for the same purpose by borrowing money by means of anticipation warrants.” 342 Ill. 120,137.

Should the amount that could be levied under the formula set forth in that section prove insufficient to meet the needs of the school board, the school board may abolish the fund (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 8), and then create a new one (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 9). That the legislature intended this latter procedure may be inferred from its adding of section 20 — 9 to article 20 after the Illinois Supreme Court noted, but did not address, an appellant’s objections to the article based upon the hypothesis that a board could annually create and abolish a fund. (See Bell v. School District No. 81 (1950), 407 Ill. 406, 414.) Section 20 — 9, added to the article in 1967, provides that, “Nothing in this Article prevents a school district which has abolished or abated its working cash fund from again creating a working cash fund in the manner provided in this Article.” Ill. Rev. Stat. 1981, ch. 122, par. 20 — 9; see Schwartz, Illinois School Finance — A Primer, 56 Chi-Kent L. Rev. 831, 856-57 (1980).

A comparison of other statutes which authorize working cash funds supports the conclusion that bonds under the present section may be issued only when the school district initially creates the fund. Section 3 — 33.2 of the Public Community College Act provides:

“In order to create, maintain or increase such a working cash fund *** the board *** may incur an indebtedness *** and issue bonds therefor from time to time ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 122, par. 103-33.2.)

Similarly, section 34 — 31 of the School Code allows a board for a school district having a population in excess of 500,000 inhabitants to issue bonds to increase the working cash fund. (Ill. Rev. Stat. 1981, ch. 122, par. 34 — 31.) These two statutes reveal that the legislature could have specified that bonds may be issued to increase the amount of money in a fund but decided not to do so for school districts which have populations less than 500,000 inhabitants. Other statutes which authorize working cash funds either imitate the instant statute (see Ill. Rev. Stat. 1981, ch. 96½, par. 6431 (forest preserves); Ill. Rev. Stat. 1981, ch. 96½, par. 6445.2 (zoological parks); Ill. Rev. Stat. 1981, ch. 34, par. 2052 (counties); Ill. Rev. Stat. 1981, ch. 24, pars. 8 — 6—2, 8 — 7—2 (cities)), or authorize only tax levys, and not the issuance of bonds, to provide money for the fund (see Ill. Rev. Stat. 1981, ch. 105, par. 11.2 — 2 (park districts); Ill. Rev. Stat. 1981, ch. 34, par. 2074 (downstate counties)). All of these statutes evince a conscious effort by the legislature to devise different plans by which working cash funds may be created and funded depending on the particular circumstances and needs of the entity.

Thus, contrary to the districts’ assertions on appeal, the purpose of this article to enable school districts to have at all times sufficient money to meet ordinary and necessary expenditures (Ill. Rev. Stat. 1981, ch. 122, par. 20 — 1) is not defeated by this interpretation of the word “create.” The school district can levy annually a tax to increase the fund or abolish the fund and create a new one. Similarly, this interpretation serves to remedy the evil intended to be remedied and to attain the object sought by the legislature: to stabilize the finances of school districts.

In arguing that “create” encompasses the act of increasing the fund, the school districts rely on People ex rel. Reynolds v. Atchison, Topeka & Santa Fe Ry. Co. (1921), 300 Ill. 415. In that case, the court addressed the issue of whether a tax levy to pay for the establishment and maintenance of a detention home needed to separate the items for its establishment from those for its maintenance. The court found that “to establish” meant “to create, to institute, to build *** [and a tax levy to establish] a detention home would include purchasing, erecting, leasing and otherwise providing, and such tax could be used to enlarge, improve or add to such home ***.” (300 Ill. 415, 417.) The court continued that to “maintain” meant those things having to do with carrying on the business for which the home was built or established. 300 Ill. 415, 417.

While the court’s interpretation of “create” may include the act of “enlarging” the fund, the difference in the nature of a detention home and of a fund makes that definition inappropriate. An increase in the amount of money in a fund does not change the fund, it merely changes what is in the fund. On the other hand, an improvement to a detention home changes the very structure of the home by creating a new part to it. Furthermore, the court in that case sought to compare the words “establishment” and “maintenance,” which narrows the applicability of the court’s definition. Finally, while the word “established” may include within its meaning the act of creating, the inverse does not necessarily follow. See Webster’s Third New International Dictionary 532, 778 (1966).

The school districts’ reliance on Davidson v. Lanier (1866), 71 U.S. (4 Wall.) 447, 18 L. Ed. 377, wherein the Supreme Court interpreted the meaning of “to erect, establish, institute or put in operation” to mean more than just the commencement, is misplaced. In Davidson, the court sought to determine the conduct prohibited by this phrase and thus focused on all four parts in arriving at its conclusion.

The school districts further argue that other language in the article indicates that the legislature intended more than one bond issue and emphasize these phrases in quoting sections of the article in their brief:

“such district may *** issue bonds *** in an amount or amounts not exceeding in the aggregate 75% of the taxes per- . mitted to be levied for educational purposes for the then current year ***.” (Emphasis supplied by school districts.)

The legislature’s use of the phrases “amount or amounts” and “aggregate” does not mean that the legislature contemplated more than one bond issue; rather, it may mean that one bond issue may contain bonds in various amounts. The word “then” does not mean that several bond issues are authorized; rather, it defines the base year for determining the aggregate amount of the bond issue pursuant to the established formula when a school district decides to create a working cash fund. Furthermore, this language may represent a legislative authorization that the issuance of bonds be in a series as opposed to the issuance of bonds just at one time. See Black’s Law Dictionary 163 (5th ed. 1979) (series bonds means groups of bonds issued at different times but for the same indenture).

The school districts attempt to explain the rationale for the legislature’s specific authorization in section 34 — 31 of the School Code allowing certain school boards to issue bonds to increase their working cash fund as merely a necessary provision added to the School Code when the General Assembly increased the amount of money which a school district could place in a working cash fund. However, if the school districts’ interpretation of the word “create” is correct, no such new provision would have been needed. Furthermore, this explanation does not explain why the General Assembly used the word “increase” in the Public Community College Act (Ill. Rev. Stat. 1981, ch. 122, par. 103-33.2).

Finally, the school districts contend that the legislative history of working cash funds supports the trial court’s judgment. Directing this court to a 1930 statute which originally established a working cash fund for the board of education of the city of Chicago, they urge that that statute’s requirement that “[n]ot more than fifty (50) per centum of the aggregate amount of bonds herein authorized shall be issued and sold in any calendar year” indicates that more than one bond issue was contemplated. However, this requirement merely indicates that when a school board determines to create a fund, it may authorize bonds for the indebtedness to be incurred but that the bonds may be issued and sold at different times. Indeed, Black’s Law Dictionary defines “series bonds” to mean groups of bonds issued at different times but for the same indenture (Black’s Law Dictionary 163 (5th ed. 1979)). Thus, such language does not mean that a school board may incur an additional indebtedness and issue additional bonds to increase the money in the fund.

The trial court’s interpretation of the word “create” to mean to produce additional funds misreads the statute. The creating of the fund is a single act. Only for that purpose may bonds be issued. The only method to produce additional funds is by a tax levy.

The judgment of the circuit court of McHenry County is reversed.

Reversed.

NASH and VAN DEUSEN, JJ., concur.


text:
    HIDDEN COVE MARINA, INC., Plaintiff-Appellant, v. ANNA MONDELLO, Defendant and Third-Party Plaintiff-Appellee—(The Village of Fox Lake, Third-Party Defendant-Appellee).
    Second District
    No. 82 — 886
    Opinion filed August 3, 1983.

      Markham M. Jeep, of Charles M. May, Ltd., of Waukegan, for appellant.
    Glen E. Amundsen, of Querrey, Harrow, Gulanick & Kennedy, of Waukegan, for appellee Anna Mondello.
    Howard Teegen, of Soffietti, Johnson, Teegen & Phillips, of Fox Lake, for appellee Village of Fox Lake.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Hidden Cove Marina, Inc. (Hidden Cove), plaintiff, appeals from that part of a Lake County circuit court summary judgment denying that portion of its small claims complaint requesting payment from Anna Mondello, defendant, for the storage of her car pursuant to article II of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 4 — 201 et seq.). The trial court granted Hidden Cove its request for payment for the towing of Ms. Mondello’s car. On appeal, Hidden Cove argues that the Illinois Vehicle Code permits it to recover for its storage charges as well as its towing charges. We affirm.

Section 4 — 203(e) of the Illinois Vehicle Code (Code) provides that “[w]hen a vehicle removal from either public or private property is authorized by a law enforcement agency, the owner of the vehicle will be responsible for all towing costs.” (Ill. Rev. Stat. 1981, ch. 95½, par. 4 — 203(e).) No question is raised concerning the police department’s authority to remove defendant’s car; the only issue concerns whether towing costs include storage fees, a question of statutory construction.

The first canon of statutory interpretation is to ascertain and give effect to the legislative intent as expressed in the statute. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46.) Provisions of a statute should be read in light of the statute as a whole. (Winks v. Board of Education (1979), 78 Ill. 2d 128, 135.) The legislative intent usually appears from a consideration of the statute’s language which affords the best means of its exposition. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194.) The words used in the statute are assumed to have been intended to retain their ordinary and popularly understood meaning. (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 215.) If the legislative intent can be ascertained from the language of the statute, the language prevails and will be given effect; the court may not declare that the legislature did not mean what the plain language of the statute imports. Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.

The legislature’s sole use of the word “towing” limits a car owner’s financial obligation to the cost in removing the car, not the cost incurred in its storage. The legislature’s differentiation between towing and storage charges in section 4 — 207 of the Code, where it provides that “[n]o vehicle shall be released to the owner *** until all towing and storage charges have been paid” (Ill. Rev. Stat. 1981, ch. 95½, par. 4 — 207), further indicates that in section 4 — 203 the legislature intended that a towing company be able to recover only towing charges, not storage charges.

The only means provided by the Code for a car tower to recover storage charges from the owner of a car is where the owner seeks to reclaim the car before it is disposed of at public sale or otherwise. (Ill. Rev. Stat. 1981, ch. 95½, par. 4 — 207.) This section does not give Hidden Cove the right to sue the owner of a car without that owner seeking to reclaim it. Since neither defendant nor her insurance carrier seek to reclaim the car, Hidden Cove may not recover its storage charges.

In affirming the trial court, we do not wish to imply that this section of the Code applies to cars which have been towed because they were illegally parked. The parties never raised this issue on appeal, and we decline to address it.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

HOPF and VAN DEUSEN, JJ., concur.