author: JUSTICE ROMITI

text:
    SYLVIA S. HARRIS, Plaintiff-Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 84—437
    Opinion filed December 27, 1984.
    Cohon, Raizes & Regal, of Chicago (Gerald D. Chiss, of counsel), for appellant.
    David I. Herbst and Martha L. Ashenhurst, both of Portes, Sharp, Herbst & Kravets, Ltd., of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff Sylvia Harris (Harris) appeals from the order of the circuit court of Cook County which, pursuant to the motion of defendant First Federal Savings & Loan Association of Chicago (First Federal), dismissed count I of Harris’ complaint, which alleged that First Federal’s actions toward her while she was employed by First Federal amounted to the intentional infliction of emotional distress. The trial court dismissed the count for failure to state a claim. The sole issue presented for our review is the propriety of the trial court’s judgment.

We affirm.

The following facts are alleged in count I of Harris’ complaint and stand admitted by First Federal for purposes of its motion to dismiss. Since August 1, 1977, Harris was employed by First Federal as a financial counselor. She received numerous salary increases from time to time while so employed, and was promoted to the position of senior financial counselor in roughly September 1980. On February 11, 1981, Harris was promoted to the position of manager of First Federal’s Skokie branch.

In January 1982, while employed as" branch manager, Harris determined that one of the employees whom she supervised may have been involved in the commission of the crimes of theft and embezzlement of the funds held on account at First Federal. After conducting a factual investigation, Harris notified her supervisors and a further investigation commenced. The employee who was the object of the investigation was temporarily suspended, but was later returned to active employment. First Federal undertook no punitive or disciplinary action against the employee.

On or about March 23, 1982, Harris received a memorandum from one of her supervisors which accused her of “questionable judgment” in connection with her handling of the employee investigation. Roughly a week later, Harris was placed on six months’ probation, transferred to First Federal’s Mount Prospect branch, and instructed to work in the position of financial service representative, a position inferior to that of branch manager. These actions were allegedly in deviation from First Federal’s “Guidelines for Employee Discipline,” a copy of which was attached to Harris’ complaint.

Harris was subjected to various forms of “embarrassing” or “humiliating” experiences while at the Mount Prospect branch. In fact, her complaint specified almost 25 separate manners or instances where she was mistreated, embarrassed, or humiliated by First Federal while at the Mount Prospect branch office. For example, she alleged that when she was transferred to Mount Prospect, she was given a desk directly in front of the assistant manager’s office, which was physically removed from the area in which other counselors’ desks were located. She also stated that she was given performance reviews more frequently than the other employees, and that at these reviews she was continually berated and criticized, and that her work was criticized “unnecessarily, inaccurately, unfairly and unreasonably.” Her complaint also alleged that on or about September 7, 1982, she was told that she would be transferred to First Federal’s Waukegan office, located approximately 30 miles from Harris’ home. She was told that if she refused the transfer she would be demoted to a financial service representative. She declined the transfer and was demoted. At another point in time, Harris was instructed to work part-time at First Federal’s Palatine and Arlington Heights offices, despite the fact that several of her co-workers lived nearer to these offices and volunteered to work there in Harris’ stead. Finally, Harris specified numerous instances where her co-workers were instructed to “mistreat” or “malign” her, by doing such things as not engaging in conversation with her and not answering her business questions. Her colleagues were also instructed to monitor and report on her behavior while at work and would do so by following her into the ladies’ room, the lunch area and the parking lot whenever she visited those areas, and by criticizing her for being absent from her desk although she was entitled to visit those areas on coffee breaks and during lunch hour. In addition, Harris was given, inconsistent and contradictory job instructions, e.g., she was criticized for going to lunch at her regular lunch period while customers waited in the reception area and also criticized if she waited on customers and missed her regular lunch period.

On approximately April 18, 1983, Harris was again placed on probationary status; roughly a month later, her employment was terminated. Harris claimed that both of these actions were taken by First Federal in manners not permitted by the company’s “Guidelines for Employee Discipline.” She further alleged that she sought medical treatment for the physical illnesses she suffered because of the intentional emotional distress First Federal caused her.

Harris instituted this action against First Federal on September 9, 1983, in a two-count complaint. Count I sought recovery based upon intentional infliction of emotional distress, count II based upon retaliatory discharge. The trial court dismissed count I of her complaint for failure to state a claim on January 13, 1984. The court also found that there was no just reason to delay enforcement of or appeal from its dismissal of count I of the complaint. Harris’ notice of appeal was timely filed.

Harris argues that the facts pleaded in count I of her complaint were sufficient to state a claim for intentional infliction of emotional distress. We disagree.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege facts which establish that: (1) the conduct of the defendant was extreme and outrageous; (2) the emotional distress suffered by the plaintiff was severe; and (3) the defendant’s conduct was such that the defendant knew that severe emotional distress would be certain or substantially certain to result. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765.) The defendant’s “extreme and outrageous” conduct must extend beyond “mere insults, indignities, threats, annoyances, petty oppressions or trivialities.” (66 Ill. 2d 85, 89-90, 360 N.E.2d 765.) In fact, even tortious or malicious intent may be insufficient, as liability will be found “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.” (Restatement (Second) of Torts, sec. 46, comment d (1965), quoted in Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765.) In addition, the distress suffered must be such that no reasonable person could be expected to endure it. Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765.

The conduct of First Federal of which Harris complains was insufficient on which to base a claim for intentional infliction of emotional distress. Although we do not mean to imply approbation of the behavior of First Federal, nevertheless its treatment of Harris was not so reprehensible that it rose to the level of outrageous conduct beyond all possible bounds of decency, nor can we say that a reasonable person would have found First Federal’s actions impossible to endure. As the court stated recently in Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 166, 466 N.E.2d 1137:

“Personality conflicts, questioning of job performance and job transfers, whether for disciplinary or management purposes, are unavoidable aspects of employment. Frequently, they produce concern and distress for the affected employee. Yet, if the distress from such incidents was deemed so severe that no reasonable person could be expected to endure it, nearly all employees would have a cause of action for intentional infliction of severe emotional distress.”

Harris seeks to overcome the result reached below by analogizing the facts here to other Illinois decisions, placing primary reliance upon the recent decision of Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829. In Milton, the court held that the plaintiff’s complaint stated a claim for intentional infliction of emotional distress where it alleged in substance that his employer retaliated against him through harassment and coercion because the plaintiff refused to engage in the illegal activity of falsifying work reports. Harris argues that her experiences with First Federal were substantially similar because she was performing a legal obligation to report criminal activity by causing an investigation to be instituted into the activities of one employee which she reasonably and in good faith believed to be illegal, and that First Federal retaliated against her with harassment and coercion. We believe, however, that the facts here are not substantially analogous to those of Milton. There is no allegation, as there was in Milton, that First Federal’s “coercion” of Harris was calculated to cause her to engage in criminal or illegal activity; it is this “coercion [which] appears to form the main rationale behind the Milton holding.” (Balark v. Ethicon, Inc. (N.D. Ill. 1983), 575 F. Supp. 1227, 1232.) Instead, Harris alleges merely that her employer became displeased over the judgment she exercised regarding the conduct of one employee (however erroneous this displeasure may have been), and that thereafter her employer acted toward her in a manner which she found humiliating, embarrassing, and anxiety-producing. Although First Federal’s conduct may not be laudable, it was not as reprehensible as that of an employer who coerces its employee in an attempt to force the employee to engage in criminal activity.

Lastly, Harris contends that public policy calls for reinstatement of her claim. Specifically, she argues that recent Illinois decisions recognize that it is against public policy to allow an employer to take punitive or disciplinary measures against an employee who calls to the employer’s attention potential violations of criminal laws by fellow employees, citing Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588, and Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829. In our view, however, these cases do not stand for the broad proposition advanced by Harris nor do they imply the conclusion that every employer who under any and all facts and conditions institutes disciplinary measures against an employee who has brought to the attention of his supervisors the possibility that other employees may have engaged in criminal activity has ipso facto committed an act of intentional infliction of emotional distress upon the accusing employee. Further, we note that apparently Milton relied upon Palmateer, not as an expression of public policy, but in order to support its conclusion that where an employer retaliates against an employee with coercion and harassment because of the employee’s refusal to engage in illegal or criminal activity, both intentional infliction of emotional distress and retaliatory discharge may be appropriate bases upon which the employee may rely to recover damages from the employer. Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 80-81, 427 N.E.2d 829.) As previously indicated, we do not disagree with Milton’s result or its rationale, but conclude, consonant with Milton’s reasoning, that the facts here are clearly distinguishable from those of Milton and consequently are insufficient to state a claim for intentional infliction of emotional distress.

For the reasons stated above, the judgment of the trial court is affirmed.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE PE RUIN

license: Public Domain

text:
    JESSE WOODS, Plaintiff-Appellant, v. BRUCKER COMPANY, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—2572
    Opinion filed December 28, 1984.
    Legal Assistance Foundation, of Chicago (Sherry Estes, of counsel), for appellant.

      Norman H. Lesser & Associates, of Chicago (Norman H. Lesser, of counsel), for appellee.
   JUSTICE PE RUIN

delivered the opinion of the court:

Jesse Woods (plaintiff) filed in the circuit court of Cook County a cause of action against Brucker Company, Inc. (defendant), alleging employment discrimination. Following summary judgment entered in favor of defendant, plaintiff appeals, requesting this court to reverse the order of summary judgment and to remand this cause to the trial court with instructions that the Human Rights Commission (HRC) and the Department of Human Rights (DHR) be added as necessary parties defendants and that those agencies be ordered to process plaintiff’s charge of employment discrimination as set out in the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 et seq.).

Plaintiff, a black man, was employed by defendant from January 1974 until January 15, 1976, when he was discharged. On April 5, 1976, 81 days after his discharge, plaintiff filed with the Illinois Fair Employment Practices Commission (FEPC), pursuant to section 8.01 of the Illinois Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1975, ch. 48, par. 858.01), a “sworn charge” in which he alleged that he had been discriminated against by defendant on the basis of his race. In support of his charge, plaintiff alleged that he had been discharged while hospitalized, whereas a hospitalized white employee under similar circumstances was not so discharged.

Pursuant to section 8.01 of the FEPA, the FEPC was required, within 180 days of the filing of plaintiff’s charge, to act upon the charge, either by way of a determination that the charge lacked substantial evidence and should therefore be dismissed, or by a determination that a complaint should issue and a hearing held. The FEPC did neither. Instead, plaintiff was advised by the FEPC in February 1979 that he could prosecute his charge by filing a complaint in the circuit court pursuant to section 8.01a of the FEPA, which provided:

“In the case of any charge of an unfair employment practice which has been properly filed with the Commission prior to March 30, 1978, which has not been settled by conference and conciliation under section 8, and which within 180 days thereafter has not been the subject of a- complaint issued or an order that no complaint be issued, the person filing the charge may seek appropriate injunctive or other relief by filing an action in the circuit court of the county where the alleged unfair employment practice occurred.” Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.

On October 27, 1980, plaintiff filed in the circuit court of Cook County a complaint of employment discrimination against the defendant seeking reinstatement, back pay, fringe benefits, and costs and fees. Defendant’s answer asserted that plaintiff had been terminated not for being hospitalized but for excessive absenteeism and that he had been replaced by another black male.

In February 1983, defendant filed a motion for summary judgment, alleging that as a matter of law plaintiff’s claim had no merit since he was replaced by another black male, and that plaintiff was, therefore, unable to establish a prima facie case of racial discrimination. On May 27, 1983, the trial court accordingly entered summary judgment for the defendant. Plaintiff’s motion for reconsideration was denied on September 24, 1983. On October 24, 1983, plaintiff filed his notice of appeal. In the trial court, neither party raised the issue of subject matter jurisdiction.

As noted, plaintiff’s action in the trial court was brought pursuant to section 8.01a of the Illinois Fair Employment Practices Act, which in 1979 was replaced by the Illinois Human Rights Act (IHRA). Section 9 — 102(B) of the IHRA essentially re-enacted FEPA section 8.01a, which provided a remedy for individuals whose FEPA discrimination charges were not disposed of within the statutory period.

In 1981, the Illinois Supreme Court held section 9 — 102(B) of the IHRA unconstitutional as special legislation. Thus, section 9 — 102(B) is void, and no rights can be predicated upon it. Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489.

However, in Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148, the United States Supreme Court held that an employee’s access to the FEPA’s adjudicatory procedures was a property interest protected by the due process clause of the fourteenth amendment. The court therefore ruled that Logan had been deprived of this property interest without due process when administrative delay (for which Logan was not responsible) led to the dismissal of his complaint.

In Lott v. Governors State University (1982), 106 Ill. App. 3d 851, 436 N.E.2d 569, this court was confronted with the question of reconciling the Wilson and Logan decisions. We there stated that under Lo gan plaintiff had a protected property interest in the resolution of his employment discrimination claim and that he could not be constitutionally deprived of that interest by the inaction of the FEPC. In assessing the minimum process due plaintiff, we said:

“Lott is entitled to have the Department of Human Rights and the Human Rights Commission (the successors to the FEPC) consider the merits of his discrimination charge in accordance with the procedures set out in articles 7 and 8 of the IHRA. The IHRA provides that the Department of Human Rights must accept and investigate charges of civil rights violations. The Department may, upon determining that there is no substantial evidence of a violation, dismiss the complaint. When a complaint is supported by sufficient evidence and there has been no settlement or adjustment through conciliation, the Department must file a written complaint with the Human Rights Commission, which is empowered to adjudicate the dispute and enforce its findings. See Ill. Rev. Stat., 1980 Supp., ch. 68, pars. 7 — 102, 8 — 102.
It follows that the Department of Human Rights and the Human Rights Commission are necessary parties in this action. Upon remand to the trial court, plaintiff should be permitted to amend his complaint and add these entities as parties defendant. (See Ill. Rev. Stat. 1979, ch. 110, par. 26 (new parties may be added, by order of court, at any stage of the cause, as justice may require).) The trial court should then order the Department to accept and process plaintiff’s charge as set out in the IHRA. We foresee no limitations problem here, as plaintiff’s original charge was timely brought before the FEPC.” 106 Ill. App. 3d 851, 855.

In McClandon v. Bell & Howell Schools (1983), 112 Ill. App. 3d 367, 445 N.E.2d 362, this court reaffirmed the reasoning of Lott, holding that a plaintiff in a circuit court proceeding pursuant to section 8.01a of the FEPA (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a, replaced by section 9 — 102(B)! of the IHRA), whose cause was dismissed for lack of jurisdiction after he charged a defendant employer with racial discrimination was in a “similar position” to the plaintiff in Lott v. Governors State University (1982), 106 Ill. App. 3d 851, 436 N.E.2d 569. Thus, the cause was remanded for further proceedings with instructions that the Department of Human Rights and the Human Rights Commission be added as parties defendants.

Again, in Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 446 N.E.2d 896, the plaintiff had filed a complaint in the circuit court pursuant to section 8.01a of the FEPA, alleging that he had been discriminated against by the defendant on the basis of sex and physical disability. Defendant asserted in a successful motion for summary judgment that the statutory provision under which plaintiff filed her complaint had been declared unconstitutional in Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489. On appeal, this court stated:

“The facts of the present case mirror very closely those presented in Lott. Here, as in Lott, the plaintiff was prevented from having her employment discrimination claim disposed of before the FEPC due to the administrative inaction of the Commission; was denied relief in the trial court; and did not raise on review the theory of relief which would justify the appellate court in reversing and remanding the cause. Similar to Lott, here the plaintiffs claim was timely filed before the Commission, as it was brought less than 180 days after the unfair employment practice allegedly occurred [citation]. We adopt the rationale employed in Lott and adhere to the result reached in that case, ***.”

Plaintiff in the present cause is in a posture similar to plaintiffs in Lott, McClandon and Sauers. He filed his original charge against the defendant within 180 days of the time when the alleged unfair employment practice occurred; he was prevented from having his claim disposed of by the FEPC because of administrative inaction; and he was denied relief in the trial court. Thus it would appear that he is entitled to the same relief afforded those plaintiffs: remandment to the trial court with permission to join the Human Rights Commission and the Department of Human Rights as necessary party defendants; and an order from the trial court to those entities to accept and process plaintiff’s charge.

Defendant argues, however, without citation to authority, that plaintiff has “waived his right to seek a hearing before the Human Rights Commission” because he failed to request such a hearing in the trial court. We do not agree. In Logan, the United States Supreme Court held that the right to a hearing was a property interest protected by the due process clause of the fourteenth amendment of the United States Constitution. It is well established that waivers of constitutional rights are not to be lightly inferred and that every reasonable presumption against such waiver should be indulged. (Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983.) Under the circumstances of this case, we find no waiver of plaintiff’s constitutional right to a hearing.

In our opinion, plaintiff must be afforded the opportunity for a hearing, as were the plaintiffs in Lott, McClandon and Sauers.

For the reasons stated herein, the order of summary judgment is vacated, and this cause is remanded to the trial court, with directions that the plaintiff be allowed to join the Department of Human Rights and the Human Rights Commission as parties defendants, and that the trial court order the Department to accept and process plaintiff’s charge as set out in the IHRA.

Reversed and remanded.

HARTMAN, P.J., and STAMOS, J., concur.

      The FEPC was replaced by the Department of Human Rights (DHR) and the Human Rights Commission (HRC) in 1979.

      The FEPA was replaced by the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 et seq.) in 1979.


author: JUSTICE LORENZ

text:
    G. N. SRIVASTAVA, Plaintiff-Appellant, v. ALIA, THE ROYAL JORDANIAN AIRLINE, Defendant-Appellee.
    First District (5th Division)
    No. 84—1225
    Opinion filed January 4, 1985.
    Rehearing denied February 21, 1985.

      Radhika P. Srivastava, of Chicago, for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman and David J. Novotny, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, G. N. Srivastava, appeals from the trial court’s order dismissing his complaint against defendant, Alia, The Royal Jordanian Airline, for loss of a Sanyo video cassette recorder. Plaintiff contends that the trial court erred in holding that his action was barred by article 29(1) of the Warsaw Convention.

On October 10, 1981, plaintiff delivered to defendant six pieces of baggage to be transported from Muscat, Sultanate of Oman, to Chicago, under air waybill No. 512 — 07700840. On November 18, 1981, plaintiff received in Chicago only five pieces of baggage. Defendant did not deliver one piece of baggage containing a Sanyo video cassette recorder. According to an affidavit filed by plaintiff, defendant advised him that the recorder had been loaded at Muscat, Oman, for Amman, Jordan, but was not loaded at Amman for the flight to' the United States. Alia promised to investigate, trace and deliver the video cassette recorder but never responded to plaintiff’s subsequent written inquiries or his claim for damages.

Plaintiff filed his complaint against defendant on January 18, 1984. On April 24, 1984, the trial court granted defendant’s motion to dismiss plaintiff’s complaint with prejudice on the ground that the complaint was not filed within two years of the date of the arrival of the subject flight at Chicago as required by article 29(1) of the Warsaw Convention.

The parties agree that the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 29, 1934 (49 Stat. 3000 et seq., T.S. No. 876, 137 L.N.T.S. 11, 49 U.S.C. sec. 1502 (1982)), commonly known as the Warsaw Convention, controls the disposition of this appeal.

Article 29(1) of the Convention provides:

“The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.”

Plaintiff’s complaint alleged that when the Alia flight carrying his baggage arrived in Chicago on November 10, 1981 (according to the shipping documents, the correct date is November 18, 1981), plaintiff received only five of the six pieces of baggage he had shipped from Muscat to Chicago. Alia did not deliver to plaintiff one piece of baggage containing a Sanyo video cassette recorder. Relying on article 26(4) of the Warsaw Convention and clause 12(a)(iv) of the air waybill contract, plaintiff contends that his action against Alia did not accrue until February 8, 1982, 120 days after the date of issuance of the air waybill on October 10,1981.

Article 26 of the Warsaw Convention requires the person entitled to the delivery of baggage or goods to make a timely written complaint to the carrier of damage or delay, otherwise “no action shall lie against the carrier, save in the case of fraud on his part.” (Art. 26(4).) Article 26, however, does not apply to claims against a carrier for lost baggage or goods. (Denby v. Seaboard World Air lines, Inc. (2d Cir. 1984), 737 F.2d 172, 176-82; Hughes-Gibb & Co. v. Flying Tiger Line, Inc. (N.D. Ill. 1981), 504 F. Supp. 1239, 1242.) Regarding lost goods, article 13(3) indicates that notice to the carrier need not be given.

Moreover, even if the notice requirements of article 26 did apply to claims for lost baggage or goods, it has been held that “article 26 notice serves no purpose in relation to article 29’s prescriptive period of two years which is automatically triggered by specified events.” (Dalton v. Delta Airlines, Inc. (5th Cir. 1978), 570 F.2d 1244, 1247 n.8.) “This limitation period begins either at the date of arrival at the destination, or at the date on which the aircraft ought to have arrived, or at the date on which the transportation stopped.” (Hepp v. United Airlines, Inc. (1975), 36 Colo. App. 350, 352, 540 P.2d 1141, 1143.) Thus, in the present case, the two-year period would have expired on November 18, 1983, two years after the Alia flight arrived at its destination in Chicago.

Plaintiff, however, also refers us to clause 12(a)(iv) of the air waybill contract he entered into with Alia on October 10, 1981. That clause provides that in the case of nondelivery of the goods, the person entitled to delivery must make a complaint to the carrier in writing within 120 days from the date of the issuance of the air waybill. (Article 33 of the Warsaw Convention authorizes such contractual provisions.) Plaintiff did make a timely written complaint but argues, without citation of applicable authority, that the two-year limitation period in article 29(1) of the Warsaw Convention does not begin to run until the 120-day period within which a shipper must submit his complaint to the carrier for lost goods has expired.

Our research, however, indicates that the notice requirement does not delay the running of the two-year limitation period of article 29(1). (See Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 1008-09, 370 N.E.2d 95; Sanchez v. Beacon Shipping Co. (1980), 79 App. Div. 2d 591, 434 N.Y.S.2d 236.) Moreover, we note that clause 12(c) of the air waybill contract itself provides that “any rights to damages against carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.” The air waybill “makes no reference to any circumstances under which the two-year limitation may be extended” and where “contractual language is plain, its meaning clear, and no absurdity is involved, the agreement must be enforced as written.” Hepp v. United Airlines, Inc. (1975), 36 Colo. App. 350, 354, 540 P.2d 1141, 1143.

Article 29(2) of the Warsaw Convention states that “[t]he method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted.” Plaintiff argues that this provision of the Convention authorizes the forum court to hold that his cause of action did not accrue until the 120-day period specified in clause 12(a)(iv) of the air waybill had elapsed. We disagree. Based on a thorough analysis of the drafters’ intent, the New York Supreme Court, Appellate Division, has concluded:

“[I]t is abundantly clear that the delegates to the Warsaw Convention expressly desired to remove those actions governed by the convention from the uncertainty which would attach were they to be subjected to the various tolling provisions of the laws of the member states, and that the two-year time limitation specified in article 29 was intended to be absolute-barring any action which had not been commenced within the two-year period. Moreover, it is equally clear from the delegates’ discussion that the only matter to be referred to the forum court by paragraph 2 of the present article 29 was the determination of whether the plaintiff had taken the necessary measures within the two-year period to invoke that particular court’s jurisdiction over the action.” Kahn v. Trans World Airlines, Inc. (1981), 82 App. Div. 2d 696, 709, 443 N.Y.S.2d 79, 87. Accord, Bapes v. Trans World Airlines, Inc. (N.D. Ill. 1962), 209 F. Supp. 380.

Plaintiff next contends that defendant was estopped from claiming that the cause of action accrued on November 18, 1981, because of its promise to investigate, trace and deliver the lost baggage. Defendant, according to plaintiff, never advised him regarding the disposition of his video recorder or of his claim for damages. Essentially, plaintiff advances a theory of equitable estoppel to avoid the consequences of not filing his action within two years of November 18,1981. .

Plaintiff’s theory, however, fails to recognize that “the two-year time limitation specified in article 29 was intended to be absolute-barring any action which had not been commenced within the two-year period.” (Kahn v. Trans World Airlines, Inc. (1981), 82 App. Div. 2d 696, 709, 443 N.Y.S.2d 79, 87.) In Kahn, the court held that “it is readily apparent that the time limitation incorporated in article 29 was intended to be in the nature of a condition precedent to suit, and that it was never intended to be extended or tolled by infancy or other incapacity.” (82 App. Div. 2d 696, 709, 443 N.Y.S.2d 79, 87.) Similarly, in Bianchi v. United, Airlines (1978), 22 Wash. App. 81, 587 P.2d 632, the Washington Court of Appeals held that the common law theory of material deviation could not be invoked to avoid the tariff liability limitations of the Warsaw Convention. In Bianchi, the plaintiff argued that “the failure of United [Airlines] to deliver goods in accordance with the express assurances of its employees constitute^] such a substantial deviation from the bargained-for consideration underlying the contract as to entitle the shipper [plaintiff] to treat the contract as abrogated” and to sue for damages resulting from United’s failure to deliver a sealed envelope on time. (22 Wash. App. 81, 85, 587 P.2d 632, 634.) The court of appeals rejected this argument, stating:

“We find the trial court erred in inferring a common law theory could control in a situation within the aegis of the Warsaw Convention. The material deviation cases *** [do] not involve international air transport or the Warsaw Convention; thus, they fail to support application of that theory in the instant fact pattern. To the contrary, case law makes clear that the Warsaw Convention, being a sovereign treaty, is the supreme law of the land and as such preempts local law when applicable. [Citations.]” (22 Wash. App. 81, 85, 587 P.2d 632, 634.)

We conclude, therefore, that defendant’s theory of equitable estoppel is not cognizable in an action governed by the provisions of the Warsaw Convention.

Even if we were inclined to hold otherwise, the facts in the present case fall far short of establishing such an estoppel.

“[A] defendant is not estopped to raise a limitations point because of any alleged ‘lulling’ of the plaintiff into inaction until after the limitation period where the ‘lulling’ period, if there was any, expired months before the statute barred the action and where there was ample time and opportunity for the plaintiff to avail [himself] of any legal rights he has ***.” (Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App. 2d 267, 274-75, 197 N.E.2d 860; see also Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1014, 377 N.E.2d 161.)

The record shows that on April 27, 1982, which was almost 19 months before the two-year extinguishment period of article 29(1) expired, plaintiff’s attorney sent a letter to defendant demanding that defendant satisfy plaintiff’s claim for damages or face “further legal action.” Plaintiff does not point to any conduct on defendant’s part after April 27, 1982, which would excuse his failure to file his complaint within the two-year period. It is apparent from a review of this letter that plaintiff, who had secured legal counsel, was not "lulled” into inaction until after the extinguishment period elapsed.

Finally, plaintiff contends that since the video recorder never reached its destination in Chicago, its “transportation never stopped within the meaning of article 29(1)” of the Warsaw Convention. In support of this contention, plaintiff cites Alltransport, Inc. v. Seaboard World Airlines (Civ. Ct. N.Y. 1973), 76 Misc. 2d 308, 349 N.Y.S.2d 277. In that case, the aircraft arrived at its destination on October 14, 1970, but the shipped goods remained in the actual custody and control of the defendant carrier at the destination airport until November 16, 1970. Plaintiff consignee brought an action against the carrier for damage to the goods (not loss of the goods). In determining when the two-year extinguishment period of article 29(1) of the Warsaw Convention commenced, the court cited article 18 of the Convention, which provides in pertinent part:

“(1) The carrier shall be liable for damage sustained in the event of the destruction or loss of, or damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
(2) The transportation by air within the meaning of the preceding paragraph shall comprise the period during which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever.”

Applying these provisions to the facts in the case before it, the trial court in Alltransport reasonably concluded that the transportation of the damaged goods did not stop until the defendant carrier relinquished control of them on November 16, 1970. Thus, the two-year period prescribed by article 29(1) was held to run from that date, rather than from the date the aircraft actually arrived.

In our judgment, the facts in Alltransport are readily distinguishable from those in the instant case. Alltransport concerned damaged goods which were ultimately delivered, not lost goods which were never delivered. The court’s analysis as to when the carrier relinquished custody and control of the damaged goods simply does not apply here. Moreover, under plaintiff’s theory, the extin-guishment period would never begin to run with respect to claims for lost or missing goods. We agree with the trial court that when the Alia flight arrived in Chicago, transportation stopped.

Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95, presents facts similar to those in the case at bar. In Chandler, plaintiffs arranged to ship 34 cartons of assorted goods from Chicago to. Oracabessa, Jamaica, West Indies. On September 23, 1970, defendant notified plaintiffs that the cartons were being held in Miami, Florida, pending receipt of the shipping charges. Although plaintiffs paid those charges, the cartons were never delivered to Jamaica. Plaintiffs assumed that the cartons were either lost, misplaced or disposed of by defendant in Miami. Plaintiffs were thus aware, in 1970, that the transportation stopped and that defendant’s aircraft did not arrive in Jamaica on some date contemplated by plaintiffs. We held that the plaintiff’s cause of action accrued no later than at some date shortly after September 1970. 54 Ill. App. 3d 1005, 1008.

Based upon the documents filed in the case at bar, plaintiff knew before December 5, 1981, that his video cassette recorder had not been loaded at Amman, Jordan, for the flight to the United States. As in Chandler, plaintiff was aware, in December 1981, that the transportation had stopped, but did not file his complaint against Alia until January 1984, more than two years later. Plaintiff’s action was thus time barred. We conclude, therefore, that the trial court did not err when it granted defendant’s motion to dismiss plaintiff’s complaint. Accordingly, the order of the circuit court of Cook County dismissing plaintiff’s complaint with prejudice is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.

      Article 13(3) provides: “If the carrier admits the loss of the goods, or if the goods have not arrived at the expiration of seven days after the date on which they ought to have arrived, the consignee shall be entitled to put into force against the carrier the rights which flow from the contract of transportation.”


text:
    GALE HOLBROOK, Plaintiff-Appellant, v. MILAN PERIC et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1691
    Opinion filed December 28, 1984.
    Stephen R. Murray, of Senechalle & Murray, P.C., of Chicago, for appellant.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Richard W. Schumacher, and Lloyd E. Williams, Jr., of counsel), for appel-lees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Gale Holbrook appeals from the trial court’s entry of summary judgment in favor of both defendants. Plaintiff’s complaint sought damages for personal injuries sustained when his vehicle collided with a truck operated by defendant Milan Peric and owned by defendant Elgin Sweeping Services, Inc. (Elgin). The circuit court granted defendants’ motion for summary judgment based on the pleadings, affidavits and depositions, stating that no fair-minded person could infer that defendants breached a duty. Plaintiff filed a timely notice of appeal; he contends that the existence of a genuine issue of material fact precluded summary judgment and that defendants were not entitled to judgment as a matter of law. Plaintiff also claims that the trial court abused its discretion in refusing leave to file a supplemental affidavit opposed to the motion. We summarize the record as follows.

Elgin’s agents were sweeping the left shoulder of the northbound lanes of the Kennedy Expressway shortly before midnight on September 19, 1979. Three vehicles comprised the sweeping operation: a lead truck, a sweeper, and an escort truck. Michael DeVito’s role as driver of the lead truck was to pick up heavy debris ahead of the sweeper, which was operated that night by Pete Mohoevich. Defendant Milan Peric drove the escort truck, which displayed a yellow Mars light, two yellow “wigwag” flashers and white mud flaps. The tailgate had reflecting red and white diagonal striped tape stuck to it, and mounted upon it was a four-by-four-foot reflecting orange sign which read “Left lane closed 1500 ft.” Plaintiff collided with the escort truck and sustained serious injuries, including loss of memory of a time before and after the collision.

In his deposition, Milan Peric stated that his escort truck had been stopped for several minutes about 1,500 feet behind the sweeper at the time of the accident. He said that he was near the Ainslie overpass and that he saw the sweeper and lead truck in a straight line, not on the curve nearer the rapid transit station. Michael DeVito stated at deposition that he had stopped to retrieve some large debris, that the sweeper was stopped 50 feet behind him, and that the escort truck was stopped about 1,000 feet behind the sweeper. DeVito said that he saw plaintiff’s vehicle approach, half in the left lane and half on the shoulder, and saw it strike the right rear of the escort truck. Peric and DeVito both stated that the escort truck was completely on the shoulder.

Count I of plaintiff’s complaint recited that defendants were negligent in that they operated a truck straddling the highway, far below the minimum speed, without sufficient warning. Plaintiff alleged in count II that defendants knowingly and wilfully violated the Road Construction Injuries Act by failing to mark a closed portion of the highway at a sufficient distance with safe and suitable warning signs, signals and barricades. Defendants filed their motion for summary judgment on grounds that all fair minds would agree defendants exercised reasonable care, and that plaintiff’s acts alone proximately caused his injuries.

At the hearing on defendants’ motion, plaintiff requested leave to file the supplemental affidavit of a licensed surveyor, to the effect that the lead truck was 425 to 450 feet from the escort truck. The lower court denied leave to file the affidavit because “it would be immaterial to the issues in this case.” The court granted the motion for summary judgment, and stated that “no fair minded person could draw an inference of breach of duty ***.” Plaintiff appeals.

Opinion

Summary judgment is a salutary procedure designed to alleviate the personal and societal burdens of unnecessary litigation (Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576), but it is a procedure which must be employed cautiously so as not to deprive a party of the right to trial by jury or the opportunity to fully present the facts where a material dispute may exist. (Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 149-50, 240 N.E.2d 699.) Summary judgment should be granted:

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

The purpose of summary judgment is not to decide the facts, but to ascertain whether a real factual dispute exists (Ray v. City of Chicago (1960), 19 Ill. 2d 593, 599, 169 N.E.2d 73), and in so doing, courts must construe the evidential material strictly against the movant and liberally in favor of the opponent. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 93-94, 392 N.E.2d 675.) “[I]f what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence *** the court would be required to direct a verdict, then a summary judgment should be entered.” Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.

Plaintiff contends that there was and is a factual dispute in that Peric testified the escort truck was 1,500 feet behind the sweeper, DeVito said the vehicles were 1,000 feet apart, and plaintiff’s surveyor estimated the distance at 425 to 450 feet. In addition, plaintiff points to the undisputed fact that the warning sign was surrounded by contrasting stripes. From these facts, plaintiff argues, a reasonable person could infer that defendants -wilfully violated the Road Construction Injuries Act (the Act) (Ill. Rev. Stat. 1979, ch. 121, par. 314.1 et seq.) and failed to give plaintiff adequate warning of the roadway hazard. According to plaintiff, the statutory violation indicates a breach of duty, and defendants were not entitled to judgment as a matter of law.

Defendants respond that the Act does not apply because plaintiff’s injury was not within the class of injuries sought to be prevented by the Act. Defendants maintain that all reasonable minds would agree that the escort truck was an obvious hazard, and coupled with the undisputed fact that the truck was outside the regularly traveled lanes of traffic, the lower court correctly concluded as a matter of law that defendants breached no duty. Alternatively, defendants argue that summary judgment was proper because no act of defendants proximately caused plaintiff’s injury; they assert that plaintiff’s inattention to the road was the sole independent cause of collision.

Plaintiff replies that he was within the class of persons protected by the Act, and defendants’ violations constituted at least prima facie evidence of negligence. Plaintiff notes that there may be more than one proximate cause of an injury, and that proximate cause is a fact question, particularly under comparative negligence.

In order to prevail on a claim on common law negligence, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by the breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307; Prosser, Torts sec. 30, at 143 (4th ed. 1971).) “The law of probable cause holds that an injury which is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury.” (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, 117 N.E.2d 74.) Dean Prosser also distinguished between “cause in fact” and “legal cause,” writing of the former, “an act or an omission is not regarded as a cause of an event if the particular event would have occurred without it.” (Prosser, Torts sec. 41, at 238 (4th ed. 1971).) Our supreme court in Mieher v. Brown (1973), 54 Ill. 2d 539, 544, 301 N.E.2d 307, quoted the description of legal cause provided in section 435(2) of the Restatement (Second) of Torts: “The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.”

Assuming facts most favorable to plaintiff, and assuming further that defendants violated the Act, we find that no reasonable person could infer that defendants' alleged negligent acts proximately caused plaintiff’s injuries. We recognize that proximate cause is ordinarily a question of fact (see Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74), but it becomes a question of law where there can be no difference in the inferences drawn by reasonable men from undisputed facts. Merlo v. Public Service Co. (1942), 381 Ill. 300, 318, 45 N.E.2d 665.

Plaintiff posits that because defendants’ vehicles were too close to one another and the tailgate sign was nonconforming, he became confused and disoriented, causing him to leave the roadway and collide with the escort truck. We believe that such purported causalities could have been neither the cause in fact nor the legal cause of plaintiff’s injuries. The distance between defendants’ vehicles was irrelevant to plaintiffs’ collision with the rear end of the rear vehicle; the only condition of defendants’ vehicles even arguably connected to the occurrence was the location of the escort truck. Yet, plaintiff does not allege that the escort truck was negligently located, and the necessary implication of plaintiff’s argument is that the location of the escort truck would be proper when the sweeper advanced another 1,000 feet. It simply does not matter whether the sweeper was 425 or 1,500 feet ahead of the escort truck. Paraphrasing Dean Prosser’s test for cause in fact, the collision would have occurred regardless of the distance between the escort truck and the sweeper.

Moreover, the argument that plaintiff became confused and disoriented indicates that defendants’ acts were not the legal cause of the plaintiff’s injuries. To say that the collision was caused by a psychological attraction resulting from the proximity of two lighted trucks and the configuration of a tailgate warning seems to us highly extraordinary. Alternatively stated, defendants could not have foreseen or reasonably anticipated that such negligent acts would result in someone’s colliding with the rear of the escort truck. We believe all reasonable minds would conclude that the acts alleged by plaintiff were “a remote cause, or no cause whatever of the injury.” See Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, 117 N.E.2d 74.

Plaintiff argues that causation is a fact question, and particularly under comparative negligence, the jury should be allowed to apportion fault. Although there is reason to doubt the applicability of comparative negligence in cases arising under the Act (compare Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 419 N.E.2d 918 (Road Construction Injuries Act parallels Structural Work Act) and Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444 (strict liability as opposed to comparative negligence applied under Structural Work Act)), our disposition does not require a decision on this issue. It is true, as plaintiff suggests, that the doctrine of comparative negligence diminishes the need to protect remotely negligent defendants from liability; nevertheless, proximate cause remains an essential element of liability for negligence. (See Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, 578, 459 N.E.2d 1131.) Had this case been tried before a jury, no comparison of liability could have been made, because the court would have been required to direct a verdict in favor of defendants based on proximate cause.

Our decision is fully consistent with that of the lower court concerning the absence of proximate cause. In ruling on plaintiff’s supplemental affidavit, the judge stated, “[T]he distance between the two vehicles or the fact that *** the striping or signing of the escort vehicle sign detracted from the maintenance vehicle in front of it has no materiality to the issue in this case.” Because we agree with the circuit judge that these facts were immaterial, we cannot say that his denial of leave to file the affidavit amounted to an abuse of discretion. However, where a party submits an affidavit opposing summary judgment before such judgment has been rendered, and especially where, as here, the court considers the content of the affidavit, we believe the better procedure would be to grant leave to file.

Finally, we address the one argument advanced by plaintiff which requires statutory interpretation. Plaintiff argues that “the use of the stripes on the rear of the truck constitutes a barricade and therefore in accordance with the Manuel [sic] should come within the requirements for a safe and suitable barricade. The failure to bring the escort truck within this provision could be seen as a proximate cause of plaintiffs injury, and so we must determine whether defendants breached a duty by failing to do so. In Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307, our supreme court held that a manufacturer of trucks was under no duty to design or build a truck so as to minimize the injuries of one who collides with it. We believe that Mieher negates the proposition that defendants’ escort truck was or should have been a yielding barricade, and we reject any such interpretation of the Act. Therefore, we agree with the lower court that defendants breached no duty in this respect.

“ ‘Barricades are located adjacent to traffic and therefore subject to impact by errant vehicles. Because of their vulnerable position and the possible hazard they could create, they should be constructed of light weight materials and have no rigid stay ***.’ [(Illinois Department of Transportation, Manual of Uniform Traffic Control Devices for Streets and Highways 6C— 5.)]”

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

SULLIVAN and PINCHAH, JJ., concur.

       Justice Kenneth E. Wilson heard oral argument in this case, and following Justice Wilson’s death, Justice R. Eugene Pincham was substituted, listened to the tapes of the oral argument, and read the briefs and record.


author: JUSTICE STAMOS

text:
    FIRST NATIONAL BANK OF HIGHLAND PARK, Trustee, et al., Plaintiffs-Appellants, v. MID-CENTRAL FOOD SALES, INC., Defendant-Appel-lee.
    First District (2nd Division)
    No. 84—611
    Opinion filed December 18, 1984.
    Rehearing denied January 22, 1985.

      McDermott, Will & Emery, of Chicago (Joseph Keig, Jr., and Mary Ellen Hogan, of counsel), for appellants.
    Palmer, Blackman, Mancini & Riebandt, P.C., of Park Ridge (Janeth A. Schwandt and Roy C. Palmer, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs First National Bank of Highland Park (First National) and W.V.W. Inc. (W.V.W.) brought suit for payment of real estate taxes due after termination of plaintiffs’ lease with defendant Mid-Central Food Sales, Inc. (Mid-Central), attorney fees and interest, pursuant to provisions of the lease. The basic facts were not disputed, and both sides filed motions for summary judgment, the central question being the proper interpretation of paragraph 17 of the lease. The trial court denied plaintiffs’ motion and granted defendant’s motion for summary judgment.

The argument in this court focuses on the proper interpretation to be given to the disputed provision of the lease agreement entered into between plaintiffs and defendant Mid-Central. On June 27, 1979, Mid-Central became the sole beneficiary of trust No. 2844, held by First National. Oral argument disclosed that Mid-Central owned the property during 1978 as well. The trust res consisted solely of improved real estate in Northfield. On July 2, 1979, Mid-Central assigned all of its beneficial interest in trust No. 2844 to W.V.W. On the same date, First National, acting on behalf of and at the direction of W.V.W., executed with Mid-Central a written lease of the property for a term beginning July 2,1979, and ending July 1,1982.

Paragraph 17 of the lease, the interpretation of which forms the basis of this suit, is a provision which shifts the burden of paying the real estate taxes to the lessee for the duration of the lease. Paragraph 16 requires lessee to pay all reasonable costs and attorney fees expended by the lessor in enforcing the lease.

Neither the terms of the assignment nor the lease provided for payment of 1978 taxes or taxes for the first half of 1979. While Mid-Central was in possession of the property as lessee, both sides apparently agree that Mid-Central paid the second installment of 1978 taxes and the first installment of 1979 taxes. Plaintiffs argue that Mid-Central paid the taxes based upon its status as prior beneficial owner, not lessee. Mid-Central asserts that there is no competent evidence supporting plaintiffs’ allegation and that such a conclusion should be stricken or ignored.

Mid-Central vacated the premises at the conclusion of the lease term on July 1, 1982. During the three-year term of the lease, Mid-Central paid all the real estate taxes except for the second installment of the 1981 taxes and its pro rata share of the 1982 taxes. Plaintiffs sent Mid-Central notice that plaintiffs believed Mid-Central was liable for the 1981 taxes and, at the time the amended verified complaint was filed, for the pro rata share of the 1982 taxes. When Mid-Central refused to pay the taxes, plaintiffs paid the amounts owed to avoid allowing the taxes to become delinquent. Plaintiffs then commenced this action and, upon cross-motions for summary judgment, an order was entered denying plaintiffs’ motion, granting Mid-Central’s motion and entering judgment for Mid-Central. Plaintiffs appeal that order contending that the trial court’s interpretation of paragraph 17 of the lease was incorrect as a matter of law. Plaintiffs are also requesting attorney fees pursuant to paragraph 16 and prejudgment interest.

Upon review of a trial court’s entry of summary judgment, the appellate court uses a two-prong analysis. First, the court determines whether the lower court was correct in ruling that no genuine issue of material fact was raised and, second, if none was raised, whether entry of the judgment was correct as a matter of law. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133.

In the present case, the central question concerns the proper interpretation of paragraph 17 of the lease. The interpretation of a lease is purely a question of law when the terms are plain and unambiguous. (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 143, 427 N.E.2d 1039.) Whether an ambiguity exists is also a question of law. (Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 575, 414 N.E.2d 1152.) Ambiguity refers to an obscurity in meaning “through indefiniteness of expression, or having a double meaning.” (91 Ill. App. 3d 573, 575.) The paragraph in question reads as follows:

“17. Throughout the term of this Lease, Lessee shall pay when due all taxes, *** together with any interest and penalties thereon, which are imposed or levied upon or assessed against the premises or any part thereof.”

The above-quoted language, though not drafted as artfully as it could have been, is clearly not ambiguous; therefore, there is no genuine issue of material fact present. Paragraph 17 unambiguously shifts the tax burden to the lessee throughout the term of the lease. Since no ambiguity exists, it was appropriate for the trial court to interpret the lease as a matter of law.

Under the second prong of the analysis, we will review the propriety of the trial court’s interpretation which resulted in entry of judgment against plaintiffs. The trial court interpreted paragraph 17 of the lease to mean that the lessee was only liable for taxes imposed during the term of the lease that also became due and owing during the term of the lease. Plaintiffs argue that such an interpretation is incorrect as a matter of law. Plaintiffs argue that paragraph 17 requires Mid-Central to pay those taxes which are imposed or assessed on the property during the term of the lease and that Mid-Central’s liability for those taxes is not contingent upon Mid-Central’s actually being in possession of the premises when the taxes became due.

The law in Illinois is settled that the owner of real property on January 1 in any year shall be liable for the taxes of that year. (Ill. Rev. Stat. 1981, ch. 120, par. 508a.) Also, the taxes are a first lien on such real property from and including the first of January in the year the taxes are levied. (Ill. Rev. Stat. 1981, ch. 120, par. 697.) In Metropolitan Airport Authority v. Farliza Corp. (1977), 50 Ill. App. 3d 994, 336 N.E.2d 112, the court held that the lessor as owner was liable for real estate taxes in the absence of a clear and unambiguous provision shifting the burden of such taxes to the lessee. (50 Ill. App. 3d 994, 997-98.) As stated above, the language of this lease provision is not ambiguous and clearly shifts the tax burden to the lessee, defendant herein.

Concerning the proper interpretation of paragraph 17, Mid-Central urges an interpretation that would require, as the trial court found, the taxes to be imposed and become due and payable during the term of the lease before Mid-Central would be liable for said taxes. Plaintiffs maintain, however, that as long as the taxes are imposed during the term of the lease, Mid-Central is liable for those taxes even though the actual tax bill is not due and payable until after the lease term has expired. There is sparse case law on this subject in Illinois. A case cited by both parties in support of their respective positions is 349 West Ontario Building Corp. v. Palmer Truck Leasing Co. (1974), 22 Ill. App. 3d 467, 317 N.E.2d 740.

In 349 West Ontario, the plaintiffs, as owner and sublessor of improved real estate, brought an action against the guarantors of the sublessees for breaches by the sublessees of certain covenants to pay rent and tax deposits. The sublessees leased commercial property for a 10-year term beginning January 1, 1960, and ending December 31, 1969. The parties agreed that should possession be delivered after January 1, 1960, sublessees’ obligation to pay rent would not commence until the date of delivery of possession. The sublease provided that sublessees were responsible for real estate taxes, and a specific provision required sublessees to make monthly deposits toward taxes which lessor would then apply toward the taxes as they came due. If the deposits were insufficient when the bill was issued, the sublessees would pay the balance; any surplus would be held by lessor for future tax payments.

The sublessees took possession in May of 1960, though they voluntarily paid all rental fees from January 1, 1960. The sublessees continued to make all rental and tax payments through March of 1968 and paid $1500 toward the rent due for April of 1968. One of the subles-sees had vacated on or about November 14, 1967, when it was involuntarily dissolved, and the other vacated on May 15, 1968. The plaintiffs contracted to sell the property on or about September 1,1968.

The plaintiffs sought rental and tax deposits for the period April 1, 1968, through October 8, 1968. During trial, defendants argued that since the sublessees paid rent from January 1, 1960, through May of 1960, they should be given credit for those payments against any rentals claimed for months owed at the end of the term. Defendants also argued that the deposits for taxes, to be applied toward any taxes due and payable during the term of the sublease, were adequate to cover any taxes owed by sublessees. Plaintiffs had computed the taxes owed as damages by including a ratable portion of the taxes for 1968, the bill for which would not arrive until 1969. The trial court found for the defendants, stating that the defendants owed nothing. The appellate court stated that sublessees’ rental payments from January to May of 1960 were not due as a result of the lease, but were rather advance rentals that could be applied against the 1968 unpaid rents. 22 Ill. App. 3d 467, 473.

On the tax issue, the appellate court stated that sublessees’ tax obligation was solely a result of the clause in the lease providing in pertinent part:

“Lessee [sublessee] further agrees to pay as additional rent *** all general real estate taxes *** which may be levied, assessed or imposed upon said premises *** now due or accruing and becoming due and payable during the term of this lease.” (Emphasis added.) (22 Ill. App. 3d 467, 473-74.)

The plaintiffs argued that sublessees were liable for the 1968 taxes based on the above provision. The plaintiffs argued that since the taxes were imposed before the end of the sublease, that sublessees were liable for the taxes. The sublessees had made no tax deposits after March of 1968. The lease specifically provided that the sublessees’ tax obligation commenced “with the general real estate taxes for the year 1960.” 22 Ill. App. 3d 467, 474.

The appellate court interpreted the language of the lease to require sublessees to pay real estate taxes imposed during the term of the sublease only if such taxes became due and payable during the term of the lease. The lease clearly based sublessees’ tax obligation on both the time of imposition and the time of payment. The court then denied plaintiffs’ request for additional tax deposits.

A close reading of 349 West Ontario discloses that the court was correct in denying additional tax deposits, but the opinion also allows differing inferences to be drawn. The court stated that “[s]ince the 1968 taxes became due and payable upon receipt of the 1968 bill in 1969, those taxes were not due and payable during the term of the sublease and the subtenants were not required to pay them.” (22 Ill. App. 3d 467, 475.) However, the first five months of payments by sub-lessees in 1960, before they were in possession, must have included tax deposits as well because the language of the lease provided for those payments as “additional rent” that had to be paid “simultaneously with the payment of *** monthly installments of rent.” (22 Ill. App. 3d 467, 473-74.) Thus, like the advance rents, these early tax deposits in 1960 were not due as a result of the lease (22 Ill. App. 3d 467, 475) and were apparently counted by the court as advances against tax deposits owed for 1968. Consequently, it appears that sub-lessees owed no additional taxes in 1968 because of the prepayments in 1960. The plaintiffs’ argument in that case for additional taxes suggested that plaintiffs wanted to keep the early tax deposits in 1960, though sublessees were not in possession when they paid them, and require sublessees to pay deposits for the months April through September of 1968 even though sublessees had vacated in May of 1968 and the lease terminated. The plaintiffs, if they had prevailed, would have received more than sublessees’ pro rata obligation for 1968 tenancy, and the court correctly refused to order any additional payment. The early 1960 payments were apparently sufficient to cover the April and May 1968 tax deficit since the last tax deposit was made in March of 1968.

Herein lies the apparent inconsistency between what the court said and what it did. Though the court construed the language of the lease as requiring the tax bill to actually arrive during the term of the lease to trigger sublessees’ liability, the court also had sublessees paying their pro rata share of 1968 taxes even though the bill for those taxes would not arrive until 1969, long after the lease had terminated and the sublessees vacated the premises. Even if the sublessees had made no tax deposits in early 1960, contrary to our assumptions in the preceding paragraph, the opinion clearly states that sublessees made tax deposits through March of 1968. (22 Ill. App. 3d 467, 470.) These tax deposits, as a practical matter, had to be for 1968 taxes that would not become due and payable until 1969. But, since the court did not order a return of those payments, and the sublessees had made payments for the entire prior lease term, the sublessees effectively paid a pro rata portion of 1968 taxes, regardless of language in the opinion to the contrary.

As applicable to the present action, 3JP9 West Ontario is important for two reasons. One, the language of that lease clearly required sub-lessees to pay only those taxes that became due and payable during the term of the lease. Contrary to the assertions of Mid-Central, the interpretation of that lease does not support a similar interpretation here. Paragraph 17 of this lease clearly, unambiguously and as a matter of law requires Mid-Central to pay those taxes that are imposed or assessed on the demised premises during the term of the lease regardless of when Mid-Central receives the tax bill.

Second, the court in 3U9 West Ontario implicitly recognized the liability of sublessees for their pro rata share of taxes for its period of tenancy during 1968. The opinion clearly states that tax deposits were made by sublessees during 1968, and, since the court did not order a return of those deposits, the sublessees were thus paying a pro rata portion of 1968 taxes that would not be due and payable until 1969. That implicit recognition is consistent with the result that we reach here, namely, that the lessee is liable for its pro rata share of taxes imposed during 1982 based upon lessee’s possession of the premises during that period and the effectiveness of the lease through July 1, 1982, even though those taxes are not due and payable until 1983.

Two other Illinois cases, cited and discussed by both parties, are somewhat useful in the disposition of this case. The first, Masters v. Newcomb (1922), 227 Ill. App. 6, 9, involved a lease that required the lessee to “pay all the taxes assessed against said lands annually.” The court construed the phrase by transposing the word “annually” in the sentence to mean that the lessee was liable to pay the taxes which became payable annually. (227 Ill. App. 6, 10.) The court said the word annually referred to the time of payment, not the time of assessment. (227 Ill. App. 6, 10.) In the present case, the pertinent provision clearly makes the time of imposition and assessment the sine qua non of Mid-Central’s tax liability, not the time of payment as in Masters.

The other case, Thornton v. Helmick (1916), 201 Ill. App. 592, involved an exchange of real estate. The lawsuit was based upon a construction of the words, “subject to taxes and special assessments levied and payable after the year A.D. 1911.” The contract was dated August 24, 1912, and the questioned assessments were claimed to be payable after 1911. The court stated that the word “payable” required the purchaser to pay only assessments not due but payable after 1911 and, consequently, was liable for an assessment that was payable after 1911, even though it became a lien on the property prior to 1911. The language in the agreement in Thornton clearly warranted the result the court reached because, again, the parties made the time of payment the pivotal factor regarding tax liability, not, as here, the time the tax was imposed or assessed.

Based on the foregoing, we find that defendant Mid-Central is liable for the second half of the 1981 taxes and a pro rata share of the 1982 taxes. Paragraph 17, as a matter of law, requires Mid-Central to pay those taxes imposed or assessed throughout the term of the lease, as those taxes become due and payable, regardless if the term of the lease has expired when the bills are received or due.

Two ancillary contentions require examination. Paragraph 16 of the lease states:

“Lessee will pay and discharge all reasonable costs, attorney’s fees and expenses incurred by Lessor, in enforcing the covenants and agreements of this lease.”

Pursuant to that paragraph, plaintiffs request this court to make an award of attorney fees. In Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, 351 N.E.2d 630, the appellate court affirmed the trial court’s award of attorney fees to a lessor under the following clause of a lease:

“ ‘Lessee will pay and discharge all reasonable costs, attorneys fees and expenses that may be incurred by Lessor, in enforcing the covenants and agreements of this lease, and all covenants and agreements herein contained.’ ” (40 Ill. App. 3d 552, 560.)

Paragraph 16 of the present lease is strikingly similar to the above-quoted lease provision. Since we are reversing the trial court, based upon its interpretation of the lease provision as being favorable to plaintiff, we also remand the cause for a hearing on fees.

The plaintiffs lastly urge the imposition of prejudgment interest against Mid-Central for its nonpayment of taxes. Under section 2 of “An Act in Relation to the Rate of Interest” (Ill. Rev. Stat. 1981, ch. 17, par. 6402), creditors “shall be allowed to receive [interest] at the rate of five (5) per centum per annum for all moneys after they become due on any *** instrument of writing.” A lease is an instrument of writing. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 250, 423 N.E.2d 1170.) Also, a good-faith defense does not preclude an award of prejudgment interest on money due under the instrument. 98 Ill. App. 3d 243, 250.

Paragraph 2 of count II of plaintiffs’ amended verified complaint for damages sought $508.69 as interest at 5% per annum from August 6, 1982, to May 23, 1983. Inasmuch as the trial court entered judgment against the plaintiffs, it also denied plaintiffs’ interest request. On remand of this matter on the issue of attorney fees, we also order a hearing on the prejudgment interest issue.

The trial court’s entry of summary judgment for defendant and against plaintiffs is reversed and the cause is hereby remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HARTMAN, P.J., and PERLIN, J., concur.