author: JUSTICE HOPF

text:
    STEVEN STONE, Plaintiff-Appellant, v. OMNICOM CABLE TELEVISION OF ILLINOIS, INC., et al., Defendants-Appellees.
    Second District
    No. 84—102
    Opinion filed February 21, 1985.

      Larry D. Drury, of Chicago, and Berle L. Schwartz and Andi C. Goldfine, both of Highland Park, for appellant.
    Arnold Kanter and Susan B. Padove, both of Freeman, Atkins & Coleman, of Chicago, and Erwin W. Jentsch, of Bradtke & Zimmerman, of Mt. Prospect, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

The plaintiff, Steven Stone, brings this interlocutory appeal (87 Ill. 2d R 304(a)) from an order of the trial court that dismissed with prejudice count IV of his fourth amended complaint. The plaintiff’s sole contention in this court is that the trial court abused its discretion when it determined that the allegations of count IV, which sought a declaratory judgment, did not present an “actual controversy” and dismissed the count with prejudice.

The facts surrounding this action, as alleged in plaintiff’s complaint and as gleaned from the record, are as follows. The plaintiff is a resident of and homeowner in Highland Park. Omnicom Cable Television of Illinois (Omnicom) is a cable television company that has a franchise agreement with the city of Highland Park (city). On February 4, 1982, the plaintiff received a letter from Omnicom stating that Omnicom was going to enter upon the plaintiff’s property, pursuant to the franchise agreement, and install a television cable upon or under the land and attach it to or run it parallel to existing public utility easements. During the week of February 21, 1982, Omnicom entered the plaintiff’s property, dug a hole in his land, and permanently installed a television cable under his property or made the cable ready. On or about the last week in May 1982, and the first week of June 1982, the plaintiff lost all his electric power, which loss plaintiff attributes to the installation of the cable apparatus.

On December 1, 1983, the plaintiff filed a petition, on behalf of himself and all other persons similarly situated, seeking declaratory judgment and injunctive relief against the defendants. The petition essentially alleged a continuing trespass by Omnicom on the property of plaintiff and the other members of the purported class. Additionally, the petition sought a construction of three amendments to State statutes purporting to give certain community antenna television companies the right to enter upon public and private properties for the purpose of constructing a cable television system within a designated franchise area. (See Ill. Rev. Stat. 1983, ch. 24, par. 11 — 42—11, as amended by Pub. Act 83 — 635, effective January 1, 1984; Ill. Rev. Stat. 1983, ch. 24, par. 11 — 42—11.1, added by Pub. Act 83 — 634, effective January 1, 1984; Ill. Rev. Stat. 1983, ch. 34, par. 429.24, as amended by Pub. Act 83 — 636, effective January 1, 1984; Ill. Rev. Stat. 1983, ch. 34, par. 429.24.1, as amended by Pub. Act 83 — 634, effective January 1, 1984 (hereinafter referred to as Public Acts 83— 634, 83 — 635 and 83 — 636).) Both the city and Omnicom filed motions to strike and dismiss the plaintiff’s petition. In its motion to strike and dismiss, the city admitted that it granted Omnicom a franchise license in May 1981 that was conditioned upon the terms of a franchise agreement with Omnicom. However, the city alleged that the granting of the franchise license was accomplished pursuant to a city ordinance under the city’s home rule power, and not pursuant to the public acts in question. Omnieom’s motion also essentially alleged this same fact, stating that plaintiff failed to show that Omnicom and the city had claimed or threatened to claim any rights pursuant to these public acts. Accordingly, the motions sought to have plaintiff’s petition dismissed on the grounds that no cause of action was stated and that no “actual controversy” was presented which would permit review of the current declaratory judgment matter.

On January 3, 1984, the plaintiff filed a fourth amended complaint against the defendants in the form of a class action suit. Count IV of that complaint essentially realleged plaintiff’s petition for declaratory judgment and injunctive relief, and stated that the city licensed and franchised Omnicom as a “community antenna television system” pursuant to each of the public acts in question. In addition, the complaint challenged Public Acts 83 — 634, 83 — 635, and 83 — 636 as constituting “special legislation” and. as being violative of the equal protection, due process and eminent domain clauses of the Federal and State constitutions. The remaining counts of the complaint essentially sought a permanent injunction against the actions of Omnicom and removal of all cables and apparatus from the property of the plaintiff and the rest of the class. In addition, the complaint challenged the city ordinance under which the franchise was granted, and sought compensatory and punitive damages for the defendants’ continuing trespass upon their land. Finally, the complaint alleged that an actual controversy existed between the parties, and sought a declaration of rights on the issues of trespass, encroachment, “taking” of property without just compensation, and the causes of action alleged in the complaint.

After hearing the arguments of counsel, the trial court determined that, with respect to the allegations of count IV of the plaintiff’s fourth amended complaint, no “actual controversy” existed between the parties. Accordingly, the trial court struck the count and dismissed it with prejudice. After the court made the requisite written finding that Supreme Court Rule 304(a) mandates (87 Ill. 2d R. 304(a)), the plaintiff brought this interlocutory appeal in timely fashion.

The plaintiff argues that the factual allegations of count IV of his fourth amended complaint sufficiently established that an “actual controversy” exists in this case; therefore, he concludes that the trial court abused its discretion in striking and dismissing the count with prejudice for failure to satisfy the actual controversy requirement of the declaratory-judgment statute. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 701.) The defendants respond that no actual controversy exists in this case because (1) the statutory legislation that the plaintiff challenges as unconstitutional was not enacted until after the defendants committed the acts of which the plaintiff complains; (2) the defendants have not relied upon the statutes in question as a basis for entering upon the plaintiff’s property and have not threatened to assert in the future any right under the challenged statutes; (3) the subject statutes do not affect the rights of the parties to this proceeding; and (4) a declaration that the statutes are unconstitutional would not settle the controversy or some part of it.

Initially, we observe that because this appeal arises from the granting of the defendants’ motion to strike and dismiss the plaintiff’s count for declaratory judgment, the well-pleaded facts of the plaintiff’s complaint are accepted as true for present purposes. See Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 601, 440 N.E.2d 998.

Section 2 — 701(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 701(a)), formerly section 57.1(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 57.1(1)), authorizes the entry of a declaratory judgment “in cases of actual controversy” where the judgment would terminate the controversy or some part of the dispute that gave rise to the proceeding. The actual controversy requirement is one of the two prerequisites for standing to bring an action for declaratory relief. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450, 389 N.E.2d 529; Kerr Steamship Co. v. Chicago Title & Trust Co. (1983), 120 Ill. App. 3d 998, 1003, 458 N.E.2d 1009.) In ascertaining whether an actual controversy exists, the courts must construe the statute liberally and not restrict the declaratory-judgment remedy by unduly technical interpretations. Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 452, 389 N.E.2d 529.

The requirement that an actual controversy be present does not signify that a party must have been wronged and suffered an injury. Rather, it is sufficient if the underlying facts and issues are not premature or moot, for a court is loathe to render a judgment based on mere abstract propositions of law, to render an advisory opinion, or to give legal guidance regarding future events. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450, 389 N.E.2d 529; Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414, 424-25, 444 N.E.2d 211, vacated on other grounds (1984), 102 Ill. 2d 119, 464 N.E.2d 238.) However, the condition of justiciability is satisfied where the mere existence of a claim, assertion or challenge to the plaintiff’s legal interests portends the ripening seeds of litigation and casts doubt, insecurity and uncertainty upon the plaintiff’s rights or status, thereby damaging the plaintiff’s pecuniary or material interests. Oak Park Trust & Savings Bank v. Town of Palatine (1981), 100 Ill. App. 3d 674, 679, 427 N.E.2d 298.

Even in cases in which it appears that no actual controversy exists, the party initiating the action for declaratory judgment concerning the validity of a legislative enactment has the right to a determination of rights if he or she pleads both facts demonstrating a protected interest that clearly falls within the ambit of the enactment and that his or her rights will be affected adversely by its enforcement. (Eagle Books, Inc. v. City of Rockford (1978), 66 Ill. App. 3d 1038, 1040, 384 N.E.2d 493; Clevenger v. City of East Moline (1976), 44 Ill. App. 3d 168, 171, 357 N.E.2d 719.) In the absence of a justiciable controversy, a plaintiff is not entitled to declaratory relief unless he or she can demonstrate that the ordinance is invalid and that the plaintiff will sustain or is in immediate danger of sustaining an injury as a result of the enforcement of the enactment. Wills v. O’Grady (1980), 86 Ill. App. 3d 775, 779, 409 N.E.2d 17.

The decision to grant or deny a request for a declaratory judgment is a question that rests within the sound discretion of the trial court, whose determination will not be disturbed in this court absent an abuse of that discretion. The dismissal of a complaint for declaratory judgment is a proper method of declining to grant the requested relief. Mendelsohn v. CNA Insurance Co. (1983), 115 Ill. App. 3d 964, 968, 451 N.E.2d 919; Wills v. O’Grady (1980), 86 Ill. App. 3d 775, 779, 409 N.E.2d 17.

In its original form, section 11 — 42—11 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 42—11), enacted in 1967, authorized the corporate authorities of each municipality to license, franchise and tax the business of operating a community antenna television system. Public Act 83 — 635, effective January 1, 1984, amended section 11 — 42—11 and authorized such corporate authorities to exercise their rights of eminent domain for the purpose of granting an easement to the franchise so that a cable television system might be established. The amendment also authorized the corporate authorities to grant the franchisee access to all public property in which the municipality may have an interest. The plaintiff here sought a declaration in the trial court that this section, as amended, was unconstitutional.

In Public Act 83 — 634, the General Assembly enacted section 11— 42 — 11.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 42—11.1, added by Pub. Act 83 — 634, effective January 1, 1984), relating to community antenna television systems. Paragraph (b) of that section, which is only a portion of the entire statutory enactment which plaintiff sought to have declared unconstitutional in the trial court, provides in relevant part:

“In any instance in which a municipality has granted a franchise to any community antenna television company to construct, operate or maintain a cable television system within a designated franchise area, no property owner *** shall forbid or prevent such cable television franchisee from entering upon such real estate for the purpose of and in connection with the construction or installation of such-cable television system and cable television facilities, nor shall any such property owner *** forbid or prevent such cable television franchisee from constructing or installing upon, beneath or over such real estate, including any buildings or other structures located thereon, hardware, cable, equipment, materials or other cable television facilities utilized by such cable franchisee in the construction and installation of such cable television system ***.”

Public Act 83 — 634 also added section 25.40.1 to “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1983, ch. 34, par. 429.24.1, added by Pub. Act 83 — 634, effective January 1, 1984), relating to franchises obtained from county authorities rather than municipalities.

Finally, Public Act 83 — 636 amended section 25.40 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1983, ch. 34, par. 429.24). That section granted authority to the county board to license, tax or franchise the business of operating a community antenna television system within the county and outside a municipality, as defined in section 1 — 1—2 of the Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1983, ch. 24, par. 1 — 1—2). Public Act 83 — 636 amended section 25.40 so as to give authority to the county board to exercise its right of eminent domain for the purpose of granting an easement to the franchisee. The amendment further gave the county board authority to grant the franchisee access to any public properties in which the county has an interest. Ill. Rev. Stat. 1983, ch. 34, par. 429.24, as amended by Pub. Act 83 — 636, effective January 1, 1984.

Before turning to the substance of the plaintiffs appellate contention, we first address some preliminary matters. At the outset, we note that the only factual allegation in count IV of the plaintiffs fourth amended complaint as it relates to the franchise license the city granted to Omnicom reflects that the city extended the license to Omnicom in 1981 pursuant to a municipal ordinance, which franchise license was presented to the trial court. By contrast, the plaintiffs allegation that the city licensed and franchised Omnicom under the authority of the statutes in question is merely a conclusional allegation without any supporting factual predicate. We also agree with the defendants that the plaintiff has not alleged in count IV that the defendants at any time relied upon or threatened to rely upon the authority of the foregoing statutes. In fact, the plaintiff apparently concedes that neither defendant exercised or attempted to exercise the rights the statutes in question granted them.

With respect to plaintiffs challenge to Public Act 83 — 636, and that portion of Public Act 83 — 634 pertaining to counties, we conclude that the trial court properly dismissed this part of count IV. The Lake County board is not a party to the cause of action, nor could it be, since it only has authority to grant a cable television franchise outside the boundaries of the various municipalities. Accordingly, plaintiff, as a resident of Highland Park, could not be affected by any actions taken by the Lake County board pursuant to these Acts.

Regarding section 11 — 42—11.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 42—11.1, added by Pub. Act 83— 634), the defendants argue that the acts of which the plaintiff complains occurred in 1982, well before the enactment of section 11 — 42— 11.1. They state that because the statute does not contain express language making it retroactive, Omnicom cannot assert, with respect to the prior acts, the rights the statute accords it. Consequently, they conclude that there is no justiciable issue concerning the application of section 11 — 42—11.1 in this case. Based upon the factual allegations of count IV of the plaintiff’s fourth amended complaint and the plain language and reasonable intendment of section 11 — 42—11.1, we disagree with the defendants’ position. First, the plaintiff has alleged a continuing trespass. Second, the statute in question governs not only the construction or installation of a cable television system but also its operation and maintenance. We believe it would be illogical for the legislature to have intended that landowners would be prohibited from interfering with cable systems installed after January 1, 1984, while at the same time not preventing such interference with respect to the maintenance of a cable system that had been installed prior to the enactment of the statute.

Similarly, we believe that an actual controversy exists with respect to Public Act 83 — 635, relating to a municipal corporation’s authority to grant access to public properties and to exercise its right of eminent domain. If the trial court in this case were to determine that the city’s ordinance was invalid, the defendants could, and probably would, rely upon the statute to support or justify the continued presence of the cable equipment on the plaintiff’s property. The single fact that defendants’ assertion of or reliance upon the statute would or might occur in the future is not sufficient, in our opinion, to preclude a finding of an actual controversy here. (Cf. Hoagland v. Bibb (1957), 12 Ill. App. 2d 298, 303, 139 N.E.2d 417 (a declaratory judgment action may lie to determine rights under a statute even though the act is not yet in effect).) We believe the mere existence of the statute challenges the plaintiff’s protected legal interests as a landowner and, under the facts of this case, portends the ripening seeds of litigation and casts doubt and uncertainty upon the plaintiff’s rights.

A recent New York case has discussed the question of justiciability in a factual setting quite similar to that now before this court. (See Loretto v. Teleprompter Manhattan CATV Corp. (1981), 53 N.Y.2d 124, 440 N.Y.S.2d 843. 423 N.E.2d 320. rev’d on other grounds (1982), 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164.) In Loretto, the plaintiff purchased certain property upon which a cable company had already installed cable equipment pursuant to an agreement with the prior landowner. After the plaintiff purchased the property, she sought an injunction against the continuance of the cable system, a declaration that the statute in question there was unconstitutional, and damages for trespass. The statutory enactment implicated in Loretto is very similar to sections 11 — 42—11 and 11 — 42— 11.1 of the Illinois Municipal Code. In her action, she alleged that the cable television company acted under the purported authority of the statute when it entered her property to extend a cable line to a tenant.

In determining that there was a justiciable controversy which the plaintiff had standing to maintain, the court stressed that if the statute were applicable and valid, then it would prevent her from interfering with the cable facilities that were on her premises from and after the effective date of the statute. The court emphasized, in addition, that even though the plaintiff was not bound by the prior agreement between the cable company and the plaintiff’s predecessor in title, she could not recover in trespass if the cable television company obtained a similar license through enactment of the statute. Loretto v. Teleprompter Manhattan CATV Corp. (1981), 53 N.Y.2d 124, 135-36, 440 N.Y.S.2d 843, 847-48, 423 N.E.2d 320, 324-25.

Although the plaintiff in the present case, unlike the plaintiff in Loretto, has not made factual allegations that Omnicom has relied upon or threatened to rely upon sections 11 — 42—11 and 11 — 42—11.1 to justify its continued presence on his land, we do not believe that this factual distinction alone is of sufficient magnitude to preclude this court from concluding that an actual controversy exists here under Loretto. It would appear, also, that an adjudication of the parties’ rights under the statute is particularly appropriate in this case in order to preclude additional future legal action that would result in piecemeal litigation.

In determining that no actual controversy existed in this case with respect to the factual allegations of count IV of the fourth amended complaint, the trial court relied.upon Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298, and Berg v. City of Chicago (1968), 97 Ill. App. 2d 410, 240 N.E.2d 344. We believe those cases are distinguishable factually from the present one and, accordingly, we conclude that the trial court abused its discretion when it determined that, as to Public Acts 83 — 634 and 83 — 635, no actual controversy existed here.

For the foregoing reasons, the order of the circuit court of Lake County is affirmed insofar as it dismissed with prejudice that portion of count IV challenging Public Act 83 — 636 and the portion of Public Act 83 — 634 dealing with counties. The remainder of the circuit court’s order is reversed, and the cause is remanded for further proceedings.

Affirmed in part, reversed in part, and remanded.

NASH, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    NANCY CRENSHAW, Mother and Next Friend of Johnny Crenshaw II, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY et al., Defendants (Jerry Turnquist et al., Defendants-Appellees).
    First District (5th Division)
    No. 84—0607
    Opinion filed February 8,1985.

      Howard Augustus, of Chicago, for appellant.
    James F. Best, of Fraterrigo, Best & Beranek, of Chicago, for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a summary judgment for certain defendants in a personal injury action, the sole issue on review being the propriety thereof.

Plaintiff, Nancy Crenshaw, brought this action on behalf of her minor son, Johnny, to recover for injuries he sustained when he came in contact with a high-voltage electrical wire while climbing a tree located on the property of Jerry and Rhonda Turnquist (defendants).1 Count III of plaintiff’s amended complaint essentially alleged that Johnny’s injuries proximately resulted from defendants’ negligent failure to either (a) trim the top branches of the tree so as to maintain ample clearance between it and the electric wires or (b) notify the utility company or the municipality that the branches had grown over the wires and thus were in need of trimming.

The facts before the trial court at the hearing on defendants’ motion for summary judgment were contained in the depositions, or excerpts therefrom, of the parties and memoranda submitted in support of and in opposition to the motion.

In his deposition, Johnny Crenshaw stated that on the day of the accident, he and his friend Brandon tried to “ditch” another playmate by climbing up and hiding in defendants’ evergreen tree, but were unable to climb more than halfway up the tree before being discovered. After walking the playmate home, he (Johnny) suggested to Brandon that they return to the tree because he wanted to climb all the way up to the top. When he reached the top of the tree — about five feet higher than Brandon had climbed — he inadvertently touched an electric wire strung by Commonwealth Edison Company which was in between the branches, and he was electrically shocked. He had not paid attention to the wire as he was climbing, nor did he know at that time what electricity could do. He had never climbed that tree before the day of the accident, nor had he ever seen any other child climbing it or playing in the yard near it, and he saw no adults in the vicinity on either of the two occasions he and Brandon climbed the tree that day.

Plaintiff stated that she and Johnny lived about one block from defendants’ house, and although she had never seen Johnny or any other children climbing the tree in question, children often rode their bicycles and played near defendants’ front yard and climbed other trees in the area, particularly a huge oak tree about 2/2 blocks away.

Defendant Jerry Turnquist, an elementary school teacher, stated that shortly after he and his wife purchased the property— about five years before the accident — a crew from Commonwealth Edison came to trim the tree, the lower periphery of which was about even with and could be reached from the sidewalk. Displeased with the manner in which they were cutting the branches, he asked the utility workers to “top off” the tree — which means to cut the terminal bud on top — so that it would no longer grow vertically. Defendant also stated that the nearest school and playground were about one-half and one mile, respectively, from his home, and he acknowledged having seen children climb trees in Elgin.

Correctly stating that summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits — if any — on file establish that there is no genuine issue as to any material fact arid that the movant is entitled to judgment as a matter of law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c)), plaintiff contends that summary judgment for defendants here was improper because a genuine issue of material fact existed as to whether defendants had a duty to remedy the dangerous condition created by the growth of their tree over and/or near the high voltage electrical wires.

Initially, we note — and plaintiff acknowledges — that while breach of duty and proximate cause are questions for the trier of fact, whether a duty exists in the first instance is a question of law to be determined by the court. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) The current law governing the liability of owners or occupiers of property upon which a child has been injured was originally announced in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, wherein our supreme court rejected the “attractive nuisance” doctrine under which liability was imposed for injuries to a child caused by a dangerous condition which attracted him to the premises, and held instead that “the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases” (5 Ill. 2d 614, 624, 126 N.E.2d 836, 841). The court then stated, however, that although a landowner generally is under no duty to maintain his premises in a particular condition to promote the safety of persons, including children, who come upon them without invitation, an exception exists “where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children.” The court held that “[i]n such cases there is a duty upon the owner *** to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. [Citation.]” (5 Ill. 2d 614, 625, 126 N.E.2d 836, 842.) The Kahn court thereby established foreseeability of harm as the basis of liability for injuries to children.

Thereafter, in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, an action against various local governmental units for injuries sustained by a two-year-old child when he fell into a public ditch, the court reiterated the two-pronged test of foreseeability set out in Kahn, stating that “a duty which would not be imposed in ordinary negligence will be imposed where [1] the owner or occupier of land knows or should know that children frequent the premises and [2] if the cause of the child’s injury was a dangerous condition [thereon]”; i.e., “one which is likely to cause injury to the general class of children who, by reason of their immaturity might be incapable of appreciating the risk involved.” The Corcoran court held that “[i]f both of these prerequisites are met, it is deemed that harm to children is sufficiently foreseeable for the law to impel an owner or occupier of land to remedy the condition.” (73 Ill. 2d 316, 326, 383 N.E.2d 177, 180.) Finding that, as described in the pleadings, the ditch did not come within the previously quoted definition of a dangerous condition, the court ruled that the injury to plaintiff was not reasonably foreseeable, and therefore affirmed the trial court’s order dismissing the action.

The issue of what duty is owed by landowners to children on their premises was most recently addressed by the supreme court in Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, an action against the developer and builder of an apartment complex for the wrongful death of a seven-year-old boy who, while playing on a partially-frozen water retention pond located on the grounds of the complex, fell through the ice and drowned. Applying the two-pronged test of foreseeability adopted in Kahn and restated in Corcoran, the majority concluded that although defendants may have known of — and even encouraged — recreational use of the pond by residents and their children, the evidence failed to establish that the pond was a dangerous condition as defined in those cases, and held that defendants therefore owed no duty to plaintiff’s decedent as a matter of law.

Plaintiff does not quarrel with the principles enunciated in Kahn, Corcoran and Cope; rather, it is essentially her position that the pleadings and depositions raised genuine questions of material fact as to whether Johnny’s injury was foreseeable under the two-pronged test set forth therein, which should properly have been resolved by a jury after trial instead of by the trial court on a motion for summary judgment. Citing Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513, for the proposition that where varying inferences can be drawn from the facts, the trial court should permit a jury to decide the issue of foreseeability as a factual matter in its proximate cause determination, she argues that the facts here, i.e., that defendants — one of whom was an elementary school teacher — were aware not only of the high voltage power lines running through or near the top branches of their tree but also of several schools and playgrounds within walking distance of their property, raised a reasonable inference that they knew or should have known that neighborhood children playing near or passing by the tree were likely to climb it and be injured by the dangerous condition created by the hidden wires, and thereby rendered summary judgment for defendant improper.

We disagree, noting initially that Nelson was an appeal from the dismissal of a suit against a public utility company and a park district to recover for injuries sustained by a 10-year-old boy when the end of a spool of copper wire he was holding was tossed into the air by a playmate and came in contact with defendant’s electric wires which were strung 30 feet above the public playground where the boys were playing. After an exhaustive and somewhat oblique discussion of the concept of foreseeability and an “abbreviated mention of the negligence doctrines announced in [Kahn] and recently reviewed in [Cope]” (Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 650, 666, 465 N.E.2d 513, 522), the court concluded that the facts, at the pleading stage, were sufficient to establish that defendant knew that children habitually frequented the playground and that the location of the power lines thereover constituted a dangerous condition creating a risk of harm to them. In other words, despite its view that foreseeability is essentially a factual matter to be resolved by the jury in most cases, the Nelson court nevertheless held, as a matter of law, that the injury in question was a reasonably foreseeable occurrence which the defendants had a duty to guard against. 124 Ill. App. 3d 650, 666, 465 N.E.2d 513, 522.

In contrast, there is nothing in the pleadings or depositions before us to suggest that children habitually — or even occasionally — came upon defendants’ property and climbed their tree. Indeed, Johnny stated that he had never climbed it prior to the day of the accident, nor had he seen other children playing near or climbing it; and while plaintiff claimed that children often played near defendants’ property and climbed other trees in the neighborhood, she acknowledged that she had never seen any children climbing defendants’ tree. Absent some evidence that defendants had knowledge — either actual or constructive — that children did or were likely to climb their tree, we do not believe that the mere presence of schools and playgrounds in the area, defendant’s position as a school teacher, or the fact that five years earlier he asked the utility company workers to trim the top branches in a particular manner, were sufficient to satisfy the two-pronged foreseeability test and thereby impose a duty upon defendants to remedy the allegedly dangerous condition.

Accordingly, the order of the trial court granting summary judgment for defendants is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.

       Although originally named as defendants, Commonwealth Edison Company and the City of Elgin are not parties to this appeal.

      Although plaintiff’s counsel informed us at oral arguments that complete transcripts of the depositions were presented to the trial court and filed by him for appeal, only excerpts thereof are contained in the record before us.


author: JUSTICE UNVERZAGT

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. WINNEBAGO COUNTY FAIR ASSOCIATION, INC., Defendant-Appellee.-RICHARD A. SCHEWE et al., Plaintiffs-Appellants, v. WINNEBAGO COUNTY FAIR ASSOCIATION, INC., Defendant-Appellee.-CHARLES C. LANE et al., Plaintiffs-Appellants, v. WINNEBAGO COUNTY FAIR ASSOCIATION, INC., Defendant-Appellee.
    Second District
    Nos. 84—132, 84—156, 84—160 cons.
    Opinion filed February 21, 1985.

      John L. Maier, Jr., of Greenwald, Maier & Hudec, Bruce C. Erickson, of Mateer & Erickson, Robert H. Clark and Robert K. Clark, all of Rockford, for appellants.
    Michael K. Havrilesko, of Williams & McCarthy, of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs in these consolidated actions seek to recover damages for loss of personal property from the defendant, Winnebago County Fair Association, Incorporated. The losses occurred as a result of a fire in the building occupied by the defendant in which the plaintiffs’ property had been placed for storage. Recovery was sought based upon the theories of breach of contract, negligence and res ipsa loquitur. Plaintiffs admitted that prior to placing their property in the possession of the defendant they signed a “Storage Rental Agreement” prepared by the defendant. Part of that agreement stated “no liability exists for damage or loss to the stored equipment from the perils of fire ***.”

The defendant filed a motion to dismiss citing, among other things, the provision in the above rental agreement. The circuit court of Winnebago County found that the language contained in this agreement relieved the defendant of all liability for damage to the plaintiffs’ property. The complaints were involuntarily dismissed with prejudice pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619). It is from this order of dismissal that the plaintiffs appeal, raising these issues:

I. Whether the trial court properly dismissed plaintiffs’ complaints pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619) by finding that the storage rental agreement was valid and relieved defendant of all liability for damage or loss due to fire and was a complete bar to all claims of plaintiffs for their losses due to fire?

(a) Whether defendant was a warehouseman as defined in section 2 of “An Act to regulate the business of storing personal property for a compensation ***” (Ill. Rev. Stat. 1983, ch. 111⅔, par. 120)?

(b) Whether defendant could validly contract away its liability for fire damage?

II. Whether the complaint was properly dismissed as insufficient at law?

The plaintiffs argue on appeal that the Storage Rental Agreement in question was invalid and therefore did not bar their complaints. Specifically, they argue that the defendant qualified as a warehouseman within the meaning of “An Act to regulate the business of storing personal property for a compensation ***” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 120) and as such was bound by all of the provisions of the Act except for the stated exceptions provided for in section 1.1 (Ill. Rev. Stat. 1983, ch. 1112/3, par. 119.1). They conclude that defendant was therefore required to use reasonable care and diligence to protect stored property from loss or damage due to fire as required in section 13 of the Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 131). Furthermore, they state that the defendant could not validly contract away its liability for damage or loss by fire because of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 7 — 201), which forbids contractual terms exempting a warehouseman from all liability due to the failure to exercise reasonable care. The resolution of the issue is dependent on a finding of whether the defendant was in fact a warehouseman and was bmmd by the dictates of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 7 — 201).

Section 1.1 of the Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 119.1) declares that governmental fairs which store personal property for compensation or hold themselves out as offering storage or storage facilities for personal property should be licensed under a limited special governmental fairs license. A warehouseman is defined as “any person, firm, partnership, association or corporation owning, controlling, operating, managing or leasing any room, house, structure, building, place, yard or protected enclosure in or on which personal property is stored for a compensation within this State” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 120). Although the defendant clearly fits this definition, it contends that no purpose would be served by creating a special limited license for governmental fairs if they were to be considered the same as any other warehouseman. It supports this argument by reference to the provision in section 1.1 allowing governmental fairs the election of whether or not to post a bond or legal liability policy as required of other warehousemen, with the condition that the governmental fair license be stamped “Not Insured” on the face of the warehouse receipt if neither a bond was posted nor legal liability insurance was required. The defendant also points out the requirement that governmental fairs secure signed written contracts from each depositor. It claims that this latter requirement by its very nature would have no effect if governmental fairs were not permitted to enter into contracts limiting their liability beyond that which an ordinary warehouseman can do. Defendant concludes that the above-stated special provisions indicate that the legislature did not intend fairs to be subject to the same requirements as other public warehouse businesses.

In construing a statutory provision not yet judicially interpreted, a court is guided by both the plain meaning of the language in the statute as well as legislative intent. (Interlake, Inc. v. Industrial Com. (1983), 95 Ill. 2d 181; Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901.) Therefore, the threshold task of a court is to examine the terms of the statute itself. (United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34.) The plain language of section 1.1 provides for issuance of a special limited license for governmental fairs. The statute goes on to state that the special license shall be issued for storage of personal property other than that enumerated in the definition of personal property as stated in section 2 of the Act. In contrast to that definition, the personal property allowed to be stored under the special license is named and in-eludes primarily boats, farm machinery and other similar tangible personal property.

Also, in contrast to the requirements of other warehousemen when applying for a license, governmental fairs are required to have a signed contract with each depositor on forms prescribed by the Illinois Department of Agriculture, but they must also comply with section 10 of the Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 128), which requires generally that every operator, upon receipt of personal property, issue and deliver to the depositor a negotiable or a nonnegotiable warehouse receipt in compliance with section 7 — 202 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 7 — 202). Section 6 of the Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 124) requires that prior to the issuance of a license, all personal property warehousemen shall file a surety bond or legal liability insurance policy with the State of Illinois. As mentioned above, however, section 1.1 states that if the governmental fairs licensee does not have a bond or legal liability policy, then the receipt given to the depositor shall have stamped across its face, “Not Insured.” Although the defendant notes that this option is in contrast to the requirements set forth for other licensees, to be noticed is that section 10 of the Act also requires that no receipt for goods shall be issued unless it is stated in conspicuous type whether or not such goods are insured for the benefit of the depositor against fire or any other casualty. In short, the plain meaning of the language of the statute is that a governmental fairs licensee differs from other warehousemen only in the type of goods stored, the requirement of a signed contract and the option of not filing with the Department a legal liability insurance policy or bond. Other than the above exceptions, the statute specifically states that a governmental fairs licensee shall comply with all other requirements of the Act which relate to ware-housemen in general. We conclude, therefore, that despite the noted differences, governmental fairs licensees are warehousemen.

The next issue presented is whether the defendant could validly contract away its liability for fire damage. The resolution of this question is dependent first upon our finding that governmental fairs are warehousemen. Of primary importance is section 13 of the Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 131), which imposed upon every operator a duty to use reasonable care and diligence to protect property stored from loss or damage by fire, theft, burglary or other such causes. A similar standard is imposed in the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 7 — 204). Illinois law recognizes as part of one’s freedom to contract the validity of exculpatory clauses in many cases as relieving a party of liability for negligence. (McClure Engineering Associates, Inc. v. Reuben Donnelley Corp. (1981), 101 Ill. App. 3d 1109, and cases cited therein.) However, the provisions of the Uniform Commercial Code have full force and effect with respect to warehouses, warehousemen, personal property, persons, depositions and receipts (see Ill. Rev. Stat. 1983, ch. 1112/3, par. 127) and are determinative of what can be varied by agreement. Section 1 — 102(3) of the Uniform Commercial Code states:

“The effect of provisions of this Act may be varied by agreement, except as otherwise provided in this Act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this Act may not be disclaimed by agreement but the parties may be agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.” Ill. Rev. Stat. 1983, ch. 26, par. 1-102(3).

Although freedom of contract is emphasized in the Code, the principle is subject to certain stipulated exceptions (see Ill. Ann. Stat., ch. 26, par. 1 — 102, Illinois Code Comment, at 8 (Smith-Hurd 1963)). A warehouseman may limit his liability generally on the condition that the depositor be afforded an opportunity to declare a higher value for which the warehousemen may charge an increased rate. (Ill. Ann. Stat., ch. 26, par. 7 — 204, Illinois Code Comment, at 36 (Smith-Hurd 1974).) Thus, a warehouse receipt may legally contain.a provision exempting the warehouseman from total liability for loss or damage to the goods in storage. In the present case, the agreement provided that “no liability exists for damage or loss to the stored equipment from the perils of fire ***.” At issue in the present case, however, is exemption from all liability for fire damage including loss attributed to negligence which is not expressly stated in the disclaimer. The defendants cite World Products, Inc. v. Central Freight Service, Inc. (D.N.J. 1963), 222 F. Supp. 849, affd in part (3d Cir. 1965), 342 F.2d 290, and Inland Metals Refining Co. v. Ceres Marine Terminals, Inc. (N.D. Ill. 1983), 557 F. Supp. 344, for the proposition that damages may be limited by a term in the storage agreement beyond which a defendant will not be liable and that damage limiting clauses in a warehouse receipt are generally enforceable in negligence actions. A review of these cases indicates that neither involved total exemption from loss due to negligence. Our research has revealed no Illinois cases which have allowed total exemption from such liability. Decisions in other jurisdictions indicate that even when such agreements have sought explicitly to relieve warehousemen from the consequences of their negligence, they have often been regarded as invalid or ineffective (see 78 Am. Jur. 2d Warehouses sec. 232 (1975), and cases cited therein), and warehousemen are not relieved from the duty of exercising ordinary care. However, a contract, such as in the present case, which exempts a warehouseman from liability for fire loss occurring without negligence is valid and effectual. (93 C.J.S. Warehouse-men & Safe Depositaries sec. 40 (1956).) From this point of view, the absence of a requirement for governmental fairs to procure insurance and to stamp the receipt “Not Insured,” if insurance is not in force, serves the purpose of alerting the bailor to secure his own insurance against such loss if desired. As we see it, however, this would have no relation to a claim for negligence. Plaintiffs cite Kidd & Co. v. North American Provision Co. (1928), 249 Ill. App. 28, for the proposition that a warehouse cannot exempt itself from liability for negligence by the insertion of provisions to this effect in its warehouse receipt. The Kidd court stated that a bailee for hire is bound to exercise ordinary care and diligence in the preservation of the property entrusted to him as defined by the applicable statute at the time. (249 Ill. App. 28, 30-31.) The standard of reasonable care and diligence is set forth in section 13 of “An Act to regulate the business of storing personal property for a compensation ***” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 131) and section 7 — 204(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 7 — 204(1). Since section 1 — 102(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 1 — 102(3)) states that the obligations of diligence, reasonableness and care may not be disclaimed by agreement, the effect of section 7 — 204 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 7 — 204) limiting damages by a term in the warehouse receipt or storage agreement would be to allow only an agreed monetary limit of liability as opposed to total exemption from all liability for damages. In fact, since the agreement in question did not specifically claim exemption from negligence, nor an agreed limitation of damages, it would seem correct to presume that the standard of reasonable care prevailed and a fire loss due to the defendant’s alleged negligence could allow a finding of total liability in the present case. Therefore, we conclude that in the present case the trial court erred in finding that the storage rental agreement was a complete bar to all the claims of the plaintiffs for loss of their stored property due to fire.

The defendant next contends that the plaintiffs failed to allege any specific facts in their complaints to support the general conclusional allegations that defendant was negligent and that defendant’s negligence was the cause of the fire and proximate cause of damage to plaintiffs’ property. Defendant also states that plaintiffs failed to allege specific facts constituting a sufficient breach of contract claim and that the res ipsa loquitur count was not appropriate under the circumstances of this case.

In ruling upon a complaint’s legal sufficiency, all facts properly pleaded and all reasonable inferences therefrom must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179; Burks v. Madyun (1982), 105 Ill. App. 3d 917.) A complaint is insufficient if it states mere conclusions, whether of fact or law. (McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676; Plocher v. City of Highland (1978), 59 Ill. App. 3d 697.) The complaint must minimally allege facts sufficient to set forth the essential elements of the cause of action. (Woodill v. Parke Davis & Co. (1978), 58 Ill. App. 3d 349, aff’d and remanded (1980), 79 Ill. 2d 26.) However, a complaint should not be dismissed for failing to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to relief. Gregor v. Kleiser (1982), 111 Ill. App. 3d 333.

In order to state a cause of action in negligence, a complaint must allege sufficient facts establishing a duty on the part of defendant, a breach of that duty, and a resultant injury. (Whalen v. Lang (1979), 71 Ill. App. 3d 83.) A review of the plaintiffs’ complaint reveals that contrary to the defendant’s allegation in its motion to dismiss, plaintiffs did allege a duty to exercise ordinary care for the safety and preservation of plaintiffs’ property by virtue of the contract for bailment which created that duty. Plaintiffs further allege by specific facts that defendant breached its duty due to certain negligent acts or omissions. Notably missing in the plaintiffs’ complaint, however, is the allegation that defendant’s negligent acts or omissions were the cause of the fire and the proximate cause of the damage to the plaintiffs’ property. Absent this allegation, plaintiffs’ complaint does not state a cause of action in negligence and was properly dismissed since it was legally insufficient.

A review of the amended complaint in appeal No. 84 — 132, however, shows that, contrary to the defendant’s allegations in its motion to dismiss, plaintiff alleged a duty pursuant to section 13 of “An Act to regulate the business of storing personal property for a compensation ***” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 131), a breach of that duty supported by specific facts, and an injury alleged to be the direct and proximate result of the defendant's negligence and damages. Plaintiff’s complaint, therefore, states a legally sufficient cause of action in negligence.

A review of plaintiff’s complaint in appeal No. 84 — 156 shows that plaintiffs alleged a duty on the part of the defendant to exercise ordinary care for the safety and preservation of the plaintiffs’ property. However, examination of that portion of the complaint alleging breach of the above duty indicates that two of the alleged negligent acts were conclusional in nature and as such did not constitute well-pleaded facts. Nevertheless, the remaining three alleged negligent acts were, in our opinion, sufficient to satisfy the pleading requirement for a breach of duty. Since plaintiffs’ complaint also alleges proximate cause and damages, it is sufficient to withstand a section 2 — 615 motion to dismiss. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615.

Defendant further argues that plaintiffs’ complaints failed to allege specific facts to satisfy a breach of contract claim. In order to sufficiently state a cause of action for breach of contract, a plaintiff must allege the essential elements of the cause of action. Thus, the complaint must contain allegations of the existence of a valid and enforceable contract, the breach of the contract by the defendant, the performance by the plaintiff and the resultant injury to the plaintiff. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289.) Where the complaint fails to state the essential allegations it is defective and its deficiency may not be remedied by a liberal construction. It is essential in pleading the existence of a valid contract to allege facts sufficient to indicate the terms of the contract. (Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011.) Reviewing the plaintiff’s complaint in appeal No. 84 — 156, plaintiffs allege that the defendant was in the business of storage and that after payment of consideration by plaintiffs the property was delivered for the purpose of storage. It is in the obligation assumed by defendant that his duty is found, and his failure to comply with the duty constitutes the breach. (61A Am. Jur. 2d Pleading sec. 89 (1981).) Plaintiffs also allege the resultant injury due to defendant’s breach. Therefore, it appears that plaintiffs (No. 84— 156) have sufficiently stated a cause of action for breach of a bailment contract. We find the complaints in No. 84 — 132 and No. 84 — 160 to be similarly sufficient.

Lastly, defendant argues that since the cause of the fire is unknown to either party, it is not appropriate to merely plead res ipsa loquitur. The res ipsa loquitur doctrine is a type of circumstantial evidence which permits 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, 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; Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 11.) The doctrine relates to physical causes of a kind producing the injury which do not ordinarily exist in the absence of negligence. The mere occurrence of a fire, however, is not sufficient to invoke the doctrine of res ipsa loquitur. (Hahn v. Eastern Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29.) It is only when the fact of the fire plus the surrounding circumstances give rise to an inference of negligence that res ipsa loquitur is applicable. (Annot., 8 A.L.R. 3d 974, 984, 992 (1966).) Fires occur under a large variety of circumstances. Although Illinois courts have applied the res ipsa loquitur doctrine to cases involving fires, it was only when the circumstances beyond the mere occurrence of the fire existed which justified the establishment of a prima facie case of negligence that the doctrine was held to be applicable. (Hahn v. Eastern Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29; Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App. 3d 910; Arado v. Epstein (1944), 323 Ill. App. 194.) It is our opinion that in the present case such circumstances do not exist. The origin and cause of the fire are unknown and could have occurred without negligence on the part of anyone. Therefore, we conclude that the doctrine of res ipsa loquitur was inapplicable to the case at bar.

Based on the above, it is our opinion that defendant was a warehouseman, was bound by the provisions of the Uniform Commercial Code and could not validly contract away all liability for negligently caused fire damage.

We also conclude that the doctrine of res ipsa loquitur was inapplicable in the present case. Except for the negligence count in the complaint in appeal No. 84 — 160, plaintiffs’ complaints were legally sufficient to state a cause of action in negligence and breach of bailment contract.

The judgment of the circuit court of Winnebago County dismissing the complaints is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LINDBERG and STROUSE, JJ., concur.


author: JUSTICE HARTMAN

text:
    DEMETICA BUFORD, a Minor, by her Mother and Next Friend, Annie Buford, Plaintiff-Appellee and Appellant, v. THE CHICAGO HOUSING AUTHORITY, Defendant-Appellee (Otis Elevator Company, Defendant-Appellant).
    First District (2nd Division)
    No. 83—1914
    Opinion filed February 11, 1985.

      Gary S. Hokin, of Hokin & Melber, of Chicago (Sidney Z. Karasik, of counsel), for Demetica Buford.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom, Charles P. Menges, James P. DeNardo, and Andrew Fylypovych, of counsel), for appellant Otis Elevator Company.
    Orner, Wasserman & Moore, Ltd., of Chicago (Norton Wasserman and Esther Joy Schwartz, of counsel), for appellee Chicago Housing Authority.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendants Chicago Housing Authority (CHA) and Otis Elevator Company (Otis) liable in negligence for injuries sustained by plaintiff when she fell into an elevator shaft on CHA’s property. The circuit court entered judgment on the verdict against Otis, granted CHA’s motion for judgment notwithstanding the verdict, and set aside the jury’s answer to a special interrogatory. Otis appeals from the judgment; plaintiff separately appeals from the judgment as to CHA setting aside the special finding and granting judgment n.o.v.

These appeals raise as issues whether the circuit court erred by: (1) denying Otis’ motion for a new trial; (2) permitting plaintiff’s witness to testify as an expert; (3) granting CHA’s motion for judgment n.o.v.; (4) setting aside the jury’s special finding; and (5) conditionally granting CHA’s motion for a new trial.

On the afternoon of August 28, 1979, the 9-year-old, 90-pound plaintiff was standing beside the two elevators on the first floor of the Rockwell Gardens CHA building at 2514 West Van Burén, in which she lived with her family. Plaintiff and a girl named Emma scuffled and Emma pushed plaintiff, who stumbled back and hit the closed odd elevator door, the bottom of which pushed in. Plaintiff fell a distance of 15-16 feet to the bottom of the elevator shaft, and was taken to a hospital, having sustained a comminuted supracondylar fracture of the left humerus.

On December 12, 1980, plaintiff initiated the instant action, naming as defendants CHA (owner of the building), Otis (responsible for maintaining and repairing the elevators), and Westinghouse Electric Corporation (manufacturer of the elevator). The circuit court granted Westinghouse Electric Corporation’s motion for summary judgment on June 26, 1981, which order is not involved in this appeal. The amended complaint, filed on June 7, 1983, named only CHA and Otis as defendants.

At trial, which began on June 8, 1983, plaintiff called an Otis elevator repairman, Wayne Sliger, as an adverse witness under section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1102). Sliger, a “card mechanic,” the highest level of competency below foreman, had been repairing elevators in Rockwell Gardens since 1968. In 1979, he reported to the Rockwell Gardens CHA office, where he picked up work order tickets designating the repairs he would then perform. Upon completion of a repair, he noted on the work ticket the problem found and the work performed. Both Otis and CHA personnel were thereby made aware of what he did and where he did it.

Sliger described a “gib” as a metal guide attached to the bottom of the elevator door which holds the door in a lengthwise slot in the doorsill, as the door travels back and forth upon opening and closing. Rockwell Gardens’ elevator door gibs became disengaged from their sills at least once per week, which Sliger discussed with his supervisors at Otis. CHA supervisors may have mentioned it every so often and were aware of this recurring condition. A door disengaging from the gib slot would still hang parallel from top to bottom and the elevator would continue to operate. No warning device is triggered if a door is disengaged. There were no signs posted warning of this condition. Based on his experience, doors which have been disengaged at the bottom are easier to disengage thereafter. He generally repaired bent gibs by hammering them straight, sometimes straightening the same gib more than once. He was aware of the effects of metal fatigue, which depended on the degree of bend and the length of time the gib was in use. After repairing a door, he pushed on it with his hands to see if it would hold. He replaced gibs which he considered inadequate.

Sliger testified about the specific repairs he made during August 1979 to the subject odd elevator. On August 1, the door was “hanging” on the 11th floor, as the gib had been bent from force being applied to the door; he repaired the door by straightening the gib. On August 3, the first floor door was “off track” and the gibs bent; he straightened the gibs. On August 10, the door was off track on the 9th floor; he rehung the door. On August 18, he repaired the door lock contact on the 9th floor. On August 21, the first floor door was hanging by a single hanger and, as the shaft was exposed, had to be barricaded; he rehung the door, noting that two gibs were in place. On August 22, the same door had been kicked off again, and was off track with the gibs bent; after he straightened the gibs, the door was working perfectly. On August 23, the first floor door was working correctly. Sliger was on vacation when the subject accident occurred.

A1 Blanton, an Otis “permit mechanic,” testified that during 1978-79 he was Sliger’s “helper,” and was the repairman when Sliger was not at work. During Sliger’s August 1979 vacation, Blanton worked on the subject odd elevator. On August 25, the elevator was out of order because a beer can had been jammed in the back of the elevator cab door on the 5th floor. On August 27, the 13th floor hatch door was off track. On August 28, he was told a child had fallen into the “pit” and the elevator needed repair. He found the first floor gibs “completely not usable,” as they had been bent back and broken off. To be up to standard, a bent gib needed to be replaced with a new one. He would never attempt to reuse a gib, but would replace it with a new one, as the gibs alone keep the bottoms of the doors from falling in. Whether to reuse or replace a bent gib was left to the repairman’s discretion, but he would always inform management of the condition of the gib.

Blanton was never taught about how much pressure an elevator door should withstand. He usually replaced bent gibs, because if a piece of steel is bent, it starts to lose strength and if it continues being bent, it gets weaker. The more gibs used, the more pressure the door could withstand. Although the doors were designed for use with one gib, a second gib was added at some point for strength. After he added three new gibs when repairing the elevator on the day following the accident, the doors were not kicked off again.

Ervin Sprull, also called by plaintiff as an adverse witness, had been the CHA janitor in charge of the subject building since 1972. Two persons comprise the normal janitorial staff per building. Elevators are cleaned daily. In the morning, the elevators are checked; any problems are reported to the CHA maintenance office. He customarily walks from the first to the 13th floor, checking all elevator doors. Twice each morning and afternoon, janitors ride the elevators to pick up garbage at each floor. Elevator doors were frequently kicked in.

Dale Piechocki, a city of Chicago elevator inspector and card-holding elevator mechanic, testified for plaintiff. If a gib was bent, he would replace it with a new one; if a replacement were not immediately available, he would straighten and reinstall the damaged gib, but only if it appeared safe enough to run for an hour until a new gib could be secured. He would hesitate to straighten a gib because the metal would be fatigued. The more metal is bent, the greater are its, chances of breaking. He inspected the subject elevator door on August 29, 1979, and found it to have only one gib, which was in “passable” condition. He didn’t know whether the same gib was on the door when the accident took place. A door not connected at its lower end by a gib would still operate. In his opinion, an elevator door which could not withstand the weight of a 90-pound girl’s body pushing against it would be unsafe, although he was not permitted to consider this question with the hypothetical alternatives of a gib’s being in place or not.

Also testifying for plaintiff was John Stilson, a safety and automobile consultant with B.S. and M.S. degrees in mechanical engineering. According to Stilson, gibs are used to provide proper tolerance and tightness of fit to prevent the particular part from moving too much out of plane. A gib which had been bent and then hammered straight would be out of specification and would not function to its intended purpose. While a hammered gib could still operate in its guiding fashion, its structural integrity and load carrying capability, as well as its endurance and durability, would definitely be deteriorated. He calculated the force generated by a 90-pound individual, pushed three to five feet, and was of the opinion that a door giving way to such force was improperly repaired or maintained, since the system, as originally designed, should have withstood the impact. On cross-examination, Stilson conceded that a “mild” bend could have been straightened without causing an accident.

Testifying for CHA was Cary Tucker, CHA janitor, who was on duty in the subject building when the incident occurred. He checked the elevators that morning, using them to go up and down. He used the first floor odd elevator door 30 minutes before the accident, and noticed nothing wrong. Immediately before the accident, he saw some girls playing in front of the elevator. One girl was pushed, her back hit the door which swung in, and she fell into the shaft. The door “swung freely” and made “no sound” when hit. There was an ongoing problem at Rockwell Gardens involving elevator doors being kicked or pushed in. The people in Rockwell Gardens CHA office all know about this. He personally talked about the problem and how dangerous it was with the CHA head janitor and maintenance superintendent, who got Otis to fix it.

Lloyd Mason, who in August 1979 was Otis’ superintendent of maintenance for CHA contracting, testified on behalf of Otis. Under its contract with CHA, Otis made “surveys” of each elevator at least once yearly. Surveys involved personal visits to check out the hoist-ways and all operating situations of the elevator. Gibs were checked during the surveys by inserting a pry bar under the doors to check for abnormal clearance. General maintenance was conducted semimonthly, with each visit entailing a different aspect of maintenance, which varied from visit to visit. Other repairs were made after CHA notified Otis of a problem; such repairs were authorized by means of a “time ticket.” CHA paid for all such repairs not part of the maintenance contract. Otis’ policy was that severely bent gibs were replaced; otherwise, they were straightened. The decision to replace or straighten a gib was left to the mechanic on the job. On cross-examination, Mason said that doors were never tested to see whether they could withstand pressure. There is no test known, other than visual inspection, to evalúate the damage to a gib. He had conversations with CHA personnel in charge of the elevators about the recurring vandalism, especially “about the many, many misuses of the door being kicked off.”

After the close of evidence, the circuit court directed a verdict in CHA’s favor on the issue of CHA’s actual notice of the defective condition of the door. The jury then returned a verdict in favor of plaintiff and against CHA and Otis, assessing plaintiff’s damages at $48,350; plaintiff was found not contributorily negligent. The jury answered yes to a special interrogatory which inquired: “Did the Chicago Housing Authority have constructive notice of any defect in the elevator door in question at the time of or shortly before this occurrence?”

The circuit court denied Otis’ post-trial motions for judgment n.o.v., for a new trial, and for remittitur, entering judgment for plaintiff. Similar motions were filed by CHA. The circuit court set aside the jury’s answer to the special interrogatory as being against the manifest weight of the evidence; granted CHA’s motion for judgment n.o.v.; and granted CHA’s motion for a new trial on the condition that the judgment notwithstanding the verdict is reversed. These appeals followed.

I

Otis contends initially that the circuit court erred by denying its motion for a new trial, alleging that plaintiff failed to prove that Otis breached its duty of care. Otis argues that its contractual duty, requiring it to provide semimonthly maintenance and other repairs at CHA’s request, was not shown to have been breached; and that there was no evidence adduced that the subject elevator, when last repaired prior to the accident, did not comply with applicable safety codes. Considerable evidence was presented, however, suggesting that the accident occurred because of Otis’ failure, in light of repeated acts of vandalism resulting in damaged gibs, to use new gibs to repair the door, or to strengthen the doors with additional gibs. An Otis repairman testified that, although the decision to reuse a straightened gib, rather than install a new one, was left to his discretion, he also testified that where elevator doors previously have been disengaged at the bottom, as was the subject door, they are more easily disengaged thereafter; he had seen doors which had been kicked off “many times”; he was aware that the metal in gibs was subject to fatigue; and he tested a repaired door by pushing on it with his hands to see if it would hold. Other witnesses testified that bending and straightening gibs would subject them to metal fatigue and thereby weaken them structurally. Another Otis repairman indicated that he would hesitate to reuse a bent gib because of the risk of metal fatigue. A city elevator inspector noted that he would replace bent gibs with new • ones, and would only reuse one temporarily until he could get a new gib.

A defendant’s duty in a negligence case is to conform to the standard of reasonable conduct in light of the apparent risk. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 331, 211 N.E.2d 253, quoting Prosser on Torts 331 (3d ed. 1964); Ortiz v. Warren Chevrolet, Inc. (1974), 24 Ill. App. 3d 199, 201, 321 N.E.2d 77.) Here, the jury could have believed that Otis knew of the frequency with which the elevator doors were damaged, that gibs were subject to metal fatigue, and that the subject gibs had been bent and straightened at least twice prior to the accident and should have used new gibs in effecting such repairs. Other evidence suggested that the use of only one or two gibs was insufficient in view of the frequency of breakdown. A repairman stated that, following the accident, he installed three gibs in the subject door, after which he believed no further breakdowns took place. He asserted that the more gibs that were used, the more pressure the door could withstand; yet, the decision to use three gibs was not made until after the instant accident.

Otis further insists that a new trial should have been granted in the absence of evidence that the accident was caused by its negligence, rather than by an intervening and independent act of vandalism, which Otis had no authority to control or prevent. Otis bases this contention on evidence showing that: nothing appeared wrong with the door only 30 minutes before the accident; the door “swung freely” and made “no sound” when plaintiff fell against it; and no evidence showed the gib to be in place when the accident occurred. Plaintiff’s theory of Otis’ negligence, that Otis negligently repaired and maintained the elevator doors so that they were susceptible to an unsafe condition and disrepair, was supported by a preponderance of the evidence. The fact that vandals may have pushed in the door again before the accident was contemplated in plaintiff’s theory, since if properly repaired or replaced, the gibs would not easily have given way in any event. The circuit court standard in determining a motion for a new trial is the preponderance of the evidence. The standard to be used by a reviewing court in determining the correctness of a circuit court’s ruling on a motion for a new trial is whether or not the trial court abused its discretion or its ruling was against the manifest weight of the evidence. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500; Martinet v. International Harvester Co. (1977) , 53 Ill. App. 3d 213, 221-22, 368 N.E.2d 496, appeal denied (1978) , 67 Ill. 2d 592; Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936, appeal denied (1979), 79 Ill. 2d 618.) Denial of Otis’ motion for a new trial under the foregoing circumstances was not error and must be affirmed.

II

Otis maintains next that the circuit court committed reversible error by allowing plaintiff’s witness, John Stilson, to testify as an expert concerning elevator safety. The qualification of a witness as an expert is within the sound discretion of the circuit court. (Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 250, 302 N.E.2d 257.) An expert is properly qualified where: (1) his opinion relates to a science, profession, business, or occupation and is beyond the knowledge or experience of the average juror; (2) he has sufficient skill, knowledge or experience so that his opinion will aid the trier of fact; and (3) the state of the art or scientific knowledge permits a reasonable opinion to be asserted by an expert. (First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188.) Otis contends that Stilson possessed no “special knowledge” concerning elevators, entitling him to render an expert opinion on the matter, in that he had: no prior knowledge or experience with elevator design, maintenance, repair, or installation; no prior experience with applicable safety codes; no familiarity with union requirements respecting elevator mechanics; no familiarity with the day-to-day practices of elevator mechanics; and had neither seen nor tested an elevator door gib, citing Harris v. City of Granite City (1977), 52 Ill. App. 3d 782, 365 N.E.2d 1034, Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376, Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 437 N.E.2d 376, and Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 438 N.E.2d 1217.

Plaintiff contends, however, that Stilson was never held out to be an “elevator expert,” but an expert in mechanical engineering and safety, whose expertise specifically addressed the matters of metal fatigue and its effect on supported structures. Stilson testified that he was employed as a safety and automobile consultant; had B.S. and M.S. degrees in mechanical engineering; took courses in strengths of metals, metallurgy, and construction integrity, the capacity of a member to sustain a given load without failure; and studied the concepts of force, pressure, and speed in courses in engineering mechanics and physics. While acknowledging that he had never previously studied elevator design, he said that elevators are constructed of components with which he was familiar. Stilson then testified to the metal fatigue resulting when a bent gib is repeatedly hammered straight. He also responded to a hypothetical question requiring a calculation of the force generated when a 90-pound person is pushed against an elevator door.

A foundation for his opinions was established by his familiarity ■with metals and metal fatigue, and his knowledge of the basic concepts required in answering the hypothetical question. Unlike the “expert” in Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 437 N.E.2d 376, plaintiff here demonstrated how Stilson’s engineering background was applied to the problem at issue. And, unlike the witness in Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 438 N.E.2d 1217, Stilson did not testify to the defective design of a device -with which he was unfamiliar; here, he testified to the effects of metal fatigue — a subject within his field of expertise — on a mechanical system the components of which he said he had studied. His lack of prior familiarity with elevators in particular, under the circumstances, goes to the weight of his testimony, not its competency. City of Chicago v. Bank of Ravenswood (1981), 93 Ill. App. 3d 52, 55, 416 N.E.2d 1115.

Otis urges further that the hypothetical question asked of Stilson should have been stricken. In essence, Stilson was asked whether, in his opinion, a closed elevator door with two bent and restraightened gibs was in a safe operating condition, where it was caused to move inward by the impact of a 90-pound person pushed against it. Otis argues that, because it had not been shown that the gibs were in their lower track at the time of the accident, the inclusion of this fact in the question was prejudicial. Generally, when an expert is asked to assume certain things as true, they must be within the realm of direct or circumstantial evidence, supportable by the facts or reasonable inferences which can be drawn therefrom. (Smith’s Transfer Corp. v. Industrial Com. (1979), 76 Ill. 2d 338, 350, 392 N.E.2d 14.) Nevertheless, expert testimony couched in terms of probabilities or possibilities based on assumed facts is not inadmissible or improper. (Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504; Presswood v. Morris (1979), 70 Ill. App. 3d 513, 517-18, 388 N.E.2d 844; Nicholas v. City of Alton (1982), 107 Ill. App. 3d 404, 407-08, 437 N.E.2d 757.) Stilson’s testimony, therefore, was properly admitted. Here, although there was no direct or unequivocal evidence that the gibs were in place at the time of the accident, such a determination, properly one for the jury, would be consistent with the evidence adduced. The circuit court properly permitted Stilson to assume that they were in place for the purpose of the hypothetical question. We find no error here.

Ill

In plaintiffs appeal, she argues that the circuit court erred in granting judgment n.o.v. to CHA because it could find no basis in the evidence to support the jury’s findings with regard to constructive notice of the condition of the elevator doors. CHA’s tort liability is grounded in the Local Governmental and Governmental Employees Tort Immunity Act (Act), section 3 — 102(a) of which provides that a public entity, such as CHA, has a duty to maintain its property in a reasonably safe condition and is not liable for injury unless it has actual or constructive notice of the existence of a condition that is not reasonably safe in sufficient time prior to an injury to have taken remedial or protective measures. (Ill. Rev. Stat. 1983, eh. 85, par. 3— 102(a).) The question of constructive notice is generally one of fact; it becomes a question of law, and thereby amenable to judgment n.o.v., if all of the evidence, when viewed in its aspect most favorable to plaintiff, so overwhelmingly favors the defendant public entity that no contrary finding based on that evidence could ever stand. (Cook v. Gould (1982), 109 Ill. App. 3d 311, 316, 440 N.E.2d 448; Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004, 1008, 276 N.E.2d 470; see also Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) The burden of proving notice is on the party charging it. (Reed v. Eastin (1942), 379 Ill. 586, 592, 41 N.E.2d 765; Brown Bag Co. v. Bituminous Casualty Corp. (1969), 117 Ill. App. 2d 287, 291, 254 N.E.2d 577.) Under section 3 — 102(a), constructive notice is established where a condition has existed for such a length of time, or was so conspicuous, that authorities, by exercising reasonable care and diligence, might have known of it. Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448; Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004, 276 N.E.2d 470.

Plaintiff contends CHA was shown to have been on notice, through the work authorization tickets returned to CHA by Otis mechanics, as to the nature of the repairs made. Therefore, CHA knew that gibs which had been bent and reshaped at least two times had been reinstalled in the subject elevator door. CHA was also aware that this particular door was frequently off-track, and that, consequently, CHA should reasonably have inquired whether the use of reshaped gibs or of one or two gibs was sufficient, especially in view of the ongoing vandalism problem. Where one is on notice of facts which would put a prudent man on inquiry, he is chargeable with other facts discoverable by diligent inquiry, as “every unusual circumstance is a ground of suspicion and demands investigation.” (Reed v. Eastin (1942), 379 Ill. 586, 41 N.E.2d 765; see also In re Application of County Collector (1977), 48 Ill. App. 3d 572, 588, 362 N.E.2d 1335.) Moreover, plaintiff asserts, CHA was charged with the higher duty of a common carrier in operating its elevators and, as such, was not absolved of its liability by delegating elevator maintenance to Otis, citing Stewart v. Beegun (1970), 126 Ill. App. 2d 120, 127, 261 N.E.2d 491.

CHA, however, urges that the defective condition did not exist for such a length of time as to have been reasonably discoverable. The door was observed to be working properly on the day prior to the accident by an Otis mechanic; a CHA janitor used the door only 30 minutes before. CHA cites cases involving section 3 — 102(a) liability in which trial courts properly found constructive notice absent where dangerous conditions were in existence longer than 30 minutes. (See Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448; Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004, 276 N.E.2d 470.) CHA’s contention — and the circuit court’s rejection of the jury’s verdict — apparently presumes that the door failure was attributable to an act of vandalism which took place within 30 minutes of the accident and thus could not have been detected except by constant surveillance. In granting judgment n.o.v., the court specifically noted that the elevator had been used 30 minutes before the accident. This view of the facts ignores the thrust of plaintiff’s case, which premises liability on the structural failure of reshaped gibs, or an inadequate number of gibs, to withstand the force generated when plaintiff was pushed against the door. The court’s acceptance of the verdict assigning liability to Otis was based precisely on this theory.

Furthermore, constructive notice could have been attributed to CHA even if the accident were caused by vandalism, since it knew of this recurring and dangerous situation, yet failed to take reasonable measures to protect persons on the premises. A jury could have concluded from the evidence that CHA knew, or should have known, that elevator doors were frequently disengaged from the bottom sills; that such doors hung parallel, top to bottom, so that their defective condition was not readily observable; and that such doors continued to operate. Under such circumstances, CHA reasonably should have warned of the potential danger, yet no warnings were posted. CHA correctly observes that vandalism, as a criminal act by a third person, is not a “condition of the premises” (see Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 971, 344 N.E.2d 536); however, the regular recurrence of the same type of vandalism involving the same elevator rendered subsequent such acts foreseeable and imposed a duty on CHA to take steps to prevent or control the vandalism, or at least to warn of the dangerous situation such acts potentially created (see Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 556, 340 N.E.2d 47).

CHA asserts nevertheless that it proved that it maintained a “reasonably adequate” inspection system and thereby established the absence of constructive notice under section 3 — 102(b) of the Act, which provides that a governmental entity does not have constructive notice of a dangerous condition if it establishes that either:

“(1) The existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property; or
(2) The public entity maintained and operated such an inspection system with due care and did not discover the condition.” Ill. Rev. Stat. 1983, ch. 85, par. 3 — 102(b).

Assuming that the accident was due to the failure of the reshaped gibs to withstand the impact of plaintiff’s body against the door, the question is whether CHA’s inspection system was “reasonably adequate,” under the circumstances, to discover the defect. CHA personnel testified that elevators are checked regularly by janitors who ride them at least four times daily while they gather refuse from each floor. Such inspections, however, only determine whether the elevators go up and down and whether the doors open properly. Although CHA itself conducts no further testing, at the time of the incident CHA was party to a contract with Otis, under which Otis conducted yearly “surveys” of all CHA elevators. Such surveys evaluated “all operating situations of the elevator.” Gibs were checked during such surveys by the insertion of a pry bar under the doors to look for “abnormal clearance.” In addition, semimonthly maintenance visits were conducted by Otis; each such visit focused on a different aspect of maintenance. There were no specific tests conducted, however, to determine whether the doors could withstand pressure. Otis was also responsible for repairing elevators upon authorization by CHA. An Otis mechanic testified that he checked a repaired door by applying pressure on it with his hands “to see if it’s going to hold.” Although Otis’ superintendent of maintenance was unaware of any test, other than visual inspection, to evaluate the damaged gib, Stilson, plaintiff’s expert, noted that a “Shitillian force gauge” can be used to field test the door for structural fatigue. Throughout this time, moreover, CHA was aware of the ongoing vandalism of the doors and, through its repair tickets, aware of the means by which the gibs were repaired.

In light of the balancing test posited in section 3 — 102(b)(1), neither CHA’s own “inspection” program, nor the program conducted by Otis on CHA’s behalf, was adequate to discover the defect. If, as Otis’ superintendent stated, visual inspection by an experienced mechanic was the only means whereby a reshaped gib could be evaluated, the “inspection system” would have satisfied section 3 — 102(b). Testimony regarding the “Shitillian force gauge,” however, cast some doubt on the adequacy of this method. While plaintiff did not show the expense entailed in using this device, the burden of establishing the reasonableness of an inspection system under section 3 — 102(b) rests with the public entity. CHA did not rebut plaintiff’s assertions or attempt to show that the use of such an instrument would not be feasible. CHA contends that such a device would require the removal of a door being tested; however, this contradicts the testimony presented at trial. CHA also urges that such removal of the doors on a regular basis by CHA janitors would involve an unreasonable burden, but Stilson’s testimony regarding the device suggested that it would be used to field test the strength of reshaped gibs at the time of their repair, not on a regularly scheduled basis.

There was sufficient evidence to support both Otis’ and CHA’s negligence on a consistent theory of liability. Accordingly, the circuit court erred in having granted judgment n.o.v. to CHA, which must be reversed.

IV

Plaintiff also assigns error to the circuit court’s rejection of the jury’s answer to the special interrogatory, which found that CHA had constructive notice of the door defect at the time of or shortly before the occurrence. An answer to a special interrogatory may not be set aside unless it is contrary to the manifest weight of the evidence or conflicts with a general verdict. (Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 106, 210 N.E.2d 191; Frange v. Wallenburg (1975), 27 Ill. App. 3d 618, 622, 327 N.E.2d 450.) The jury’s general verdict in the present case did not conflict with its answer to the special interrogatory. Plaintiff’s theory of liability was premised upon CHA’s constructive notice of Otis’ use of weakened gibs or, alternatively, an inadequate number of gibs; it cannot be said that a conclusion opposite to that reached by the jury was evident. The circuit court erred, therefore, in setting aside the jury’s answer.

V

The circuit court, in setting aside the jury’s special finding and in granting judgment n.o.v., ordered CHA’s motion for a new trial to be granted on the condition that the judgment n.o.v. is reversed. CHA contends that, under Supreme Court Rule 341(e)(7), plaintiff has waived her objections to this conditional ruling by failing to include it in her notice of appeal or to raise the issue in her brief. (87 Ill. 2d R. 341(e)(7); Rubright v. Codman & Shurtleff (1980), 86 Ill. App. 3d 94, 101, 407 N.E.2d 681.) Plaintiff counters that the issue was not waived because, in both her notice of appeal and initial brief, she sought relief — entry of judgment on the jury’s verdict and special answer — which would preclude a new trial. We agree. The preponderance of the evidence standard is to be applied by the circuit court in considering a motion for a new trial. (Martinet v. International Harvester Co. (1977), 53 Ill. App. 3d 213; Ryon v. Javior (1979), 69 Ill. App. 3d 946, 951; Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 439, 359 N.E.2d 1078.) The discretion of a trial court in conditionally granting a new trial must be given the same consideration as when a new trial is granted unconditionally. (Prange v. Wallenburg (1975), 27 Ill. App. 3d 618, 626.) As previously noted, plaintiff sustained her burden of proving CHA’s negligence with a preponderance of the evidence; furthermore, as the circuit court’s ruling was against the manifest weight of the evidence, it abused its discretion by granting CHA a new trial under this posture of the case. The judgment granting CHA a new trial must be reversed.

The judgments are therefore affirmed in part and reversed in part.

Affirmed in part; reversed in part.

BERLIN and BILANDIC, JJ., concur.

      One elevator, herein designated the “odd elevator,” stops at odd-numbered floors; the other stops at even-numbered floors.

      Nudge Downing heard the oral argument in this case and, following Judge Downing’s retirement, Judge Bilandic was substituted, listened to the tapes of the oral argument, read the briefs and record and concurs in the opinion.