text:
    RICHARD BENNETT et al., Plaintiffs-Appellants, v. DR. VAINO RAAG et al., Defendants-Appellees.
    Second District
    No. 81-194
    Opinion filed January 22,1982.

      Goldstein, Goldberg and Fishman and Russell C,. Green, of Block, Levy and Becker, both of Chicago, for appellants.
    Oliver W. Gregory, Jr., and Stephen R. Swofford, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and William F. Cunningham and Jeffery G. Eaton, both of O’Reilly and Cunningham, of Wheaton, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from the granting of summary judgment, pursuant to section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), for the defendant doctors, Vaino Raag and T. G. Hiebert, in a medical malpractice suit brought against them and other defendants not parties to this appeal.

Plaintiff Richard Bennett and his wife, Betty, filed a six-count complaint against Dr. Raag, Dr. Hiebert, a third physician, and two medical clinics. In counts I and III Richard Bennett alleged that he consulted with and was treated by the defendants for pain in the lower back area; that in his care and treatment defendants negligently and improperly failed to diagnose, treat or inform him of his condition of cancer, failed to refer him to a specialist, and failed to administer proper tests and drugs for his treatment; that as a result of this negligent' treatment his condition of cancer was discovered too late to arrest the carcinoma in question which required surgery in the nature of an abdominal perineal resection resulting in a colostomy; and that he sustained injury resulting therefrom. Betty Bennett sued the defendants in count VI for loss of consortium.

Both defendants filed interrogatories in early 1976 and requested, among other things, the names and addresses of all expert witnesses upon whom plaintiffs would rely at the time of trial. On August 2, 1976, in response to a motion by defendant Raag, the trial court entered an order allowing plaintiff 28 days to answer the interrogatories. Plaintiff filed his answer to Dr. Raag’s interrogatories on August 31, 1976. He listed Damm & Associates, 2940 Noble Road, Cleveland, Ohio 44121 as his expert. On the same date, plaintiff also filed an answer to Dr. Hiebert’s interrogatories and stated “None” to a similar question requesting names of expert witnesses. On September 22, 1976, the court ordered plaintiff to file a proper response to Dr. Raag’s interrogatory, “specifically naming each expert witness, as well as his specialty, within 28 days * ° On December 22, 1977, Dr. Hiebert moved to dismiss the complaint or impose other sanctions pursuant to Supreme Corut Rule 219(c) (73 Ill. 2d R. 219(c)) in that plaintiff had listed no experts in his answer to the interrogatory ( nor had he replied to two letters requesting the names and addresses of plaintiff’s experts. On December 22, 1977, the court again ordered plaintiff to supply the names and addresses of his expert witnesses within 28 days.

On April 10, 1978, Dr. Hiebert again moved to dismiss the cause for the failure of the plaintiff to disclose the identity of his expert witnesses. The court allowed plaintiff 30 days to furnish the name of his expert witness. Plaintiff did not disclose an expert witness within the allotted time. Throughout the remainder of 1978 and during 1979, defendants each made a motion to dismiss the cause for failure to reveal an expert witness. The trial court granted plaintiff two extensions for revealing an expert witness. The trial court granted defendant Hiebert’s motion to dismiss, which order was vacated, after two continuances. The trial court set a date for pretrial conference with the express proviso that the case would be dismissed if plaintiff did not reveal his expert witness by that date. Finally, on September 14, 1979, the court entered an order barring the plaintiff from calling expert witnesses at trial. On October 15, 1979, the court issued an order stating that the September 14 order would be vacated if plaintiff disclosed his expert witness by October 29, 1979. On October 29, 1979, a further order was entered barring plaintiff from calling an expert witness at trial. On December 17, 1979, both Dr. Raag and Dr. Hiebert filed separate motions for summary judgment with their own supporting affidavits. Dr. Raag also included an affidavit of a nontreating doctor as an expert on the standard of care in the community. On February 26,1980, the court denied these motions.

Throughout 1980, the court granted several continuances and provided several more opportunities for the plaintiff to supply the name of an expert witness. On November 24, 1980, Dr. Hiebert again moved for summary judgment. Dr. Raag also moved for summary judgment on December 29,1980.

Both motions incorporated by reference the previously filed affidavits. The affidavit filed and signed by Dr. Hiebert stated that he first examined plaintiff on March 21, 1973, for complaints of pain in his left side, arm, leg, neck and back following an industrial accident at work; he saw him several subsequent times for the same complaints; he saw him again on November 21, 1973, at which time plaintiff first complained of anal and rectal pains and examinations disclosed hemorrhoids; upon testing he discovered enlarged, exterior hemorrhoids and a mass in the area of internal hemorrhoids; he then referred plaintiff to a specialist who discovered “a moderately well-differentiated adenocarcinoma”; plaintiff was told that to save his life a complete colostomy would have to be performed by a specialist; plaintiff chose to wait for several weeks for the surgery performed by Dr. Tiesenga; the extent of the surgery and possible resulting impotence was explained to the plaintiff; and the surgery was then performed on January 9, 1974.

Dr. Raag’s affidavit stated that he treated plaintiff for complaints of pain in the left arm and weakness in the left leg; that he diagnosed osteoarthritis at vertebral column with nerve root syndrome of the upper left and lower extremities; that he saw plaintiff on a periodic basis until November 12, 1973, for neck and lower back complaints; and that at no time did plaintiff exhibit any signs or symptoms of cancer of the rectum.

The affidavit of Dr. Albers, a nontreating physician, was also attached to Dr. Raag’s motion for summary judgment. Dr. Albers stated that he reviewed certain medical records of plaintiff which he listed in his affidavit; that the treatment rendered by Dr. Raag for the condition of ill-being of plaintiff “conforms with the skill and care ordinarily used by physicians in the treatment and care of persons with similar conditions”; that he was familiar with the type of cancer plaintiff had and the records do not reveal any signs or symptoms of that type of cancer to warrant further treatment by Dr. Raag; and “that complaints of back pain are not a sign or symptom of the type of cancer experience [sic] by Richard Bennett.”

The plaintiffs’ reply to the motion for summary judgment did not contain any affidavits. It consisted of legal arguments against the motion and excerpts from Richard Bennett’s deposition. Also, there are six pages of what appears to be questions and answers asked of Betty Bennett found in the record immediately following the reply. The excerpts from Richard Bennett’s deposition essentially indicated that he was not told by Dr. Hiebert that the colostomy was permanent, that he was not told of any alternative treatment nor of any effect on his potency. The questions and answers contained on the six pages concern treatment by a doctor not a party to this appeal and Betty Bennett’s statements about her husband’s hemorrhoids. The trial court granted the motions for summary judgment on December 29,1980, and denied a motion for rehearing.

Initially, we point out that plaintiffs have expressly stated that in this appeal they do not contest the correctness of the pretrial order entered pursuant to Supreme Court Rule 219(c) (73 Ill. 2d R.219(c)) which barred them from calling an expert to testify at trial. Therefore, we need not review the authority to enter that order which was imposed as a sanction for failure to comply with section 58(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 58(3)), which was amended, effective September 19, 1976, and made expressly applicable only to civil actions filed after that date. (See Mast v. Krusemark (1980), 83 Ill. App. 3d 107, 111, 403 N.E.2d 743; Brown v. Highland Park Hospital (1979), 69 Ill. App. 3d 769, 771, 387 N.E.2d 1041; Mendelson v. Feingold (1979), 69 Ill. App. 3d 227, 233, 387 N.E.2d 363.) The instant case was filed November 5, 1975. Nor have plaintiffs contended on appeal that they interpreted this pretrial order which barred their use of an expert at trial as precluding them from using affidavit or deposition evidence of an expert medical witness in their response to defendants’ motion for summary judgment.

Before addressing the issue of whether summary judgment was properly granted upon the affidavits offered in support of the defendants’ motion for summary judgment and the plaintiffs’ reply, we address several points which we consider perfunctorily raised by plaintiffs. First, plaintiffs contend that on a motion for summary judgment they are not required to prove a prima facie case. With that we agree. (Schaefer v. Sippel (1978), 58 Ill. App. 3d 816, 820, 374 N.E.2d 1092.) However, nowhere in the record provided us did the trial judge ever indicate that a prima facie case must be proved at the pretrial stage on a summary judgment motion. Accordingly, even though one of the defendant’s summary judgment motions referred to that standard, the trial court did not apply it, and neither do we. Next, plaintiffs state that entry of summary judgment was an excessive and unwarranted punishment of the plaintiffs for not having an expert witness. Yet plaintiffs have not appealed that order barring their use of expert testimony at trial, nor is there anything in the record to indicate that the trial judge entered summary judgment as a sanction or on any basis other than the legal principles applicable to such a motion. (See F. J. Pechman, Inc. v. Oldham (1980), 86 Ill. App. 3d 1018, 1021-22, 408 N.E.2d 487.) Plaintiffs also assert that they did name an expert witness, Damm & Associates. Nevertheless, that disclosure was not in any way relevant to the trial court’s ruling on the motions for summary judgment. Therefore, we summarily reject these contentions.

We now turn to the summary judgment issue. In considering a motion for summary judgment the court must consider the pleadings, depositions and admissions filed together with the affidavits, if any, submitted by the parties to determine whether a genuine issue as to any material facts remains outstanding; if not, then the court must decide if the moving party is entitled to judgment as a matter of law. (Wainwright v. Truckenmiller (1981), 96 Ill. App. 3d 1127, 1129-30, 421 N.E.2d 1026.) It is axiomatic that the purpose of summary judgment proceedings is not to try an issue of fact but to determine whether one exists. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, 349 N.E.2d 1.) The right of the moving party must be free of doubt. (Peterson v. B/W Controls, Inc. (1977), 50 Ill. App. 3d 1026, 1032, 366 N.E.2d 144.) Where facts contained in an affidavit in support of a motion for summary judgment are not contradicted by a counteraffidavit, such facts are admitted and must be taken as true. (Heidelberger v. Jewel Companies, Inc. (1974); 57 Ill. 2d 87, 92-93, 312 N.E.2d 601.) Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) “If the party moving for summary judgment supplies facts which, if not contradicted, would entitle such a party to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise genuine issues of material fact.” 57 Ill. 2d 376, 380, 313 N.E.2d 457.

It is now well established that summary judgment is appropriate in medical and other professional malpractice cases where there is no genuine issue as to any material fact that remains to be decided. (Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 427 N.E.2d 1322; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810; Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 407 N.E.2d 1067, appeal denied; Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 395 N.E.2d 1158; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 392 N.E.2d 203; Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53; Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003, 374 N.E.2d 1147; Kwak v. St. Anthony De Padua Hospital (1977), 54. Ill. App. 3d 719, 369 N.E.2d 1346.) One element of a cause of action for medical malpractice is proof of the standard of care by which the defendant physician’s conduct is to be measured. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255, 381 N.E.2d 279.) As our supreme court in Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301, stated:

“Except in certain limited situations not pertinent here, the appellate decisions of this State have held that the plaintiff, by use of expert testimony, must establish the standards of care against which the defendant doctor’s conduct is measured. The plaintiff must then further prove by affirmative evidence that, judged in light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff.”

In light of the above authorities, we must determine if there was a genuine issue of material fact that remained to be tried considering the pleadings, defendant’s affidavits and the deposition excerpts contained in the reply of the plaintiffs.

The complaint against Dr. Raag is essentially based on an alleged failure to diagnose, treat and refer plaintiff, Richard Bennett, to a specialist for his cancer. It also alleges that Dr. Raag “[cjarelessly, negligently and improperly misinformed the plaintiff as to his condition of ill-being.” The complaint against Dr. Hiebert alleges essentially the . same, although stating additional allegations of improper administration and prescription of drugs, improper performing of a proctoscopy and improper treatment and testing of plaintiff. Dr. Raag’s motion for summary judgment had attached to it his own affidavit and an affidavit of Dr. Richard K. Albers. Both affidavits reviewed the plaintiff’s medical history and his treatment by Dr. Raag. Dr. Albers’ affidavit indicated that the treatment by Dr. Raag conforms with the skill and care ordinarily used by physicians in the treatment and care of persons with similar conditions. Dr. Hiebert filed his own detailed affidavit of his treatment and diagnosis of plaintiff and his subsequent referral and surgery by another physician. The plaintiffs filed a reply which included excerpts from Richard Bennett’s deposition. These excerpts indicate the plaintiffs were not informed that the colostomy was permanent nor advised of alternative forms of treatment other than surgery.

On appeal plaintiffs for the first time object to the form and sufficiency of the defendants’ affidavits. However, it is clear that the sufficiency of an affidavit cannot be tested for the first time on appeal where no objection was made either by motion to strike, or otherwise, in the trial court. Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497; Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 199, 415 N.E.2d 1099.

The plaintiffs have failed to present any factual basis to refute the specific assertions made in the affidavits filed by both defendants setting forth their competent treatment, diagnosis and subsequent referral of Richard Bennett to a specialist. Where the plaintiffs have failed to present evidence which would indicate expert medical opinion to sustain the allegations in their complaint as contrasted to the affidavits filed by the defendants, or that they would be able to obtain such opinion in the future, then summary judgment in favor of the defendants is proper. (Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 267-68, 427 N.E.2d 1322; Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 342, 395 N.E.2d 1158; Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 836, 390 N.E.2d 53.) In this record there is simply no evidence that plaintiffs would have been able to obtain expert medical evidence to refute the specifics contained in defendants’ affidavits. Nor did plaintiffs request additional time to obtain such testimony at the time the motions for summary judgment were filed or heard. Suit was filed in 1975, and the record clearly reflects sufficient opportunity for plaintiffs to have completed discovery.

Plaintiffs instead contend that the excerpts from Richard Bennett’s deposition raise factual issues as to whether plaintiff was informed adequately and truthfully as to the consequences of his operation. This contention is based upon the legal theory of lack of informed consent to the operation. Illinois recognizes a duty upon a physician to disclose to a patient a collateral risk about which the physician knew or should have known. (See Taber v. Riordan (1980), 83 Ill. App. 3d 900, 905, 403 N.E.2d 1349; Miceikis v. Field (1976), 37 Ill. App. 3d 763, 767-68, 347 N.E.2d 320; Green v. Hussey (1970), 127 Ill. App. 2d 174, 184, 262 N.E.2d 156.) In the case at bar, however, we do not find that plaintiffs have even alleged a cause of action based upon a theory of lack of informed consent to his operation. The only allegation which is even conceivably close to setting forth this theory is the assertion in the complaint that the defendants “[c]arelessly, negligently and improperly misinformed the plaintiff as to his condition of ill-being.” Yet we can only conclude from a plain reading of this allegation that it goes to the misdiagnosis of plaintiff’s condition rather than a lack of informed consent to the subsequent operation, which was not even performed by the defendant physicians. Since the issue of lack of informed consent was not raised by the pleadings below, the rule prohibiting the presentation of a new theory on appeal prohibits its consideration now. Osborne v. Sprowls (1981), 84 Ill. 2d 390, 398-99, 419 N.E.2d 913; Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 970, 424 N.E.2d 1279.

Plaintiffs also contend that by the granting of summary judgment they were improperly precluded from proving their case by other means, including the defendants’ testimony at trial under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60). Plaintiffs cite several cases, including our decision in Mendelson v. Feingold (1979), 69 Ill. App. 3d 227, 387 N.E.2d 363, to support their proposition that testimony of a defendant doctor may be sufficient to satisfy the requirement that there be expert testimony as to the issue of acceptable medical standards of care in a community. (See also Plost v. Louis A. Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 378 N.E.2d 1176; Schaefer v. Sippel (1978), 58 Ill. App. 3d 816, 374 N.E.2d 1092.) What distinguishes those cases from the instant case is that they were held on appeal to be improperly dismissed on motions to dismiss without permitting the deposing of the defendant doctors and allowing the full range of pretrial discovery. As we noted in Mendelson, “plaintiffs here were never permitted to depose either defendant or two treating physicians although they had attempted to do so 0 0 (69 Ill. App. 3d 227, 234, 387 N.E.2d 363.) In that case the effect of the series of orders entered by the trial court was to require plaintiffs to obtain a medical expert who would state in writing that the defendant was negligent in his treatment of Mr. Mendelson before plaintiffs would be allowed to proceed with their own discovery.

Such is not the case under the facts before us. This case was ultimately decided by the trial court upon the motions for summary judgment, not upon application for sanctions pursuant to Rule 219(c). There is no allegation here of insufficient time to obtain available expert medical testimony to respond to the defendants’ motions for summary judgment or to depose the defendant doctors. Plaintiffs’ bare assertion that section 60 examination of defendants might establish the standard of care is not a substitute for actual proof so as to prevent the entry of summary judgment under these circumstances. See Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 342, 395 N.E.2d 1158; Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 835-36, 390 N.E.2d 53.

In view of the detailed, uncontradicted affidavits filed by the defendants which effectively countered the general material allegations of the complaint, no genuine issue of material fact remained to be decided. The plaintiffs failed to present any medical evidence that defendants were negligent or that they violated the appropriate standard of care necessary to rebut the defendants’ affidavits. In these circumstances, the granting of summary judgment for defendants by the court below was proper. Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 427 N.E.2d 1322; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810; Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 395 N.E.2d 1158; Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003, 347 N.E. 1147.

For the foregoing reasons, the judgment below is affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    ALFRED AUGSBURG, Plaintiff-Appellee, v. FRANK’S CAR WASH, INC., Defendant.—(WARD LUMBER CO. et al., Claimants-Appellants.)
    Second District
    No. 81-253
    Opinion filed January 22,1982.

      William F. Cunningham and Jeffery G. Eaton, both of Law Offices of O’Reilly and Cunningham, of Wheaton, for appellants.
    Lloyd J. Tyler and Theresa M. Bañas, both of Tyler, Peskind and Solomon, of Aurora, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Bituminous Insurance Company (Bituminous) appeals from the denial of its petition to intervene and to vacate an order which denied its worker’s compensation lien claim.

Plaintiff, Alfred Augsburg, suffered injuries on November 27, 1974, while acting within the scope and course of his employment with Ward Lumber Company. Bituminous, the worker’s compensation insurance carrier for Ward Lumber Company, paid to Augsburg a substantial sum as worker’s compensation. Subsequently, Augsburg filed a personal injury suit against several defendants, including Maybrook Company, Inc. On October 12, 1979, a judgment for $28,000 was entered in favor of Augsburg and against Maybrook Company, Inc. On January 16,1980, a release and satisfaction of judgment was filed with the court. In the release, the plaintiff, Alfred Augsburg, acknowledged full satisfaction and payment, and he released the $28,000 judgment entered on October 12, 1979, against the defendant Maybrook Company, Inc.

On February 8,1980, plaintiff appeared before the court and secured an order directing that the $28,000 collected upon the judgment be held by plaintiff’s attorney, as an officer of the court, until the respective rights of the plaintiff and of Ward Lumber Company and Bituminous to said sum were determined. Apparently, prior to that date, the $28,000 collected on the judgment had been held by plaintiff and his attorney free from any court order.

Immediately following entry of the foregoing order, plaintiff presented to the court a petition for determination of lien together with proof of service of notice of the February 8, 1980, hearing, mailed on January 18,1980, to Ward Lumber Company and Bituminous. Also attached as an exhibit to plaintiff’s petition was a letter of Bituminous addressed to plaintiff’s attorney, acknowledging receipt of a copy of the petition and the notice of the February 8,1980, hearing. In the letter, Bituminous also set forth the amount of its lien claim less attorneys’ fees and its share of costs due plaintiff’s attorneys. Finally, the letter asserted that because plaintiff’s attorneys were their “statutory attorneys,” they saw no necessity for a separate appearance to protect their rights.

At the February 8, 1980, hearing, neither Bituminous nor Ward Lumber Company appeared before the trial court. At that time, plaintiff’s attorney correctly advised the trial court that the interests of his client were adverse to those of the lien claimants and he, therefore, was not representing them.

The court thereupon proceeded to consider the plaintiff’s petition to determine the lien claim of Ward Lumber Company and Bituminous in the $28,000 paid on the judgment.

After consideration of the plaintiff’s petition, the trial court entered its order. In its order, the trial court found: (1) that it had jurisdiction of the plaintiff and the lien claimants, Ward Lumber Company and Bituminous; (2) that the statutory notice of the filing of the common law suit herein was given to the employer Ward Lumber Company on September 16, 1976; (3) that neither Ward Lumber Company nor Bituminous had petitioned to intervene in said suit; (4) that pursuant to section 5 of the Worker’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5) the court was authorized to make such order as it deemed appropriate upon the lien claim of Ward Lumber Company and Bituminous; (5) that reasonable notice of the hearing on plaintiff’s petition for determination of the lien was served by the plaintiff on the aforesaid lien claimants on January 16,1980, in compliance with Uniform Circuit Court Rule 4(a) (4); and (6) that Bituminous had acknowledged receipt of said notice and had declined to appear. Thereupon, the court ordered and adjudged as follows: (1) that neither Ward Lumber Company nor Bituminous had any right, claim or interest to any portion of the judgment entered in the above cause; (2) that Alfred Augsburg was entitled to receive the sum of $28,000; (3) that upon payment of the sum of $28,000 to Augsburg by Maybrook Company, Inc., receipt of which was acknowledged in open court, the judgment is satisfied free and clear of any lien by Ward Lumber Company or by Bituminous; and (4) that Maybrook Company, Inc., was released and discharged of any liability to Augsburg, Ward Lumber Company and Bituminous for any claims they have or might have in the future arising out of the incident which is the subject matter of the litigation or arising out of or by reason of any payment or benefits under the Worker’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.).

On December 12, 1980, pursuant to sections 26.1 and 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 26.1 and 72), Bituminous filed a petition to intervene and to vacate the order of February 8, 1980, on the grounds that Bituminous had not received proper notice and had not been made a proper party to the proceeding and, that, in the alternative, the order of the court was void and had no effect on the lien claim of Bituminous by reason of the provisions of section 5(b) of the Worker’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)).

In addition to vacating the order of February 8, 1980, Bituminous sought to intervene and have the court determine that it was entitled to its lien, and that plaintiff and Maybrook Company, Inc., were jointly and severally liable therefor.

In a letter of opinion dated March 4, 1980, the trial court denied the petition to intervene and vacate. The court first considered the contention of Bituminous that the court was without authority and jurisdiction to enter the order of February 8, 1980, adjudicating its lien claim. It did so independently of the requirement of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), that the petitioner must show due diligence. The court properly did so. A petition attacking a judgment or order as void may be brought at any time, either in a direct or in a collateral proceeding, and need not meet the requirement of section 72 for timely presentation, even if the party filing the petition deems it to be a petition filed under that section. First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 905.

In considering the question of jurisdiction, the trial court found in effect that it had subject matter jurisdiction under the applicable statutory lien provisions, and that it had personal jurisdiction over Ward Lumber Company and Bituminous by virtue of the fact that they had received notice of the suit and notice of the hearing to adjudicate the lien.

As another reason for denying Bituminous the relief sought in its petition, the court found' that Bituminous had failed to exercise due diligence. On March 17, 1981, the trial court entered its order denying the petition of Bituminous to intervene and to vacate the order of February 8, 1980. Bituminous thereupon filed its notice of appeal.

On appeal, Bituminous does not raise the issue that the trial court lacked personal jurisdiction over it, but limits its argument to contesting subject matter jurisdiction. Generally, a theory not pursued on appeal may be considered waived. (73 Ill. 2d R. 341(e)(7); People ex rel. Resnick v. Curtis & Davis, Architects & Planners, Inc. (1978), 58 Ill. App. 3d 28, 31, aff’d and remanded (1980), 78 Ill. 2d 381, 384.) However, the rule of waiver is a limitation on the parties and not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result. Siebach v. Pienta (1978), 60 Ill. App. 3d 645, 647.

In this case, we do believe that justice requires that we ignore the waiver rule and review the trial court’s determination that personal jurisdiction had been secured over Bituminous by virtue of the service upon it of the notice of the hearing on plaintiff’s petition for determination of the lien in compliance with Uniform Circuit Court Rule 4(a)(4). Jurisdiction over a person cannot be had by serving him with a notice; a court acquires jurisdiction over a person only after proper service of summons. (LaMotte v. Constantine (1980), 92 Ill. App. 3d 216, 217.) There is, of course, an exception to this rule where the defendant or respondent voluntarily appears or is permitted to intervene. Prior to the entry of the order, Bituminous had not petitioned to intervene, nor did it otherwise submit itself to the jurisdiction of the court.

Because Bituminous had chosen not to intervene prior to the February 8, 1980, hearing, or voluntarily appear at the February 8, 1980, hearing, the court could gain personal jurisdiction over Bituminous only by service of summons. Plaintiff did not cause summons to be served upon Bituminous; the court, therefore, lacked personal jurisdiction over Bituminous. As to Bituminous, the order of the trial court of February 8,1980, entered in favor of Augsburg’s petition for determination óf lien was void and as to Bituminous, it is hereby vacated and reversed.

Having found that the trial court lacked personal jurisdiction over Bituminous, we do not reach the issue of whether the court lacked subject matter jurisdiction to adjudicate the worker’s compensation lien of Bituminous.

In its argument on appeal, Bituminous asserts that the release and satisfaction of judgment filed on January 16,1980, is invalid under section 5 of the Worker’s Compensation Act. This issue was not raised by Bituminous at the trial court level, nor was it included in its notice of appeal; it is, therefore, not before this court. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.

We finally consider whether the trial court erred in denying Bituminous the other relief it sought in its petition to intervene; that is, that it be permittéd to intervene and be granted a hearing to adjudicate its lien rights. This portion of its petition necessarily had to be brought pursuant to the provisions of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). In denying the petition, the trial court found that Bituminous had failed to meet the due diligence requirement of section 72. To establish due diligence under section 72, Bituminous had to plead and prove that it exercised due diligence both in presenting its claim and in seeking relief from the judgment or order. (In re Estate of Reilly (1979), 68 Ill. App. 3d 906, 912.) The statutory notice of the filing of the common law suit was given to the employer on September 16,1976. Bituminous, as the employer’s compensation carrier, did not petition to intervene and present its claim until December 12,1980. The trial court correctly found that Bituminous had failed to comply with the due diligence requirement of section 72.

Except for our determination that the order of February 8, 1980, adjudicating the lien of Bituminous is void, the trial court’s order of March 17, 1981, denying the petition of Bituminous to intervene is affirmed.

Affirmed in part; reversed in part.

HOPF and LINDBERG, JJ., concur.


author: JUSTICE REINHARD

text:
    ELMER BOYLAN, Conservator of the Estate and Person of Douglas Boylan, an Incompetent, Plaintiff-Appellant, v. GRACE MARTINDALE, Defendant.— (THE CITY OF ELMHURST et al., Defendants-Appellees.)
    Second District
    No. 81-323
    Opinion filed January 22, 1982.

      Noel C. Lindenmuth, Maureen A. Mitchell, Nat P. Ozmon, Dario A. Garibaldi, and Mark Novak, all of Anesi, Ozmon, Lewin and Associates, of Chicago, for appellant.
    L. Bow Pritchett, Robert Guritz, and Georgia J. Reithal, all of Illinois Bell Telephone Company, of Chicago, for appellee Illinois Bell Telephone Company.
    Barry L. Kroll and Mark Miller, both of Jacobs, Williams and Montgomery, Ltd., of Chicago, for appellee City of Elmhurst.

      Rathje, Woodward, Dyer and Burt, of Wheaton, for appellee Commonwealth Edison Company.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff sued defendants Grace Martindale, the City of Elmhurst, Illinois Bell Telephone Company, and Commonwealth Edison Company for injuries suffered by his incompetent in an automobile accident at the intersection of North and Myrtle Avenues in the City of Elmhurst. The trial court dismissed counts III and VI of plaintiffs fourth amended complaint against the city of Elmhurst, counts IV and VII against Illinois Bell Telephone Company, and counts V and VIII against Commonwealth Edison Company, all for failure to state a cause of action. The court also granted Elmhurst’s motion for summary judgment on count II of the complaint. The trial court made the necessary finding that there was no just reason for delaying enforcement or appeal of his order. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) Plaintiff now appeals and alleges that the orders of dismissal and summary judgment were erroneously granted. The essential facts as alleged in plaintiff’s fourth amended complaint are as follows.

On June 12, 1976, plaintiff’s incompetent was a passenger in an automobile being driven by Ronald Camire in an easterly direction on North Avenue in the city of Elmhurst, Illinois. On the same date, Grace Martindale was operating her motor vehicle in a southerly direction on Myrtle Avenue approaching an intersection with North Avenue. The cars collided at the intersection of North and Myrtle Avenues and the car in which plaintiff’s incompetent was a passenger had a secondary impact with a wooden utility pole that was located near the intersection.

The basic allegations contained in the relevant counts of plaintiff’s fourth amended complaint can be summarized as follows:

Counts II, III, and VI of the complaint were against the city of Elmhurst. Count II alleged that the city had breached its duty in failing to remove certain trees and bushes near the intersection which obstructed the view of approaching drivers. Count III alleged that the city carelessly and negligently permitted the placement of a certain wooden utility pole and other wooden utility poles in a dangerous position along the lateral edge of North Avenue within six to 12 inches from the traveled portion of the highway “knowing that said placement violated standards of design and engineering of highways and their appurtenances and knowingly permitted those wooden utility poles to be continually subjected to collisions with automobiles and collision damage from automobiles traveling to the aforesaid North Avenue.” Count VI made essentially identical allegations against the city as in count III but inserted the words wilfully and wantonly for the words carelessly and negligently.

Counts IV and VII of plaintiff’s fourth amended complaint were against Illinois Bell Telephone Company. Count IV alleged that the company breached its duty to operate, manage, maintain, and control a certain wooden utility pole located near the intersection of North and Myrtle Avenues by negligently and carelessly placing this pole and other utility poles in a dangerous position along the lateral edge of North Avenue within six to 12 inches from the traveled portion of the highway “knowing that said placement violated standards of design and engineering if [sic] highways and their appurtenances and knowingly permitted those wooden utility poles to be continually subjected to collisions and collision damage from vehicles traveling on the aforesaid North Avenue.” Count VII made nearly identical allegations but inserted the words wilfully and wantonly for carelessly and negligently.

Counts V and VIII of the complaint were against Commonwealth Edison Company and contained the same allegations contained in counts IV and VII respectively.

Attached to the city of Elmhurst’s motion for summary judgment are certain portions of the transcripts of the depositions of Ronald Camire and Grace Martindale and four photographs of the intersection. No counteraffidavits were filed by plaintiff although five additional pages of Camire’s deposition were attached to plaintiff’s memorandum in opposition, to the summary judgment motion.

Ronald Camire stated in his deposition that the highest speed he was traveling down North Avenue prior to the impact with the Martindale vehicle was 65 miles per hour. He was traveling “just as fast as [he] could” in order to reach a hospital. As he was approximately a block away from the intersection at Myrtle, he began to slow down gradually since the traffic light facing him at the intersection had turned from green to yellow. Camire stated that he had a clear view of the traffic light, but he did not stop because he did not notice any cars on Myrtle Avenue at or near the intersection. Camire looked to see if any cars were “going to jump out.” He stated that he “just didn’t see” the car with which he collided. Camire approximated his speed at over 40 miles per hour at the time he arrived at the west curb of Myrtle Avenue. He stated that North Avenue is a tree-lined street with trees and bushes on the corners. Trees and bushes on the northwest corner of Myrtle “could be” the reason he didn’t see the other car. When he was a block away from Myrtle he could see 20 feet north of North Avenue on Myrtle. Camire testified that he knew he was going to go through the traffic light regardless of what color it was, and he was honking his horn.

Grace Martindale, in her deposition, stated that on the day of the accident, she was stopped at a red traffic light for southbound traffic on Myrtle Avenue at its intersection with North Avenue. She stopped her car approximately at the white line painted on the street. From that position she had visibility to see eastbound traffic on North Avenue. Nothing obstructed her vision. She looked to her right in a westerly direction and although she could see “a good half block,” she did not see any cars approaching. The light turned green, and she looked to the left and right and began to proceed slowly through the intersection. She did not hear anything unusual prior to her collision.

Plaintiff first contends that the trial court’s granting of the city’s motion for summary judgment on count II of plaintiff’s fourth amended complaint was error. Count II alleged, inter alia, that the city had breached its duty to properly maintain the intersection of North and Myrtle Avenues by negligently failing to remove trees and bushes obstructing the view of drivers approaching the intersection. A motion for summary judgment should only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) It is axiomatic that the purpose of summary judgment proceeding is not to try an issue of fact but to determine whether one exists. (Wainright v. Truckenmiller (1981), 96 Ill. App. 3d 1127, 1129-30, 421 N.E.2d 1026.) The right of the moving party must be free of doubt. (Peterson v. B/W Controls, Inc. (1977), 50 Ill. App. 3d 1026, 1032, 366 N.E.2d 144.) It is also well established that the question of duty, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of the plaintiff, is an issue of law for the determination of the court. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617; Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307.) The law applicable to motions for summary judgment which involve the issue of duty is set forth in Barnes v. Washington (1973), 56 Ill. 2d 22, 26-27, 305 N.E.2d 535, 538:

‘It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.’ (Fooden v. Board of Governors, 48 Ill. 2d 580, at 587.) This court has also held that the entry of a summary judgment is proper when only a question of law is involved. (Allen v. Meyer, 14 Ill. 2d 284.) Thus, if under the pleadings and affidavits it appears that the defendant owed no duty to the incompetent) the granting of the motion for summary judgment was proper.”

Applying the above principles to the facts in this case, we find that the trial court correctly granted summary judgment for the city of Elmhurst on count II of the plaintiffs fourth amended complaint.

In attempting to argue that a material issue of fact exists, much of plaintiff’s argument attempts to demonstrate that the view of the two drivers of other traffic approaching the intersection involved was obstructed by the city’s failure to remove certain trees and bushes. Although an issue of fact may arguably exist as to whether the diagonal sight lines of motorists approaching the intersection was restricted, we find this to be unrelated to the material issues involved and not a proper basis for denial of summary judgment. The factual issues in dispute must be material to the essential elements of the cause of action or defense and those which are unrelated, regardless of how sharply controverted, do not warrant the denial of summary judgment. (Schultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 805, 352 N.E.2d 310.) In order to preclude entry of summary judgment the factual issue must be “material.” (Macmor Mortgage Corp. v. Exchange National Bank (1975), 30 Ill. App. 3d 734, 740, 332 N.E.2d 740.) Even assuming the existence of the trees and bushes at the intersection as alleged and shown by the exhibits and the depositions before us which describe the view of the two drivers, the focus of our inquiry as to whether a duty exists depends upon other facts which we deem material to the resolution of the issue.

The city does not dispute the fact that it is under a duty to exercise ordinary care to maintain its streets, sidewalks, and adjacent areas in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102; Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 450, 404 N.E.2d 213; Hennigs v. Centreville Township (1974), 56 Ill. 2d 151, 154, 306 N.E.2d 287.) However, regardless of whether or not the drivers’ view of the area extending laterally from the intersection was restricted, we believe that, under these circumstances, the city successfully discharged its duty by the maintenance of properly working stoplights at the intersection. Plaintiff does not contend, and the depositions on file in fact refute, that the trees and bushes in the area obstructed or obscured the drivers’ views of the stoplights at the intersection. In Ronald Camire’s deposition he stated that he began to slow down since the traffic light had turned yellow. Camire stated that he had a clear view of the light from approximately one block away. Similarly, the deposition of Grace Martindale establishes that she clearly observed the traffic signal as she had been stopped at the red light just prior to the collision. In addition, there is no allegation that the traffic control signal was not in proper working order.

The duty imposed on the city is that of ordinary care “to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reásonably foreseeable that it would be used * ° (Ill. Rev. Stat. 1979, ch. 85, par. 3—102(a).) A municipality or other public entity may incur liability for failure to maintain the visibility of a traffic control device (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242) or for failure to keep such devices functioning properly (Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401). In the absence of such traffic control devices, a public entity may have a duty under its own ordinances to maintain an intersection so that it is free of visual obstructions. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326.) These cases are clearly distinguishable from the case at bar. Plaintiff has cited no authority, nor has our research revealed any, which stands for the proposition that a public entity breaches its duty by allowing an area adjacent to an intersection to pose visual obstructions of traffic to oncoming drivers although there is a clearly visible, properly maintained traffic signal plainly observable to all drivers concerned. In light of the rule that motorists who have a green light may assume that intersecting traffic will obey traffic signals (Brostoff v. Maida (1977), 45 Ill. App. 3d 871, 875, 360 N.E.2d 568), it would be entirely reasonable for the city to have believed that it fulfilled its duty to maintain a safe intersection by providing the clearly visible and functioning traffic lights. In this regard we must note that the city is only under a duty of ordinary care to maintain its streets in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102(a).) By no means is the city to be considered an insurer against all accidents occurring on the public way. (Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 294, 393 N.E.2d 725.) Under the particular facts of this case as indicated by the pleadings, depositions, and exhibits, we conclude that, as a matter of law, the trial court could have correctly determined that the city fully discharged its duty by maintaining an unobstructed, properly working traffic signal at the intersection.

However, even assuming the existence of a duty on the part of the city under the circumstances before the trial court on the summary judgment motion, it is clear the trial court also could have concluded, as a matter of law, that the failure to remove the trees and bushes near the intersection furnished merely a condition of the plaintiff’s incompetent’s injuries and not the proximate cause.

The question of proximate cause is ordinarily one of fact for the jury. (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 130, 374 N.E.2d 203.) Yet it is well established that if an alleged negligent act does nothing more than furnish a condition making the injury possible, and such condition, by the subsequent independent act of a third party, causes the injury, the two acts are not concurrent and the condition will not be the proximate cause of the injury. (Briske v. Village of Burnham (1942), 379 Ill. 193, 199, 39 N.E.2d 976.) The test for distinguishing between a proximate cause and a condition was articulated by the supreme court in Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665. The court stated:

“The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. (Briske v. Village of Burnham, 379 Ill. 193.) The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence. (Seith v. Commonwealth Electric Co., 241 Ill. 252.) If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first act or omission is not the proximate cause of the injury. There may be more than one proximate cause of an injury. But if two wholly independent acts, by independent parties, neither bearing to the other any relation or control, cause an injury by one creating the occasion or condition upon which the other operates, the act or omission which places the dangerous agency in operation is the efficient intervening cause that breaks the causal connection and makes the other act or omission the remote and not the proximate cause of the injury.” (381 Ill. 300, 316-17, 45 N.E.2d 665.)

The Merlo case has been cited frequently in support of the critical distinction between a condition and proximate cause in situations somewhat analogous to the case here. See, e.g., Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948, 950, 397 N.E.2d 1235; Wiebel v. Mid-Continent Bottlers, Inc. (1979), 70 Ill. App. 3d 224, 228, 388 N.E.2d 475; Waters v. Futuristic Homes, Inc. (1971), 131 Ill. App. 2d 143, 146, 268 N.E.2d 165.

Illinois cases cited by the plaintiff are distinguishable from the instant case. In Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716 and Johnson v. City of Rockford (1962), 35 Ill. App. 2d 107, 182 N.E.2d 240, it was held that because it was reasonably foreseeable that the plaintiff would be struck by an automobile after being forced to walk in the street in view of obstruction or removal of a sidewalk, the question of proximate cause was one for the jury. The city’s conduct in each case was a substantial factor in bringing about harm to the plaintiff. In Ballard v. Jones (1974), 21 Ill. App. 3d 496, 316 N.E.2d 281, also relied on by plaintiff, the court found the issue of proximate cause to be a jury question in the light of evidence that a stop sign maintained by the defendant city was obscured by the foliage of trees located on a parkway. Thus, while all of these cases involve conduct of another party which contributed to the accident, the facts of those cases also indicate conduct on the part of the city which was a substantial factor in bringing about harm to the plaintiff.

In contrast, the alleged failure of the city to clear trees and bushes from the areas adjacent to the intersection controlled by a traffic signal was not a contributing factor to the injury. We conclude that, as a matter of law, the city could not have reasonably foreseen the intervening cause as a natural and probable result of its own alleged negligent omission of failing to keep the areas adjacent to the intersection free of trees and bushes.

Count III of the plaintiff’s fourth amended complaint was against the city of Elmhurst for negligently and carelessly permitting the placement of a certain wooden utility pole in a dangerous location along the lateral edge of North Avenue within 6 to 12 inches from the traveled portion of the highway. Count IV was against Illinois Bell Telephone Company for negligently installing and maintaining the utility pole in such a location. Count V made the identical allegations against Commonwealth Edison Company. These counts also allege that the respective defendants knew that the placement of the pole in such a location “violated standards of design and engineering of highways and their appurtenances and knowingly permitted those wooden poles to be continually subjected to collisions and collision damage from vehicles traveling on the aforesaid North Avenue.” All these counts also allege that as a result of these negligent and careless acts, plaintiff’s incompetent was caused to be injured when the vehicle in which he was a passenger collided with a wooden utility pole at the intersection of North and Myrtle Avenues after being struck by another vehicle being driven by Grace Martindale. The trial court’s dismissal of these three counts will be discussed together since the analysis centers on liability for placement of utility poles.

In reviewing a trial court’s order granting a defendant’s motion to dismiss a complaint, a court must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 756, 391 N.E.2d 133.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790.) A motion to dismiss a complaint admits only facts well pleaded, not conclusions of law. (Geller v. Brownstone Condominium Association (1980), 82 Ill. App. 3d 334, 336, 402 N.E.2d 807.) The question of duty, i.e., whether the defendant and the plaintiff stood in a relationship to one another that the law imposed upon the defendant

an obligation of reasonable conduct for the plaintiffs benefit, is one of law for determination by the court. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617.) As this court recently stated in Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 724, 423 N.E.2d 519:

“While the existence of a legal duty is ordinarily considered in terms of foreseeability, the duty is not bottomed on foreseeability alone. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617, 618.) Other factors to be taken into consideration, besides the foreseeability of the possible harm, are the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. Barnes v. Washington (1973), 56 Ill. 2d 22, 29, 305 N.E.2d 535, 539.”

Applying these standards to the trial court’s dismissal of the aforementioned counts, we find that there was no error.

Regarding the liability of owners or occupiers of land for artificial conditions created thereon which cause injury to travelers on an adjacent highway, this court has recently cited with favor section 368 of the Restatement (Second) of Torts as being applicable to situations of this kind. (Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 725-26, 423 N.E.2d 519.) Section 368 provides:

. “A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” Restatement (Second) of Torts §368 (1965).

In Hoffman we stated that “[f]or a duty to attach the person must foreseeably deviate in the ordinary course of travel * * (97 Ill. App. 3d 721, 726, 423 N.E.2d 519.) We declined there to impose a duty upon a defendant utility company that maintained an electric utility pole some 12 to 16 feet off a highway and which was struck by a vehicle driven by the plaintiff administrator’s decedent. Particularly relevant there was our statement that:

“The question of whether a legal duty exists must also be analyzed in view of the public policy favoring placement of utility poles along highway right-of-ways, and the State practice of regulation and approval of such placement. Electric poles are erected and maintained along most roads and streets in this state for a necessary public benefit. Generally, location of these poles in medians or on public right-of-ways adjacent to a road does not impose liability upon a utility company unless the placement creates a hazard for vehicular travel in the ordinary course of travel. (See Shapiro v. Toyota Motor Co. (1978), 38 N.C. App. 658, 248 S.E.2d 868; Simpson v. City of Montgomery (1968), 282 Ala. 268, 211 So. 2d 498.) Aware of the undesirable consequences that would flow from imposing a duty upon Edison under the facts of this case, we decline to do so.” 97 Ill. App. 3d 721, 727, 423 N.E.2d 519.

Plaintiff, however, cites Kubala v. Dudlow (1958), 17 Ill. App. 2d 463, 150 N.E.2d 643, as authority for his contention that the trial court erred in dismissing counts III through VIII. In Kubala, the appellate court held that the trial court had erroneously dismissed plaintiff’s complaint for failure to state a cause of action. The complaint in Kubala alleged that “the appellees owned land fronting and abutting on the right-of-way of highway 150 at a point where the highway makes a sharp turn; that the appellees erected and maintained a row of concrete posts or guards, two feet by three feet by one foot in dimension, which were painted but not illuminated or reflectorized; that there were no markings to indicate the curve in the road or to warn of the posts; that the posts were capable of injury and had on many occasions injured travelers unintentionally deviating from said highway, unable to traverse said curve, and alleges the posts were, because of their location and condition, a nuisance; that the appellees knew of the posts and location near the road.” (17 Ill. App. 2d 463, 468, 150 N.E.2d 643.) The complaint in the case at bar, however, makes no such allegations as to why the placement of the poles was dangerous other than the fact that they were located 6 to 12 inches from the traveled portion of the roadway. There is nothing in the complaint which suggests, for example, that the intersection was such that travelers might deviate from it in the ordinary course of travel and strike the utility pole. In Kubala, the complaint specified that the concrete posts were erected at a point where the highway made a sharp turn and that there were no markings to indicate the curve in the road or to warn of the posts. Thus, the mere placement of utility poles 6 to 12 inches from the roadway does not, in and of itself, create an unreasonable risk to others traveling with reasonable care.

We must also note, however, that although plaintiff’s complaint additionally alleges that the utility poles lining North Avenue have been “continually subjected to collisions with automobiles,” we are unable to ascertain from this conclusory pleading what, if any, particular dangerous roadway condition may have caused automobiles to leave the roadway and collide with the utility poles. No facts are pleaded which indicate thát the prior accidents were foreseeable deviations from the roadway in the ordinary course of travel to give reasonable notice that the positioning of the utility poles presented an unreasonable risk. In addition, the complaint does not allege that the particular pole in question was ever struck before, nor does it correlate the condition, if any, which may have caused other utility poles along North Avenue to be struck by automobiles with any similar condition at the location of this occurrence. It is common knowledge that vehicles collide in roadways and on occasion leave the roadway and strike a utility pole or tree adjacent to the roadway. However, for a duty to third persons to be imposed upon those who erect and maintain such utility poles, there must be a reasonable anticipation of such deviation from the roadway as a normal incident of travel. (Restatement (Second) of Torts §368 (1965); Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519.) The official comments to the Restatement illustrate the applicability of this rule:

“[The rule] applies also to those who reasonably and expectably deviate from the highway and enter upon the abutting land in the ordinary course of travel. The possessor is required to anticipate the possibility of such deviations and to realize, where a reasonable man would do so, that the traveler so deviating may encounter danger. The public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel.” (Emphasis added.) Restatement (Second) of Torts §368, comment e, at 269-70 (1965).
“In determining whether the condition is one which creates an unreasonable risk of harm to persons lawfully traveling on the highway and deviating from it, the essential question is whether it is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel. Distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far. c ° * Distance is important, however, only as it affects the recognizable risk; and other factors, such as the nature of the condition itself, its accessibility, and the extent and character of the use of the highway, must be taken into account.” (Restatement (Second) of Torts §368, comment h, at 271 (1965).)

The pleadings here fail to allege sufficient facts to create such a duty.

Our supreme court has recently addressed the question of the sufficiency of pleadings in Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407. There the court stated:

“Notice pleading, as known in some jurisdictions, is not sufficient under our practice act. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 8.) Although both sections 42(2) and 33(3) of our practice act contain provisions concerning liberal construction, such provisions do not remedy the failure of a complaint to state a cause of action. In People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill. 2d 150, 152, this court stated:
‘This court has repeatedly held that a complaint which does not allege facts, the existence of which are necessary to enable a plaintiff to recover does not state a cause of action and that such deficiency may not be cured by liberal construction or argument.’ (Emphasis added.)” 88 Ill. 2d 407, 426-27.

Plaintiff further argues that the allegation that “said placement violated standards of design and engineering of highways and their appurtenances,” coupled with its allegation that utility poles were continually subjected to collisions, is a sufficient pleading to state a duty upon the defendants. Again, however, the failure to particularize or specify the “standards of design and engineering” as they relate to the particular utility pole's placement in question makes this allegation merely conclusory and insufficient to withstand a motion to dismiss. (See Richardson v. Eichhorn (1958), 18 Ill. App. 2d 273, 151 N.E.2d 819.) Notice pleading is insufficient under our civil practice act. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 8, 373 N.E.2d 1326.) Deficiencies in the complaint caused by the failure to allege facts are not cured by provisions in the civil practice act concerning liberal construction. (People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill. 2d 150, 152, 251 N.E.2d 211; Psyhogios v. Village of Skokie (1972), 4 111. App. 3d 186, 191, 280 N.E.2d 552.) While the complaint does contain certain specific averments of fact, in the absence of other specific allegations as discussed above, they are insufficient standing alone to state a duty owed to plaintiff, which is an essential element of pleading a cause of action.

Plaintiff’s allegation of wilful and wanton acts in counts VI, VII, and VIII is essentially identical to that made in the negligence counts except that the words wilful and wanton are substituted for careless and negligent. The mere substitution of the words wilful and wanton for the words careless and negligent before the essentially identical facts alleged in the negligence count does not constitute a sufficient averment of the ■requisite wilful and wanton state of mind. (Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 492, 411 N.E.2d 910; Ingram v. New York Central R.R. Co. (1961), 30 Ill. App. 2d 455, 175 N.E.2d 129; but see Third Swansea Properties, Inc. v. Ockerlund Construction Co. (1976), 41 Ill. App. 3d 894, 898-99, 354 N.E.2d 148.) These counts do not establish that defendants acted with either conscious or intentional disregard of a duty owed to plaintiff. Bernesak v. Catholic Bishop of Chicago (1980), 87 Ill. App. 3d 681, 686, 409 N.E.2d 287.

Having concluded that these counts do not state a cause of action for failure to sufficiently plead the existence of a duty owed plaintiff, we need not reach the issue whether the allegations were sufficient to plead proximate cause.

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

Affirmed.

LINDBERG and NASH, JJ., concur.


text:
    ELMER HERSHBERGER, Plaintiff-Appellant, v. HOME TRANSPORT COMPANY, Defendant-Appellee.—(CARL RAY et al., Defendants.)
    Second District
    No. 81-329
    Opinion filed January 22, 1982.

      Larry M. Amoni, of Dickinson and Amoni, of Aurora, for appellant.
    Peter K. Wilson, Jr., of Puckett, Barnett, Larson, Mickey, Wilson and Ochsenschlager, of Aurora, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Elmer Hershberger, appeals from the dismissal, for failure to state a cause of action, of count III of his amended complaint against the defendant, Home Transport Company (Home).

Count III of the amended complaint alleged, in substance, that on February 18, 1978, Home was a common carrier by motor vehicle; that Home, under authority from the Interstate Commerce Commission (ICC), had leased a certain International Truck from the Churchill Leasing Company; that on that date, the legend, Home Transport Company, was displayed on the side of the cab of the truck, and Carl Ray, the driver of the truck, was under the defendant’s dispatch order to transport goods from the Keen Transport Terminal in Oswego, Illinois; that pursuant to his dispatch order, Ray entered upon the premises of the Keen Transport Terminal and, without provocation, struck the plaintiff about the face and head with great force and violence; and that as a result thereof the plaintiff was injured and damaged.

To withstand a motion to dismiss, a complaint must allege facts sufficient to set forth the essential elements of the cause of action. (Kolton v. K & L Furniture & Appliances, Inc. (1979), 82 Ill. App. 3d 868, 873.) All well-pleaded facts and reasonable inferences are taken as true, and the allegations are viewed in the light most favorable to the plaintiff. (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 571-72; Kenneke v. First National Bank (1978), 65 Ill. App. 3d 10, 12.) However, a liberal construction of the pleading cannot remedy a failure to allege necessary facts. Kirby v. Chicago City Bank & Trust Co. (1980), 82 Ill. App. 3d 1113, 1118; Kolton v. K & L Furniture & Appliances, Inc. (1979), 82 Ill. App. 3d 868, 873.

Applying these standards to the allegations of count III of plaintiff’s amended complaint, we agree with the trial court that it failed to state a cause of action.

Plaintiff argues that, because on the date in question, Home was a licensed carrier holding authority from the ICC, he need allege only the following to state a cause of action against Home: that Home was a licensed carrier; that Home leased the motor vehicle in question; that Ray was the driver of the leased vehicle; and that Home had its legend on the vehicle at the time of the occurrence. Such allegations, he suggests, constitute all of the elements required under the Interstate Commerce Act and its applicable regulations.

Under the Interstate Commerce Act (49 U.S.C. §301 et seq. (1976)), the ICC is authorized to prescribe regulations “with respect to the use by motor carriers (under leases, contracts, or other arrangements) of motor homes not owned by them, * * *” and “such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they are the owners of such vehicles * * 49 U.S.C. §304(e)(1976); Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 10-11.

Pursuant to that authorization, the ICC has adopted rules and regulations. Specifically pertinent to this case is a regulation which requires that “[t]he lease shall provide for the exclusive possession, control, and use of the equipment and for the complete assumption of responsibility thereto by the lessee for the duration of said contract, lease or other arrangement.” 49 C.F.R. §1057.4(a)(4)(1978).

Accordingly, during the full term of a motor-vehicle lease subject to ICC regulations, the lessee has exclusive possession and control of the leased vehicles, and assumes responsibility for their operation to the same extent as if the lessee owned the vehicle and employed the drivers. 49 U.S.C. §304(e)(1976); 49 C.F.R. §1057.4(a)(4)(1978); Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc. (1975), 423 U.S. 28, 39, 46 L. Ed. 2d 169, 178, 96 S. Ct. 229, 235; see Gunterberg v.B & M Transportation Co., Inc. (1975), 27 Ill. App. 3d 732; Hartford Accident & Indemnity Co. v. Major (1967), 81 Ill. App. 2d 251.

As pointed out by our supreme court in St. Paul Fire i? Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 213, the main thrust of the regulations is to prevent licensed carriers from escaping liability to injured members of the public by claiming that their lessor-drivers were independent contractors rather than employees. Our supreme court has also held that under the regulatory scheme it is not necessary for the injured persons to establish that the carrier had a right to control the lessor-driver’s activities or that the lessor-driver was acting within the scope of his employment. (Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 13.) In Schedler, the court further stated that “the purpose of the regulatory scheme that the carrier-lessee be vicariously responsible for the negligent operation of the leased vehicle without regard to whether at the time in question it was being used for the business of the lessee.” 68 Ill. 2d 7, 12-13; see Kreider Truck Service, Inc. v. Augustine (1979), 76 Ill. 2d 535, 540-41.

We also agree, as apparently do the parties, that under the regulatory scheme a licensed carrier might be held liable for a driver s intentional tort (Gunterberg v. B & M Transportation Co. (1975), 27 Ill. App. 3d 732; see Indiana Refrigerator Lines, Inc. v. Dalton (6th Cir. 1975), 516 F.2d 795, cert. denied (1975), 423 U.S. 985, 46 L. Ed. 2d 302, 96 S. Ct. 392). But this is not to say that the conduct of the driver which gives rise to the injury need not have some nexus with the commercial activity which the ICC sought to regulate. The primary goals of the ICC regulation which imposes responsibility on a carrier are (1) to prevent ICC carriers from avoiding safety standards imposed by the ICC by the simple practice of leasing equipment from nonregulated carriers; (2) to promote highway safety by insuring that drivers furnished by exempt carriers as part of the leased agreement do not violate safety regulations of the leased equipment; and (3) to provide shippers and other members of the public with financially responsible carriers. (Indiana Refrigerator Lines, Inc. v. Dalton (6th Cir. 1975), 516 F.2d 795, 796.) In light of these purposes, we conclude that the plaintiff must plead facts which would indicate that the driver’s conduct, which allegedly caused plaintiff’s injury, was in some way related to the commercial activities which the ICC seeks to regulate.

In his reply brief; plaintiff suggests that his allegation that Ray was at the transport terminal and under the defendant’s dispatch order at the time of the incident is sufficient to raise a question of fact to be decided by a jury as to whether the occurrence was related to the commercial operations of the defendant. We disagree. The fatal flaw in plaintiff’s argument, and in the allegations of count III of his amended complaint, is that he fails to set forth facts from which any reasonable inference can be drawn that the assault upon plaintiff by Ray was in anyway related to the violation of safety standards or to the maintenance and operation of equipment by the driver or other employees of the lessor-owner. Nor can an inference be drawn from the facts as alleged that the attack upon the plaintiff was in anyway related to any of the activities which the Interstate Commerce Commission sought to regulate. There is nothing in the allegations to even suggest, for example, that Ray’s attack upon the plaintiff had anything to do with his dispatch orders, the parking of the leased vehicle at the terminal, or some prior disagreement between the plaintiff and the driver Ray with regard to the operation of the leased equipment.

Our examination of the cases cited by the parties (e.g., Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7; Kreider Truck Service, Inc. v. Augustine (1979), 76 Ill. 2d 535; Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc. (1975), 423 U.S. 28,46 L. Ed. 2d 169, 96 S. Ct. 229; St. Raul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209), as well as our independent research, disclosed no cases where the conduct which gave rise to the cause of action was unrelated to the commercial activities sought to be governed by the Interstate Commerce Commission through its rules and regulations. Such relationship is a necessary element of any cause of action which seeks to impose liability upon the licensed carrier under the Federal regulatory scheme.

The order of the trial court dismissing count III of the amended complaint is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL HOLDER, Defendant-Appellant.
    Second District
    No. 80-382
    Opinion filed January 27, 1982.
    William W. Reedy and Frank P. Vella, Jr., both of Rockford, and Sherman Carmell, of Carmell, Charone and Widmer, Ltd., of Chicago, for appellant.
    Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of Elgin, for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Carl Holder, was found guilty of intimidation (Ill. Rev. Stat. 1979, ch. 38, par. 12—6) by a jury in Winnebago County. He was sentenced to 18 months’ probation and fined $1,000. Defendant appeals and contests, inter alia, the constitutionality of the intimidation statute.

The facts of this case are largely agreed upon between the parties. Five cement truck drivers for the Rockford Redi-Mix Company, Inc., were dissatisfied with their wages and working conditions and inquired into the possibility of joining the union. This led them to defendant Carl Holder, a business representative for Teamsters Local 325.

In June of 1979, one of the dissatisfied drivers met with Holder. Holder explained that there were two ways to join the union. The long route required that the employees petition the National Labor Relations Board for a representation election. Holder told the driver that this could take three or more months to do.

Holder explained that the other way to join the union, or short route, was for the employees to sign cards authorizing the union to act as a workers’ collective bargaining representative. After a majority of the employees signed the cards, Holder could demand recognition from the employer. If he was not given such recognition there would be a strike.

The driver reported back to his co-workers and another meeting was arranged. At this meeting all the employees attended and reviewed the standard Redi-Mix collective bargaining agreement. There was much concern among the employees that they would lose their jobs or be fired as a result of a strike. Holder suggested that they try and resolve their grievances directly with their employer.

In July of 1979, Holder was contacted and told that the drivers had no luck in talking with their employer. Holder explained the proceedings again and the drivers chose the short route. They signed the cards and arranged to have Holder go to the employer the next morning and present the proposed contract.

The drivers made an agreement with Holder that they would report to work the following morning, load their trucks with cement and proceed to a meeting spot on the way to their assigned job site. When the last truck left, Holder, who would be parked near the plant, would enter the office and demand that the employer recognize the union and sign the union’s contract.

At 7:45 in the morning of July 25, Holder and a union secretary entered the office of the general manager of Rockford Redi-Mix, Curt Countryman. He told Countryman they were from the union and represented a majority of his employees. Holder told him that the trucks that had just left the plant were sitting down the road and the drums would not be turning unless Countryman signed the contract. Holder then placed a contract on Countryman’s desk and Countryman said he would have to look at it. After a few minutes he told Holder he would not sign the contract and Holder left.

Holder joined the drivers and Countryman was contacted by CB radio from where, the drivers were waiting. One of the employees inquired on the CB radio if their representative had been to Countryman’s office yet. He told Countryman that the drums would not turn until a contract was signed.

The drivers and Holder went to the job site at about 10:55 a.m. They contacted the employer by radio and left the message that they had arrived at the job site. This was the first time at which the drivers admitted to shutting down the drums on their cement trucks. They left the keys in the ignition of their trucks.

An associate of Countryman’s arrived at the job site at about 11:15 a.m. He testified that the cement was hardened in the drums at that time. No drivers were present when he arrived. There was also testimony that the cement could not have hardened so quickly. Countryman testified that he had to replace one drum and had three others jackhammered to remove the hardened cement.

Holder and the drivers were charged by information with felony conspiracy, intimidation and criminal damage to property. Count I alleged that Holder’s July 25 conversation with Curt Countryman in Countryman’s office was the result of a conspiracy among the defendants to commit the offense of intimidation, i.e., to communicate a threat to the employer to criminally damage four redi-mix trucks “with the intent to cause Curtis L. Countryman to perform the act of signing an employment contract.” Counts II and III charge the conversation violated subsections (a) (3) and (7), respectively, of the intimidation statute. Counts IV through VII charged all defendants with criminal damage to the employer’s four trucks by allowing the concrete to harden within the drum of each truck.

At the preliminary hearing the trial court found that there was lawful authority to strike and that, therefore, the counts regarding intimidation with the threat of bringing about a strike, under subheading (a) (7) of the statute in question here, was unfounded.

After a trial, the jury exonerated the drivers but Holder was convicted of violating subsection (a)(3) of the intimidation statute, which provides:

“A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
* e # (3) commit any criminal offense; 0 * Ill. Rev. Stat. 1979, ch. 38, par. 12—6(a)(3).

Defendant’s first contention is that subsection (a)(3) is unconstitutionally overbroad or vague. This statute was found to be overbroad by Judge Will of the United States District Court, Northern District of Illinois, in Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938 (hereinafter Landry.)s This decision was reversed on other grounds by the Supreme Court in Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758, where it was found that the plaintiffs lacked standing to raise the issue of the constitutionality of the statute.

Because the Supreme Court did not reach the issue of the constitutionality of the intimidation statute, Judge Will’s discussion of the issue remains as persuasive authority. Although we are not bound by it, we are nonetheless compelled by the reasoning set forth in Landry and do conclude subsection (a) (3) of the intimidation statute is unconstitutional.

Judge Will found that subsection (a)(3) was overbroad because it “prohibits threats of insubstantial evil.” (280 F. Supp. 938, 964.) He noted that subsection (a) (3) could make criminal threats by dissentient groups to engage in disorderly conduct, or threats by mothers to block a dangerous State highway to demonstrate the need for increased safety measures. He stated that “indeed, the phrase commit any criminal offense’ is so broad as to include threats to commit misdemeanors punishable by fine only. These evils are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion wide berth.” 280 F. Supp. 938, 964.

Freedom of speech has long been recognized as occupying a preferred position. (Murdock v. Pennsylvania (1943), 319 U.S. 105, 115, 87 L. Ed. 1292, 1300, 63 S. Ct. 870, 876.) It is not necessary that the record show us that Holder has engaged in privileged conduct. Rather, the mere fact that other applications of the statute in question, to other facts, can have impact on first amendment rights is sufficient to invalidate the statute regardless of whether the defendant has engaged in privileged conduct. NAACP v. Button (1963), 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328.

An overbroad statute has been described as one that:
“* 00 is designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment. In a case of a statute which is overbroad on its face, the speaker’s actions or speech may not be protected by the First Amendment and thus the act could have been prohibited under a carefully drawn statute. Nevertheless the Court will strike the overbroad statute because it might apply to others, not before the Court, who may engage in protected activity which the statute appears to outlaw.” J. Nowak, R. Rotunda, & J. Young, Constitutional Law 722 (1978).

In Landry, Judge Will held that (a)(3) was overbroad because it could be enforced so as to encompass insignificant criminal threats or misdemeanors. We agree.

The State contends that the overbreadth doctrine has been reevaluated by the Supreme Court since Landry and the doctrine will now only be applied as a last resort (Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908). A specific test was set forth by the court in Broadrick. It stated that a statute would be invalidated for over breadth “only when the flaw is a substantial concern in the context of the statute as a whole.” 413 U.S. 601, 616 n.14, 37 L. Ed. 2d 830, 842 n.14, 93 S. Ct. 2908, 2918 n.14.

We are of the opinion that when the Broadrick test is applied to the intimidation statute as a whole, (a)(3) is an overbroad restriction on freedom of speech and is invalid. As stated by Judge Will, if the threat is carried out then the persons who violate the criminal law by their acts are subject to punishment. However, to make it an offense to threaten to commit any crime, no matter how minor or insubstantial, is a substantial flaw in the statute. We make no finding with regard to the national policy on labor and are concerned only with whether (a) (3) is violative of the first amendment.

Our decision should not be considered as a stamp of approval for the tactics employed by Holder or the drivers. Nor do we find that Holder’s statement was protected by the Federally created right to strike. Old Dominion Branch No. 496 v. Austin (1974), 418 U.S. 264, 41L. Ed. 2d 745, 94 S. Ct. 2770.

Because (a) (3) proscribes conduct that may be constitutionally protected we hold it invalid. We do not consider the other arguments raised by the parties. For these reasons the judgment of the circuit court is reversed.

Reversed.

SEIDENFELD, P. J„ and VAN DEUSEN, J., concur.


text:
    CONTINENTAL ILLINOIS NATIONAL BANK & TRUST COMPANY OF CHICAGO, Trustee, Plaintiff-Appellee, v. JOHN C. WILSON, Defendant-Appellant.
    Second District
    No. 80-761
    Opinion filed January 27,1982.

      Simon Stickgold, of Woodstock, for appellant.
    James F. Bishop, of Bishop and Kelly, of Crystal Lake, and Gerald C. Heldrich, Jr., & Associates, of Chicago, for appellee.
   JUSTICE HOPF

delivered the opinion of the court;

This is a forcible entry and detainer action brought in the circuit court of McHenry County wherein the plaintiff sought to regain possession of a triangular parcel of land of approximately one-third acre, located between defendant’s 21-acre and 30-acre parcels of land. The situation is best described by the following sketch;

The trial court held that defendant John C. Wilson had failed to establish title by adverse possession or prescriptive easement. Consequently, the court held that plaintiff Continental Illinois National Bank & Trust Company had both title and a right to possession of the disputed property.

Defendant contends on appeal that title questions are beyond the scope of an action brought under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 2), which provides, in relevant part, that the person entitled to possession of land may be restored thereto when a peaceable entry is made and the possession is unlawfully withheld. In his answer the defendant alleged that he and his predecessors in title have had, and asserted unqualified and exclusive title to the parcel by adverse possession. Prior to trial the defendant moved the court to vacate its order setting the cause for trial, asserting in part that the plaintiff’s complaint sought to establish title to the property in question. The plaintiff’s answer to the defendant’s motion to vacate stated that the purpose of its complaint was to establish which party was entitled to possession and not to determine the question of title.

Plaintiff holds the property in trust for the benefit of the Richmond Hunt Club. The club purchased the 401 acres of property from Valentine Christmann in 1974. Defendant Wilson acquired his premises by inheritance, having been born on the farm.

The present lawsuit was brought in 1980 when defendant constructed a diagonal barbed-wire fence across the triangular tract in question. Defendant testified that this fence replaced an earlier diagonal fence which had been located at the same place between the 1920’s and early 1950’s. In the early 1950’s the defendant reached an agreement with Valentine Christmann, the plaintiff’s predecessor in title, whereby the fence was removed so that Christmann could install a tile line across the triangular piece in order to drain his land. Apparently the agreement also allowed hunters from Christmann’s hunt club to have access to defendant’s woods for hunting purposes. In return defendant’s cattle were allowed to pasture on Christmann’s property and were given access to the hunting club’s channel or water supply. During the period between the time of the agreement with Christmann and the construction of the fence in 1980 defendant used the triangular area for pasture rights, for access back and forth between the woods, and for the movement of livestock and vehicles. After acquiring the property in 1974 from Christmann, plaintiff continued the verbal agreement which Christmann had entered into and used defendant’s land for hunting purposes. In April of 1980 defendant notified plaintiff that he was terminating the hunting privileges on his property and that he planned to erect a camping park on his land. Defendant then proceeded to build the new fence on the same place the earlier fence had existed prior to being removed in the early 1950’s.

The question before this court is whether a forcible entry and detainer action is appropriate when there is a serious title dispute. We conclude that it may be appropriate, but that title disputes cannot be determined in such a proceeding.

The distinctive and limited purpose of the Forcible Entry and Detainer Act is to supply a speedy remedy to permit persons entitled to possession of lands to be restored thereto. (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833.) In Rosewood, defendants were contract purchasers of property and answered plaintiff’s forcible entry and detainer action with equitable defenses, contending, among other things, that the contracts were unconscionable. While the court limited its holding to consideration of the Act as applied to contract purchasers, it did hold that the defenses going to the validity and enforceability of the contract were germane to the purpose of the Act. In doing so the court stated that title can not be inquired into in a forcible entry and detainer proceeding:

“ ‘Forcible Entry and Detainer is a summary statutory proceeding to adjudicate rights to possession and is unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.’ ” 46 Ill. 2d 249, 255.

Title documents may be admissible for the limited purpose of establishing one’s right to immediate possession of the premises. However, when admission of title documents will require an adjudication of contradictory claims to title, then such documents are not properly admitted. (Kitzer v. Rice (1967), 90 Ill. App. 2d 72, 77, 234 N.E.2d 115.) Again, the sole issue to be decided by the court was possession, and possession is a quantum of estate far less than title. Hale v. Ault (1980), 83 Ill. App. 3d 78, 83, 403 N.E.2d 635.

Because forcible entry and detainer is a summary proceeding, the litigation is limited to the issue of who is entitled to possession of the property. While in some instances evidence of title may be shown for the purposes of showing the character or extent of possession, a serious title dispute is not properly decided in an action for forcible entry and detainer. Urbach v. Green (1957), 15 Ill. App. 2d 186, 145 N.E.2d 808.

While the record also reveals the parties continually asserted that possession was the only issue before the court, it is equally clear that the defendant presented a case for adverse possession. In addition, the court’s order specifically found that the plaintiff holds legal title to the property and that the defendant failed to establish title to the land by adverse possession.

Initially it would appear that a title dispute is inexorably tied in with the forcible entry and detainer action, and that that action must fail. (Urbach v. Green.) We think not.

The plaintiff asserted that the defendant’s adverse use of the property would establish only possession and not title ownership. This is incorrect. Section 1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 1 et seq.) provides for absolute title where there is 20 years’ possession adverse to the claim of title by the true or paramount owner. The next effect of this adverse possession is the extinguishment of and divestiture of title in the paper title holder and the vesting of title in the adverse holder. East St. Louis & Carondelet Ry. Co. v. Nugent (1893), 147 Ill. 254, 35 N.E. 464.

The statute of limitations pertaining to adverse possession could only run against a person who would have a right to claim possession. In other words it could only be a bar against one who would have the right of entry into possession during this 20-year period.

By asserting a defense of adverse possession, defendant in fact admits that during this 20-year period, the plaintiff, the paper title holder, had a superior right of possession.

In Goldblatt Brothers, Inc. v. Hoefeld (1936), 284 Ill. App. 31, 34-35,1 N.E.2d 573, it is stated:

“The rule of law is well established that the question of title is not involved in an action of forcible entry and detainer. In a proceeding of this kind the right of possession to the property only is involved. ° ° ° If the tenant holding over claims to have title to the property, he cannot be permitted to assert it in this form of action, but he must restore possession to the plaintiff, the tenant of the landlord, and place this tenant in status quo, and then in some proper proceeding assert his title. [Citation.]”

We do not pass upon the issue of whether or not defendant proved a case for adverse possession or easement by prescription, as such issues would be improperly brought in a forcible entry and detainer action, and that portion of the trial court’s order is hereby vacated. Further, we vacate all findings of the trial court in this cause, except that which placed plaintiff in possession.

Although the parties expanded the scope of evidence that should properly be brought out in a forcible entry and detainer cause, the finding as to possession alone was proper and is hereby affirmed. This conclusion is not a bar to any claim of adverse possession, easement by prescription or other title related issues that may be brought in the future by the defendant in an appropriate proceeding.

Affirmed in part and vacated in part.

SEIDENFELD, P. J., and VAN DEUSEN, J., concur.