author: PRESIDING JUSTICE WELCH

text:
    ROBERT N. BREWER et al., Plaintiffs and Counterdefendants-Appellees and Cross-Appellants, v. EGYPTIAN SPORTS, INC., Defendant and Counterplaintiff-Appellant and Cross-Appellee.
    Fifth District
    No. 5—83—0132
    Opinion filed February 24, 1984.

      John Womick, of Carbondale, for appellant.
    Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

The issue in this case is who is entitled to use the name “Prime Time Restaurant * Lounge” in Carbondale. The trial court held that the owner of a restaurant of that name in Mt. Vernon should be protected against use of a similar name by the operator of a restaurant in a sports complex in Carbondale. We agree with that conclusion.

Plaintiff Robert Brewer is the president and majority shareholder of plaintiff America’s Best Inns, Inc. That corporation owns motels in East Peoria, Bloomington, Champaign, Mt. Vernon and Marion, Illinois. Some of these have restaurants associated with them, and the motels are advertised under the name “Best Inns of America.”

In 1979, Brewer bought an existing restaurant building on land close to the “Best Inns” motel in Mt. Vernon. The restaurant and motel are located near the intersection of interstate highways 64 and 57. Work began to remodel the existing building in late 1979, and in June 1980, Brewer commenced restaurant operations under the name “Prime Time, Restaurant * Lounge.” This restaurant has been described as a steakhouse, a full service restaurant and a supper club. It has a dress code, which is “rather loosely defined,” it does not serve breakfast, and it often features live entertainment.

Soon after the “Prime Time” restaurant opened in Mt. Vernon, Brewer began to advertise it. In addition to placing advertisements in the Mt. Vernon media, Brewer advertised the restaurant on WSIL-TV, which reaches Carbondale, and in the Southern Illinoisan, a newspaper published in that city. Carbondale is located approximately 60 miles from Mt. Vernon, and the two cities are connected by four-lane highways. Brewer discontinued the television and Southern Illinoisan advertisements shortly after starting them.

In the fall of 1981, Brewer planned to expand his business to Carbondale by building a restaurant and motel on land which he had purchased there in 1979. Brewer contracted for architectural and development services for the Carbondale project, and in March 1982, he applied to the city of Carbondale for industrial revenue bonds to help finance it. That application was approved by the city. Articles appeared in the Southern Illinoisan on the proposed restaurant and motel in May, June, September and October, 1982. Construction of the project began in October of that year.

Gregory Eversden is the president and one-half owner of defendant Egyptian Sports, Inc. (Egyptian). He operates restaurants in Collinsville, Wood River, Godfrey, Carbondale, Harrisburg and Quincy, Illinois. In September 1980, he took over the operation of a bowling alley called the “Carbondale Bowl.” Eversden experienced some difficulties with the lessor of the bowling alley, and in January 1981, he started to plan for a new sports center. In June 1982, he acquired a building which contained several tennis courts.

Eversden intended to convert that property into a recreational center which would feature bowling, tennis, racquetball, weight lifting and a restaurant. Remodeling of the building began in July 1982, and Egyptian was incorporated the following month. Also in August, according to Eversden, he announced to members of bowling leagues to be transferred to the new Egyptian Sports Center from the Carbon-dale Bowl that the restaurant in the Center would be called “Prime Time.” Eversden testified at trial that he ordered the printing of menus with that name on them in September 1982. In rebuttal, the plaintiffs offered the testimony of printer Richard Kramerich. He stated that his publishing firm received an order in September 1982 from someone affiliated with Egyptian, and that order was for menus to be printed with the name “King Tut’s” on them. Kramerich explained that no such menus were ever printed, but in November 1982, his firm received an order from Egyptian to print menus with the name “Prime Time” on them.

At trial, Eversden listed his reasons for selecting the name “Prime Time” for the restaurant in the Egyptian Sports Center. First, there is a bowling organization established by the National Bowling Council for senior citizens, the “Prime Timers,” and Eversden indicated that this demographic group is the fastest growing population of potential bowlers. Second, the Egyptian Sports Center features different rates for “prime time” and “non-prime time” tennis and racquetball. Finally, all the other restaurants operated by Eversden have names which begin with the letter “p,” such as “Papa K’s,” “Periwinkles,” and “Puzzles.”

Egyptian applied for a liquor license for its restaurant in August 1982, and Eversden planned to open the restaurant and bowling alley later that month. In fact, the bowling alley was not opened until September, and the liquor license was not issued until September 29. The restaurant was certified by the Jackson County health department on November 29, 1982, and it began service shortly thereafter. On December 3, the restaurant was first advertised in the local media under the name “Prime Time, Restaurant and Lounge.” This litigation commenced with the filing of the plaintiffs’ complaint for injunctive relief in the circuit court of Jackson County on December 9.

The plaintiffs never registered the name “Prime Time, Restaurant * Lounge” as a service mark in Illinois, although an application for Federal registration was pending at the time of trial in this case. Egyptian filed two applications for Illinois registration of the name. The first of these was prepared on September 24, 1982, but was never filed. The second application was prepared on November 9, 1982, and a certificate of registration was issued by the Secretary of State the following day. Between the preparation of the first and second applications, Eversden was visited at the Sports Center by counsel for the plaintiffs. As they discussed fitness equipment and the other facilities at the center, plaintiffs’ counsel learned that Eversden intended to call his restaurant “Prime Time.” Plaintiffs’ counsel then informed Eversden that his clients were also planning to open a restaurant by that name in Carbondale.

The restaurant operated by the defendant differs from those run by the plaintiffs in some respects. There is no dress code for the restaurant in the sports complex, and indeed many patrons come dressed in exercise garb. Live entertainment is not featured. Nonetheless, the Egyptian Sports Center is located one-half mile from the plaintiffs’ new motel and restaurant facilities. Brewer testified in January 1983 that he intended to open his Carbondale restaurant in April 1983. Plaintiffs’ brief indicates that the restaurant opened in June of that year.

In the form that it existed at the time of trial, the plaintiffs’ complaint included requests for three types of relief. They sought an injunction to prevent the defendant from using the name “Prime Time, Restaurant and Lounge” in the State of Illinois, cancellation of the defendant’s Illinois registration of that name and an award of reasonable attorney fees and damages. Egyptian filed a counterclaim for an injunction against the plaintiffs and for attorney fees. Following a bench trial, the court entered judgment memorialized in a thoughtful memorandum. It enjoined the defendant from operating a restaurant and lounge under the name “Prime Time, Restaurant and Lounge,” or similar appellation, within the circulation area of the Southern lilinoisan as it existed on May 25, 1982. Egyptian’s counterclaim was denied, as were the request to cancel Egyptian’s service mark registration and all requests for costs and attorney fees.

Egyptian appeals from this order and argues that although the plaintiffs are entitled to protection of their trade name in the Mt. Vernon area, that protection should not extend to Carbondale. The plaintiffs have filed a cross-appeal in which they assert that the court should have cancelled Egyptian’s registration of its service name and awarded them attorney fees and damages.

The principles which guide us in our decision are those of the common law of trademarks. Under those rules, the plaintiffs, as the first users of the name “Prime Time, Restaurant * Lounge,” must be afforded some protection against use of that name, or a similar one. (Hanover Star Milling Co. v. Metcalf (1916), 240 U.S. 403, 60 L. Ed. 713, 36 S. Ct. 357.) The question which follows from that statement is how far should that protection extend.

Egyptian argues that the trial court erred in finding the plaintiffs’ “zone of protection” to include Carbondale. In support of this contention, Egyptian points to the trial testimony of three professors of marketing at Southern Illinois University, Dr. Don Perry, Dr. John Summey and Dr. Charles Hendersman. The professors defined the term “market area” for a particular business as the region from which that business draws the “vast majority,” usually between 80 and 90%, of its customers.

Dr. Perry conducted several marketing studies to determine the market areas for the Mt. Vernon “Prime Time” restaurant and Egyptian’s “Prime Time” restaurant. Those studies included a telephone survey of residents in the- Carbondale and Murphysboro areas, an analysis of questionnaires distributed at two locations in Carbon-dale, and a study of the registration addresses of license plates on vehicles observed parked in the lot of the Mt. Vernon restaurant. Based upon these efforts, Perry ascertained the market area for Egyptian’s restaurant as the region within a 15-mile radius of Carbondale. He concluded that none of this territory was located within the market area of the Mt. Vernon restaurant. Dr. Summey and Dr. Hendersman did not direct any studies of their own, but both men agreed with the conclusions of Dr. Perry.

Egyptian argues that since the market areas of its restaurant and the Mt. Vernon restaurant do not overlap, the plaintiffs’ mark should not be protected in Carbondale. Essentially, they urge that the trial court erred in failing to define the zone of protection of a restaurant as synonymous with its market area. However, we agree with the plaintiffs that under widely accepted principles of trademark law, that definition of a mark’s protected zone is overly restrictive.

Drawing the boundaries of a zone of protection for a trade or service mark is difficult to do with precision. Earlier authorities have stated that a user of a mark may only be protected in the area in which he does business. More recent decisions and commentators, recognizing the role of the mass media in enlarging commercial markets, have generally used three concepts which, considered together, define the protected zone. The first of these is the actual market of the prior user of the mark. The second is the reach of the user’s advertising and reputation, and the third is the area to which the user can reasonably be expected to expand his trade. (See Wiener King, Inc. v. Wiener King Corp. (D.N.J. 1976), 407 F. Supp. 1274; Comment, The Scope of Territorial Protection of Trademarks, 65 Nw. U.L. Rev. 781 (1970); Annot., 148 A.L.R. 12 (1944).) These concepts look to the nature and extent of the prior user’s business. Some authorities have found the intentions of the subsequent user a relevant inquiry. We need not decide whether this position is correct, for an analysis of the plaintiffs’ business shows that Carbondale is in the zone of protection of the “Prime Time” restaurant name.

The first of the component areas is that of the plaintiffs’ actual market. The courts have found several factors significant in defining the market area for a restaurant. Among these are whether the restaurant is located in an urban or rural setting, whether it is easily accessible by car, and whether it is a dining establishment or a snack stand. Consideration of factors such as these is a judicial attempt to approximate the region from which the restaurant draws its customers. This inquiry is more precisely accomplished, however, by the use of the statistical market research techniques employed by the expert witnesses in this case. Their definition of the market area of a restaurant as that territory from which it draws the vast majority of its patrons provides a more accurate assessment of that market than we could give through a descriptive analysis of the restaurant. Thus, despite certain methodologial limitations to some of the research proffered by Egyptian, we accept the market area defined by that research as roughly the actual market of the Mt. Vernon restaurant. That market does not include Carbondale.

The second component area is the plaintiffs’ advertising and reputation zones. This region consists of that territory into which the plaintiffs have sought to solicit business, or into which knowledge of the restaurant has spread, with or without assistance from the plaintiffs. There must certainly be a requirement of significance to that reputation or the penetration of the advertising. For example, the Mt. Vernon “Prime Time” restaurant is located near the interstate highway which connects Chicago and New Orleans. It could not be argued that the patronage of travelers from New Orleans several times a year would extend the protection of the “Prime Time” name to that city. Nor would advertising in that city do so, absent a showing that that advertising was reflected in some public awareness and patronage of the restaurant by its residents.

Under these principles, one could contend that Carbondale lies within the advertising and reputation zone of the Mt. Vernon restaurant. The plaintiffs did advertise in the Carbondale media market, albeit several years ago, and several witnesses at trial indicated that the Mt. Vernon restaurant was known in that city, although no studies were presented to quantify the extent of its name recognition. Perhaps it is best to describe Carbondale as at the outer edges of the Mt. Vernon restaurant’s area of advertising and reputation. But, we need not rely upon this factor alone in upholding the trial court’s decision.

The third component area is that of the prior user’s territory for reasonable expansion. Here, the court must ask what steps have been taken by the user to expand his business. Typically, the prior user is, at most, only considering new facilities when confronted with another user of his mark. (Compare Burger King of Florida, Inc. v. Hoots (7th Cir. 1968), 403 F.2d 904.) In this case, the plaintiffs purchased land, contracted for architectural and developmental services, received authorization for industrial revenue bonds and actually began construction of their new restaurant, all before Egyptian opened its restaurant. A Carbondale “Prime Time” restaurant operated by the plaintiffs was not merely a speculative venture when Egyptian’s restaurant opened its doors, but was instead a partially completed business entity. As such, it is entitled to protection against a business of a virtually identical name in Carbondale, especially given that Carbon-dale is located within the advertising and reputation zones of the Mt. Vernon restaurant. Inasmuch as Egyptian’s restaurant is in the zone of protection of the plaintiffs’ mark, and as its operation is likely to cause confusion among restaurant patrons in that territory, we must affirm the injunctive relief granted by the trial court.

In their cross-appeal, the plaintiffs request us to order that Egyptian’s registration of the service mark “Prime Time Restaurant & Lounge” be cancelled. Under section 9(A)(4)(c) of “An Act to provide for the registration and protection of trade-marks, service marks and trade-names ***” (Ill. Rev. Stat. 1981, ch. 140, par. 16(A)(4)(c)), the Secretary of State must cancel the registration of a mark which a court finds “was granted contrary to the provisions of this Act.” An application to register a mark must contain, inter alia, “[t]he date when applicant first used the mark in this State ***” and “[a] statement that the applicant verily believes that he is owner of the mark, and that no other person has the right in this State to use such mark either in the identical form thereof, or in such near resemblance thereto, as to be likely, when applied to the goods or services of such person, to cause confusion, or to cause mistake, or to deceive.” Ill. Rev. Stat. 1981, ch. 140, pars. 10(e), (f).

The plaintiffs advance three reasons in support of cancelling Egyptian’s registration. First, Egyptian had not actually used the mark in commerce at the time of its latest application. Second, Egyptian stated in that application that it had first used the mark in August 1982, despite the fact that its restaurant was not opened until late November of that year. Third, Eversden, as president of Egyptian, affirmed in that application that he believed that no other person in Illinois had the right to use that mark in that or a similar form. In fact, Eversden admitted at trial that he knew of the Mt. Vernon “Prime Time” restaurant and the plaintiffs’ plans to expand to Carbondale at the time of Egyptian’s application to register the service mark.

We agree with the plaintiffs’ argument. The failure of Egyptian to adopt and use the “Prime Time” mark at the time of its application to register it would alone justify cancellation of the registration. (El Sombrero Corp. v. Bolivar (1982), 106 Ill. App. 3d 925, 436 N.E.2d 733.) However, Egyptian’s application also contained false statements concerning the date of the first use of the mark and concerning the knowledge of Eversden about the use of similar marks within Illinois. The making of knowingly false representations on such an application is further reason to cancel registration of a mark. (Ill. Rev. Stat. 1981, ch. 140, par. 16(A)(4)(d).) That portion of the court’s judgment denying that relief must be reversed.

Finally, the plaintiffs contend that they should be awarded attorney fees and damages resulting from this action. The prevailing party in an action to cancel the registration of a mark may be awarded attorney fees in the discretion of the court. (Ill. Rev. Stat. 1981, ch. 140, par. 16(c).) But, any person who “shall *** procure the filing of any application or registration of any mark in the office of the Secretary of State ***, by knowingly making any false or fraudulent representation or declaration, *** shall be liable to pay all reasonable expenses and all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 18.) Having found that at least two material statements on Egyptian’s application to register the “Prime Time” service mark were made with knowledge of their falsity, we are obligated to award the plaintiffs damages. In our opinion, this includes attorney fees resulting from that portion of this action involving the cancellation of the registration of the service mark. This cause must be remanded to determine the amount of those damages.

In conclusion, the judgment of the circuit court of Jackson County is affirmed insofar as it grants the plaintiffs injunctive relief. The portion of that judgment denying the plaintiffs’ request to order cancellation of Egyptian’s service mark and award them attorney fees and damages is reversed. The cause is remanded for assessment of the amount of attorney fees and damages.

Affirmed in part, reversed in part, and remanded.

KARNS and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO PAYTON, Defendant-Appellant.
    Fifth District
    No. 82—734
    Opinion filed March 2, 1984.

      Randy E. Blue, of State Appellate Defender’s Office, of Mt. Vernon, and Michael A. Lynch, law student, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris and Mary W. Richardson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Jackson County, Antonio Payton, defendant, was convicted of residential burglary and theft. Defendant was sentenced to 12 years’ imprisonment on the former count; no sentence was imposed on the latter. On appeal, defendant contends that (1) evidence of his confession to the crimes was improperly admitted at the trial, in that the confession was involuntary; (2) alternatively, the inculpatory statements made by defendant were the product of an improper arrest and should not have been admitted at trial; and (3) the court erred in failing to instruct the jury on the offense of burglary. For the reasons which follow, we reverse defendant’s convictions and remand this cause for a new trial.

Prior to trial, defendant filed a motion to suppress his confession to the crimes, alleging, among other things, that the confession was involuntary in that it resulted from “mental coercion” of the defendant by police detective Don Strom. At an October 13, 1982, hearing on the motion, Detective Strom testified that he went to defendant’s residence on July 26, 1982, in order to talk with defendant regarding the burglary of a home located at 622 North Almond in Carbondale. After entering defendant’s house, Strom told defendant that he would like defendant to come down to the police department to talk with him. When defendant indicated that he would rather not go to the police station with Strom, Strom indicated that he could talk to defendant’s parole officer rather than to defendant. At this point, according to Strom, defendant agreed to go to the police station, and subsequently rode with Strom to that destination. Strom testified that defendant rode in the front seat of the car, was not handcuffed, had not been arrested, and had not been advised of his constitutional rights at that time.

Following their arrival at the police station, Strom advised defendant of his constitutional rights. According to Strom, defendant did not appear to be intoxicated,' in a drugged condition, or in need of medical attention while at the station. During his subsequent conversation with defendant, Detective Strom, by his own admission, falsely told defendant both that he had been positively identified by the vietim of the burglary and that his fingerprints had been found at the scene of the crime. Defendant subsequently admitted to Strom that he had committed the offense. Strom testified that, following these statements, defendant indicated that he had a drinking problem. Strom informed defendant that he would put that information in his police report, and that the court would order counseling for defendant if it was deemed appropriate. Strom indicated that, after the interview at the station, he drove defendant to North Almond Street, where defendant pointed out the home which had been burglarized. Strom testified that he then gave defendant a ride home and released him, in order to give defendant an opportunity to retrieve the coins which had been taken in the burglary.

Defendant testified on his own behalf at the hearing, and indicated that it was his understanding that he had to go with Detective Strom when Strom came to his house. Defendant stated that he did not sign the Miranda warnings until after he admitted committing the burglary, and that, prior to the time of his confession, Strom informed him that he would be arrested if he didn’t make a statement, but that Strom would let him go if he did. Defendant further testified that he was trying to “cut a deal” by cooperating with Strom, and that he discussed his drinking problem with Strom at the end of the interview. Following defendant’s testimony, the court denied the motion to suppress.

At trial, Debra Dayton testified that, early in the morning of July 22, 1982, she returned to her home at 622 North Almond in Carbon-dale to find one of her window screens lying on the ground near the house. Upon looking into the house through the window, Ms. Dayton saw a man standing in her bedroom and looking through her chest of drawers. Ms. Dayton testified that she then awakened a neighbor,. asked him to call the police, and waited on the neighbor’s porch for the police to come. Just as a police officer was arriving, according to Ms. Dayton, the man ran out of the house and down the street, and the officer "was unable to apprehend him. Ms. Dayton described the burglar as a black male with a “messy” Afro hairstyle, and indicated that he was wearing a blue long-sleeved sweat shirt that appeared to have the number “21” on the front of it. After viewing a photographic lineup containing five pictures, including one of defendant, Ms. Dayton indicated that a photograph of another man most closely resembled the burglar.

Detective Strom also testified for the State at trial, and indicated that he decided to interview defendant because he had seen defendant wearing a shirt “identical” to that noted by Ms. Dayton in her description of the burglar. The remainder of Strom’s testimony was similar to that which he had given at the hearing on the motion to suppress. During the interview at the Carbondale police station, according to Strom, defendant admitted taking the coins from the Dayton residence. Later in the day on which the interview was conducted, defendant’s mother turned the shirt with the number “21” on it over to Strom.

Defendant did not testify at trial, and the jury returned a verdict of guilty on both counts. Defendant’s timely post-trial motion was denied, and he was sentenced to 12 years’ imprisonment on the residential burglary conviction.

On appeal, defendant initially argues that the tactics used by Detective Strom were such as to render defendant’s confession involuntary, and that the confession should have been suppressed. We agree. In determining whether a confession was voluntarily made, it must be ascertained whether the defendant’s will was overborne at the time he confessed or whether the confession was made freely, voluntarily and without compulsion or inducement of any sort. (People v. Noe (1980), 86 Ill. App. 3d 762, 764-65, 408 N.E.2d 483.) Such a determination must be made upon consideration of the totality of the circumstances attendant to the confession, and the confession is admissible if its voluntariness is established by a preponderance of the evidence. (86 Ill. App. 3d 762, 765.) The finding of a trial court that a confession is voluntary will not be disturbed unless that finding is contrary to the manifest weight of the evidence. People v. Ruegger (1975), 32 Ill. App. 3d 765, 769, 336 N.E.2d 50.

Viewing the circumstances of defendant’s confession here in their entirety, we are compelled to conclude that the trial court’s finding of voluntariness was contrary to the manifest weight of the evidence. It is undisputed that, prior to the time defendant made his confession, Detective Strom falsely told him that he had been identified by the victim of the crime, and that his fingerprints had been found at the scene. The United States Supreme Court has unequivocally stated that “any evidence that the accused was threatened, tricked, or cajoled into a waiver [of the fifth amendment privilege against self-incrimination] will, of course, show that the defendant did not voluntarily waive his privilege.” (Miranda v. Arizona (1966), 384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) Moreover, the Illinois Supreme Court has long recognized that confessions or admissions acquired by trick are inadmissible. (People v. Stevens (1957), 11 Ill. 2d 21, 27, 141 N.E.2d 33.) While the State argues that Detective Strom’s deceptions were “not likely to produce an untrustworthy confession,” we believe that the nature of those deceptions belies such an assertion. It seems apparent that a suspect grossly and intentionally misled as to the amount and strength of the evidence against him may well be induced to confess as a direct result of those misrepresentations. Defendant here testified that he was trying to “cut himself a deal” by admitting his involvement in the crime, and we think it ignores reality to presume that neither the reliability nor the voluntariness of a confession is tainted by police conduct calculated to falsely persuade the defendant that his prospects for avoiding conviction are nearly hopeless. While the State calls our attention to cases in which false police representations concerning fingerprints have been held not to render a confession involuntary (People v. Boerckel (1979), 68 Ill. App. 3d 103, 385 N.E.2d 815; People v. Pritchett (1974), 23 Ill. App. 3d 368, 319 N.E.2d 101 (abstract of opinion)), we do not believe that the trickery employed in those cases approaches that used here, where defendant was told not only that his fingerprints were found at the scene, but that he had been positively identified as the burglar. Finally, it matters not that defendant’s confession here may have been true, for the truth or falsity of the confession is irrelevant insofar as the inquiry into its voluntariness is concerned. (Jackson v. Denno (1964), 378 U.S. 368, 377, 12 L. Ed. 2d 908, 915-16, 84 S. Ct. 1774, 1781.) Given the nature and extent of the trickery employed by Detective Strom, we conclude that the trial court’s finding that defendant’s confession was voluntary was contrary to the manifest weight of the evidence presented at the hearing on the motion to suppress.

For the foregoing reasons, defendant’s convictions are reversed, and this cause is remanded to the circuit court of Jackson County for a new trial at which defendant’s confession to Detective Strom shall not be used. In view of our disposition of this cause, we need not address the remaining issues presented by defendant.

Reversed and remanded.

WELCH, P.J., and JONES, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANUEL VERNELL BERRY, Defendant-Appellant.
    Fifth District
    No. 82—511
    Opinion filed February 24, 1984.
    Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, and Laura Schuett, law student, for appellant.
    Terry M. Green, State’s Attorney, of Benton (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Defendant Manuel Vernell Berry was convicted, following a jury trial in the circuit court of Franklin County, of five counts of unlawful delivery of a controlled substance. He was sentenced to a determinate term of four years’ imprisonment on count I, delivery of cocaine, and five years for each of four counts of delivery of heroin. The sentences were ordered to be served consecutively and the defendant was fined $5,000 on each count. On appeal, the defendant asserts, inter alia, that the trial court improperly found the statutory aggravating factor of compensation to be present based on the proceeds of the drug sales.

In a written order, filed August 23, 1982, the trial court found that the defendant received compensation for committing the offenses. At the sentencing hearing the trial court emphasized that the defendant assumed the risk of criminal penalties because drug transactions were so profitable. In imposing the $25,000 fine, the court stated, “The purpose of this fine is *** to remove the profit element from illegal trafficking in drugs and to deter others from engaging in similar conduct.”

The defendant asserts that he is entitled to a new sentencing hearing because the trial court did not follow People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906. In Conover, the Illinois Supreme Court stated:

“Inasmuch as most burglaries and every theft involve proceeds, it is reasonable to conclude that the legislature already considered that factor in establishing the penalties. If the General Assembly had intended that proceeds be utilized again to impose a more severe penalty for those offenses, such intent would be more clearly expressed. Consequently, we believe receiving compensation for committing the offense under the statute applies only to a defendant who receives remuneration, other than proceeds from the offense itself, to commit a crime. It is reasonable to conclude that, just as it did in allowing the death sentence for one who is hired to commit murder, the legislature intended to impose a harsher sentence on one who is paid to commit a burglary or theft than on one who commits it on his own volition.” (People v. Conover (1981), 84 Ill. 2d 400, 405, 419 N.E.2d 906, 909.)

The reasoning of the court in Conover, the defendant argues, applies with equal force to the case at bar. We agree. In fixing the penalty for delivery of controlled substances, the legislature took into account the fact that the person making delivery is often paid by the person accepting the drugs. The defendant should not receive a harsher sentence partially because he was paid by the undercover police officer who accepted the drugs.

We are not persuaded by the State’s argument that Conover does not apply here because the delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 56½, par. 1401) can be committed without money changing hands. A burglary can be committed even though the burglar does not receive any proceeds. The offense of burglary is complete as soon as there is an unauthorized entry into a building with the intent to commit a felony (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1). Nonetheless, the Conover court noted that most burglaries do involve proceeds and the legislature had already considered that fact in establishing a penalty. Likewise, in the case at bar, the legislature was no doubt aware of the fact that few drug deliveries are made as gifts. Most drug deliveries involve proceeds, yet it is improper by the terms of the Illinois Supreme Court’s Conover decision to consider this profit at sentencing as the aggravating factor of compensation.

The State correctly notes that reliance on an improper sentencing factor does not always require remandment for sentencing. When it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. (People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.) In the case at bar, however, the sentencing court placed great emphasis on the profitability of drug transactions and the fact that the defendant was receiving large sums of money for the drugs he sold. After discussing this factor at length, the court imposed prison terms totalling 24 years and fines totalling $25,000. Given the record before us in the case at bar, we cannot say the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence.

For the reasons stated, the defendant’s sentences are vacated and the cause is remanded to the circuit court of Franklin County for a new sentencing hearing.

Sentences vacated, cause remanded.

JONES and HARRISON, JJ., concur.


author: JUSTICE KARNS

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v. KELLER DEVELOPMENT CORPORATION, Defendant-Appellee.
    Fifth District
    No. 5-83-0417
    Opinion filed February 24, 1984.
    Paul D. Giamanco, Special Assistant Attorney General, of Giamanco and Wexstten, of Mt. Vernon, for appellant.
    Frank H. Schniederjon, of Schniederjon, Weber, Harvey & Stephens, of Effingham, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

The Illinois Department of Transportation brought a petition to abate nuisance and to enjoin the use of a billboard against Keller Development Corporation pursuant to the Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1981, ch. 121, par. 501 et seq.). The circuit court of Effingham County denied the Department’s prayer. We must determine whether Keller’s billboard is unlawful and a public nuisance. Ill. Rev. Stat. 1981, ch. 121, par. 510.

The billboard was erected in 1972 on real estate leased by Keller Development and was in place on the effective date of the Act. It was registered with the Department as a nonconforming sign in 1975 (Ill. Rev. Stat. 1975, ch. 121, par. 508). In September 1981, the billboard was extensively damaged by a windstorm. Charles Keller, president of Keller Development, assessed the damage and authorized a contractor to repair the sign.

The chronology unfolds in three letters from John Sills, district engineer of land acquisition for the Department, to Keller Development Corporation. On September 24, Sills notified Keller Development that its nonconforming sign permit had been voided because the sign had been removed from the site. Two weeks later, a second letter was prompted by the Department’s field observation of a new sign being erected at the same site. Thirty days’ notice was given to remove what the Department concluded was an illegal sign. The letter explained:

“Based on the Highway Advertising Control Act of 1971 you are now erecting an outdoor advertising sign without a valid permit, or an illegal sign. A permit for outdoor advertising cannot be issued for this new sign as it is located in an area that does not conform to outdoor advertising. Since it is located beyond the Urban Limits of Effingham and does not conform to the Act it is an illegal sign. Based on the Act this newly erected sign will be required to be removed.”

A third letter again cautioned Keller Development not to continue work on the project. Charles Keller, president of Keller Development Corporation, denied knowledge and receipt of these letters. Whether they were received or not is unimportant under the view we take of the proper interpretation of the Act.

The Department argues that the new sign which replaced the nonconforming sign, should not have been built and, as built, does not conform to the requirements of the Act and should therefore be declared a public nuisance. (Ill. Rev. Stat. 1981, ch. 121, par. 510.) Keller Development maintains that the repaired sign should be permitted to continue as a nonconforming use under its 1975 registration.

The regulation of billboards and their restriction on public highways is intended for the protection of the public traveling upon highways and to promote safe driving and eliminate traffic hazards. (Paulus v. Smith (1966), 70 Ill. App. 2d 97, 217 N.E.2d 527.) Although the legislative finding and declaration contained in section 1 of the Act (Ill. Rev. Stat. 1981, ch. 121, par. 501) states that the purpose of the Act is to protect the public investment in interstate and primary highways and “to promote the recreational value of public travel [and] to preserve natural beauty,” one may find it difficult to perceive in what fashion the Act accomplishes this purpose. A hodgepodge of various signs at various locations, depending on the product or activity advertised, are permitted, this in turn depending on whether the sign is in a commercial or industrial area, a business area or an urban area.

The parties are in agreement that the State has the power to regulate and prohibit signs such as these and to “take” such signs upon payment of just compensation. Ill. Rev. Stat. 1981, ch. 121, par. 509.

Section 3.08 of the Act (Ill. Rev. Stat. 1981, ch. 121, par. 503.08) states that “ ‘[ejrect’ means to construct, build, raise, assemble, place, affix, attach, create, paint, draw or in any other way bring into being or establish; ***.” It does not include any of these activities, however, when performed incidental to “normal maintenance or repair of a sign or sign structure.”

The evidence establishes that the sign was re-erected or replaced at the location where it had previously existed. The support beams were placed in holes adjacent to the holes where the old support beams had been located. While in the opinion of Keller the sign suffered less than 50% damage in the windstorm, the company hired to repair the sign found that it was not economically feasible to repair the twisted steel supports that had been damaged and opted to replace them with wooden supports. The existing sign was completely removed, and no materials from the old sign were used in the construction of the replacement sign.

The trial court concluded that the statutory definition of “erect” did not preclude the replacement of an existing sign as part of the “normal maintenance or repair” of an existing nonconforming sign. In short, replacement of an existing, nonconforming sign is “repair” and not “erection.” We agree.

While the Department of Transportation is authorized to make rules and regulations “regarding implementation and enforcement” of the Act, such rules and regulations may not be inconsistent with the provisions of the Act. (Ill. Rev. Stat. 1981, ch. 121, par. 514.01.) Here the Department’s position is premised in the main on one of its regulations, not the provisions of the Act. In “implementation” of the Act the Department has promulgated a regulation, section 3.08, Rules and Regulations for the Control of Outdoor Advertising Signs, which provides “when more than 50 percent of the uprights require replacement in whole or in part the sign may not be re-erected without a valid permit. If a permit cannot be obtained, the sign will be acquired in its damaged condition.” This rule appears to us to be inconsistent with the Act and to change entirely the definition of “erect” contained in section 3.08 of the Act.

It is a well-established rule that the legislature, having declared its policy and purpose and provided standards for the exercise of the power, may confer upon administrative authorities the power to enact rules and regulations to promote the purpose and spirit of the legislation and carry it into effect. (People ex rel. Mosco v. Service Recognition Board (1949), 403 Ill. 442, 86 N.E.2d 357.) However, a statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder. Du-Mont Ventilating Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197; P. H. Mallen Co. v. Department of Finance (1939), 372 Ill. 598, 25 N.E.2d 43.

The Department has in effect usurped the power of the General Assembly by adding a substantive provision to the Act which greatly increases the severity of the Act. (See Board of Education v. Page (1965), 33 Ill. 2d 372, 211 N.E.2d 361.) This is much more than merely administering or enforcing the Act; the Department has decided what the law ought to be, a legislative function. The State has called to our attention the case of National Advertising Co. v. Bradshaw (1980), .48 N.C. App. 10, 268 S.E.2d 816, involving the application of the North Carolina Outdoor Advertising Control Act to similar facts. There, the North Carolina Administrative Code, which apparently is given the force of statutory enactments, a matter not made an issue in or discussed in the opinion, expressly provided that nonconforming signs damaged in excess of 50% of the initial value and signs “destroyed” could not be repaired or re-erected. We perceive the statutory scheme to be substantially different from the Illinois act. It seems highly unlikely that the General Assembly intended to allow the repair of a sign that suffered less than 50% damage through the neglect of the owner while prohibiting the replacement of a sign that was completely destroyed by an act of God through no fault of the owner. We shall not so construe the Act without a clear expression of legislative intent.

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

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.

      The statute is not a model of legislative clarity. When and to what extent compensation is payable for the “taking” of a sign is not clear. Section 10 (Ill. Rev. Stat. 1981, ch. 121, par. 510) would seem to make signs erected in violation of the Act a public nuisance subject to removal by the owner without compensation or by the State, at its expense, in which event they become the property of the State. Section 9 (Ill. Rev. Stat. 1981, ch. 121, par. 509), however, provides that “[j]ust compensation shall be paid for the removal of signs lawfully erected or lawfully in existence but not permitted to be maintained under this Act.” Section 3.06 (Ill. Rev. Stat. 1981, ch. 121, par. 503.06) defines “maintain” as allowed to exist. The Department argues that this sign is not allowed to exist and therefore not permitted to be “maintained.” Quaere: would just compensation be payable even though the sign were erected in violation of the Act?


author: JUSTICE JONES JUSTICE HARRISON,

text:
    JOHN L. ZIMMERMANN, Plaintiff-Appellant, v. FRANK NETEMEYER, et al., Defendants-Appellees.
    Fifth District
    No. 83—343
    Opinion filed February 10, 1984.
    Rehearing denied March 16, 1984.
    HARRISON, J., dissenting.

      Ralph T. Stenger, of Belleville, for appellant.
    James B. Wham, of Wham & Wham, of Centraba, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals the dismissal of count II of his amended complaint for personal injuries for its failure to state a cause of action. The defendants are tavern keepers doing business in Albers, Illinois, as The Diamond Tavern or The Diamond Lounge (tavern). The amended complaint alleges that the tavern has a parking lot for patrons on its south side, which abutted Illinois Route 161 and lacked a shoulder area. Plaintiff was a passenger in a car being driven in a westerly direction on Route 161 in the evening hours of June 1, 1978. A patron left defendant’s tavern, entered his car which was parked “head-in” in the parking lot and, without his headlights on and as a maneuver made necessary by the size and location of defendant’s parking lot, backed his car onto Route 161 and into the path of the car in which plaintiff was riding, thus causing a collision in which plaintiff was injured. We are to consider whether under the facts of this case the defendants-landowners were under a duty to take measures for the protection of the plaintiff from the injury he received. We hold that they were not under any such duty.

Since we are determining the propriety of dismissing count II of plaintiff’s amended complaint, we must accept all properly pleaded facts as true and are concerned only with the question of law presented by the pleadings, (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) Plaintiff candidly admits in his brief that “no prior court decision has been found by plaintiff as direct authority in support of the duty asserted on defendants under this factual situation” but goes on to assert that “the general law of each person’s duty not to act in a way that exposes others to an unreasonable risk of harm is sufficient support for the plaintiff’s cause of action.” The central theme of plaintiff’s argument is that since defendants knowingly provided the narrow space in front of their building as additional parking space for customers who would frequently leave the tavern under the effect of intoxicants and back their cars onto the adjacent Route 161 under the conditions described, they were under a duty to the plaintiff to take measures to protect the plaintiff from the injury he received. Plaintiff also states in his brief, we think with further candor as to the sweep of the rule he proposes, that “the defendants’ duty to regulate their conduct as a landowner in contemplation of the presence of travelers upon the adjacent public way applies irrespective of whether they are owners of a dramshop or any other business.”

Plaintiff’s amended complaint was in two counts. Count I alleged a cause of action based upon a violation of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135). Count II was framed in terms of common law negligence and did not rely upon the Dramshop Act in any way. The trial court dismissed count II in a judgment in which the court held that no cause of action was alleged because no duty was owed by the defendants to the plaintiff under the facts alleged. The requisite findings of Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) were made as a presage to the appeal. Count II of plaintiff’s amended complaint charged defendants with three specific acts of negligence: (1) failing to “properly post” the parking lot to prevent dangerous “head-in” parking by customers who would by necessity back their automobiles across a State highway near a blind curve thereon; (2) failing to “chain or otherwise guard or fence” their parking lot, known to be used for “head-in” parking by customers who had to back their motor vehicles across a State highway near a blind curve after consuming alcoholic beverages, so as to prevent the use of the parking lot in a manner hazardous and dangerous to other drivers traveling in a westerly direction on the highway; and (3) causing one of its customers “to back his automobile across a highway near a blind curve for westerly traffic requiring him to locate his said automobile in the wrong lane and in the path of an oncoming automobile * * *

Plaintiff seeks to impose a duty upon defendants-landowners although plaintiff was never on defendants’ land and the accident complained of neither occurred upon defendants’ land nor was alleged to have occurred because of any structure, artificial condition or obstruction of any kind or nature located upon defendants’ land. It is unnecessary for us to determine whether the plaintiff would fit into a category as an invitee, licensee or trespasser because the collision did not occur on defendants’ land.

In order to state adequately a cause of action for negligence, the allegations must establish the existence of a duty of care owed by the defendants to the plaintiff, a breach of that duty and an injury proximately resulting from that breach. (Curtis v. County of Cook (1983), 98 Ill. 2d 158; Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96; Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) While the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters (Curtis v. County of Cook; First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326), the existence of a duty must be determined by the courts as a matter of law. Curtis v. County of Cook; Pelham v. Griesheimer; Cunis v. Brennan; Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.

As we have noted, our consideration of the sufficiency of count II of plaintiff’s amended complaint centers upon the question of duty. In Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538, our supreme court stated:

“Necessary to any recovery based on the theory of common law negligence is the existence of a duty or an obligation requiring one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. Whether under the facts of a case such a relationship exists between two parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 37.)”

Professor Leon Green gave a lucid analysis of the duty aspect of a negligence case in an extended article that appeared in two segments in the Columbia Law Journal, The Duty Problem in Negligence Cases, 28 Colum. L. Rev. 1014 (1928), and 29 Colum. L. Rev. 255 (1929). Appropriate here is the following excerpt from Professor Green’s article:

“In the class of cases known as ‘negligence cases’ a working analysis has been rather widely adopted which will serve our purposes here. Such a case has four elements: (1) the right-duty element; (2) the negligence element; (3) the damage element; and (4) the causal relation element. Ordinarily two judgment-passing agencies are employed in these cases — the judge and jury. *** This dual tribunal requires an allocation of functions. And it is generally agreed that the problems arising under the right-duty element are for the judge, while the problems of negligence, damages and causal relation, if there is an issue raised as to them by the evidence, are for the jury under instructions.
* * *
Now it is clear that when the theology of a negligence case is swept aside all that is involved is that there must be a concurrence of judgment in plaintiff’s favor both by judge and jury before a defendant is required to pay the loss. *** The judge passes his judgment on so-called questions of law — rights and duties; the jury on so-called questions of fact — negligence, damage, and causal relation. The judge is the dominant factor in this arrangement. He not only passes his judgment first, but determines in what cases the jury can properly pass a judgment at all, as well as indicates some of the considerations which should be taken into account by the jury in passing judgment. ***
In passing his own judgment, the judge may frame his problems in a variety of forms: (1) Was the defendant under a duty, and if so, was he under a duty to plaintiff? or (2) Was plaintiff’s interest protected against defendant’s conduct? or (3) Plaintiff having invoked some general rule, was such rule designed to give protection to plaintiff’s interest against such a risk as the defendant’s conduct in the particular case? In another type of case it may take the form of whether defendant’s conduct makes a prima facie case for plaintiff, or whether defendant’s conduct was privileged or justifiable. But however framed, the issue is the same; the court must say whether there is any ‘law’ which would require defendant to bear the risk or whether plaintiff must bear his own loss.” 28 Colum. L. Rev. 1014, 1022-23.

Courts in Illinois have been, and are, called upon frequently in negligence cases to determine whether a duty exists under the facts presented. Although reliable guidelines for this determination are furnished in many cases, their utilization by Illinois courts has been something less than uniform. As the supreme court said in Mieher v. Brown (1973), 54 Ill. 2d 539, 545, 301 N.E.2d 307, 310:

“It is apparent that the concept of duty in negligence cases is very involved, complex and indeed nebulous. The term is so ill-defined and its boundaries so indistinct that one commentator has observed: ‘There is a duty if the court says there is a duty.’ And he concluded that the court’s pronouncement often reflects the policy and social requirements of the time and community. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15; see also Prosser, Law of Torts (4th ed. 1971) 325-26.”

Probably the most quoted statement concerning the determination of duty found in Illinois cases is from Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231. The plaintiff in that case was a nine-year-old boy who suffered from hemophilia. His condition was known to defendants, and the complaint alleged that while he was an overnight guest in defendants’ home, the defendants negligently permitted him to play with a needle which got into plaintiff’s throat and was thereafter sucked into the inner part of his lung. The supreme court held that the complaint was properly dismissed for its failure to show a duty owed by the defendants to the plaintiff. The court spoke to the basis of duty in negligence cases as follows:

“In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires— the assertion of a duty and its breach. (See Prosser on Torts, sec. 36; Green, Duties, Risks, Causation Doctrines, 41 Tex. L. Rev. 42, reprinted in Green, The Litigation Process in Tort Law 215; Harper & James, The Law of Torts, sec. 18.2; Gregory & Kalven, Cases and Materials on Torts 252.) ***
After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.

The last sentence in the foregoing quotation is to be equated with a declaration that duty in a negligence case is a matter of policy as well as foreseeability of harm so that in many cases the determination of duty is refined to: The existence of a legal duty is not dependent on the factor of foreseeability alone, but includes considerations of public policy and social requirements. Cf. Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250; Cunis v. Brennan; Mieher v. Brown; Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 433 N.E.2d 1350; Walsh v. A. D. Conner, Inc. (1981), 99 Ill. App. 3d 427, 425 N.E.2d 1153.

The two phrases “foreseeability of harm” and “considerations of policy” are present in some form in nearly every Illinois case that considers the duty question. Most cases use those phrases in tandem in pronouncing upon the duty issue, as in Lance v. Senior and the numerous cases that have used the quotation from it set forth above. However, it appears from close examination and analysis of the determination of duty in Illinois cases that “foreseeability of harm” in actuality plays little part in a resolution of the duty issue. This conclusion emerges upon consideration of the traditional role of the term “foreseeable,” or “foreseeability of harm,” in negligence law and upon consideration of cases in which the duty issue is real and not nominal and cases in which there is foreseeability of harm in defendant’s conduct, but yet no duty.

Whether a defendant should have “foreseen” harm to a party injured is the test to be used by a jury in determining negligence. “Foreseeability” enters into the negligence format only after the court has concluded that, at the time of the occurrence in question, the defendant was under a duty to guard against injury to the plaintiff. The supreme court has expressly so stated in Mieher v. Brown (1973), 54 Ill. 2d 539, 544-47, 301 N.E.2d 307, 309-10:

“We do not believe, however, that the foreseeability rule applied in Larsen is intended to bring within the ambit of the defendant’s duty every consequence which might possibly occur. In a sense, in retrospect almost nothing is entirely unforeseeable.
Professor Leon Green discusses foreseeability in distinguishing between the judge’s role in determining the duty owed and the jury’s role in determining the violation of the duty by stating:
‘[H]owever valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for the jury to consider in determining the negligence issue are expressed in the foreseeability formula.’ Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18.
Thus, although foreseeability is generally accepted as the test to be applied by a jury in determining if a duty has been violated, in defining the scope of the duty, other elements must be considered by the court.” (Emphasis added.)

It could be said that the phrase “foreseeability of harm” enters into the determination of whether a duty exists in so many cases because it has a significant sound and an easy cadence and seems to belong in the niche for determination of duty. However, the term “foreseeability of harm” is in actuality vague and uncertain; it furnishes no standards or guidelines of any sort for a court to follow in determining the existence of a duty. Because the jury determines whether a negligent breach of duty has occurred by applying the test of foreseeability, the term “foreseeability of harm” has a factual orientation. This factual orientation renders it ineffective and unreliable for use by a court that must resolve the duty question as a matter of law. The principal utility of the phrase “foreseeability of harm” seems to be merely that of a vehicle for the pronouncement of the court’s decision on the duty issue after that decision has been reached on the basis of policy considerations, the true basis of all duty decisions by Illinois courts.

Most negligence cases that come before Illinois courts conform to an established pattern and generally require little effort to resolve any duty issue presented. As noted in Lance v. Senior, they involve familiar patterns of conduct. In such cases a recital of the litany of duty is all that is required, like the one from Lance v. Senior. But when our courts are presented with a case that requires a genuine analysis of the duty issue, there has been little hesitation in playing down, or disregarding altogether, the factor of “foreseeability of harm.” Cf. Mieher v. Brown.

The case of Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 354, 367 N.E.2d 1250, 1253, furnishes an excellent illustration. In that case the supreme court found that a doctor and a hospital that had allegedly negligently transfused plaintiff’s mother with incompatible blood when she was 13 years old owed a duty to the plaintiff to take measures to prevent harm although plaintiff was not conceived for several years following the negligent transfusion. There was no previous Illinois precedent which would govern the court in its decision as it questioned whether the doctor and the hospital were under the alleged duty. The catch-phrase “foreseeability of harm” would hardly suffice as a determinant of duty because of the remoteness and unusual nature of the injury. Rather, the court considered the duty question as a matter of policy. The court noted that because the appellate court had found the risk of harm reasonably foreseeable, it assumed that duty was established. That supposition was rejected:

“Because the appellate court found the risk of harm reasonably foreseeable, it assumed duty was established, and concluded that the delay between the act and the injury was not a bar to ' the action.
The implication in the appellate court’s opinion that duty and foreseeability are identical in scope is not altogether correct. In Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, it was pointed out that ‘the existence of a legal duty is not to be bottomed on the factor of foreseeability alone.’ There, quoted with approval, was Dean Leon Green’s observation:
[Here the court quotes the segment of Professor Green’s article we set forth above as used in Curds v. Brennan.]”

Perhaps most telling of the inappropriateness of “foreseeability” in the determination of duty is the fact that there are cases in which foreseeability of harm was present, but defendant was nevertheless found to be under no duty to guard against harm to the plaintiff. Cf. Osborne v. Sprowls (1981), 84 Ill. 2d 390, 396, 419 N.E.2d 913, 916 (“It is true, as defendant argues, that the foreseeability of an occurrence does not ipso facto create a duty to take all measures necessary to prevent its occurrence”); Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 355, 367 N.E.2d 1250, 1253 (“Are there areas of foreseeable harm in which no duty arises? In some instances, the answer is clearly ‘Yes’ ”); Mieher v. Brown (1973), 54 Ill. 2d 539, 545, 301 N.E.2d 307, 310 (“Although the injury complained of may have been, in a sense, foreseeable, we do not consider that the alleged defective design created an unreasonable danger or an unreasonable risk of injury”); see also Cunis v. Brennan; Lance v. Senior; Gustafson v. Mathews (1982), 109 Ill. App. 3d 884, 441 N.E.2d 388.

We have suggested that while our courts generally incorporate foreseeability as an element of the determination of duty, nevertheless, when it becomes necessary to inquire critically into the true basis of duty, “foreseeability of harm” does not enter into the process. Rather, the courts focus on public policy considerations. Again, the Renslow case furnishes an apt illustration. There, a duty was found to exist despite earlier authority to the contrary. The court based its decision on public policy considerations stemming from advances in the science of blood typing and transfusion. In basing its decision on policy, the court said:

“Various commentators have criticized the concept of duty and have pointed out, we think correctly, that ‘ “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ Prosser, Torts sec. 53, at 325-26 (4th ed. 1971). See Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953); White, The Right of Recovery of Prenatal Injuries, 12 La. L. Rev. 383, 401 (1952).
We are aware that two recent cases, Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir. 1973), 483 F.2d 237, and Park v. Chessin (Sup. Ct. Queens County 1976), 88 Misc. 2d 222, 387 N.Y.S.2d 204, have focused upon causation, rather than upon traditional concepts of duty, in permitting a cause of action based on wrongful conduct prior to the plaintiff’s conception. (See generally Sylvia v. Gobeille (1966), 101 R.I. 76, 79, 220 A.2d 222, 224; Sinkler v. Kneale (1960), 401 Pa. 267, 273, 164 A.2d 93, 96.) It has been aptly observed, however, that ‘[cjausation cannot be the answer; in a very real sense the consequences of an act go forward to eternity, and back to the beginning of the world. Any attempt to impose responsibility on such a basis would result in infinite liability for all wrongful acts, which would “set society on edge and fill the courts with endless litigation.” ’ (Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 24 (1953).) Thus, policy lines, to some extent arbitrary, must be drawn to narrow any area of actionable causation. ***
We reaffirm the utility of the concept of duty as a means by which to direct and control the course of the common law. But examples of changing notions of legal duty in the area of products liability, as well as the progressive expansion of duty in prenatal cases already documented, demonstrate that duty is not a static concept.
* * *
Logic and sound policy require a finding of legal duty in this case.” (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 356-59, 367 N.E.2d 1250, 1254-55.)

In Mieher v. Brown the court concluded its discussion of the duty issue with this statement: “Public policy and social requirements do not require that a duty be placed upon the manufacturer of this truck to design his vehicle so as to prevent injuries from the extraordinary occurrences of this case.” (Mieher v. Brown (1973), 54 Ill. 2d 539, 545, 301 N.E.2d 307, 310.) This language was adopted and quoted in Cunis v. Brennan.

Some discussion of the policy basis of duty is warranted. It is necessarily a nebulous and ill-defined area of the law. It is a reflection of the needs, the wishes and the tolerances of society as determined by the court as it faces the duty issue. The court’s perceptions of duty in negligence cases will change as society changes. The true essence of the process of determining duty is revealed in the fact that different judges, different courts, can justifiably reach different conclusions on the existence of a duty from a consideration of the same set of facts.

The policy basis of duty has been discussed by legal scholars at some length. Although speaking of the development of law in a broader sense, and not merely of negligence actions, Oliver Wendell Holmes cogently described policy as the basis for the determination of duty in negligence cases:

“[I]n substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.” O. Holmes, The Common Law 35-36 (1881).

Speaking to the specific situation that concerns us, Professor Leon Green in The Duty Problem in Negligence Cases, 28 Colum. L. Rev. 1014, 1034-35 (1928), suggests the following as the factors that underlie the policy determinants of duty:

“The following are believed to be the factors of most significance in influencing the determination of duties and through them the limits of the protection afforded by law. There are doubtless others:
1. The administrative factor.
2. The ethical or moral factor.
3. The economic factor.
4. The prophylactic factor.
5. The justice factor.
Each of these must be satisfied somewhat in every acceptable decision. No judgment can long prove acceptable which develops very great pressure at any one of these points. No one can be overstressed, though now one and then the other will seem to be dominant. If a human desire or interest cannot be given protection without offending one or more of what might be called the ‘social senses’ corresponding to these several factors, then it must go without protection; there is no duty to respect it. These ‘senses’ as developed in judges and through the judicial process are therefore of the greatest importance. Their influence can be demonstrated in hundreds of cases.”

In much the same vein is the statement of Professor Prosser regarding the policy foundation of duty:

“ ‘[D]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.
* * *
[T]he courts have merely ‘reacted to the situation in the way in which the great mass of mankind customarily react,’ and that as our ideas of human relations change the law as to duties has changed with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.” Prosser, Torts sec. 54, at 326-27 (4th ed. 1971).

With the foregoing analysis as our guide, we turn to the consideration of the singular issue of the instant case: Did defendants owe a duty to plaintiff to take measures to protect him from the injury he received as a result of the described occurrence? It cannot be seriously questioned that plaintiff’s injury was a foreseeable consequence of the backing of a car by a patron of defendants’ tavern from their parking lot onto the highway. Any jury could reasonably so conclude. Experience has taught us that any time a car is backed from adjoining land onto a busy street or highway during the nighttime, a collision with oncoming traffic can be an expected consequence. But is the owner of the adjacent land from which the car driver backs onto the highway under a duty to protect travelers on the highway from injury which results from a collision that occurs entirely within the confines of the highway? The answer must be no. The trial court so held and we affirm. This is especially true where, as here, the collision did not occur upon the defendants’ land and no condition of the land, no structure of any kind upon the land, and no activity conducted upon the land is alleged to have been a contributing cause of the collision. There was nothing on defendants’ land that interfered with the patron’s view of oncoming traffic upon the highway. Although the parking lot from which the patron backed was a narrow one, there is nothing about the mere size of the lot that should impel the court to impose a duty upon defendants. The patron could have been parked on a large lot, backed his car to a point near the highway, stopped, and then proceeded into the highway and the collision. Thus, we regard the size of the lot as of no consequence in this case.

It is worthy of consideration that the patron of defendants’ tavern had not parked his car in violation of section 11 — 1303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95V2, par. 11 — 1303). Additionally, the patron’s backing maneuver was, absent the collision, not in violation of the backing statute (Ill. Rev. Stat. 1977, ch. 95½, par. 11-1402).

Here, defendants are charged with nothing but utilizing a parking lot that lies in close proximity to a highway. Plaintiff furnishes no case or other authority that has imposed a duty upon landowners to take measures to protect persons using a public street or highway adjacent to a parking lot from injury from persons backing from the parking lot into the street or highway. Our own research has not disclosed any such authority. We find no reasons founded in policy which would require that such duty be imposed. In fact, it is our perception that policy would dictate to the contrary. Any other result would cast an unreasonable burden upon owners of property containing parking lots or driveways adjacent to public streets and highways.

Under the circumstances shown by this case, society has cast the burden of due care solely upon the drivers of the vehicles involved. Defendant has cited an Oklahoma case that is Close on its facts to this one, Safeway Stores, Inc. v. Musfelt (Okla. 1960), 349 P.2d 756. The Oklahoma court said it very well:

“It is a matter of common knowledge that most residences and many business establishments have driveways leading from the streets across sidewalks onto their premises where cars are parked, and that such vehicles must be backed up (or out) in order to leave the premises. Under these circumstances the property owner is not liable because the owner cannot control and has no right to control the drivers of the vehicles. However, the property owner has a right to expect the drivers of cars to look before they back out ***.” Safeway Stores, Inc. v. Musfelt (Okla. 1960), 349 P.2d 756, 758.

Plaintiff has cited Kubala v. Dudlow (1958), 17 Ill. App. 2d 463, 150 N.E.2d 643, and other cases of similar nature. The Kubala case, and the others cited, involved accidents caused by structures on land adjacent to a highway or materials that were permitted to escape from land and cause accidents on adjacent highways. Such cases present no authority for plaintiff’s argument here.

Affirmed.

KARNS, J., concurs.

JUSTICE HARRISON,

dissenting:

I agree with the majority opinion insofar as it recognizes that duty and foreseeability are not synonymous, and that the inquiry into the existence of a duty in a given factual situation is one for the judge, and not the jury, to make. I cannot accept, however, the majority’s unwillingness to recognize the relevance of foreseeability regarding the duty question. Such unwillingness is contrary to law and, in my view, produces an erroneous result in the instant case.

As noted by the majority, the existence of a legal duty “is not to be bottomed on the factor of foreseeability alone.” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617.) It does not follow, however, that considerations of foreseeability are not germane to the duty question, and the majority’s conclusion that foreseeability of harm “does not enter into the process” of the duty inquiry is simply incorrect. Rather, foreseeability is one factor to be considered, along with “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231.) While the weight accorded to each of these factors may vary in different factual settings, I believe that the nature of duty itself, as that term has developed in our jurisprudence, necessarily incorporates some consideration of the foreseeability element. A duty is an obligation imposed by the law upon a person which requires the person to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554, 328 N.E.2d 538.) In assessing whether to impose that obligation on a defendant, it seems to me that we must determine whether the events alleged in the complaint are among those which the defendant might reasonably have anticipated would occur. Upon making that determination, we are required to apply to the pleaded facts the remaining tests articulated by our supreme court: the likelihood of injury, the magnitude of the burden of guarding against that injury, and the consequences of placing that burden on the defendant. While each of these determinations must then be weighed and considered in making the final decision as to whether a duty exists, the importance of the foreseeability factor cannot be ignored. However great the likelihood of injury or however small the burden on a defendant to prevent it, a defendant could not properly be found to owe a duty to guard against an accident or event which neither the defendant nor anyone else could possibly have foreseen. Conversely, a defendant may well owe a duty in a situation where the event leading to litigation is readily foreseeable, even though the burden of guarding against injury is relatively great. In any situation, consideration of foreseeability is not only important; it is, as observed by a former justice of our supreme court, “the touchstone of the quality of an act as negligence, the most important test in determining duty” (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 364, 367 N.E.2d 1250 (Dooley, J., concurring)).

Finally, I believe that proper application of these tests of duty to the facts of this case compels the conclusion that plaintiff’s complaint states a cause of action. As conceded by the majority, it is readily foreseeable that those backing from defendants’ tavern into the highway may be involved in accidents. The likelihood of injury from such collisions is undeniably great, and it is a matter of equally common knowledge that injuries resulting from an automobile crash may be of severe magnitude. The burden of guarding against the injury is not great, as a simple warning sign or alteration of the manner in which customers’ vehicles are allowed to be parked could avoid the problem. The fact that the injury did not occur on defendants’ land is not, in my view, significant, given the public nature of defendants’ business, the location of the parking lot near the curve on the highway, the occurrence of previous accidents at the location in question, and the obvious foreseeability of the accident here. It has been said that “[ejvery person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act” (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 622, 126 N.E.2d 836), and I cannot accept the conclusion that such duty does not extend to these defendants under the facts pleaded here.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY A. KISS, Defendant-Appellee.
    Fifth District
    No. 5—83—0246
    Opinion filed March 2, 1984.

      John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This case involves a State appeal following an implied consent hearing in which the trial court refused to suspend the defendant’s driver’s license for failure to submit to a breath test as requested. The basis of the trial court’s ruling was that since the applicable statute (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501) permits the chemical analysis of both blood and urine, in addition to breath analysis, to determine a person’s blood-alcohol content, a motorist arrested for driving while under the influence of alcohol must be allowed the opportunity to refuse each of these three types of tests before he can be said to have refused to submit to a test for purposes of the statute. Since, in the instant case, the defendant was offered and refused only the breath test, the trial court held that the requirements of the statute had not been met so as to warrant the suspension of the defendant’s license. We reverse.

The defendant was arrested on December 24, 1982, for driving while under the influence of alcohol. The arresting officer subsequently filed an affidavit pursuant to statute (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1), stating that the defendant had refused “to submit to the chemical test or tests requested in accordance with Section 11 — 501.1 of the Illinois Vehicle Code, after being informed of the possible consequences of [his] refusal.” The defendant filed a request for an implied consent hearing. On February 18, 1983, the defendant entered a plea of guilty to the offense of driving while under the influence of alcohol and was placed on supervision for a period of 12 months and ordered to pay a fine of $400.

At the implied consent hearing held on March 9, 1983, Trooper David Mileur testified that he had been called to the Jackson County Sheriff’s Department on the date in question to administer a breathalyzer test to the defendant. Prior to administering the test Trooper Mileur read a card to the defendant advising him of the penalties for refusing to take the test. The defendant indicated that he did not wish to take the test, and none was given.

On cross-examination defense counsel asked Trooper Mileur if he had requested the defendant to submit to a blood or urine analysis, and Mileur replied that he had not. Mileur stated that “he [the defendant] wasn’t going to take any test is the way he put it [sic].” On redirect Trooper Mileur testified that the defendant had not requested any other tests.

The defendant presented no evidence, and, following argument by counsel, the trial court found (1) that the defendant was arrested for driving while under the influence of alcohol and (2) that there was probable cause for his arrest. The trial court additionally found that the defendant had refused to take a breath test. The court held, however, that this was not sufficient to warrant the suspension of the defendant’s license, reasoning as follows:

“[P]rior to January 1, 1982, the statute [Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1] specifically said that you impliedly consent to take a test of chemical analysis, analysis of breath only [sic]. The statute now reads, tests of blood, breath, or urine, and the way that is listed one, two, or [sic] indicates to me that they are in the alternative, one of the three, and I think there are three tests that you impliedly consent to. There is no question in my mind that [the defendant] refused to take a breath test, but the legislature said there are three. He was not asked to nor did he refuse to take either a blood test or a urinalysis, and based upon the statute as it now reads, this conviction was after January 1, 1982,1 am going to find that he did not refuse to take the test.”

On appeal from the trial court’s ruling, the State contends that the court’s interpretation of the statute contradicts both the language and the purpose of the statute. The statute provides, in pertinent part:

“Suspension of drivers license — Implied consent, (a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11 — 501.2, to a chemical test or tests of blood, breath, or urine for the. purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 or a similar provision of a local ordinance. The test or tests shall be administered at the direction of the arresting officer. The law enforcement agency employing said officer shall designate which of the aforesaid tests shall be administered by their enforcement personnel.
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(c) A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in suspension of such person’s license to operate a motor vehicle for six (6) months for the first such arrest and refusal and a suspension of such privilege for 12 months for the second and each subsequent such arrest and refusal within 5 years. Following this warning, if a person under arrest refuses upon the request of a law enforcement officer to submit to a test designated by the law enforcement agency as provided in paragraph (a) of this Section, none shall be given, but the law enforcement officer shall file with the clerk of the circuit court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test or tests requested under the provisions of this Section.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1.

The issue here presented of whether, under the implied consent statute as amended (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1), a motorist must be allowed to choose among the three specified types of blood-alcohol tests is, so far as we are aware, one of first impression in this State. In dealing with this issue, it is necessary to determine what constitutes a “refusal” for purposes of the statute.

While, as the trial court noted, a motorist under the statute impliedly consents to all three types of blood-alcohol tests, it is faulty logic to conclude from this that the statute requires a refusal of each type of test. Rather, the statute explicitly states that a person requested to submit to “a test” authorized by statute shall be warned that “a refusal to submit to the test” will result in suspension of that person’s driving privileges. Moreover, such a test is to be administered at the direction of the arresting officer, and the law enforcement agency employing that officer is to designate which of the enumerated tests shall be administered. It is the plain meaning of the statute, therefore, that a motorist is deemed to have consented to any or all of the tests which, in the discretion of the law enforcement agency, he is requested to take, and a refusal to submit to any one of these tests upon request constitutes a refusal for purposes of the statute.

This reading of the statute is not only evident from the language of the statute but is also consistent with the statutory purpose of enabling law enforcement officers to obtain objective evidence of an offender’s blood-alcohol content while preserving his due process rights. (See People v. Malloy (1980), 83 Ill. App. 3d 344, 403 N.E.2d 1221.) The statutory amendment referred to by the trial court allowing blood and urine tests in addition to the breath test provided under the former statute (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1) was designed to facilitate enforcement of the Illinois law against driving while under the influence of alcohol (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501). (See Comment, Drunk Drivers Versus Implied Consent: A Sobering New Illinois Statute, 15 J. Mar. L. Rev. 479 (1982).)-Indeed, the addition of the new tests reflect the fact that intoxicated drivers often end up in a hospital, where blood and urine tests are more conveniently performed. Also, the provision authorizing blood tests was made necessary by another amendment that removed the ban against testing the blood-alcohol content of a dead or unconscious person (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1(b)).

From an examination of the statute, we find no indication that the legislature’s addition of permissible means of determining blood-alcohol content was meant to provide the offending motorist with a choice of the types of tests specified. Such an interpretation would actually enable an offender to defeat the purpose of the statute by demanding a test that was unavailable and would, at the same time, fail to advance the offender’s due process rights. (A person tested may, under section 11 — 501.2(a)(3) (Ill. Rev. Stat. 1981, ch; 95½, par. ll-501.2(a)(3)), secure an additional test or tests by a qualified person of his own choosing.) We hold, therefore, that the defendant’s refusal in the instant case to submit to a breath test upon request by the officer in question was sufficient to constitute a refusal for purposes of the statute.

For the reasons stated in this opinion, we reverse the judgment of the circuit court of Jackson County and remand this cause with directions to make a finding that the defendant refused to submit to a test upon request and to enter a supplemental order reflecting this finding.

Reversed and remanded with directions.

WELCH, P.J., and HARRISON, J., concur.