author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CAREY FOOTE et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2197
    Opinion filed February 26, 1982.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Dean C. Morask, Assistant State’s Attorneys, of counsel), for the People.

      Adam Bourgeois and Michael Null, both of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

The 18 individual defendants herein were charged with obscenity for exhibiting films in violation of section 11 — 20(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20(a)(3)). On August 13,1979, 37 search warrants were issued authorizing the seizure of one film at each of 37 different adult bookstores in Chicago, Illinois. The 18 defendants were arrested following the seizure of 18 of these films. On July 3, 1980, the circuit court granted defendants’ pretrial motions to quash the search warrants and suppress the films seized pursuant thereto.

The State appeals contending that the court erred in finding that: (1) the complaints supporting the search warrants were insufficient to establish probable cause; (2) a prior adversary hearing was required on the issue of probable obscenity; and (3) the issuing magistrate was required to view the films prior to the issuance of the warrants.

This appeal involves the procedures surrounding the searches and seizures of the 18 subject films. A brief account of the facts relating to the issuance of the instant search warrants follows. On August 10 and 13,1979, Chicago police officers, working undercover, entered 37 adult bookstores in the city of Chicago to view films. In each instance an officer obtained quarters from a clerk and entered a booth containing a coin-operated movie projector. Using the quarters to activate the projector, each officer viewed a movie. Then, at 5:20 p.m. on August 13, the officers appeared ensemble before the Hon. James M. Schreier and presented verified complaints requesting search warrants. Each complaint recited the location of the store and the particular items which might constitute evidence of obscenity, specifically one film located in a specified booth in each store. The complaints also each contained a narrative description of the officer’s observations. The following affidavit of Officer James Dillon describes the film entitled “Photographer John Holmes” and is representative of those presented:

“On 10 Aug. 79 at approx. 12:45 hrs. p.m. I officer James Dillon went to the above described location. I purchased 8 quarters from a male white * * * I then entered booth No. 1 and deposited a quarter * * * With that a movie began to run. Approx, each 2 min. the movie would cease to run and it became necessary to insert another quarter for the purpose of continuing the movie. The movie depicts the male performing cunnilingus upon the female, they then have sexual intercourse with the male on top, and then with the female on top, doggie style, and then with both actors laying side by side performing sexual intercourse. The male inserts his finger in the female’s anus while she sits on his penis and he is laying on the floor. There is soft music in the background. The female moans during the movie and says (fuck me fuck my brains out). The male ejaculates in the female’s mouth and she licks his penis clean of all semen * * * The above described film had no apprent [sic] literary, scientific or artistic value, nor any political significance.”

On the basis of these complaints, Judge James M. Schreier issued warrants for the seizure of the described films at between 5:20 p.m. and 7:20 p.m. on August 13, 1979. On August 14, 1979, simultaneous searches were conducted at the 37 stores and the films in question were seized. The 18 instant defendants were arrested in connection with exhibition of 18 of these films.

On July 3, 1980, the trial court granted the defendants’ pretrial motions to quash the search warrants and suppress the 18 films from evidence. In so ordering the court found the complaints to contain an “overwhelming number of legal conclusions” regarding the lack of literary, artistic, political, scientific or educational value of the films. The court also stated that the police officers did not demonstrate that they had any expertise in determining whether a film is devoid of literary, artistic, scientific or political value. Further, the court cited Heller v. New York (1973), 413 U.S. 483, 37 L. Ed. 2d 745, 93 S. Ct. 2789, for the proposition that the issuing magistrate was required to view the films before warrants could issue and that an adversary hearing was necessary prior to the seizure of the films.

Opinion

The State initially argues that the affidavits supporting the complaints were sufficient to provide probable cause to believe that the films described were obscene. It is firmly established that the warrant must stand or fall solely on the contents of the affidavit if it is the only matter presented to the court. (United States v. Sherwin (9th Cir. 1977), 572 F.2d 196.) The question before the magistrate is whether the affidavits establish probable cause to believe that a violation of the obscenity laws has occurred. (United States v. Middleton (5th Cir. 1979), 599 F.2d 1349.) The instant affidavits used to obtain the search warrants contained more than the conclusory allegations of obscenity. As evidenced by the above representative affidavit, they stated detailed scene-by-scene descriptions of the explicit sexual activity seen in the films. The descriptions in the officers’ affidavits certainly provided a factually sufficient basis for the judge to make his own determination of probable cause. Therefore, the fact that the affidavits contained the officers’ conclusions regarding the literary, artistic, political, scientific or educational value does not render the affidavits insufficient as long as there is a sufficient factual basis contained therein for the trial judge to focus searchingly on the question of obscenity in regard to the film. See People v. Hobbs (1978), 59 Ill. App. 3d 793, 375 N.E.2d 1367.

The State next argues that the court erred in quashing the warrants and suppressing the films on the ground that no adversary hearing was conducted prior to the seizure of the films. Defendants argue that the 37 seizures in this case constituted a single massive seizure and urge that under Marcus v. Search Warrant (1961), 367 U.S. 717, 6 L. Ed. 2d 1127, 81 S. Ct. 1708, and A Quantity of Copies of Books v. Kansas (1964), 378 U.S. 205, 12 L. Ed. 2d 809, 84 S. Ct. 1723, a prior adversary hearing was constitutionally required.

The defendants’ reliance on these decisions is misplaced. Initially, we do not agree that the instant seizures constituted a single massive action for purposes relevant to determining probable cause for obscenity. Only one copy of each film was seized from each of the 18 bookstores searched. (Compare Marcus, which involved seizure by police officers acting pursuant to a general warrant of 11,000 copies of 280 publications; 367 U.S. 717, 723, 6 L. Ed. 2d 1127, 1131, 81 S. Ct. 1708, 1711.) Moreover, as noted by the United States Supreme Court in Heller v. New York (1973), 413 U.S. 483, 37 L. Ed. 2d 745, 93 S. Ct. 2789, Marcus and A Quantity of Copies of Books were cases concerning the seizures of large quantities of books for the sole purpose of destruction. Under such circumstances it was held that a prior judicial adversary proceeding was required. In contrast, the Heller decision observed that the seizure of films for destruction or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding; in the latter case, there is no absolute right to a prior adversary hearing.

In Heller, the Supreme Court set forth the following rule which leads us to the conclusion that no prior adversary hearing was required in the instant case. The court stated:

“If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible.” 413 U.S. 483, 492, 37 L. Ed. 2d 745, 754, 93 S. Ct. 2789, 2795.

In the instant case the films were not seized for the purpose of preventing continued exhibition, but were instead seized as evidence in bona fide obscenity prosecutions and defendants were entitled upon request to a prompt hearing regarding the obscene nature of the films seized. (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 12.) Accordingly, the right to a prior adversary hearing is not applicable to the seizure of the films in this case.

Turning to the question of whether the judge was required to view the instant films prior to the issuance of the search warrants, we refer to the appellate court opinion in People v. Hobbs (1978), 59 Ill. App. 3d 793, 375 N.E.2d 1367. This case rejected the defendant’s argument that the judge must personally view similar coin-operated films prior to his determination of probable cause for the issuance of a warrant as long as the affidavit of the person who did view the film is specific and explicit and not merely conclusory. We adopt and concur in the reasoning in Hobbs. Given the nature of the films seized in this case, generally 12 to 18 minute continuous-run coin-operated films containing little or no dialogue or sound track, and the specific and explicit contents of the supporting affidavits, it was not necessary for the judge to personally view the films prior to his determination of probable cause and the issuance of the warrants.

We note that the trial court distinguished and rejected the Hobbs case as a “second district appellate court case from Rockford * * 0 not a first district case, Cook County case.” In Illinois, the opinions of any district of the appellate court are binding on all of the State’s circuit courts. (People v. Spahr (1978), 56 Ill. App. 3d 434, 371 N.E.2d 1261; People v. Hurlbert (1976), 41 Ill. App. 3d 300, 354 N.E.2d 652; see generally 14 Ill. L. & Prac. Courts §83 (1968).) The trial court was not at liberty to discard the Hobbs decision in this case.

Finally, we have considered the defendants’ argument that due to the elapsed time during which the instant warrants were issued, the judge could not have focused searchingly into the probable obscenity of the films. We do not believe this contention can be sustained. The subject matter of the instant films was such that a concise, one-paragraph, scatological, scene-by-scene description provided sufficient information to establish probable cause. We doubt that to focus searchingly upon the matters before the court would have required more time than was utilized in this case. We have examined the complete record and considered the nature of the offenses and have concluded that the procedures used to issue the warrants and seize the films in this case did not lack adequate constitutional safeguards.

For the reasons stated, we reverse the order quashing the search warrants and suppressing the films seized, and remand the cause for further proceedings.

Reversed and remanded.

SULLIVAN, P. J., and LORENZ, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    COTTAGE-63rd STREET CURRENCY EXCHANGE, INC., et al., Plaintiffs-Appellants, v. EDGAR F. CALLAHAN, Director of the Illinois Department of Financial Institutions, et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 81-130, 81-131 cons.
    Opinion filed February 26, 1982.
    James L. Coghlan and John A. Kukanos, both of Chicago (Coghlan, Joyce & Nellis, of counsel), for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellee Edgar F. Callahan.
    Thomas J. Duffy and John L. Roach, both of Chicago, for appellee Thillens, Inc.
   JUSTICE MEJDA

delivered the opinion of the court:

In separate actions plaintiffs, two licensed community currency exchanges, and the Community Currency Exchange Association of lilinois, Inc., a not-for-profit corporation, brought complaints against defendants seeking declaratory relief that a “3% rule” allegedly used by Edgar F. Callahan, the Director of the Illinois Department of Financial Institutions (Director), in approving the applications of ambulatory currency exchanges was invalid and injunctive relief restraining its use as well as the operation of two of defendant Thillens, Inc., ambulatory currency exchanges whose applications were approved through the use of this “3% rule.” Upon the Director’s motion the trial court dismissed both complaints finding that the plaintiffs did not have standing to challenge the Director’s approval of the Thillens’ licenses. Plaintiffs appeal.

The sole issue raised on appeal is whether plaintiffs have standing pursuant to section 4.3 of the currency exchange act (Ill. Rev. Stat. 1979, ch. 16M, par. 34.3) to challenge the issuance of ambulatory currency exchange licenses.

The pertinent allegations of plaintiff Cottage-63rd Street Currency Exchange’s (Cottage) complaint include that in March of 1978 the Director approved a Thillens’ application for a license to serve Woodlawn Hospital; that Cottage is located in the nearby vicinity of Woodlawn Hospital and cashes checks of some of the employees'of Woodlawn Hospital; and that as a result of the Director’s approval of the license, Cottage would suffer a decrease in net profits. In count I of its complaint, Cottage further alleged that section 4.3 of the currency exchange act (Ill. Rev. Stat. 1979, ch. 16/2, par. 34.3) requires that the Director, when investigating and considering a location license application of an ambulatory currency exchange consider “the effect that granting a license will have on the financial stability of the community currency exchanges”; that in considering such effect on financial stability the Director utilizes the “3% rule” in contravention to the rule-making procedures set forth in the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1001 et seq.); that the “3% rule” was applied to Cottage when the Director considered the Thillens’ application to serve Woodlawn Hospital; and that the above actions of the Director rendered the granting of the license null and void. In count II Cottage realleged the allegations of count I and further alleged that the “3% rule” was arbitrary, unreasonable, capricious and inconsistent with the mandate of section 4.3 of the currency exchange act that the Director evaluate the effect that granting an ambulatory license will have on the financial stability of community currency exchanges; that the “3% rule” does not appear to have any reasonable or logical basis as a measure of the effect upon the financial stability of community currency exchanges; that the “3% rule” considers only the impact upon Cottage’s gross revenues, whereas, Thillens actually competes with Cottage’s check cashing business; that the “3% rule” ignores the impact upon Cottage’s net income, the actual measure of impact upon the financial stability of Cottage; and that the “3% rule” focuses only upon the economic impact upon a single community currency exchange, whereas section 4.3 mandates that the Director consider the effect upon the financial stability of all community currency exchanges. In both counts I and II, Cottage sought a declaratory judgment that the license issued was null and void, and an injunction restraining the Director from employing the “3% rule” and restraining Thillens from servicing Woodlawn Hospital.

In a separate action plaintiff Root and Halsted Currency Exchange’s (Root) complaint consisted of four counts, all of which challenged the action of the Director in granting a license to Thillens to service the Zenith Electric Company, located 2& blocks from Root. Count I of the Root complaint alleged that Root cashes checks of some of the employees of the Zenith Electric Company and that as a result of the granting of the license to Thillens it would suffer a decrease in net profits. The allegations of count I and II of the Root complaint were essentially the same as those of the Cottage complaint. Count III of the Root complaint further alleged that in considering the financial impact upon Root and in granting the license to Thillens the Director did not follow its own “3% rule.” Count IV (denominated “Count V‘” in the complaint) alleged that the granting of the license to Thillens would have a severe financial impact on Root, could possibly force Root to cease operations, and that the action of the Director was arbitrary and unreasonable.

Thillens, Inc., filed an answer to Cottage’s complaint. The Director filed a motion to dismiss the complaint of Cottage and a supporting memorandum which specifically raised the argument that Cottage did not have standing to challenge the Director’s issuance of the license to Thillens. On August 22,1978, that motion was denied. Subsequently, the Director filed an answer to Cottage’s complaint.

After document production by the Illinois Department of Financial Institutions and the taking of the Director’s deposition and that of Michael Fryzel, the Supervisor of the Currency Exchange Division of the Illinois Department of Financial Institutions, Cottage moved for summary judgment on counts I and II of its complaint. In his memorandum in response to Cottage’s motion the Director again raised the argument that Cottage had no standing to contest the grant of the license to Thillens. The court made a specific finding that Cottage did not have standing to challenge the issuance of the license to Thillens, and dismissed Cottage’s complaint. Cottage timely filed a motion to reconsider and vacate that order. The Director’s motion to dismiss the companion Root complaint was set for ruling on the same date. On December 16, 1980, after a hearing, the trial court entered separate orders affirming the dismissal of Cottage’s complaint and dismissing Root’s complaint. In each order the trial court made a specific finding that the plaintiffs lacked standing to challenge the action of the Director in granting the licenses to Thillens. Plaintiffs’ appeals have been consolidated.

Opinion

Essentially, there are two main, general requirements for standing where, as here, a party brings an action for declaratory relief. There must be an actual controversy and the party seeking relief must possess a personal claim, status or right which is capable of being affected. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298.) Where a suit alleges injury due to the violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by the statute or for whose benefit the statute was enacted and to whom a duty of compliance is owed. (Lynch v. Devine (1977), 45 Ill. App. 3d 743, 359 N.E.2d 1137.) Plaintiffs do not and cannot base their claim of standing on the Administrative Review Act. (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.; Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App. 3d 896, 364 N.E.2d 449.) Rather, plaintiffs assert that they have a statutory right to challenge the actions of the Director in issuing ambulatory licenses because they are members of a class protected by the currency exchange act and have suffered an economic injury in fact by the granting of the Thillens’ licenses. Plaintiffs specifically and solely rely on the latest amendment to section 4.3 of the currency exchange act (Ill. Rev. Stat. 1979, ch. I6J2, par. 34.3), the section addressing the approval by the Director of ambulatory exchange licenses, as the basis for their assertion of standing. The previous version of this section stated in pertinent part:

“Upon receipt of an application from an ambulatory currency exchange for the conduct of its business at a location to be served by it, the Director of Financial Institutions shall investigate the need of the community for the establishment of such business at the location specified in the application. If the issuance of a license to engage in such business at the location specified will not promote the convenience and advantage of the community in which such business is proposed to be conducted, then the application shall be denied * 0 (Ill. Rev. Stat. 1975, ch. I6J2, par. 34.3.)

Under court construction of this section the convenience and economic advantage of the location for which the ambulatory application was made had been rejected as a proper criterion. (Thillens, Inc. v. Department of Financial Institutions (1962), 24 Ill. 2d 110, 180 N.E.2d 494.) Furthermore, the sole test provided by this section was construed to be “ ‘the convenience and advantage’ of the community.” (24 Ill. 2d 110, 118, 180 N.E.2d 494, 498.) However, as currently amended section 4.3 (Ill. Rev. Stat. 1979, ch. 16v2, par. 34.3, now at Ill. Ann. Stat., ch. 17, par. 4811 (Smith-Hurd 1981)) requires that:

“Upon receipt of an application from an ambulatory currency exchange for the conduct of its business at a location to be served by it, the Director of Financial Institutions shall cause an investigation to be made to determine whether to issue said license. The Director shall employ the following criteria in making his determination:
(1) the economic benefit and convenience to the persons to be served at the location for which a license has been requested;
(2) the effect that granting a license will have on the financial stability of community currency exchanges;
(3) safety benefits, if any, which may accrue from the granting of the location license;
(4) the effects, if any, which granting of a license will have on traffic, and traffic congestion in the immediate area of the location to be served;
(5) such other factors as the Director shall deem proper and relevant.”

The purpose of the currency exchange licensing requirement is to insure against “[t]he unrestricted issuance of licenses in a community to the point of saturation [which] would tend to decrease the net earnings of each exchange to the point of insolvency of one or more of the exchanges with the inevitable result of losses to the public.” (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 95, 110 N.E.2d 234, 237.) Thus, the primary purpose of the currency exchange act has been held to be the protection of consumers served by currency exchanges. (First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 388 N.E.2d 17.) Plaintiff, however, contends that the amended language of section 4.3 evidences a clear legislative intent to protect the interests of community currency exchanges by bringing them within the class protected by the statute. We disagree.

In determining legislative intent it is presumed that the legislature acted with knowledge of judicial decisions concerning prior and existing law. (People v. Choate (1979), 71 Ill. App. 3d 267, 389 N.E.2d 670; Nardi v. Segal (1967), 90 Ill. App. 2d 432, 234 N.E.2d 805.) The amendment of this section clearly evidences a legislative intent to substitute the “community benefit” test previously applied in the approval of ambulatory licenses, with a “location benefit” criterion — a criterion which had been specifically rejected by previous judicial decisions. Furthermore, the Senate debate on the amended language indicates that the “effect that granting a license will have on the financial stability of community currency exchanges” was included to offset any competitive advantage accruing to ambulatory exchanges by the utilization of the “location benefit” criterion rather than the “community benefit” test which potential community currency exchange licensees must still meet to secure licensing approval. (Transcript Senate Proceedings, May 26, 1977, at 99-100.) Thus, we conclude that the amendment to section 4.3 has not elevated the community currency exchange to the status of the consumer whom the act was originally designed to protect. It is further worth noting that the amendment to section 4.3 upon which plaintiffs rely occurred after this court’s decision, in Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App. 3d 896, 364 N.E.2d 449. There we held that the approval of community currency exchange license applications was not a final administrative decision reviewable under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) because the currency exchange act imposed no duty on the Director of the Illinois Department of Financial Institutions to hold hearings, make findings or prepare or file a written order or decision when granting licenses. Similarly, no such procedure is required when granting ambulatory exchange licenses. We find it significant that notwithstanding the holding of Roosevelt-Wabash, the legislature, although amending section 4.3 in other respects, did not amend it so as to provide for administrative review of the Director’s decision to grant ambulatory exchange licenses. We conclude therefore that section 4.3 in and of itself does not give plaintiffs standing to judicially challenge the Director’s approval of ambulatory currency exchange licenses.

For the reasons cited herein the orders dismissing the respective complaints are affirmed.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.


text:
    PERCY MARTIN, Plaintiff-Appellant, v. THE HERTZ CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 81-147
    Opinion filed February 26, 1982.
    Rehearing denied March 26, 1982.
    Robert E. Cleveland, of Chicago, for appellant.
    Kiesler & Berman, of Chicago (Stephen B. Frew, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff brought a single-count negligence action against defendant. The court granted defendant’s motion for summary judgment finding plaintiff guilty of contributory negligence as a matter of law. Plaintiff appeals.

The determinative issue raised on appeal is whether the trial court erred in granting defendant’s motion for summary judgment on the basis that plaintiff was contributorily negligent as a matter of law.

Plaintiff filed a complaint naming as defendants The Hertz Corporation (Hertz) and U.S. Steel Supply Division. The complaint alleged in pertinent part that on February 2, 1977, plaintiff, an employee of Industrial Personnel Corporation, was driving a truck on Temporary 1-55 in Livingston County, Illinois; that U.S. Steel Supply Division had leased the truck from its owner, Hertz; that it was Hertz’ duty to maintain the truck, including its tires; that defendants had a duty to use reasonable care so as not to injure the plaintiff, including the duty to use reasonable care to maintain the tires on the truck plaintiff was operating; that notwithstanding their duties, the defendants carelessly and negligently maintained the truck and tires, ignored warnings about the truck and tires, and put dangerous tires on the truck. The complaint further alleged that as a direct and proximate result the truck in which plaintiff was driving slid off the roadway and jackknifed, causing plaintiff serious, permanent internal and external injuries and other damages. Plaintiff also alleged that at all times he exercised due care and caution for his own safety. Plaintiff prayed judgment against defendants for a sum in excess of $15,000 and demanded a jury.

Defendants filed an answer denying that plaintiff was an employee of Industrial Personnel Corporation and averring that he was a loaned employee to U.S. Steel Supply Division; denying the alleged date of the lease of the truck by U.S. Steel Supply Division from Hertz, and further averring that Hertz was only the owner of the tractor and not the trailer involved; denying plaintiff’s allegations as to the duty owed him by defendants as conclusory and denying defendants were guilty of any wrongful conduct; denying that plaintiff was in the exercise of due care for his safety and free from contributory negligence; denying plaintiff’s allegation as conclusory that defendants had a duty to use reasonable care so as not to injure plaintiff; denying committing the alleged acts of negligence; and finally denying that plaintiff was injured. Thus, defendants denied each of the allegations of plaintiff’s complaint. Subsequently plaintiff moved to nonsuit U.S. Steel Supply Division. The motion was granted, and U.S. Steel Supply Division was dismissed as a party defendant.

On August 8, 1980, following discovery but prior to any trial on the merits, Hertz moved for summary judgment on the basis that plaintiff was contributorily negligent as a matter of law because (1) it was impossible to have a one-vehicle accident without negligence on the part of the driver, (2) even assuming the tires were defective, plaintiff knew of the defect and continued to drive the truck on an icy and snowy highway. The motion further stated that the tires were examined after the accident occurred and were found to be in compliance with Department of Transportation specifications and that the left front tire had been replaced shortly before the accident. Hertz prayed that as there was no issue of material fact, summary judgment be entered in defendant’s favor. Attached to defendant’s motion was an excerpt from plaintiff’s deposition. Plaintiff testified in the deposition that he had inspected the truck daily, that he had reported daily for the two prior months that the tires, particularly the front tires, were worn and threadless; that one of the tires had been changed before the accident; that plaintiff was driving 35 m.p.h. on the day of the accident because the roads were slippery and wet. Based on plaintiff’s knowledge of the allegedly worn condition of the tires, the court found plaintiff guilty of negligence as a matter of law and granted defendant’s motion for summary judgment. Plaintiff appeals.

Opinion

Summary judgment will be granted if the pleadings, depositions, admissions, exhibits and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) However, summary judgment should not be entered evén if there is no dispute in the evidence, if reasonable persons could draw different conclusions from the undisputed evidence. Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277.

Plaintiff asserts that the facts recited in the order and relied on by the court were insufficient to support a finding of contributory negligence, especially as the court failed to consider plaintiff’s age, experience and mental capacity or his state of mind at the time of the accident, citing Porter v. County of Cook (1976), 42 Ill. App. 3d 287, 355 N.E.2d 561. There the court affirmed the judgment of the trial court against Cook County in favor of a mental patient who was seriously burned while confined in the Cook County House of Corrections. The court stated that in considering whether a plaintiff has exercised due care for his safety, the trier of fact must take into account the age, experience and mental capacity of the injured party at the time of the injury. However, plaintiff’s argument implicitly misstates the standard by which his conduct is to be measured. The standard by which conduct for which the plaintiff is responsible is measured, is the conduct of an ordinary prudent person under the same or similar circumstances — the test to be applied is what would a man of ordinary prudence have done or omitted to do in a given state of circumstances. (Chicago Union Traction Co. v. Chugren (1904), 209 Ill. 429, 70 N.E. 573; Roth v. Meeker (1979), 72 Ill. App. 3d 66, 389 N.E.2d 1248.) Although a person should not be held responsible for acts or omissions with respect to his own care and safety which are due to his lack of capacity to appreciate or avoid danger (Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277), every person having the capacity to exercise ordinary or reasonable care for his own safety and protection against injury is required to do so. There is nothing in the record to indicate, nor does plaintiff argue that he suffers from any incapacity such as found in Porter, which would require the application of a different standard to his behavior than that of the ordinary, reasonably prudent person. Nor is there anything in the record to indicate that the court held plaintiff accountable to any standard other than that of a reasonably prudent person.

Plaintiff next asserts that whether he was contributorily negligent was a question of fact for the jury and not a question of law. The general rule is that negligence and contributory negligence are questions of fact for the jury, so long as a question remains as to whether either party has performed his legal duty or has observed that degree of care imposed upon him by law, and the determination of that question involves weighing and considering the evidence. (Piper v. Lamb (1960), 27 Ill. App. 2d 99, 169 N.E.2d 164.) Even where the facts are admitted or undisputed but where a difference of opinion as to the inferences that may legitimately be drawn from them exists, the questions of negligence and contributory negligence ought to be submitted to the jury. (Hitt v. Langel (1968), 93 Ill. App. 2d 386, 236 N.E.2d 118.) Contributory negligence is the failure to exercise ordinary care and ordinary care is that care which a reasonably. prudent person would take to avoid the injury under the circumstances. (Murphy v. Ambassador East (1977), 54 Ill. App. 3d 980, 370 N.E.2d 124.) To be guilty of contributory negligence as a matter of law, it must appear from the undisputed facts that all reasonable minds, exercising fair judgment, would find that there has been contributory negligence. Fishel v. Givens (1977), 47 Ill. App. 3d 512, 362 N.E.2d 97.

Defendant asserted plaintiffs knowledge that the tires were worn before he drove the truck on slippery pavement as the basis for its summary judgment motion. In support of its motion defendant attached excerpts from plaintiffs deposition. A summary judgment motion may be supported by a deposition alone. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 374 N.E.2d 1302.) Plaintiffs deposition indicated that he had inspected the truck daily before the accident and had reported prior to the accident that the tires were worn with no treads. Plaintiff had not measured the tires but had reached his conclusion through visual inspection only. He had complained about their condition for two months prior to the accident. One tire, unidentified, had been changed before the accident. At the time of the accident plaintiff was driving 35 m.p.h. although the speed limit on Temporary 1-55 was 55 m.p.h. Plaintiff described the pavement as wet because it was lightly snowing and the visibility at the time of the accident as clear and very good. Plaintiff said in his deposition he was driving down the road, hit a bump and lost control of the truck. Plaintiff had not seen the bump before he hit it. Plaintiff stated he had been worried about the tires before the accident occurred and was driving more carefully because of them. Plaintiff also stated he had never lost control of the truck before.

Defendant concedes that its motion for summary judgment did not argue that plaintiff was contributorily negligent but rather that plaintiff had assumed the risk of driving with tires he knew were worn. Apparently recognizing that in Illinois the doctrine of assumption of risk in negligence actions has been confined to situations involving persons who have a contractual or employment relationship with the defendant (Court v. Grzelinski (1978), 72 Ill. 2d 141, 379 N.E.2d 281), relationships not asserted by defendant here, defendant contends that the trial court’s order shows that the court based its ruling on the doctrine of contributory negligence. The substance of defendant’s argument is that it was negligence per se for plaintiff to drive the truck on slippery pavement with the knowledge that the tires were worn. Neither plaintiff nor defendant cite authority directly on point. Defendant cites Fore v. Vermeer Manufacturing Co. (1972), 7 Ill. App. 3d 346, 287 N.E.2d 526, in support. There the court held that the plaintiff was contributorily negligent as a matter of law because he knew that the trencher he was operating had faulty brakes, that the brakes would not hold on a hill and in fact had experienced such a failure on previous occasions. The Fore court’s contributory negligence analysis was predicated on the idea that “[i]t is incompatible with the exercise of due care for one’s own safety e ” ° voluntarily to expose one’s self to danger of which one is aware for the reason that ordinarily prudent persons do not knowingly place themselves in position of peril or danger.” (7 Ill. App. 3d 346, 349, 287 N.E.2d 526, 528.) Here plaintiff only knew that the tires were worn; there is nothing in his deposition to indicate that they had caused the truck to skid on any previous occasion, especially in lightly snowing weather conditions. Thus, the Fore “contributory negligence” analysis is inapplicable here.

While neither defendant nor plaintiff cite any case precisely on point, research has shown that according to the weight of authority driving with the knowledge that tires are worn does not in and of itself constitute negligence per se. (12 Negl. & Comp. Cas. Ann. (n.s.)l (1943); 13 Negl. & Comp. Cas. Ann. 3d 323 (1959), and collected cases cited therein.) In Illinois going out on a highway with a motor vehicle known to be in a defective condition is a circumstance which may be considered by the jury on the question of the motorist’s reasonable care. (Hurley v. Tipton (1964), 46 Ill. App. 2d 127, 196 N.E.2d 399.) Further, mere knowledge of defective conditions in nonautomobile cases does not constitute contributory negligence as a matter of law. Thus, the supreme court in Swenson v. City of Rockford (1956), 9 Ill. 2d 122, 136 N.E.2d 777, affirmed a plaintiff’s recovery for injuries sustained when she fell on a defective sidewalk, even though she had knowledge of the defect. The court said:

“The use of a defective sidewalk by a person who has knowledge of the defect is not contributory negligence per se, and if, while walking upon that sidewalk, such person is in the exercise of ordinary care for his or her safety, there may be a recovery in case of an injury.” 9 Ill. 2d 122, 127, 136 N.E.2d 777, 779.

The standard for deciding whether contributory negligence is to be considered a matter of law is the same as the standard for determining the correctness of a directed verdict or a judgment n.o.v. (Rhoades v. W.E. O’Neil Construction Co. (1980), 80 Ill. App. 3d 1117, 400 N.E.2d 1035.) That standard was enunciated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513, as whether “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Considering the evidence here in the light most favorable to plaintiff, it would not seem that all reasonable minds would agree that plaintiff had been contributorily negligent by driving the truck on slippery pavement. He had driven it for two months without incident. One tire had been replaced. Although he thought the tires worn by visual inspection, the tread wear had not been measured by him. Furthermore, when faced with slightly inclement weather conditions, he reduced his speed significantly. Because reasonable minds might differ as to the inferences and conclusions drawn from the facts of this case summary judgment was improperly granted, necessitating reversal of the trial court’s judgment and remandment for retrial.

Finally, we note that with the recent decision of Alvois v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the common-law doctrine of contributory negligence has been abolished in negligence cases in Illinois and has been replaced by the doctrine of comparative negligence. The Alois opinion is not applicable “to any case in which trial commenced before [June 8, 1981] — except that if any judgment be reversed on appeal for other reasons, [Alois] shall be applicable to any retrial.” (85 Ill. 2d 1, 28.) That stated exception to the nonapplicability of Alois is present here. Therefore, the holding in Alois will be applicable to the retrial of this case upon remandment.

For the reasons cited herein, the judgment of the trial court is reversed and the case remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

LORENZ and WILSON, JJ„ concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN EVANS, Defendant-Appellant.
    First District (2nd Division)
    No. 78-1054
    Opinion filed March 2, 1982.
    James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Thomas G. Dicianni, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

After a jury trial defendant Melvin Evans (defendant) was convicted of one count of aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(b)(1).) He was sentenced to serve an indeterminate sentence of two to six years in the Illinois Department of Corrections. He appeals from that conviction raising the following issues for our review: (1) whether the evidence presented at trial proved beyond a reasonable doubt that defendant did not act in self-defense; (2) whether it was error for the trial court to deny defendant an opportunity to testify to his knowledge of the victim’s conviction for murder; (3) whether the trial court erred by denying defense counsel access to police reports concerning the victim’s prior arrests; (4) whether the trial court erred by admitting into evidence a photograph of a rifle that was not used in the commission of the crime. For the reasons hereinafter set forth we affirm defendant’s conviction.

On December 4,1975, the victim, Jerome Rice (Rice) sold defendant a bathroom sink for which he was to be paid $12 at some later date. On the following day, December 5, 1975, Rice was driving on South May Street when he saw defendant on the sidewalk talking with three men. Rice stopped the car and approached him demanding his $12. Defendant left the group and went into his apartment which was on the second floor of the building at 6134 South May. He opened a window and shot Rice in the face with a shotgun. The testimony adduced at trial regarding the details of the confrontation between Rice and defendant is in conflict.

Rice testified that when he approached defendant on December 5 and asked for the $12, defendant told him to wait a few minutes. After waiting a short time, Rice again approached defendant and asked for either the $12 or the return of his sink. Defendant told one of the men to return the sink to Rice. According to Rice, defendant went into his house and moments later shouted to Rice from a second story window. Rice testified that the shouts were unintelligible and that as he turned to face the window, he saw the shotgun and was shot. He testified that he was unarmed at the time and that he held his hands at his side as he turned to face the window. On cross-examination Rice admitted that he had been convicted of burglary on November 21, 1968.

Willie Sparks substantially corroborated Rice’s testimony. Sparks testified that he observed no gun on Rice’s person and that Rice stood with his hands at his sides while defendant shouted at him from the second story window to “[g]et away from my house.”

After Sparks heard the shot and saw Rice collapse, he ran north on May Street to the corner where he encountered Officer William Burmeister and related the incident to him. Officer Burmeister drove to 6132 South May Street where he saw Rice lying on the sidewalk. Burmeister radioed for assistance and searched the area. He found no weapons on or near the victim.

Defendant testified that Rice approached him on December 5, 1975, demanding $12 for the sink. Defendant asked Rice to wait while he finished talking with the other men present. Rice again demanded the money but defendant replied that all he had on him was a $20 bill and that he had to go inside to get change from his wife.

When defendant entered his apartment, he saw that his wife was not there so he opened the front window and told Rice “to go ahead home and I’ll see that you get your money later on this evening.” Defendant testified that Rice then demanded that he be paid immediately and that Rice made threatening gestures with his hand as if he was withdrawing a gun from his pocket. Defendant ordered Rice to leave but Rice warned defendant not to come down unless he had the money. Defendant stated that as Rice began to take his hand out of his pocket, defendant fired the shotgun aiming it over Rice’s head. The blast, however, hit Rice. Defendant testified that he knew of Rice’s reputation for violence and that Rice was known to carry a gun.

Clyde Johnson, defendant’s cousin, was one of the men talking with defendant when Rice approached them. His testimony corroborated defendant’s version of the verbal exchange between defendant and Rice. Johnson stated that when defendant was in the vestibule of his building, Rice shouted to defendant that “if he [defendant] had a gun in his apartment to bring it on back down because he [Rice] God damn shore [sic] had his.” Johnson testified that Rice made threatening gestures with his hands in his pockets and that Rice was known to carry a gun and a straight razor.

Defendant was convicted of aggravated battery and was sentenced to two to six years in the Illinois Department of Corrections. Defendant’s oral motion for a new trial was denied.

I

Defendant first contends that the evidence presented at trial failed to prove beyond a reasonable doubt that he did not act in self-defense. Defendant argues that his actions were justified because his apprehension of imminent harm was reasonable.

The Illinois Criminal Code provides that an individual:

* * is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another # Ill. Rev. Stat. 1977, ch. 38, par. 7 — 1.

Self-defense is an affirmative defense (Ill. Rev. Stat. 1977, ch. 38, par. 6 — 4), and once it is raised by defendant’s presentation of some evidence, the State has the burden of proving the defendant’s guilt beyond a reasonable doubt as to that issue. (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 2; People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866; People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.) A court of review may review all of the evidence to determine whether it shows the guilt of the defendant beyond a reasonable doubt, and where the record raises “a grave and substantial doubt” of guilt, the judgment will be reversed. (People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651; People v. Willson (1948), 401 Ill. 68, 81 N.E.2d 485.) Whether an otherwise criminal act is justified under the law of self-defense depends on all of the surrounding facts and circumstances. People v. Bingham (1979), 75 Ill. App. 3d 418, 394 N.E.2d 430.

In the instant case there was some evidence presented that supported defendant’s contention that his fear of imminent bodily harm was reasonable. He testified that he knew of Rice’s reputation for violence. He stated that Rice threatened him and made menacing gestures as if to withdraw a gun from his pocket. Defendant’s testimony was corroborated by his cousin Clyde Johnson. Johnson added that Rice threatened defendant by stating that he (Rice) had a gun on his person.

There was also ample evidence presented, however, that supported the State’s contention that defendant’s apprehension was unreasonable. Rice testified, that he was unarmed, that he did not threaten defendant in any manner, and that he held his hands at his side when he was shot. Sparks corroborated Rice’s testimony. Officer Burmeister testified that he searched the area after the shooting and that he did not find any weapon near Rice nor on his person.

The determination of the credibility of the witnesses and the weight to be given their testimony are matters properly within the special purview of the trial court, and where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact. (People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623; People v. Baer (1976), 35 Ill. App. 3d 391, 342 N.E.2d 177.) The evidence adduced at trial was conflicting. The jury was not compelled to believe defendant’s exculpatory statements..In our judgment the State presented evidence which if believed by the jury proved beyond a reasonable doubt that defendant’s use of force was unreasonable under the circumstances.

II

Defendant next contends that the trial court erred when it refused to permit him to testify to his knowledge of Rice’s conviction for murder.

During defendant’s opening statement defense counsel began to inform the jury that defendant’s belief that he was in imminent danger was based, in part, upon his knowledge that Rice was convicted of murder in 1946. The State objected on the ground that the conviction was too old. The State argued that since Rice was discharged from parole in 1966, more than 10 years prior to defendant’s offer of proof, the rule of People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, required that it be excluded. Defendant argued that Montgomery did not apply because Montgomery involved the propriety of the admission of prior convictions for purposes of impeachment. In the instant case the defendant’s knowledge of the victim’s prior conviction was offered to show the reasonableness of defendant’s apprehension of imminent harm. The trial court relied on Montgomery to exclude the evidence.

The State concedes that the trial court’s reliance on Montgomery was error and that Montgomerys 10-year rule does not apply. In the instant case the defendant’s knowledge of the victim’s prior conviction was offered to show defendant’s state of mind. The evidence was not offered to impeach a witness. In cases where self-defense is an issue, it is clearly permissible to bring out defendant’s perception of danger, and specific facts known to defendant bearing on this perception are material and relevant to the jury’s assessment of defendant’s belief that the use of deadly force was justified. People v. Moore (1980), 89 Ill. App. 3d 202,411 N.E.2d 579 (error to exclude defendant’s knowledge of victim’s prior conviction for attempt murder); People v. Gall (1979), 79 Ill. App. 3d 823, 398 N.E.2d 1118 (error to exclude defendant’s knowledge of victim’s prior conviction for manslaughter); People v. Adams (1979), 71 Ill. App. 3d 70, 388 N.E.2d 1326 (error to exclude defendant’s knowledge of victim’s reputation as a killer).-

Having determined that the trial court’s refusal to admit evidence of the victim’s murder conviction was error, the next issue is whether it was harmless error.

It is established that where the defendant has an opportunity to otherwise develop his defense, the erroneous exclusion of defendant’s testimony as to his knowledge of the victim’s prior convictions is harmless error. (Moore; Gall; Adams.) Upon a careful review of the record, it appears that the error complained of could not have influenced the jury’s verdict. Defendant’s defense was based upon his belief that Rice was reaching for a gun in his pocket. Defendant did testify that he knew of Rice’s reputation for carrying a gun, and defendant’s testimony was corroborated by his cousin who testified that Rice was known to carry a gun and a straight razor and that Rice had a reputation as being a violent man. By this testimony the jury was made aware of defendant’s apprehension that the victim was armed. Defendant was not prevented from establishing his knowledge of the victim’s background and developing the basis for his defense. Accordingly, the trial court’s erroneous exclusion of defendant’s knowledge of the victim’s prior crimes was not substantially prejudicial.

Ill

Defendant’s third contention is that the trial court erred by denying defense counsel access to police reports concerning the victim’s prior arrests. Defendant contends that evidence concerning the victim’s prior arrests for unlawful use of a weapon was admissible to show that the victim’s reputation for violence “had a valid basis in fact.” The State maintains that defendant is not entitled to the reports because defendant’s request for them was oral rather than written. Alternatively, the State argues that the defense was not entitled to them because they contained no admissible evidence.

At a pretrial conference on December 7, 1978, defense counsel requested that the court order the State to make available police reports concerning the victim’s prior arrests. The State did not object to the oral nature of the request. Defense counsel argued that the victim’s prior arrests for unlawful use of a weapon in 1968 and 1972 and his arrest for burglary in 1971 were admissible because they showed there was a factual basis for the victim’s reputation for violence. The State argued that the information contained in the reports did not have to be disclosed because the information was being sought to prove the victim’s reputation for violence for which purpose evidence of specific acts is inadmissible. The court denied defendant’s request, but the record does not indicate the basis for the court’s denial.

Under Supreme Court Rule 412(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)), the State is compelled to disclose certain information to the accused “upon written motion of defense counsel.” Although this particular request was made orally and may have been improper, the State’s failure to object to its oral nature at trial constitutes a waiver of review of this issue.

As noted above, in cases where self-defense is an issue, prior specific acts of violence or turbulence by the victim that are known to the defendant are relevant and material to the issue whether the defendant’s apprehension of imminent harm is reasonable. It is also firmly established that a victim’s prior specific acts are inadmissible to prove the victim’s reputation for violence. (People v. Gibson (1944), 385 Ill. 371, 52 N.E.2d 1008; People v. Allen (1919), 289 Ill. 218, 124 N.E. 329; People v. Dixon (1973), 10 Ill. App. 3d 1038, 295 N.E.2d 556; E. Cleary and M. Graham, Handbook of Illinois Evidence §404.4 (3d ed. 1979).) Here the defendant sought police reports in order to elicit testimony from the arresting police officers which would have established the victim’s reputation as one who often carried guns. Such specific acts of the victim would be inadmissible to prove such a reputation. Based on counsel’s offer of proof and the absence of any indication in the record that the defendant knew of the victim’s prior arrests, we cannot say that in this instance the trial court’s denial of defendant’s access to police reports covering the victim’s prior arrests was error.

IV

Defendant’s final contention is that the trial court erred by admitting into evidence two photographs of a rifle that was not used in the commission of the crime.

The record indicates that one of the photographs depicted two longbarrelled guns enclosed in their cases. The other photograph depicted two long-barrelled guns on a table. Both of the guns depicted were seized from the defendant’s apartment less than an hour after the shooting. Defendant argues that the admission of these photographs was prejudicial error which can only be corrected by a new trial.

Although we question whether the admission of these photographs, which were not included in the record on appeal, was error, in our judgment we do not believe their admission was substantially prejudicial. Defendant relies heavily on People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528. In Wade the murder weapon was never produced at trial, but the prosecutor elicited extensive testimony from a police officer regarding the gun found on defendant at the time of his arrest. There the State also stipulated that ballistics would show the weapon found on defendant was not the murder weapon. The instant case is distinguishable from Wade in that the weapon used in this offense, a shotgun, was introduced at trial and the testimony concerning the rifle consisted solely of stating that a rifle and shotgun were found in defendant’s apartment less than one hour after the shooting. In our opinion the admission of these photographs could not have generated the “extreme prejudice” found in Wade.

For the reasons hereinabove stated we affirm the judgment of the circuit court of Cook County.

Affirmed.

STAMOS, P. J„ and DOWNING, J., concur.

       The State contends that defendant waived his right to review of this and all of the remaining issues. The State argues that defendant’s oral motion for a new trial was insufficient because the State objected to its oral nature. It is firmly established, however, that an oral motion is sufficient unless the State objects and requests that the grounds be specified. (People v. Houck (1977), 50 Ill. App. 3d 274, 365 N.E.2d 576; People v. Biers (1976), 41 Ill. App. 3d 576, 353 N.E.2d 389; People v. Holmes (1976), 41 Ill. App. 3d 585, 353 N.E.2d 396.) Here the State did not request that the grounds be specified; therefore, the oral motion is sufficient and all errors are preserved for appeal that were otherwise properly preserved.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE MALLOY, a/k/a John Plate, Defendant-Appellant.
    First District (2nd Division)
    No. 80-276
    Opinion filed March 2, 1982.
    James J. Doherty, Public Defender, of Chicago (Frances Sowa, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Jannice A. Kendall, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In a jury trial defendant, Eugene Malloy, was convicted of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1) and was sentenced to serve six years in the Illinois Department of Corrections. On appeal defendant contends that the incriminating statements used to convict him were derived from an illegal arrest. For the reasons which follow, we affirm defendant’s conviction.

Defendant was charged and convicted of the burglary of a grocery store owned by Joseph Ibrahim and Zofia Lipkowski. The identification of defendant as the burglar rested entirely upon incriminating statements he gave to the police following his arrest on an unrelated charge of auto theft. Prior to trial defendant filed motions to suppress his statements on the grounds that they were obtained as a result of an illegal arrest, that they were involuntary and that they were secured in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. These motions were denied. Defendant has not appealed the trial court’s determination that his statements were voluntary and were taken after proper Miranda warnings were given. The only issue before us, therefore, is whether defendant’s statements were derived from an illegal arrest.

Defendant contends that he was illegally arrested because the police lacked probable cause and because he was arrested in his dwelling without a warrant in violation of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. In the view we take of this case it is unnecessary to decide whether defendant’s arrest for auto theft was unlawful because we find that there was no causal connection between that arrest and the statements defendant subsequently volunteered to the police incriminating himself in the burglary.

In People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574, our supreme court summarized the principles which determine whether a statement given after an illegal arrest should be suppressed as the fruit of the poisonous tree:

“It is important to note that the Supreme Court has rejected a simple ‘but for’ test under which any statement by a defendant following his unlawful arrest must be suppressed on the ground that the statement would not have been made had he not been taken into custody. The evidence in the cases considered by the court showed a causal connection between the illegal arrest and the statement such that the statement could be said to have been obtained by exploitation of the illegality. (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417; Brown v. Illinois (1975), 422 U.S. 590, 598-99, 604, 45 L. Ed. 2d 416, 424, 427, 95 S. Ct. 2254, 2259, 2262; Dunaway v. New York (1979), 442 U.S. 200, 217-18, 60 L. Ed. 2d 824, 839-40, 99 S. Ct. 2248, 2259.) The opinions mention as significant factors in ascertaining whether such causality exists the ‘temporal proximity’ of the arrest and the confession, the presence or absence of intervening circumstances, and the purpose of the official misconduct. Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.” 78 Ill. 2d 88, 95-96.

Applying these principles to the facts in the case at bar, we find that defendant’s statements incriminating himself in the burglary were properly admitted.

The first factor mentioned in Brown v. Illinois (1975), 422 U.S. 590, 603,45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261, is “the temporal proximity” of the arrest and the statement. Here, as in Brown, defendant gave his initial statement to the police regarding the burglary approximately two hours after his arrest. Temporal proximity, however, has been described as the “least determinative factor involved” in determining whether there is a causal connection between an arrest and a subsequent statement. (Comment, 13 Houston L. Rev. 753, 764 (1976); see also Justice Stevens’ concurring opinion in Dunaway v. New York (1979), 442 U.S. 200, 220, 60 L. Ed. 2d 824, 841, 99 S. Ct. 2248, 2260-61.) More significant is the presence or absence of intervening circumstances “and, particularly, the purpose and flagrancy of the official misconduct * * Brown v. Illinois (1975), 422 U.S. 590, 603-04,45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.

The record discloses that defendant was arrested for auto theft at 3:30 p.m. on March 31, 1979. At that time the arresting officers had no knowledge of the burglary to which defendant later confessed. Officer Anthony Audeno and Sergeant Fred Bonke testified that after defendant admitted that he had committed the auto theft and showed them where he had stolen the vehicle, he said that “he had a few other places to take” the officers. “[H]e wanted to get everything off his chest.” According to the officers, defendant stated that “he had this urge to steal things,” that “[h]e would steal at will,” that “he didn’t understand why,” and “thought that he needed some help.” Defendant initiated this conversation. Defendant admitted that he had burglarized a food store on Lawrence Avenue. At Audeno’s request, defendant directed the officers to the scene of the crime and explained how he had committed the offense. En route defendant provided the officers with details of many other thefts and burglaries he claimed to have committed. When they arrived at the grocery store at 1507 West Lawrence Avenue, defendant told the officers that on the preceding night (March 30,1979), he had burglarized the store. Sergeant Bonke exited the vehicle, inspected the premises and was able to confirm for himself defendant’s account of the burglary. Defendant repeated his confession to other officers after he was taken back to the district station.

Several courts have considered a volunteered statement, not made in response to police interrogation, as a significant intervening circumstance which renders the statement admissible under Brown. (See Sanders v. State (1976), 259 Ark. 329, 336, 532 S.W.2d 752, 755-56; State v. Johnson (Mo. 1975), 530 S.W.2d 690, 693-94; State v. Jones (Mo. App. 1977), 558 S.W.2d 233, 239.) And other courts have held that where a defendant volunteers an incriminating statement about a crime for which he was not under arrest and of which the police had no knowledge before the defendant spoke up, that statement cannot be said to have been obtained through any purposeful or flagrant police misconduct. (See People v. Hillyard (1979), 197 Colo. 83, 589 P.2d 939; Davis v. State (1979), 42 Md. App. 546, 402 A. 2d 77.) On the basis of the record before us we find that there was no causal connection between defendant’s arrest for auto theft (assuming that arrest was unlawful) and his subsequent volunteered admissions to an unrelated offense of which the police had no knowledge. Here, as in People v. Gabbard (1979), 78 Ill. 2d 88, 98-99, 398 N.E.2d 574, “the purpose of the exclusionary rule, i.e., to deter improper police conduct [citation] would be served minimally, if at all, by exclusion of the defendant’s statements.” Accordingly, we hold that the trial court did not err in denying defendant’s motion to suppress.

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

• Affirmed.

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


author: JUSTICE HARTMAN

text:
    GLENN STINES et al., Plaintiffs-Appellants, v. OTIS ELEVATOR COMPANY, Defendant-Appellee.—(WILLIAM WRIGLEY, JR., COMPANY et al., Defendants.)
    First District (2nd Division)
    No. 80-2780
    Opinion filed March 2, 1982.

      Dowd & Dowd, Ltd., of Chicago, for appellants.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Charles P. Menges, Robert S. Soderstrom, and James P. DeNardo, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs claim to have been injured while riding an elevator in the Wrigley Building in Chicago, which allegedly fell out of control. They appeal from the entry of summary judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57) in favor of defendant Otis Elevator Company (Otis). The trial court found no just reason to delay enforcement or appeal of its order. (73 Ill. 2d R. 304(a).) Plaintiffs contend summary judgment was inappropriate because a factual question was presented as to whether: Otis performed service on the elevator; and a safety test Otis admitted performing subjected it to a liability for negligent rendition of services gratuitously rendered.

Plaintiffs’ amended complaint alleged: in count I, that Otis was engaged in manufacturing, distributing, repairing and maintaining elevators for use by the public and Otis negligently designed, manufactured, maintained and repaired the elevator in question; in count II, that Otis was in exclusive control of the elevator, and the occurrence was one which would not ordinarily have occurred if Otis had not been negligent; and in count III, that Otis designed, manufactured and sold the elevator to the Wrigley Building, located at 400 North Michigan Avenue in Chicago, and at the time the elevator left Otis’ control it was defective and unreasonably dangerous.

Otis moved for summary judgment on grounds that: it did not manufacture, design or install the elevator; it did not have a maintenance contract for the repair of the elevator; and it did not perform any maintenance, repair or inspection services to the elevator at any time prior to July 13, 1978. Otis attached the affidavit of Charles M. Frein, its regional manager for finance and administration which stated the regional office records of Otis indicated that the elevator was not designed, manufactured or installed by Otis, and Otis provided no repair or maintenance services to the elevator prior to July 13, 1978.

After the trial court had granted summary judgment, plaintiffs filed a motion to vacate supported by attached service orders indicating that Otis did perform maintenance or repair services at the premises in October 1975. Plaintiffs contended that a factual question existed as to whether Otis performed services on the elevator prior to the date of the accident, and the nature and extent of those services, since the Frein affidavit in support of the Otis motion stated that no repair or maintenance services were performed by Otis upon Wrigley’s elevators. The service orders evidence an agreement by Otis to furnish labor and material to perform a “no load safety test” on the 19 elevators at the Wrigley Building and state in part: “We hereby propose to supervise and conduct the test of the safeties, governors and oil buffers upon your nineteen (19) elevators located at 400 North Michigan Avenue, Chicago, Illinois 60611 as required by the City of Chicago Elevator Safety Code. If repairs are necessary to obtain proper operation to meet the requirements of the test, such work shall be considered as an extra to the proposal.” Also attached are invoices indicating work was done during the weeks ending October 9, 1975, and October 16, 1975. The latter invoice indicates all work was completed.

Otis filed a response to plaintiffs’ motion reiterating that it had no maintenance contract and did not perform maintenance or repair services on the subject elevator prior to July 13, 1978, as distinguished from a full-load safety test required by the Municipal Code of Chicago which it admitted it had performed. Otis continued to maintain that the facts in the affidavits established Otis did not design, manufacture or install the elevator and had no responsibility with its maintenance and repair.

The rules governing summary judgment proceedings are well established and require little repetition. (See Carruthers v. B. C. Christopher and Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457; Diomar v. Landmark Assoc. (1980), 81 Ill. App. 3d 1135, 1139, 401 N.E.2d 1287.) Summary judgment must not be used to preempt the right to fully present a claim where a material dispute of fact exists. Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 793-94, 392 N.E.2d 1352, affd (1981), 85 Ill. 2d 161, 421 N.E.2d 864.

In the case at bar, plaintiffs and Otis have mainly disputed whether Otis could be held liable if it performed only the one inspection on the basis that it performed maintenance work and, if not, whether the single inspection might subject Otis to liability. A company, such as Otis, which performs maintenance or inspections, whether gratuitous or not, may be held liable for negligence. (Jardine v. Rubloff (1978), 73 Ill. 2d 31, 41, 382 N.E.2d 232; see also Koenig v. 399 Corp. (1968), 97 Ill. App. 2d 345, 351, 240 N.E.2d 164.) The court stated in Jardine that those who “undertake to inspect and maintain elevators” need “only exercise due care.” 73 Ill. 2d 31, 41; see also Nelson v. Union Wire Rope Co. (1964), 31 Ill. 2d 69, 83, 199 N.E.2d 769.

As the record now stands, there is no indication, apart from the bare allegations of the complaint, that the inspection performed by Otis was negligently performed or if it was that it was causally related to the failure of the elevator in July 1978. Nevertheless, one of plaintiffs’ interrogatories requested the name of the individual or enterprise that performed any maintenance or repair to the elevator for the past 5 years ending June 13, 1978, and the date of such maintenance or repair. Co-defendant Wrigley answered:

“Otis Elevator Company.
Richard Tokar
10/9/75,10/10/75
Other dates of repair not known.”
(Emphasis supplied.)

Since Wrigley has stated that Otis performed other work on the elevator on dates not yet determined, and Otis’ inspection, itself, might subject it to liability, summary judgment here was premature. Plaintiffs should be allowed to proceed further with discovery in an attempt to establish, if they can, more precisely the nature of the services Otis furnished, when Otis worked on the elevator and how many other times, if any, Otis may have worked on the elevator. By this ruling we do not intimate an opinion as to the propriety of the summary judgment on count I. Otis, of course, is not precluded from again moving for summary judgment following a reasonable opportunity for plaintiffs to discover further facts supporting their position. Loveland v. City of Lewiston (1980), 84 Ill. App. 3d 190, 192, 405 N.E.2d 453.

With respect to count II, which is based on res ipsa loquitur, plaintiffs have not established that Otis was in control of the elevator at the time of this accident. There also is no dispute that Otis did not design, manufacture or sell the elevator to Wrigley; therefore, count III must also be dismissed.

From the foregoing we conclude that the judgment pertaining to count I must be reversed and judgments pertaining to counts II and III must be affirmed. The cause is remanded for further proceedings.

Affirmed in part, reversed in part and cause remanded.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE DOWNING

text:
    ROBERT BURNS et al., Petitioners-Appellants, v. THE POLICE BOARD OF THE CITY OF CHICAGO, Respondent-Appellee.
    First District (2nd Division)
    No. 80-3098
    Opinion filed March 2, 1982.
    Dennis M. Fleming, of Chicago (John F. Fleming, of counsel), for appellant Robert Shanahan.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Appellants Robert Burns and Robert Shanahan were separated from their positions as Chicago police officers after hearings were held by appellee Police Board of the City of Chicago (the Board). Burns and Shanahan filed a complaint for judicial review of this administrative decision in the circuit court of Cook County. The circuit court eventually affirmed the administrative determination. Burns and Shanahan appealed. Burns’ appeal was dismissed by this court for failure to file an appearance or an appellant’s brief. Shanahan’s appeal is presently before the court.

Shanahan argues (1) he was denied due process at the administrative level because the charges and specifications filed by the Board were vague and ambiguous and because the hearing officer denied a motion for a bill of particulars; (2) he was denied due process when, although no member of the Board was present at any hearing, the Board’s decisions were taken as prima facie correct by the court; (3) the Board lost jurisdiction over him when it failed to set a date for a hearing upon remand within the time limits allegedly applicable; and (4) the Board’s decision was against the manifest weight of the evidence.

Since we are no longer concerned with the evidence which relates to Burns, the following brief summary of the facts focuses upon the Board’s case against Shanahan. On October 31,1978, the police superintendent of Chicago filed charges with the Board against Shanahan. The latter received a copy of the allegations, which charged him with violation of three rules of conduct of the Chicago Police Department. The specifications attached to the charges stated that on July 14,1978, Shanahan did:

“stop and search and solicit and accept a bribe from aliens by threat of use of their office * * (Rule 2.)
“use their official position as police officers to obtain a sum of money from aliens.” (Rule 4.)
“falsely state their location to the Communications Operators at approximately 2256 hours.” (Rule 14.)

Also attached to the charges was a list of civilian and police witnesses and their addresses. The Board reserved the right to call these witnesses at a hearing. Shanahan was also suspended for 30 days.

Hearings on these charges commenced on December 21,1978, before a hearing officer appointed by the Board. Several civilians testified to a July 14,1978, occurrence. Essentially, their testimony related that Romulo Bahena, a Spanish-speaking noncitizen of the United States, was stopped by two Chicago police officers and requested to tender $35 ($40 was given) in order to prevent his arrest. The various witnesses testified that the event took place between 9:30 and 11 p.m. on that date. None of the witnesses positively identified Shanahan as one of the officers. Two witnesses did identify Burns. Two witnesses stated the officers were driving squad car 7481. A police officer testified that Burns and Shanahan were partners on July 14,1978, and that they were assigned squad 7481.

Also testifying were several other policemen. Two officers who worked as partners on that night related how Shanahan and Burns had assisted in the arrest of offenders in a nonrelated incident, which occurred near 11 p.m. at a scene a few miles from the site of the alleged shakedown. Two other policemen related how they had been identified in a lineup as the policemen who had taken the money. These identifications were made on July 17, 1978, by several of those civilians who testified at the hearing. (These officers were not in fact under any suspicion.)

Shanahan testified concerning his whereabouts at 10:30 p.m. and after on July 14, 1978. His testimony largely concerned his and Burns’ participation in the arrest of offenders which had been testified to by other officers. He also stated he had driven the squad car most of the shift on July 14, 1978. Burns was his partner that night.

On May 2, 1979, the Board found Shanahan guilty of the charges against him and ordered his separation from the Chicago police force. He filed a complaint for judicial review of this decision. At the hearing before the circuit court, the court stated its concern that Shanahan had not had the opportunity to present a complete defense since he was not informed in the charges the time at which the alleged bribe-taking occurred. Consequently, the court remanded the case to the Board to allow presentation of evidence of Shanahan’s activities on July 14 from 7 p.m. onward.

On remand, Shanahan requested a bill of particulars on the charges. This was the first such request. The hearing officer denied the request. Testimony was taken from a policeman who was assigned to investigate complaints against Shanahan. Four separate persons had lodged complaints involving four separate shakedowns which allegedly occurred on July 14. The officer interviewed Shanahan, investigated the complaints, and recommended charges be entered on all four incidents. The recommendations were rejected by his superiors except for that complaint which serves as the basis of the present case.

Shanahan testified on remand as to his activities between 7:30 p.m. and the end of his shift at midnight on July 14. Also introduced into evidence was a transcript of radio calls made by Shanahan’s squad car on July 14. We note that Shanahan was off the air for lunch from 9:44 to about 10:19 p.m.

Taking the new evidence with the previously obtained record, the Board again ruled that Shanahan should be terminated. The circuit court affirmed this decision.

I

Shanahan contends he was denied due process because the charges and specifications against him were vague and ambiguous and because the hearing officer denied his request for a bill of particulars.

Charges in an administrative proceeding need not be drawn with the same precision required of pleadings in judicial proceedings. They must, however, be sufficiently clear and specific to allow preparation of a defense. Due process requires a definite charge, adequate notice, and a full, fair and impartial hearing. Giampa v. Illinois Civil Service Com. (1980), 89 Ill. App. 3d 606, 611, 411 N.E.2d 1110, appeal denied (1981), 82 Ill. 2d 584.

We believe that the charges concerning Shanahan’s alleged violation of rules of conduct 2 and 4 fail to meet this lenient pleading standard. Examination of the charges shows that Shanahan was informed only of the date of the alleged wrongful actions, and was given only a vague description of his alleged transgression: he took “a bribe” or “a sum of money” from “aliens.” Nowhere do the charges state the location of the alleged occurrence, a time frame in which such took place, or the name or description of the victim. Shánahan was left to speculate as to what segment of his 9-hour tour of duty was involved. We conclude that these pleadings wholly fail to meet even the minimal standards required in the administrative arena. See Greco v. State Police Merit Board (1969), 105 Ill. App. 2d 186, 245 N.E.2d 99, appeal denied (1969), 40 Ill. 2d 580.

Additionally, the hearing officer committed reversible error in failing to allow Shanahan’s belated request for a bill of particulars. While we do not condone the lax defense maneuvers of Shanahan in waiting to make such a request until the administrative pleadings had been completed and circuit court review had resulted in remand for further administrative action, we find no basis which would warrant denial of this reasonably based, albeit late, request. The hearing officer should have granted Shanahan’s entreaty.

Because of these inadequacies in the proceedings, we must reverse the Board’s decision to terminate Shanahan and remand the case to the Board for such proceedings it deems warranted which are consistent with this discussion.

II

In light of our decision to reverse and remand, we need address the remaining issues only to the extent they might affect any further proceedings which may ensue.

Shanahan argues he was denied due process when the circuit court applied the presumption that the Board’s findings of fact were prima facie correct (Ill. Rev. Stat. 1979, ch. 110, par. 274), despite the fact that no Board member attended the hearings or heard any evidence first hand.

The principal constitutional requirement in this area of administrative law is that the decision-maker must consider and appraise the evidence in reaching his determination. (Morgan v. United States (1936), 298 U.S. 468, 481-82, 80 L. Ed. 1288, 56 S. Ct. 906; see also Des Plaines Currency Exchange, Inc. v. Knight (1963), 29 Ill. 2d 244, 247-48, 194 N.E.2d 89, cert, denied (1964), 376 U.S. 969, 12 L. Ed. 2d 84, 84 S. Ct. 1136; Lloyd A. Fry Roofing Co. v. Illinois Pollution Control Board (1974), 20 Ill. App. 3d 301, 310-11, 314 N.E.2d 350, cert, denied (1975), 420 U.S. 996,43 L. Ed. 2d 679, 95 S. Ct. 1438.) Shanahan makes no claim that the Board did not consider the evidence adduced by the hearing officer. There is no valid reason to reject the above-noted presumption in this case, nor is there any valid basis for denying the Board the option of relying upon hearing officers to take evidence in such circumstances. Shanahan was deprived of no rights through the use of this procedure.

III

Shanahan asserts the Board lost jurisdiction over the case when it failed to set a date for rehearing within six weeks of the circuit court’s remand order. Shanahan claims that the Board’s failure to so act violated a rule of the Department of Personnel of the City of Chicago, City of Chicago Personnel Board Rule 16, section 4(b), which requires hearings on discharge be set within six weeks of notice of disciplinary action.

We reject this argument. The applicable section of the Municipal Code of Chicago which establishes the Department of Personnel explicitly states, “[t]his ordinance shall not apply nor have any effect upon the Police Board * * * or its powers and duties as set forth in * * ° Section 10 — 1—18.1 * * * of the Illinois Municipal Code [Ill. Rev. Stat. 1977, ch. 24, par. 10-1 — 18.1].” (Chicago Mun. Code 1977, ch. 25.1, §25.1 — 13.) A rule enacted by the Personnel Board of Chicago is not applicable to the proceedings held by the Police Board of Chicago pursuant to powers granted by State law.

IV

Finally, Shanahan claims the Board’s decision is against the manifest weight of the evidence.

We make no ruling upon this issue in relation to the evidence supporting charges 2 and 4, the alleged shakedown. Our reversal of the Board’s decision and our remand order adequately dispose of that matter. We do, however, deem it necessary to reach this issue as regards the alleged violation of Rule 14, falsely stating a location. A review of the evidence, especially the transcript of the radio broadcasts made from Shanahan’s car at the time in question (10:56 p.m. on July 14, 1978), indicates Shanahan was at a scene finishing up his activities related to the arrest of offenders involved in a car theft. There is no substantive evidence of record indicating Shanahan was elsewhere at that time. In its appellee’s brief, the Board argues in support of its finding by stating the evidence shows Shanahan failed to notify the police operator that he would not be undertaking an activity which he had previously reported he would be doing. We consider this evidence irrelevant to the charge levied against Shanahan, falsely reporting his location. There is no support for the Board’s finding that Shanahan violated Rule 14. Consequently, the finding of a violation as to Rule 14 is reversed.

For the foregoing reasons, the Board’s decision to terminate Shanahan’s employment with the Chicago Police Department is reversed. The matter is remanded for such further proceedings pertaining to Rules 2 and 4 as the Board deems warranted within the parameters of this opinion.

Reversed as to Rule 14; reversed and remanded with directions as to Rules 2 and 4.

BERLIN and HARTMAN, JJ., concur.

       The rules of conduct state:
      “Rule 2: Any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department.”
      “Rule 4: Any conduct or action taken to use the official position for personal gain or influence.”
      “Rule 14: Making a false report, written or oral.”

       In remanding the case, we make no determination upon the question of whether some type of limitations theory (such as a statute of limitations) could serve to bar further proceedings against Shanahan, as this matter was not raised or briefed by either party to this appeal.