author: JUSTICE BARRY

text:
    GURRIE C. RHOADS, Indiv. and d/b/a Rhoads Development Company et al., Plaintiffs-Appellants, v. THE VILLAGE OF BOLINGBROOK, Defendant-Appellee.
    Third District
    No. 3—84—0450
    Opinion filed February 22, 1985.

      George F. Mahoney III and Thomas R. Wilson, both of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellants.
    Barry L. Moss and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This interlocutory appeal from the denial of an injunction is brought by plaintiff Gurrie Rhoads, the principal owner and operator of an 18-acre amusement park in the village of Bolingbrook in Will County. The park was built in the spring of 1982 after the village annexed the proposed site and by ordinance granted a special-use permit subject to certain specific conditions relating to water supplies, sewage disposal, landscaping and recapture fees to be paid to the village. The park began operation in the summer of 1982. In June of 1984 the village board held a hearing prior to adopting an ordinance which revoked the special-use permit for plaintiff’s failure to comply with the conditions of the permit. Plaintiff promptly filed a complaint for an injunction and declaratory judgment and also a petition for a temporary restraining order. The temporary restraining order was issued ex parte on June 21, 1984. On June 29, 1984, the parties appeared for a hearing on the continuation of the temporary restraining order or the issuance of a preliminary injunction, and at that hearing defendant village filed a motion to dismiss the complaint and also a motion to dissolve the temporary restraining order. The motions were substantially the same.

The trial court stated at the outset of the hearing that it was not hearing the merits of the cause but rather whether the force and effect of the temporary restraining order should be continued in the form of a preliminary injunction. Plaintiff testified at length concerning the details of construction and operation of the park as related to the development plan approved by the village. Plaintiff admitted that certain requirements had not yet been met, such as complete installation of a 12-inch water main, complete installation of a sanitary sewer, planting of trees on the parkway, installation of an eight-foot fence at the perimeter, and other landscaping. Plaintiff also admitted that the fees for construction of a street, a water tower and a traffic study had not yet been paid because of the unavailability of funds. Plaintiff testified that the cash flow generated by the operation of the park had been less than anticipated and had been insufficient to meet all payments due to creditors, operating expenses, and fees owed to the village. The testimony and other evidence indicated that revocation of the special-use permit and closure of the facility for the summer of 1984 would result in a total cessation of income and a loss of an investment valued in excess of $1,000,000.

The trial court granted defendant’s oral motion for an order at the close of plaintiff’s case, and ordered the dissolution of the temporary restraining order. In its 17-page memorandum opinion and order, the court found, inter alia, “that plaintiff has not shown probable success on the merits, as part of his case-in-chief.” Pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)), plaintiff brought this interlocutory appeal from the orders of the circuit court entered on July 11,1984.

Plaintiff has assigned as error several rulings of the trial court relating to a refusal to reopen proofs and a refusal to permit filing of a memorandum of law and similar matters, but because of the view we take of this cause, we need not discuss those issues. The determinative question presented by this appeal is whether plaintiff was required to establish probable success on the merits in order to obtain a preliminary injunction.

Generally, the courts have required that a plaintiff must demonstrate entitlement to a preliminary injunction by establishing (1) a certain and clearly ascertained right which needs protection; (2) irreparable injury which will be suffered without protection; (3) no adequate remedy at law for the injury; and (4) probable success on the merits. (E.g., S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.) The question of whether plaintiff has established a likelihood of success on the merits has proved to be a difficult one to resolve without proceeding to determine the merits of a case at the outset. Consequently, in some situations an exception to the necessity of establishing probable success on the merits has been recognized and is, we believe, applicable to the case before us. In Blue Cross Association v. 666 North Lake Shore Drive Associates (1981), 100 Ill. App. 3d 647, 650-51, 427 N.E.2d 270, 272, the court said:

“If the subject of the injunction is property which may be destroyed, or if, as here, the plaintiff seeks only to maintain the status quo until the ultimate issue is decided, the injunction is properly allowed or maintained even where there may be serious doubt as to the ultimate success of the complaint.
We have held that it is not the purpose of a preliminary injunction to determine controverted rights or to decide the merits of a case.”

See also Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 368 N.E.2d 1010.

As is clear from the trial court’s opinion, a different standard was applied in the instant case. The court expressly refused to apply the Blue Cross exception and instead held that a preliminary injunction should be denied if there is no reasonable likelihood of success on the merits, citing Earthline Corp. v. Mauzy (1979), 68 Ill. App. 3d 304, 385 N.E.2d 928. Earthline was a totally different situation where plaintiff corporation sought to prevent disclosure of certain permits by the Illinois Environmental Protection Agency to the Attorney General which were clearly matters of public record by provision of statute. There was no imminent closure of an operating business and resulting loss of property threatened by the failure to issue a preliminary injunction. In the case at bar, plaintiff plainly sought to preserve the status quo and to prevent loss of his valuable property while the issues relating to the revocation of his special-use permit were being litigated. This case comes squarely within the Blue Cross exception to the requirement that probable success on the merits be established, and the trial court erred in failing to apply the correct rule of law. For that reason, we reverse the judgment of the circuit court of Will County and remand for entry of the preliminary injunction and further proceedings.

Reversed and remanded.

HEIPLE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    PAUL PERONA et al., Plaintiffs-Appellants, v. ILLINI HARBOR SERVICES, INC., Defendant-Appellee.
    Third District
    No. 3-84-0196
    Opinion filed January 8, 1985.
    Rehearing denied February 27, 1985.

      Paul Perona, pro se, and Vincent D. Brolley, both of Perona, Perona & Tonozzi, of Spring Valley, for appellants.
    Boyle, Goldsmith & Shore, of Hennepin, and Husch, Eppenberger, Donohue, Elson & Cornfeld, of St. Louis, Missouri, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court;

On February 24, 1984, the circuit court of Bureau County granted summary judgment in favor of defendant, Illini Harbor Services, Inc., and against Paul and Louis Perona, plaintiffs. On January 25, 1983, plaintiffs sued defendant for trespass to their property located in the riverbed of the Illinois River. The alleged trespass occurred when defendant moored barges over the plaintiffs’ property. The trial court determined that mooring barges over the riverbed did not constitute trespass as a matter of law.

The property in question is a strip of land that runs along the river bottom of the Illinois River. The plaintiffs own neither the north nor the south riverbank. The defendant leased the land along the north bank from Ronald and Nancy Savitch, whose land undisputedly extended into the Illinois River at least 25 feet. (Defendant never conceded that its lessor did not own to the thread of the river, and because this is not a question before this court, we will not decide this issue.) The Savitchs, therefore, possessed the riparian rights by virtue of their ownership of the north riverbank. The defendant-lessee operated a grain elevator located on the north bank. Grain was shipped by barge from the defendant’s elevator, and the barges carrying the grain were moored along the north bank while waiting to be loaded. The barges were secured by lines tied to deadmen or pilings driven into the ground about 100 feet north of the north bank on property leased by the defendant. There is no contention here that the riverbed to which plaintiffs claim ownership was physically invaded or disturbed, nor are there any allegations that the mooring of barges interfered with the navigability of the Illinois River.

The sole issue before this court is whether mooring barges over the riverbed property to which plaintiffs claim ownership constituted trespass to plaintiffs’ property. We agree with the trial court that it did not.

Plaintiffs’ basic contention is that parking barges is indistinguishable from such prohibited activities as removal of sand and gravel from the riverbed property of another (Braxon v. Bressler (1872), 64 Ill. 488) or hunting and fishing in navigable waters owned by a private party (Schulte v. Warren (1905), 218 Ill. 108, 75 N.E. 783). The defendant argues that because there is no physical invasion of plaintiffs’ riverbed property the defendant had a right to moor its barges in the water above plaintiffs’ property.

We find that parking or mooring barges awaiting loading or unloading is an activity incident to the right of navigation. The defendant tied the barges to pilings driven into the riverbank which it leased from the Savitchs. Therefore, there was no physical invasion of the riverbed owned by plaintiffs. It has long been established “that the property of a riparian owner, in the bed of the river *** is subservient to the use of the public as a highway.” (Ensminger v. People ex rel. Trover (1868), 47 Ill. 384.) Unlike such activities as removing sand and gravel from the riverbed owned by another or fishing from a stream owned by another which depletes the resources of the owner, barge traffic is exactly the type of commerce which the public right of navigation is meant to protect. The barges moored while awaiting loading although not in constant motion are still in the stream of commerce and have a right to park in the waters over plaintiffs’ riverbed land so long as they do not obstruct another’s right of navigation upon the Illinois River.

We, therefore, hold where there is no physical invasion of plaintiffs’ riverbed property and no obstruction of the public’s right of navigation, that defendant may moor his barges over the plaintiffs’ property. Because defendant had a right to park barges over the plaintiffs’ property, there was no trespass and we, therefore, affirm the decision of the circuit court of Bureau County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE HEIPLE

text:
    P. A. BERGNER & COMPANY OF ILLINOIS, Plaintiff-Appellee, v. LLOYDS JEWELERS, INC., et al., Defendants-Appellants.-LLOYDS JEWELERS, INC., et al., Plaintiffs-Appellants, v. P. A. BERGNER & COMPANY OF ILLINOIS et al., Defendants-Appellees.
    Third District
    Nos. 3—84—0071, 3—84—0072 cons.
    Opinion filed December 31, 1984.
    Rehearing denied February 8, 1985.

      Glenn J. Church, of Peoria, and Lex Hawkins and Glenn Norris, both of Hawkins & Norris, of Des Moines, Iowa, for appellants.
    Charles G. Roth, of Kavanagh, Scully, Sudow, White & Frederick, of Peoria, for appellees P. A. Bergner & Company and Charles V. Weise Company.

      Goldsworthy & Fifield, of Peoria, for appellee Seligman & Latz, Inc.
   JUSTICE HEIPLE

delivered the opinion of the court:

This action involves a department lease entered into between P. A. Bergner & Co., a retail department store chain in central Illinois, and Lloyds Jewelers, Inc., a retail jeweler located in Peoria. In 1967, Lloyds leased space within various Bergner stores and operated jewelry departments under the name of Bergner. The lease was to run until January 31, 1979, but was terminated by Bergner on July 31, 1977. Bergner brought an action for account stated to recover rent and fixture charges owed by Lloyds under the lease. J. Robert Congress, the sole shareholder of Lloyds, was also named as a defendant because he had personally guaranteed the indebtedness by signing two notes.

Lloyds filed a counterclaim against Bergner for breach of the lease contract. The remaining counterdefendants, Finlay-Strauss Division, Seligman & Latz, Inc., and the Charles V. Weise Co., were alleged by Lloyds to have been part of a conspiracy, along with Bergner, to tortiously interfere with Lloyds’ contract rights and prospective business advantage.

In addition to the lease with Bergner executed in 1967, Lloyds also entered into a lease with the Charles V. Weise Co. in 1971 to operate jewelry departments in Weise stores. The lease was assigned to a corporation owned by Robert Congress and a business associate. The Weise lease was terminated by Weise as of October 1, 1977. The terms of the Weise lease were essentially the same as those of the Bergner lease and their factual background identical. Although Weise is a party to this suit, it is the performance of the Bergner lease which is primarily at issue.

Briefly stated, the facts are as follows. Under the 1967 Bergner lease, Lloyds paid fixed monthly rent plus a percentage of gross sales at year end. Bergner was to collect Lloyds’ monthly receipts and make an accounting after deducting rent and fixture charges. In 1973, Lloyds discovered that Bergner had not been deducting the sums owed by Lloyds, resulting in a $46,000 arrearage. Lloyds informed Bergner, and the parties agreed that the debt would be paid in $4,000 monthly installments deducted from Lloyds’ receipts by Bergner.

In 1975, a new lease was entered into which provided for monthly deductions of percentage rent in order to eliminate the possibility of huge debts piling up. Bergner continued to perform under the 1967 lease and failed to charge Lloyds for percentage rent and fixtures as provided in the 1975 lease until Lloyds caught the error in August 1976 and informed Bergner.

No action was taken by Bergner until January 1977, when it demanded full payment of the $258,084 arrearage by Lloyds. The sole shareholder of Lloyds, Robert Congress, signed a letter acknowledging the debt and gave two notes guaranteeing the indebtedness. The notes were not paid when due.

In July 1977, Bergner withheld all of Lloyds’ gross receipts to apply against the debt. The practice was repeated in the months which followed, eventually forcing Lloyds out of business. Lloyds unsuccessfully attempted to negotiate a termination agreement. In October 1977, Lloyds vacated the Bergner stores.

Defendants Seligman & Latz, Inc., and Finlay-Strauss had been negotiating with Bergner in early 1977 to buy out the jewelry departments operated by Lloyds. Bergner and Finlay allegedly conspired to force Lloyds out of business by using the indebtedness as leverage.

In count I of the complaint, Bergner sought recovery for account stated. Counts II and III sought payment of the guarantee notes signed by Mr. Congress. The sum of the amounts alleged in counts II and III equaled $82,292.72, which was the amount alleged in count I. A jury verdict was returned for Bergner in the amount of $36,688.33 on all three counts. The trial court found that the verdicts could not be reconciled and ordered a new trial on damages. We reverse.

Lloyds argues that the record supports a reduction in the total amount sought by Bergner in count I from $82,292.72 to $36,688.33. The fact that the reduced award was repeated in counts II and III allegedly shows that the jury properly construed the notes to be for no more than amount owed under count I.

At trial, Lloyds established that the amount claimed by Bergner may have been inflated by as much as $68,000. Assuming the jury accepted all of Lloyds’ evidence as true, it could have awarded as low a sum as $14,292.74. Apparently the jury accepted only part of Lloyds evidence and reduced the award to $36,688.33. The record supports such a reduction.

At trial, the attorneys for Lloyds were able to show on cross-examination that Bergner’s account ledgers did not adequately support the full amount claimed by Bergner. Other accounting discrepancies were uncovered which would also support a reduced award. The fact that the jury awarded the reduced amount in all three counts is an error in form rather than evidence of hopeless confusion. The jury clearly intended the award of $36,688.33 in count I to represent the total amount of indebtedness. Instead of apportioning this amount between counts II and III, the jury construed each note as guaranteeing the amount in count I. We do not believe the jury intended that Bergner recover more than $36,688.33. Accordingly, the trial court erred in granting a new trial on damages.

Count I of Lloyds’ counterclaim sought $670,000 for breach of contract. The jury returned a verdict for Lloyds for the full amount requested. The trial court granted Bergner’s motion for a directed verdict. We reverse.

Lloyds argues that Bergner breached the lease by failing to deduct rent and fixture charges as required under the lease and then withholding all of Lloyds’ receipts to pay the debt which Bergner allowed to accumulate.

Bergner defends the directed verdict arguing that there was no breach. According to Bergner, the accounting provisions were for its own benefit to ensure collection of the amounts due from Lloyds. Bergner argues that a party may, with impunity, waive those portions of a contract inserted solely for that party’s benefit. Lempera v. Karner (1979), 79 Ill. App. 3d 221, 223.

The accounting provisions in the lease operated for the benefit of both parties. By failing to account as provided in the lease, Bergner deprived Lloyds of the right to meet its financial obligations in an orderly and relatively painless fashion via monthly deductions. It was clearly to Lloyds’ benefit that Bergner perform as required and not permit the amounts owed to Lloyds to grow out of control. Such a provision could not be waived by Bergner, and its failure to perform was a material breach of contract.

After permitting a huge arrearage to build up as a result of its nonperformance, Bergner attempted to collect this amount by absorbing Lloyds’ entire cash flow beginning in July 1977. It is true that Bergner had the right under paragraph six of the lease to deduct its proper charges and any sums due from Lloyds. However, Bergner was under an implied obligation to perform in good faith. Bergner’s sandbagging tactics were not in good faith. Bergner ignored the contract in creating the debt and then decided to enforce the contract in collecting the debt. The trial court erred in finding, as a matter of law, that Bergner did not breach the lease agreement.

Bergner argues that Lloyds waived its right to sue for breach because it was aware that debt was accruing under the lease and yet continued to perform. The record reveals that in August 1976, Lloyds first became aware that deductions were not being made pursuant to the 1975 lease. Lloyds immediately informed Bergner. Clearly, Lloyds did not acquiesce in any continuing breach by Bergner.

Next, Bergner argues that Lloyds’ action for breach of contract can more accurately be described as an action for constructive eviction. Regardless of whether we concentrate on the form or substance of count I of the counterclaim, Lloyds’ action is clearly one for breach of contract. The law of constructive eviction is irrelevant.

Along with the constructive-eviction argument, Bergner also contends that Lloyds is barred from suing for breach of contract because it is unable to plead and prove that Lloyds performed all conditions required of it. It is true that Lloyds has yet to pay all amounts due under the lease for rent and fixture charges. However, failure to perform a contract according to its terms is excused when the opposite party makes performance impossible. (Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959.) Bergner’s acts caused the amounts due under the lease to accumulate to the point where Lloyds was unable to pay the full amount on demand. Therefore, Bergner cannot use Lloyds’ nonperformance as a defense.

In the event we reinstate the jury verdict in favor of Lloyds on count I of the counterclaim, Bergner argues that the cause must be remanded for a new trial because: (1) the court erred in submitting one of Lloyds’ jury instructions and; (2) Lloyds failed to prove its damages.

Lloyds offered the following non-IPI jury instruction which the trial court submitted over Bergner’s objection:

“You are instructed that whenever two parties enter a contract, there is an obligation which is implied in the law that both parties will perform their respective duties thereunder in good faith and will cooperate with the other in the performance thereof. You are told that the law further implies that each party to a contract will refrain from doing anything which will have the effect of injuring or destroying the right of the other party to receive the fruits or benefits of the contract.”

Bergner does not argue that the instruction misstates the law. Bergner’s objection is that the instruction violates Supreme Court Rule 239(a) (87 Ill. 2d R. 239(a)) and that the instruction covers matters within the province of the trial judge and not the jury.

Supreme Court Rule 239(a) requires that non-IPI instructions be simple, brief, impartial and free from argument. Lloyds’ instruction states the relevant law as simply and briefly as is possible.

Bergner contends that the obvious purpose of the instruction was to have the jury conclude that Bergner had an obligation to retain Lloyds under the lease even though Lloyds was substantially in arrears. We find that the instruction is nonargumentative and impartial. It instructs the jury as to contractual obligations implied in law which are equally binding on both parties.

Bergner argues that the principle of good faith and fair dealing is primarily a construction aid in determining the intent of the parties. (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596.) Therefore, the instruction requires the jury to construe the contract, which is a function usually reserved for the court. The question of good faith is not being used here as a construction aid. Whether or not the contract was performed in good faith is directly related to the factual issue of whether there was a breach. We find that the instruction was properly submitted to the jury.

Bergner argues that the evidence does not support a $670,000 damage award for breach of contract. Lloyds’ measure of damages is the difference between the profit which would have been realized had Lloyds operated the store through January 31, 1979, the date the lease was to terminate, and the profit actually realized by Lloyds for that same period. The lease was terminated in October 1977.

It is not necessary that Lloyds prove its lost profits with absolute certainty, but only that the prospective profits be approximated by competent proof. (H. Vincent Allen & Associates, Inc. v. Weis (1978), 63 Ill. App. 3d 285.) It has been held repeatedly that the assessment of damages is a question of fact for the jury. Where no issue is raised concerning the instructions on damages and there is no showing that the verdict was the result of passion, prejudice or a patent disregard of any element of damages, the jury verdict will be affirmed. Maguire v. Waukegan Park District (1972), 4 Ill. App. 3d 800.

Bergner argues that jury was not given sufficient information to assess damage and that some of the information was irrelevant and erroneous. Projection of future profits by Lloyds’ expert witness was based on Lloyds’ performance in prior years. This is the generally accepted method of calculating lost profit. (Kollberg v. Cities Service Oil Co. (1951), 343 Ill. App. 355.) The basis of Bergner’s objection is not that improper procedures were used but that unreasonable assumptions were employed. We have examined the record and find that an adequate foundation was laid for each assumption made by Lloyds’ expert in computing future lost profits. We believe that it was within the province of the jury to reject Bergner’s attempt on cross-examination to undermine the credibility of Lloyds’ witness and the accuracy of his figures.

The remaining issues concern counts II, III, IV and V of Lloyds’ counterclaim alleging tortious interference with contract (I, II) and tortious interference with prospective business advantage (III, IV). As to counts II and III, jury verdicts were returned in favor of defendant Finlay-Strauss. Count IV resulted in a directed verdict for FinlayStrauss, a directed verdict for Bergner on some issues and a jury verdict for Bergner on the remaining issues. Finally, a directed verdict was entered for Bergner, Weise and Finlay-Strauss on count V.

Lloyds argues that the trial court erroneously instructed the jury that clear and convincing evidence is that quantum of proof which leaves no reasonable doubt in the mind of the trier of fact. The clear and convincing standard is applied in cases charging a civil conspiracy, as do the last four counts of Lloyds’ counterclaim. Illinois courts have not yet settled on a single definition of clear and convincing evidence. For example, clear and convincing evidence has been variously defined as evidence which “leave[s] the mind well satisfied [of the truth of a proposition]” (Hotze v. Schlanser (1951), 410 Ill. 265, 269); evidence which “strikes all minds alike as being unquestionable” (Lines v. Willey (1912), 253 Ill. 440, 449); evidence which “lead[s] to but one conclusion” (Johnson v. Johnson (1953), 1 Ill. 2d 319, 324); “more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense” (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 14). There are also a number of cases which define clear and convincing evidence as proof which leaves no reasonable doubt in the mind of the trier of fact. (Galapeaux v. Orviller (1954), 4 Ill. 2d 442; In re Drescher v. Drescher (1980), 91 Ill. App. 3d 658; In re Jones (1975), 34 Ill. App. 3d 603.) Although stated in terms of reasonable doubt, clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense. (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 14.) Accordingly, it was not error to define clear and convincing evidence based upon reasonable doubt.

Next, Lloyds contends that the trial court erred by instructing the jury that malice and conspiracy are elements of Lloyds’ cause of action for interference with contract.

Malice is defined as intent to do wrongful harm and injury without just cause. While malice has been presumed in some cases, it is nonetheless an essential element of a cause of action for tortious interference with contract. (Clifton-Strode, No. 2, Inc. v. Kent (1982), 110 Ill. App. 3d 525; Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254.) It was not error to so instruct the jury.

Counts II, III, IV and V of Lloyds’ counterclaim each alleged that the named defendants acted as part of a conspiracy. Conspiracy is not an essential element of a cause of action for tortious interference with contract or business advantage. However, when a plaintiff pleads a conspiracy, he must also prove a conspiracy. In fact, it was Lloyds who submitted an instruction defining conspiracy in relation to counts II and III of the counterclaim. Therefore, additional issues instructions on conspiracy were invited by Lloyds and were properly given.

Finally, Lloyds argues that the trial judge abused his discretion when he denied Lloyds’ motion to amend its counterclaim to conform to the proofs and to add Bergner and Weise as defendants in counts I and II. Lloyds’ motion to amend was made at the close of evidence. The trial court stated that Lloyds could amend to conform to the proofs but would not be allowed to realign the defendants.

Lloyds argues that the motion to amend could have properly been granted. That may be true, but it does not necessarily follow from this argument that the trial court’s failure to grant the motion was an abuse of discretion.

The party alignment of counts II, III, IV and V of the counterclaim had remained unchanged for at least two years before trial. Lloyds realized by the end of trial that by failing to include Bergner and Weise in counts II and III, it would be unable to sustain its claim of a conspiracy. Lloyds had ample time to solve any problems in the alignment of defendants. The trial court did not abuse its discretion by refusing to allow such a rearrangement at the close of evidence.

To summarize, the judgment of the circuit court of Peoria County as to counts I, II and III of the complaint and count I of the counterclaim is reversed and the jury verdicts reinstated. We affirm the trial court’s judgment on the remaining counts of Lloyds’ counterclaim.

Affirmed in part; reversed in part.

BARRY and SCOTT, JJ., concur.


text:
    HART FISHER, Plaintiff-Appellant, v. ILLINOIS OFFICE SUPPLY COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—84—0272
    Opinion filed December 31, 1984.
    Rehearing denied February 8, 1985.
    Darrell K. Seigler, of Kuleck & Seigler, of Ottawa, for appellant.
    Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

On July 2, 1982, plaintiff filed an eight-count complaint in the circuit court of La Salle County. Named as defendants were Illinois Office Supply (plaintiffs former employer, hereinafter IOS), Sam Gilpin, Jr., an officer of IOS, Graphic Arts International Union, Local 107B (the Union), and Wayne Corcoran, president of the Union. Counts I through IV of the complaint allege that plaintiffs discharge on October 27, 1981, violated the collective bargaining agreement between IOS and the Union. These counts also allege that the Union breached its duty of fair representation in mishandling plaintiffs wrongful discharge grievance. Counts V through VIII are grounded upon an allegedly defamatory letter published by Gilpin, as agent for IOS, to the Union. All counts were dismissed upon defendants’ motions. This appeal follows.

Plaintiff was a member in good standing of the Union. The collective bargaining agreement between IOS and the Union contained a typical “just cause” standard for discharge of employees. Plaintiff was discharged on October 27, 1981, for allegedly falsely representing the replacement of photo chemicals previously borrowed. Under the collective bargaining agreement, plaintiff was entitled to grieve his discharge to a joint management-labor standing committee. As part of the procedure for processing such grievances, management submits in writing to the Union a statement of reasons for the discharge. The letter from Gilpin to the Union explaining the reason for plaintiff’s discharge is the subject of counts V through VIII of this action. The asserted failure to handle his grievance properly, along with the alleged wrongful discharge, forms the basis of counts I through IV. Plaintiff’s grievance was denied by the committee on December 7, 1981.

Counts I through IV represent the typical “hybrid” action recognized by the United States Supreme Court in Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903. There, it was held that where a collective bargaining agreement provides the exclusive remedy for wrongful discharge, no action in State or Federal court for breach of the agreement could be maintained. However, where the Union had failed to process the grievance or had handled the grievance in an arbitrary or perfunctory manner (Hines v. Anchor Motor Freight, Inc. (1976), 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048), an action against both the employer and union could be maintained pursuant to 29 U.S.C. section 301.

Defendants’ motion to dismiss counts I through IV was granted on the basis of the six-month statute of limitations announced in DelCostello v. International Brotherhood of Teamsters (1983), 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281. In response to an increasingly confusing situation surrounding the proper statute of limitations to apply to wrongful discharge/fair representation suits (see, e.g., United Parcel Service, Inc. v. Mitchell (1981), 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559), the court created a uniform six-month standard based on section 10(b) of the National Labor Relations Act (29 U.S.C. sec. 160(b) (1982)). As the complaint at issue here was filed over six months after the denial of plaintiff’s grievance, DelCostello clearly applies.

Plaintiff appears to assert that the six-month limitations period should be tolled on account of the concurrent filing of unfair labor practice charges with the National Labor Relations Board. While a union’s breach of its duty of fair representation may be the basis of an unfair labor practice charge, Miranda Fuel Co. (1962), 140 N.L.R.B. 181, enforcement denied (2d Cir. 1963), 326 F.2d 172, there is no good reason to toll the statute merely because similar charges have been filed. The rights to be vindicated and remedies available from these separate actions are sufficiently independent that the filing of one should not affect the other. Recent cases interpreting DelCostello and possible tolling of the statute are in accord. (Aarsvold v. Greyhound Lines (8th Cir. 1983), 724 F.2d 72; Marston v. LaClede Cab Co. (E.D. Mo. 1983), 571 F. Supp. 1243.) Accordingly, we affirm the dismissal of counts I through IV.

The court below dismissed counts V through VIII based on an absolute Federal privilege for statements made in the course of grievance and arbitration proceedings. Plaintiff’s challenge to this ruling is that a motion to dismiss under section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—619) is not the proper vehicle for resolution of this issue. We disagree. Section 2—619(a)(9) provides for involuntary dismissal where it appears that the claim asserted against the defendant is barred by “affirmative matter avoiding the legal effect of the claim.” In his affidavit in support of the motion, defendant Gilpin alleged that the circulation of the letter explaining plaintiff’s discharge was done to fulfill obligations under the collective bargaining agreement, that the letter was not circulated to anyone arguably beyond the scope of the asserted privilege, and that the letter was prepared for use in the grievance procedure established by the collective bargaining agreement. No counteraffidavit was filed by plaintiff. In the context of dismissing counts V through VIII on the finding of an absolute privilege, the trial court had before it no facts which would prevent the entry of judgment against plaintiff.

Nonetheless, we are disposed to extend our inquiry beyond the briefs to determine the applicability vel non of an absolute privilege to the communication at issue. It should first be noted that no Illinois court has considered this question in the light of modern Federal preemption doctrine (cf. Chaloupka v. Lacina (1939), 301 Ill. App. 173).

The traditional approach to questions of Federal preemption comes from San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773. Two general guidelines were expressed. If the activity in question was arguably protected or prohibited by the National Labor Relations Act, then State court action would ordinarily be preempted. However, if the activity in question touched interests deeply rooted in local feeling and responsibility, or if the activity was of “peripheral concern” to the policies underlying the Act, then Federal preemption did not necessarily apply-

The hallmark of the Garmon doctrine, according to later cases, was its flexibility.

“[T]he decision to pre-empt *** state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor polices.” Vaca v. Sipes (1967), 386 U.S. 171, 180, 17 L. Ed. 2d 842, 852, 87 S. Ct. 903, 911.

The application of Federal preemption to State tort claims has been addressed by the United States Supreme Court. In Linn v. United Plant Guard Workers of America (1966), 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657, the court ruled that an action for libel which occurred in the course of a labor dispute was not preempted. However, in order to ensure that the national policy of free and open communications during labor disputes was not chilled, the actual malice standard of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, was held applicable to causes of action for libel and slander arising out of such disputes. In Farmer v. United Brotherhood of Carpenters & Joiners of America (1977), 430 U.S. 290, 51 L. Ed. 2d 338, 97 S. Ct. 1056, an action for intentional infliction of emotional distress was held not preempted. One of the important points that came out of Farmer was that one of the allegedly wrongful acts fell clearly within conduct expressly prohibited by the National Labor Relations Act. The court, while allowing the action, expressed concern that a resolution of the State tort action required an adjudication of the “merits” of the unfair labor practice. This mode of analysis took hold in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1978), 436 U.S. 180, 56 L. Ed. 2d 209, 98 S. Ct. 1745. Sears brought a trespass action against the union after the union refused to cease picketing on Sears’ property. A preliminary injunction was entered. The union appealed, claiming that questions of the legality of conduct which arguably amounted to either prohibited organizational and recognitional picketing or protected activity under section 7 of the Act (29 U.S.C. sec. 157 (1976)), fell within the exclusive jurisdiction of the N.L.R.B. The court upheld the validity of the injunction. The primary concérn in the State court proceedings was the location of the picketing, while the focus of N.L.R.B. proceedings would be the purpose and character of the picketing. Thus, no realistic interference with national labor policy could be found by allowing the State court to address those aspects of the picketing which are traditionally the subject of State law.

Before analyzing the case at bar, it must be pointed out that the cases previously discussed are not entirely on point here. Linn, Farmer and Sears, Roebuck & Co. discuss the extent to which sections 7 and 8 of the National Labor Relations Act (29 U.S.C. secs. 157-158) preempt State tort actions. Here, the issue is whether the Federal policy of encouraging collective bargaining and arbitration of grievances preempts a State cause of action. Suffice to say that the national labor relations policy as expressed in cases concerning those processes is every bit as strong as the policies expressed in sections 7 and 8 of the Act. See United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347.

The principal exponent of Federal preemption of defamation actions stemming from the grievance and arbitration process is the United States Tenth Circuit Court of Appeals. In General Motors Corp. v. Mendicki (10th Cir. 1966), 367 F.2d 66, and later in Hasten v. Phillips Petroleum Co. (10th Cir. 1981), 640 F.2d 274, the court held that statements made in contexts similar to those as the case at bar were absolutely privileged. Significant reliance was placed on the concern expressed in Farmer that adjudication of the merits of the underlying labor dispute would occur in the State court rather than at the arbitration proceeding. This was thought to be particularly troubling where the allegedly defamatory communication was a statement of reasons given for the employee’s discharge.

However, several State courts which have faced this issue have ruled that only a qualified privilege applied to this kind of communication. In Ezekiel v. Jones Motor Co. (1978), 374 Mass. 382, 372 N.E.2d 1281, plaintiff brought suit against his employer for statements made by an agent of the employer at plaintiff’s arbitration hearing. Plaintiff had been discharged for theft. The employee’s agent stated that he had witnessed the act of theft. Specifically rejecting the Mendicki absolute privilege, the Supreme Judicial Court of Massachusetts chose to apply only a qualified privilege as New York had previously done. (Bird v. Meadow Gold Products Corp. (1969), 60 Misc. 2d 212, 302 N.Y.S.2d 701.) Earlier, the Supreme Court of Maryland had applied only a qualified privilege to a statement of charges given to the employee and his union. (Henthorn v. Western M Ry. Co. (1961), 226 Md. 499, 174 A.2d 175.) Henthorn is particularly significant in that this comipunication was mandated by a collective bargaining agreement which was executed in accordance with the guidelines of the Railway Labor Act (45 U.S.C. sec. 153 (1982)) in this area.

Employing the Sears, Roebuck & Co. preemption analysis, we conclude that an absolute privilege is not available to defendant here. There is little doubt that the protection of an individual’s interest in his reputation is a deep and traditional concern of the State of Illinois. Furthermore, there is only a peripheral Federal concern in this area. We believe that Linn adequately expresses the Federal interest in defamation actions arising out of labor disputes. Thus, the only factor remaining is the extent to which a State court judgment in this case would adjudicate the merits of the underlying labor dispute. Keeping in mind that Linn requires plaintiff to meet an actual malice standard in this case, it appears that the defamation action addresses matters of State concern well beyond the scope of the arbitration proceeding. The question of defendant’s state of mind, particularly as it pertains to a possible award of punitive damages, is of paramount importance to the State’s interest in deterring malicious libels. The nature and extent of injury to plaintiff’s reputation, as well as mental pain and suffering, are significant issues that only the State court could resolve. It is true that an adjudication of the issue of truth or falsity of the communication would cause some interference with the Federal policy favoring the resolutions of these questions in arbitration. However, the preemption doctrine should not be used as a shield to protect malicious falsehoods where the State has an overriding interest in protecting its citizens from the damage which these falsehoods inevitably cause. Therefore, we conclude that an absolute privilege is not available as a defense to counts V through VIII. Instead, we find that the traditional qualified constitutional privilege as expressed in Linn and Colson applies here. Thus, in order for plaintiff to prevail on counts V through VIII, he must prove that defendant Gilpin knew the letter to be false when published or published it with reckless disregard for its truth or falsity.

Accordingly, we affirm the dismissal of counts I through IV. The dismissal of counts V through VIII is reversed, and we remand for further proceedings in accordance with this opinion.

Affirmed in part; reversed in part.

SCOTT and STOUDER, JJ., concur.

      Even if Linn -were to be distinguished on the facts, the actual malice standard would probably still have to be met under the recent decision in Colson v. Stieg (1982), 89 Ill. 205, 433 N.E.2d 246.


text:
    THE GREATER PEORIA SANITARY AND SEWAGE DISPOSAL DISTRICT, Plaintiff-Appellee and Cross-Appellant, v. JAMES P. KELLSTEDT, Plaintiff-Appellant and Cross-Appellee.
    Third District
    No. 3—83—0815
    Opinion filed January 8, 1985.
    Rehearing denied February 8, 1985.

      James P. Kellstedt, of Peoria Heights, for appellant pro se.

    Tim Swain, of Swain, Johnson & Gard of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

On December 5, 1983, the circuit court of Peoria County entered judgment in favor of plaintiff, Greater Peoria Sanitary and Sewage Disposal District (Sanitary District), and against defendant, James Kellstedt, for unpaid sewage charges of $205.56, costs of $29.20, recording fee of $20 and attorney fees of $645. No court reporter was present at trial, and, therefore, the record of the proceedings is brief and was stipulated to by both parties. The record also contains several exhibits including correspondence between the parties and a billing record for Kellstedt’s account. The unpaid charges were accrued during a period from May 1978 through December 1980. The billing record also indicates that there were numerous adjustments made to Kellstedt’s account during this period.

Two basic issues are raised by defendant on appeal. First, he argues that the use of water consumption as measured by the water company’s meter to determine waste water output from the Kellstedt residence was an unconstitutional application of Peoria Ordinance 301 and, therefore, deprived him equal protection and due process. The second issue raised is whether the award of attorney fees (as provided by statute and by ordinance 301) was (1) special legislation and, therefore, prohibited by the Illinois Constitution, and (2) even if constitutional under the circumstances of this case, the fee award was unreasonable. We reverse both as to the award for unpaid user fees and as to the award for attorney fees.

This court has previously upheld the constitutionality of Ordinance 301 (adopted pursuant to section 7 of the Sanitary District Revenue Bond Act (Ill. Rev. Stat. 1977, ch. 42, par. 319.7)) in Board of Education v. Greater Peoria Sanitary & Sewage Disposal District (1980), 80 Ill. App. 3d 1101, 400 N.E.2d 654. However, we did not consider the issues raised here in the Board of Education case. Kellstedt’s basic argument is that ordinance 301 is unconstitutional as applied to him. The ordinance sets rates based upon water consumption and provides for a credit for water used but not discharged into the Sanitary District’s sewers in section 206 of the ordinance. Section 206 provides for separate metering to measure discharge (section 206.1) and for an allowance for lawn sprinkling at single and two-family residences (section 206.2). Section 206—2 reads in pertinent part:

“206.2.1 By reducing the metered water consumption by an amount equal to 10%”

Kellstedt argues that this credit discriminates against users who, like himself, refuse to purchase meters at their own expense and whose outdoor water usage is substantially in excess of the 10% allowance under section 206.2.1. The result in this case is that the credit for lawn sprinkling is wholly inadequate, because Kellstedt uses 75% of his water during the summer months to fill his swimming pool and to water his lawns, gardens and golf green. Therefore, 75% of his water consumption is not discharged into the sewers of the Sanitary District, and his user fees are disproportionately higher than other users who use less water outdoors.

The Sanitary District argues that calculating discharge by use of the water company’s meters is a common practice statewide and was approved by the appellate court in McDonald Mobile Homes, Inc. v. Village of Swansea (1977), 56 Ill. App. 3d 759, 371 N.E.2d 1155. However, unlike the village of Swansea, the Greater Peoria Sanitary District has acknowledged that water consumption and sewer discharge are not necessarily proportional by providing for the credits in section 206. Therefore, while the underlying method of ratemaking is arguably not arbitrary, the credit is arbitrary as applied if it produces a substantial disparity in charges to residential users.

The remaining question then is whether the discriminatory effect of the lawn-watering credit provision violates either constitutional due process or equal protection. Constitutional equal protection protects against a governmental classification scheme which discriminates against certain members of the public. However, as the Sanitary District points out, not all classification schemes are violative of equal protection. In this case the classification scheme does not involve a suspect class, nor does it deprive Kellstedt of a fundamental right. Therefore, there is no equal protection violation.

However, in Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 405 N.E.2d 1256, the appellate court found a rate scheme invalid as violative of a common law right of a consumer to be protected from exorbitant rates and unjust discrimination. As the court pointed out in Austin, a city operating a utility is in the same position as a private utility and is precluded from unjust discrimination in ratemaking. The test applied by the appellate court in Austin was whether the difference in rates was reasonably related to the difference in the cost of providing service. (85 Ill. App. 3d 89, 98-99, 405 N.E.2d 1256, 1265.) Therefore, the common law right, unlike the constitutional right, which protects against discriminatory governmental action, does not require that the consumer be a member of a suspect class. In this case, the difference in the rates charged to consumers using substantially in excess of 10% of the water consumed for outdoor purposes and consumers using 10% or less of the water consumed out of doors is substantial and is not reflected in the increased cost of service to the user charged the greater amount.

Ample evidence exists in the record to determine that Kellstedt used as much as 75% more water during the summer months in the two-year period when these unpaid user charges were incurred. One need only look to the billing record introduced into evidence by the Sanitary District to support Kellstedt’s contention. The ordinance must provide a method to allow substantial outdoor water consumers to further reduce their sewer charges upon proof that a substantial amount of their water consumption is not discharged into the Sanitary District sewers. We, therefore, hold that the ordinance is invalid to the extent that it fails to permit a credit for substantial nonsanitary services.

The other issue raised by Kellstedt concerns both the constitutionality of the attorney fee provision and the reasonableness of the actual award. The Sanitary District has cross-appealed the award of fees asking that the award be increased to $3,000 to cover all attorney fees incurred in this litigation. Because we find that no award of fees was proper under these circumstances, we do not reach the constitutional claim made by Kellstedt. Section 7 of the statute provides:

“The sanitary district also has the power, from time to time, to sue the occupant or user of that real estate in a civil action to recover money due for sewerage services, plus a reasonable attorney’s fee, to be fixed by the court.” (Ill. Rev. Stat. 1983, ch. 42, par. 319.7.)

Ordinance 301 contains a similar provision. We find that these provisions apply only to the collection of moneys due the Sanitary District. When there is a genuine dispute as to the amount due the district, it is unreasonable to allow any attorney fees to be levied against the consumer. To hold otherwise would be to penalize a consumer who disputes the user charges assessed against him and would risk a violation of the consumer’s due process rights, especially in a case such as this where the consumer’s argument has not only merit but has prevailed.

We, therefore, reverse the judgment of the circuit court of Peoria County for sanitary sewer services and attorney fees and remand with instructions to vacate the award of attorney fees and for proceedings to determine the proper credit for the period in question consistent with the views expressed in this opinion.

Reversed and remanded with instructions.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY SPEARS, JR., Defendant-Appellant.
    Third District
    No. 3—84—0174
    Opinion filed February 5, 1985.
    Rehearing denied March 21, 1985.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court;

The defendant, Henry Spears, Jr., was convicted of attempted murder, two counts of armed violence and two counts of reckless conduct. On appeal, he challenges his convictions and his sentence. We reverse.

At trial the State presented the following evidence. On July 9, 1983, the defendant was visiting the home of his wife, Barbara Spears, from whom he was separated. During the course of the day the defendant and his wife had two arguments. At approximately 8 p.m. Barbara was playing cards on the porch of the home with Annette Keys and two other women. The defendant had called Chester Adkins, with whom the defendant was living while separated, for a ride to a party. Adkins arrived and went to the porch. Adkins’ nephew then rang the doorbell. Barbara answered the door and then returned to the porch, passing by the defendant, who was leaning in the doorway.

Barbara testified that as she passed the defendant he punched her and then drew a gun from a shoulder holster and shot her twice. One of the shots also injured Annette Keys. Barbara fell to the floor. Adkins attempted to pin the defendant’s arms, but could not restrain the defendant. The defendant aimed the gun at Barbara’s head. Another guest, Sunny Coleman, then entered the porch and pushed the defendant’s arm. A bullet struck the floor near Barbara’s head. Barbara sustained bullet wounds to her chest and her arm. Keys’ arm was grazed by a bullet.

The defendant left the house immediately. The police later found the gun and holster on the roof of a nearby school.

The defendant testified at trial that Barbara pushed him as she passed by him after answering the door. The other women then jumped up and knocked the card table over. Someone grabbed the defendant from behind. During the struggle with this unknown assailant, the defendant pulled his gun from the holster. The gun went off unintentionally. He then left the house. He threw his gun onto the school roof because he was scared.

Chester Adkins also testified for the defendant. Adkins testified that he struggled with the defendant. Adkins was impeached with a statement he gave to the police after the shooting. In his statement, Adkins reported that he saw the defendant remove the gun and point it at Barbara. Adkins also stated that defendant carried the gun 90% of the time.

Based upon his own testimony, the defendant tendered a jury instruction on reckless conduct. The trial court instructed the jury on reckless conduct, armed violence, and attempted murder. During deliberations, the jury sent a note to the court asking whether verdict forms had to be completed on all five charges. The trial court instructed the jury to complete a form on each charge. The jury found the defendant guilty on all five charges.

At the sentencing hearing, the trial court entered judgment on attempted murder and armed violence. The court considered as a factor in aggravation that the defendant’s conduct caused or threatened serious harm. The defendant was sentenced to a 20-year term of imprisonment.

The defendant’s first argument on appeal is that the court erred in entering judgment on attempted murder and armed violence. Specifically, the defendant argues that because the mental states required for attempted murder and armed violence differ from the mental state for reckless conduct, the, finding of reckless conduct negates the presence of the mental state for murder. Based upon this legal inconsistency, the defendant asserts that the trial court should have entered judgment only as to the reckless conduct charges.

The defendant relies on this court’s recent decision in People v. Milner (1984), 123 Ill. App. 3d 656, 463 N.E.2d 148. The defendant in Milner was convicted of both murder and involuntary manslaughter. The defendant had killed his child while disciplining him. The defendant was originally charged with murder. Based upon the evidence introduced at trial, an instruction on involuntary manslaughter was given to the jury. This court held that the conviction for murder had to be vacated because the mental state required for involuntary manslaughter negated the presence of the requisite mental state for murder.

The principle set forth in Milner is controlling in the instant case. Reckless conduct requires as a mental state that the accused acted recklessly. (Ill. Rev. Stat. 1983, ch. 38, par. 12—5.) Recklessness is defined in relevant part as a conscious disregard of a substantial and unjustifiable risk. (Ill. Rev. Stat. 1983, ch. 38, par. 4—6.) Murder includes as an element that the defendant either intended to kill, knew that his act would cause death, or knew that his act would create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1.) The armed violence charge was based on the underlying felony of aggravated battery. Under this charge, an element of aggravated battery was that the defendant intentionally or knowingly caused great bodily harm. Ill. Rev. Stat. 1983, ch. 38, par. 12—4.

The finding by the jury that the defendant acted only recklessly negates any finding that the defendant possessed the necessary intent for murder or armed violence based on aggravated battery. Thus we find, as we did in Milner, that the trial court erred in entering judgment on the more serious charges of murder and armed violence.

Unlike Milner, however, it is clear that in the instant case, the inconsistent verdicts resulted in substantial part from the jury’s confusion regarding the multiple-verdict forms. We further conclude that the trial of the defendant indicated that there was sufficient evidence to support a retrial. We, therefore, decline to enter judgment on the reckless conduct charges, because those convictions are the result of the jury’s confusion. Instead, we reverse the defendant’s convictions and remand the cause for a new trial consistent with this decision.

Because we remand for a new trial, we do not address the other issues raised by the defendant on appeal.

The judgment of the circuit court of Peoria County is reversed and the cause remanded.

Reversed and remanded.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

The majority has given the defendant a new trial based on People v. Milner (1984), 123 Ill. App. 3d 656. I dissented in Milner and do so again.

In Milner, the jury returned guilty verdicts for involuntary manslaughter and murder. The corresponding mental states for these offenses are recklessness and knowledge or intent. Judgment was entered on the murder verdict. The majority of this court reversed the murder conviction, holding that a finding of recklessness negated the mental state for murder. The situation in the present case is similar. The jury returned guilty verdicts for attempted murder, armed violence (based on the underlying felony of aggravated battery) and reckless conduct. The mental states for these offenses are intent or knowledge (attempt and armed violence) and recklessness.

A finding of reckless conduct does not preclude a conviction for attempted murder or armed violence. Recklessness and knowledge or intent are not mutually exclusive mental states. The jury could have reviewed the facts of this case and consistently and reasonably found that the defendant’s acts were sufficient to satisfy the instructions on attempted murder, armed violence and reckless conduct.

The defendant here was trying to kill his wife and almost succeeded. Hence, the attempt charge. While trying to shoot his wife, the defendant fired wildly and wounded a bystander. Such an act is certainly reckless. This evidence can, without inconsistency, support verdicts for crimes involving the mental states of intent, knowledge and recklessness. The defendant intended to kill his wife and knew that his actions created a strong probability of great bodily harm. The defendant also acted recklessly because he consciously disregarded a substantial and unjustifiable risk that an innocent bystander on the crowded porch might be hurt during the fusillade.

The evidence supports all of the guilty verdicts, and the defendant was protected from any legal prejudice because judgment was entered only on the attempt and armed violence verdicts. The defendant is not entitled to a new trial. Therefore, I dissent.


author: PRESIDING JUSTICE GREEN

text:
    DANIEL J. BREINER, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—84—0141
    Opinion filed February 20, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Susan C. Weidel, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Don Cary Collins, of Belleville, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On July 1, 1983, Jim Edgar, Secretary of State, State of Illinois (Secretary) entered an order denying a petition filed by plaintiff, Daniel Breiner, requesting either the reinstatement of his driving privileges or the issuance of a restricted driving permit. Pursuant to the administrative review provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3—101 et seq.), plaintiff filed a complaint in the circuit court of Sangamon County. On January 6, 1984, the circuit court entered an order determining that the Secretary’s decision was contrary to the manifest weight of the evidence and ordering the Secretary to reinstate plaintiff’s driving privileges. The Secretary has appealed. We conclude that (1) the Secretary’s denial of full driving privileges should be upheld; but (2) the Secretary should have issued a restricted driving permit.

The record indicates that on February 28, 1983, plaintiff filed a written request for reinstatement of his driving privileges. The following evidence was introduced at administrative proceedings conducted by a hearing officer. Certain information contained in plaintiff’s driver’s license file maintained by the Secretary indicated that plaintiff was (1) born on December 18, 1960; (2) issued an Illinois driver’s license on July 29, 1978; (3) convicted on May 16, 1979, for driving too fast for road conditions; and (4) convicted on April 29, 1980, for the offense of reckless conduct (Ill. Rev. Stat. 1979, ch. 38, par. 12—5). This conviction was based upon plaintiff’s involvement in a two-vehicle collision in which two individuals were fatally injured.

The information introduced at the hearing further indicated that pursuant to section 6—205(a)(10) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 6—205(a)(10)), plaintiff’s driver’s license was revoked on May 22, 1980, following his conviction of the offense of reckless conduct arising from the use of a motor vehicle.

Plaintiff testified at the hearing as follows. On the evening of the collision, plaintiff, who lived in Albers, and three of his friends drove in plaintiff’s car to a tavern located in New Baden. They remained in the bar from approximately 8 p.m. until midnight, and plaintiff consumed six or seven 12 oz. beers. After leaving the bar, plaintiff and his friends got in the plaintiff’s car. As plaintiff was driving his friends home, plaintiff was involved in a two-vehicle collision. However, plaintiff stated that he did not remember any of the details concerning the accident because he “blacked out.”

Plaintiff further testified that (1) at the time of the hearing, he was 22 years old, lived at home with his parents, and drank two or three beers per week; and (2) from the date of the accident, September 8, 1979, until the day his driver’s license was revoked, May 22, 1980, he was given no traffic citations and was involved in no accidents. Plaintiff also stated that he believed he would be a safe driver and would be careful and cautious and follow all the rules of the road.

Plaintiff’s mother testified that (1) she had observed defendant driver after the collision and before his driver’s license was revoked and during this time plaintiff was always cautious and careful; and (2) since the collision, he keeps a “lookout” even as a passenger.

An alcohol evaluation report indicated that although he regularly consumed beer, plaintiff did not have an “alcohol problem.”

REINSTATEMENT OF FULL DRIVING PRIVILEGES

Section 6—208(b) of the Code sets forth the standard for determining whether an individual’s full driving privileges should be reinstated. Section 6—208(b) provides, in part:

“[T]he Secretary of State shall not issue such license unless and until he is satisfied after investigation of such person that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare.” Ill. Rev. Stat. 1981, ch. 951/2, par. 6—208(b).

The Secretary, pursuant to section 2—104(b) of the Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 2—104(b)), has promulgated certain regulations which have the force and effect of law. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 387 N.E.2d 320.) One such regulation, not in effect at the time of the hearings but in effect when the hearing officer made the findings and recommendations, provides that in order to reinstate an individual’s driving privileges, the Secretary must determine:

“[T]he public health and safety must not be endangered by the reinstatement of the applicant’s drivers license. The applicant, if restored to driving privileges, must operate a motor vehicle safely so as not to be a danger to himself or herself or other drivers on the road. The mere passage of time since the date of revocation is not sufficient evidence.” 7 Ill. Reg. 7501, 7527 (1983).

The Secretary maintains that he properly denied plaintiff’s request for reinstatement of full driving privileges because (1) plaintiff was not a credible witness; and (2) plaintiff’s driving record showed frequent and severe infractions.

The record indicates that although plaintiff was required to show that he was entitled to the reinstatement of his driving privileges, plaintiff’s testimony as to his rehabilitation and reform was vague and unresponsive. When asked by his attorney if he would be a careful and cautious driver and if he would obey the rules of the road, plaintiff offered only one word affirmative responses. In addition, when asked to explain why he would be a safe and responsible driver, plaintiff responded: “I just would.”

Plaintiff also offered self-serving and conflicting testimony in which he attempted to minimize his alcohol consumption. At the administrative proceeding plaintiff testified that he drank two or three beers approximately two times per week. During a subsequent alcohol evaluation session, plaintiff told the alcohol counselor that he drinks two or three beers only once or twice a month.

As to the frequency and severity of plaintiff’s driving record, the evidence indicates that within approximately one year after he obtained his driver’s license, plaintiff was involved in two incidents which resulted in convictions for driving too fast for conditions and for reckless conduct. The collision upon which the reckless conduct conviction was based occurred after plaintiff had consumed “six or seven beers” and resulted in the death of two individuals.

We recognize that courts of review should not reweigh the evidence and determine what is the preponderance of the evidence, and should set aside an agency decision only if it is contrary to the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877.) Accordingly, based on the foregoing evidence and the fact that mere passage of time since the date of revocation is not sufficient evidence (7 Ill. Reg. 7501, 7527 (1983)), we conclude that the Secretary’s decision to deny plaintiff’s request for reinstatement of full driving privileges was not contrary to the manifest weight of the evidence.

ISSUANCE OF A RESTRICTED DRIVING PERMIT

Although plaintiff’s written request to the Secretary does not expressly refer to the issuance of a restricted driving permit, both the Secretary’s decision and the parties’ arguments on appeal concern the propriety of granting plaintiff such a permit. Accordingly, we conclude that this issue is properly before us on review.

Section 6—205(c) of the Code sets forth the procedures for granting a restricted driving permit. That section provides:

“[T]he Secretary of State in his discretion *** may, if application is made therefor, issue to [a person whose license has been revoked] a restricted driving permit granting the privilege of driving a motor vehicle between his residence and his place of employment or within other proper limits, except that this discretion shall be limited to cases where undue hardship would result from a failure to issue such restricted driving permit.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 951/2, par. 6—205(c).

In regard to the issue of whether a refusal to grant a restricted driving permit would create an undue hardship, plaintiff testified as follows. Plaintiff was employed full time by Kalmer Lumber Company in Albers, which was located approximately one mile from his home. His employer had recently informed him that he would be terminated if he did not have a driver’s license. Plaintiff also worked part time in his home repairing pneumatic staplers and nailers for the Bostitch Division of Textron, Inc., of Maryland Heights, Missouri. He testified that it was occasionally necessary for him to go to Maryland Heights to pick up parts that he needed in his work and to attend training programs. He further testified that he would like to attend college in either Centralia or Belleville, but both Centralia and Belle-ville are more than 40 miles from his home.

Plaintiff also introduced the affidavits of his two employers. The owner of the lumber company where plaintiff was employed full time stated that (1) although plaintiff was originally hired for a position which did not require a driver’s license, “it is [now] of absolute necessity” that plaintiff have a driver’s license in order to continue his current employment; and (2) he had known plaintiff all of plaintiff’s life and believed that it would not endanger the public safety or welfare if the Secretary granted driving privileges to plaintiff. The district sales manager of the company for which plaintiff worked part time stated that it would be “extremely beneficial” if plaintiff could pick up supplies and attend training programs in Maryland Heights, Missouri.

The Secretary maintains that his refusal to grant plaintiff a restricted driving permit was adequately supported by the evidence. The Secretary submits that with respect to his part-time job and his desire to go to college, plaintiff failed to show that his inability to drive was anything more than an inconvenience to himself, his family, and his friends. We agree. However, we deem that the evidence is overwhelming that plaintiff would lose his full-time job if no permit is granted and that would constitute an undue hardship.

Alternatively, the Secretary argues that even if the likely loss of plaintiff’s full-time employment constitutes an undue hardship, the Secretary’s decision was proper because, based on his past driving record, plaintiff would pose a serious threat to the public safety and welfare which would outweigh any hardship suffered by plaintiff.

We might agree with this argument if plaintiff were being granted unlimited driving privileges. However, we order that the Secretary issue a restricted driving permit to plaintiff which would allow him to drive to and from work, and to do any reasonably necessary driving required by his work. Such restrictions will allow plaintiff to retain his full-time employment, but will prevent the type of recreational nocturnal excursions which previously resulted in plaintiff’s tragic collision.

The Secretary’s denial of the restricted driving permit was contrary to the manifest weight of the evidence.

We deem it appropriate to consider that the purpose of the Code’s driver’s license revocation procedure is to protect the public safety and welfare and not to punish the person whose license is revoked. Any necessary punishment should be obtained through criminal procedures.

We now address plaintiff’s contention that certain of the hearing officer’s rulings and conduct at the hearing resulted in “substantial prejudice” to plaintiff.

Plaintiff submits that the hearing officer erred in allowing the Secretary’s counsel to question plaintiff concerning his consumption of intoxicating liquor on the evening of the collision. Plaintiff attempts to analogize this situation to certain tort cases brought to recover for personal injuries. In those cases it was held to be improper to produce evidence of the consumption of alcohol by a party whose exercise of care was in question unless there was enough evidence presented to raise an issue as to whether the party was intoxicated at the time of the occurrence in issue. (Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948, 397 N.E.2d 1235; Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 392 N.E.2d 693.) Such evidence is deemed to be highly prejudicial and of little probative value. In those cases, the issue was whether the party was in the exercise of care at a particular time. Here, the issue is broader and includes the question of whether the party is likely to be a safe driver in the future. In such a case, the amount of liquor that the driver had consumed is a proper consideration for the Secretary. Furthermore, because the proceeding is an administrative one without a jury, the danger of prejudice is less.

Plaintiff also submits he was prejudiced by the introduction of certain statements signed by witnesses to the collision and certain reports prepared by a private investigator who was hired by the law firm representing the people who died in the collision in a civil action against plaintiff. The admission of incompetent evidence in an administrative proceeding is not grounds for reversal if the decision of the administrative agency or officer is supported by substantial competent evidence and the admission of the evidence does not deprive the objecting party of fundamental due process. (See Ill. Rev. Stat. 1983, ch. 110, par. 3—111(b); La Grange Bank No. 1713 v. Du Page County Board of Review (1979), 79 Ill. App. 3d 474, 398 N.E.2d 992.) Substantial evidence supported the Secretary’s decision to deny restoration of full driving privileges and introduction of these statements did not deny due process to plaintiff. As this decision is the only decision of the Secretary which we uphold, no error requiring the setting aside of a decision of the Secretary occurred.

Plaintiff also maintains prejudice resulted from the introduction of certain items of evidence which were inaccurate or unduly prejudicial. However, the hearing officer either struck each item or stated that he would not consider each such item cited. No error resulted.

Plaintiff finally contends that he was denied due process of law because the hearing officer in this case allegedly serves as an attorney for the Secretary in other cases and, as a result, could not be fair and impartial. Plaintiff has not cited any portion in the record of this case which supports this allegation. Accordingly, we need not address this issue.

For the reasons stated herein, we reverse the circuit court’s decision which ordered reinstatement of full driving privileges, affirm that portion of the Secretary’s decision which denied the reinstatement of full driving privileges, reverse that portion of the Secretary’s decision which denied plaintiff’s request for a restricted driving permit, and remand this cause to the Secretary with directions to issue a restricted driving permit to plaintiff in accordance with the views expressed in this opinion.

Affirmed in part, reversed in part, and remanded with directions.

MILLS and TRAPP, JJ., concur.


text:
    RUTH ILENE COX, Plaintiff-Appellant, v. JIMMIE R. STUTTS et al., Defendants (John J. Schuster et al., Defendants-Appellees).
    Fourth District
    No. 4—84—0453
    Opinion filed February 20, 1985.
    Robert Alan Dunst, of Kidwell, Cummins & Bast, of Mattoon, for appellant.

      D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee John J. Schuster.
    Robert A. Hoffman, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellee John T. Flynn.
    Vernon H. Houchen, of Decatur, and Daniel D. Reese, of Taylorville, for appellee Linda S. Heath.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This appeal is from summary judgments entered on behalf of certain defendants in a negligence action brought to recover for personal injuries. The action arose from a series of motor vehicle collisions which occurred in the southbound lanes of Interstate Highway 57 near Tuscola in the early afternoon of December 24, 1980. At all times pertinent, the visibility was greatly impaired because of blowing snow. The basic issue on appeal is whether negligence upon the part of the defendants, in whose favor the summary judgments were entered and whose vehicles were involved in the chain of collisions, could have been a proximate cause of the injuries which plaintiff ultimately sustained.

On November 19, 1982, plaintiff, Ruth Cox, initiated the litigation by filing a 12-count complaint against 12 defendants in the circuit court of Douglas County. A subsequent count against an additional defendant was added later. On January 30, 1984, the court entered summary judgment in favor of defendant Linda S. Heath. On February 29, 1984, the court entered summary judgments in favor of defendants John Schuster and John Flynn. After disposal of plaintiff’s claims against other defendants, plaintiff appealed the summary judgments in favor of the three defendants.

The factual basis for the three summary judgments was provided by various depositions which had been placed on file. Several undisputed facts were revealed by those depositions. At least 13 automobiles were forced to stop as they passed through the area of the collisions. Defendant Justin K. Hickerson was driving in a southerly direction as he approached the scene. After driving through an area of extremely low visibility, Hickerson noticed two vehicles parked in the two southbound lanes of the highway. As the highway was completely covered with ice, he was unable to stop and he drove into the driver’s side of one of the cars. That car was apparently facing in an easterly direction and was extending across the highway. When Hickerson’s car came to a stop, it was hit by another vehicle headed in a southerly direction. Subsequent collisions continued to occur for a period of more than an hour. Defendants Schuster and Flynn drove vehicles which arrived at the scene during this period.

Eventually, defendant Heath arrived on the scene, was unable to stop her vehicle and ran into a vehicle in front of her. The impact was sufficient that she received serious injuries. Plaintiff then arrived on the scene as a passenger in a vehicle driven by her daughter. The vehicle stopped without a collision, and plaintiff alighted and walked to the Heath vehicle. At least one vehicle stopped north of the vehicle in which plaintiff had been riding. Soon a vehicle coming from the north collided with the last of those vehicles and produced a chain reaction causing the vehicle in which plaintiff had been riding to strike plaintiff. Plaintiff sustained rather severe injuries.

A party is entitled to a summary judgment when the matters properly before the court show that no question of fact exists on any material issue necessary to entitle the movant to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2—1005.) Although defendant Flynn also maintains that the evidence conclusively shows that he was not negligent, the heart of the contentions of each of the three defendants is that the record conclusively shows that any negligence on their part could not have been a proximate cause of plaintiff’s injuries. We examine the contentions of each of the three defendants separately, considering the evidence most favorably to the plaintiff.

We begin with the case against defendant Flynn. When he arrived on the scene, he was able to bring the vehicle he was driving to a stop some three or four feet behind the vehicle stopped in front of him. He did so without hitting any other vehicle. His automobile was then hit immediately by the Heath car. Plaintiff asserts that defendant could have been negligent in failing to move his vehicle onto the shoulder before stopping. Although a contention that Flynn could have been shown to be negligent seems uncertain, at best, we need not decide that question, because we hold that any negligence on his part could not have been a cause, let alone a proximate cause, of plaintiff’s injuries.

The alleged causal connection between Flynn’s act of stopping his car on the highway and plaintiff’s injuries is that Flynn’s act contributed to the blocking of the southbound lanes, which, in turn, was a causative factor in the chain collision whereby the car plaintiff had been riding in was pushed against her. However, at the time the Heath vehicle hit Flynn’s, the latter vehicle was only three or four feet behind a vehicle stopped in front of it. Heath testified that she could see only approximately two car lengths in front of her at the time of the collision. The impact of the collision between Heath’s and Flynn’s vehicles was quite violent. It is apparent that if Flynn’s vehicle had not been there, the Heath vehicle would have had a violent collision with the vehicle stopped in front of Flynn and the road would have been blocked in the same manner. It cannot be stated with reason that any of the significant events which occurred subsequent to the collision between Heath and Flynn’s vehicles would have been any different if Flynn had driven onto the shoulder before stopping. In fact, the events would not have been any different if Flynn’s vehicle had not been present. Flynn’s conduct was not an efficient cause of plaintiff’s injuries and could not have been a proximate cause of them. (W. Prosser & W. Keeton, Torts sec. 41 (5th ed. 1984).) Accordingly, summary judgment was properly entered in favor of Flynn.

Similarly, Schuster’s conduct has no causal relationship to plaintiff’s injuries. He arrived on the scene before Flynn. Construed most favorably to plaintiff, the evidence indicated that Schuster’s vehicle collided with one or more vehicles which were already blocking the highway. Schuster then drove some distance to the south and parked his vehicle off the road prior to the time that Flynn arrived. The evidence does not indicate that Schuster did anything to contribute to the blocked highway that confronted the vehicles subsequently arriving on the scene. Thus, the lack of showing of causal relationship between Schuster’s conduct and plaintiff’s injuries also justified the summary judgment entered in his favor.

Defendant Heath makes no claim that her conduct could not be found to be negligent. Rather, she also relies upon the theory that her negligence could not have been a proximate cause of plaintiff’s injuries. As with Flynn and Schuster, her conduct of running into a vehicle ahead of her was not a cause of the road blockage because the road was already blocked. However, unlike Flynn and Schuster’s conduct, her conduct and her resultant injuries were a cause of persons such as plaintiff being out of their automobiles and on the road. Thus, there was some causative relationship between any negligence on Heath’s part and plaintiff’s injuries. Accordingly, we must determine if such negligence could be found by a trier of fact to be a proximate cause of plaintiff’s injuries.

Heath argues that the act of the driver who hit the cars parked behind the one in which plaintiff had been a passenger and which started the chain reaction of colliding vehicles was an intervening factor which insulated Heath’s conduct from a proximate relationship to plaintiffs injuries. The supreme court has stated the relationship between the existence of proximate cause and an intervening factor as follows:

“The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable notwithstanding the intervening cause.” (Emphasis added.) (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 381, 50 N.E.2d 497, 504.)

Application of the foregoing rule to negligence actions arising from a series of highway collisions involving multiple vehicles has been difficult.

In Hook v. Heim (1977), 54 Ill. App. 3d 368, 369 N.E.2d 563, an initial multivehicle collision left one of the vehicles completely blocking a highway. A group of people, including plaintiff, came to the scene to aid those in the vehicles. After approximately five minutes, a third vehicle came along the highway, hit the vehicle blocking the highway and knocked that vehicle into the plaintiff. In an action for personal injuries caused by negligence, the plaintiff obtained a judgment on a verdict against the driver of one of the two vehicles creating the roadblock. The Fifth District reversed and remanded for a new trial, but held that plaintiff had presented a jury question of whether negligence by the defendant driver in causing the first collision was a proximate cause of plaintiff’s injuries suffered at the time of the second collision. The court, citing Neering, deemed the act of the driver of the third vehicle in crashing into the vehicle blocking the highway was not unforeseeable as a matter of law.

In Anderson v. Jones (1966), 66 Ill. App. 2d 407, 213 N.E.2d 627, this court faced a more complicated situation. There, the defendant was traveling westbound on a four-lane highway when he lost control of his vehicle, crossed the median and collided with a car in an eastbound lane driven by Johnson. The defendant’s vehicle then partially blocked the eastbound lanes. Shortly thereafter, another eastbound car driven by Watson collided with the rear of the defendant’s vehicle, crossed over the median strip and came to rest in the westbound lanes of traffic. Plaintiff, who was traveling west, stopped because of the accident and shortly thereafter was hit from the rear by Zehr. Judgment was entered on a jury verdict for the plaintiff, but was reversed on appeal on the theory that the defendant’s negligence which started the collisions was not a proximate cause of the plaintiff’s injuries.

In determining the application of the doctrine of proximate cause to injuries occurring after successive, related vehicle collisions, the Anderson court relied heavily on sections 433 and 442 of the Restatement of Torts (Restatement of Torts secs. 433, 442, at 733-34, 744 (1948 Supp.)). The Anderson court concluded that the factors to be considered in determining whether negligence which was a proximate cause of an earlier collision could be a proximate cause of a later collision were:

“(a) [Ljapse of time; (b) whether the force initiated by the original wrongdoer continued in active operation up to the injury for which recovery is sought; (c) whether the act of the intervenor can be considered extraordinary rather than usual or normal and (d) whether the intervening act was a normal response to the situation created by the wrongdoer or an extraordinary response.” Anderson v. Jones (1966), 66 Ill. App. 2d 407, 412, 213 N.E.2d 627, 629-30.

The Anderson court noted that the most immediate cause of the collision was the negligence of Zehr in colliding with plaintiff’s automobile and that the force of the defendant’s vehicle had previously spent itself. The court also noted that from three to ten minutes had elapsed between the collision involving the vehicles of defendant and Johnson and that between defendant’s vehicle and that of Watson. Finally, the court considered that Zehr’s act of hitting plaintiff’s vehicle was unusual because after the second collision, other vehicles had safely stopped in the westbound lanes without hitting other vehicles. The court concluded that Zehr’s negligence started a new chain of causation.

Factors (c) and (d) listed by the Anderson court concern the question of the usual or extraordinary nature of the act of the intervenor in response to the negligence of the original actor. They concern the foreseeability factor of proximate cause. In this connection, we note, as did the dissent in Anderson, the following statement contained in the Restatement (Second) of Torts:

“The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.” Restatement (Second) of Torts sec. 443 (1965).

The illustrations accompanying the foregoing state, in part:

“3. A car negligently driven by A strikes B and leaves him unconscious on the highway. Shortly afterward B is run over and further injured by a car negligently driven by C. A is subject to liability to B for both injuries.” Restatement (Second) of Torts, Reporter’s Notes sec. 443, illustration 3, at 474 (1965).

We also deem to be significant the following section of the Restatement (Second) of Torts which was also noted by the Anderson dissent:

“(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
(2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.” Restatement (Second) of Torts sec. 435 (1965).

Applying all of the authority we have discussed, we conclude that a jury question existed as to whether Heath’s negligence could have been a proximate cause of plaintiff’s injuries. Such a determination is consistent with the precedent cited. Clearly, a jury could determine that Heath’s negligence was a proximate cause of the collision whereby she was injured and placed in peril and in need of aid. Under the circumstances here, a jury could also determine that her negligence was a proximate cause of the subsequent collision in which plaintiff received injuries.

The Anderson court considered the fact that the force from the original collision was spent and not in operation at the time of the collision in which the plaintiff was injured to be an important factor in negating a chain of proximate causation. However, we do not deem that court to have considered that factor, standing alone, to always negate the existence of such a chain. Such a holding would be inconsistent with that in Hook and the pronouncement of section 443 of the Restatement (Second) of Torts as explained by the cited illustration. Here, unlike in Hook, defendant Heath was not only the person whose negligence is alleged to have been a proximate cause of a prior collision and a proximate cause of plaintiff’s injuries, but also the person who was placed in peril because of the prior collision. The cases are similar in that in both cases, the collision subsequent to the one in which the defendant was involved caused injuries to a person who was attempting to aid those involved in the previous collision.

The sequence of events here was much different than that in Anderson. The visibility here was very poor at all significant times. Numerous cars had collided with cars in front of them. The Anderson collision occurred at approximately 7:30 p.m. on a misty November evening, but the opinion did not indicate that the visibility was substantially impaired. The opinion emphasized that drivers other than Zehr, the driver who struck plaintiff’s vehicle, had been able to see, and stop for, the debris which confronted Zehr. Here, all of the collisions occurred in the southbound lanes of the highway. There, the sequence of events started when the defendant’s westbound vehicle went out of control, crossed a median strip which was six inches high and three feet wide and ended up in the eastbound lanes. Then, a collision occurred in the eastbound lanes of traffic knocking a vehicle back over the median strip and into the westbound lanes of traffic in which the defendant had originally been traveling. Then a line of cars, including the plaintiff’s, formed behind that wreckage, with plaintiff’s vehicle being struck from behind by a westbound vehicle. The negligence of the defendant there was much more attenuated from the ultimate injuries for which recovery was sought than was the conduct of Heath here. The cause of events after the conduct of the defendant was much less foreseeable than here and was actually “highly extraordinary” within the meaning of section 435 of the Restatement (Second) of Torts.

Plaintiff seeks to use the “rescue doctrine” in support of her contention that a jury question was presented on the issue of proximate cause. That doctrine provides that when a tortfeasor through negligence places a third party in peril and a plaintiff sustains an injury in attempting to rescue the third party, the plaintiff is permitted to negate any contention that his act of rescue is a superseding cause of his injuries, thereby allowing him to prove that defendant’s negligence is the proximate cause of his injuries. (Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 404 N.E.2d 950.) We need not discuss, at length, the applicability of that rule to this case. As far as Schuster and Flynn are concerned, we have held that there was an absence of causal relationship even without considering intervening acts. As far as Heath is concerned, the issue of plaintiff’s conduct being an intervening act was not raised. Rather, the alleged intervening act was the conduct of the driver who collided with the parked cars which resulted in the vehicle in which plaintiff had been a passenger striking and injuring plaintiff.

We affirm the summary judgments entered in favor of defendants Schuster and Flynn, but reverse the summary judgment entered in favor of defendant Heath. The cause is remanded to the circuit court of Douglas County for further proceedings in regard to the claim against that defendant.

Affirmed in part, reversed in part, and remanded.

MILLS and McCULLOUGH, JJ., concur.