author: JUSTICE MEJDA

text:
    STEVE TYSKA, a Minor, by Frank Tyska, his Father, and Next Friend, et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 214, COOK COUNTY, et al., Defendants-Appellants.
    First District (5th Division)
    No. 83 — 1283
    Opinion filed August 31, 1983.

      Ralph Miller and Allyn J. Franke, both of Brydges, Riseborough, Morris, Franke and Miller, of Chicago, for appellants.
    Gerald J. Brooks and Heidi H. Katz, both of Fawell, James and Brooks, of Naperville, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant, the Board of Education of Township High School District 214 (the Board), appeals from a judgment which declared that the Board’s May 17, 1982, decision to close Arlington High School (Arlington) and to assign incoming freshmen to its other high schools was null and void, and enjoined implementation of the closing and mandated reassignment of the students in the area to Arlington as freshmen in the school year 1983-84 with necessary staff and services. We reverse. The pertinent facts are as follows.

Plaintiffs are two students, three resident taxpayers of School District 214, and a not-for-profit corporation formed August 10, 1982, to promote education in the Arlington and surrounding area. Defendants are the Board and School District 214, who operate eight four-year high schools in Elk Grove and Wheeling Townships in Cook County, Illinois. Arlington High School was the first facility in District 214 and has an enrollment of approximately 1,500 students.

In April 1981 defendant Board, mindful of decreasing enrollment and increasing cost, determined that if enrollment continued to decline it would be necessary to close one or more of the eight high schools within District 214. At that time the Board assigned to its Planning Steering Committee (PSC) the duty of developing criteria to be used in selecting schools which would cease to function as comprehensive high schools in 1983-84 and 1985-86. Pursuant to a PSC recommendation that it involve the community in the criteria selection process, the Board, on September 14, 1981, empaneled three 40-mem-ber committees composed, respectively, of students of the eight high schools, citizens residing within District 214 and faculty and staff from the eight schools. The committees were instructed by the Board to identify and rank order the criteria to be used in determining which buildings would remain comprehensive high schools and to submit to the Board a written report with their recommendations for weighting of the criteria. The Board members did not participate in the meetings or deliberations of the committees. On November 9, 1981, each committee submitted to the Board a list of 12 criteria. At a public hearing on November 16, 1981, the Board solicited additional public opinion regarding the development of criteria for school closures. The Board limited the scope of the hearing to consideration of school closing criteria and declined to hear comments regarding individual schools.

The PSC consolidated the committees’ criteria and recommended to the Board a final list of 12 criteria. The views of additional community members were elicited at a subsequent public hearing. At its December 14, 1981, meeting, the Board, with each of its members concurring, voted to adopt the School Consolidation Criteria. The preamble to the list of criteria states, in pertinent part: “The Board must soon make a decision. *** If the decision is to reduce the number of full facilities, then steps will have to be taken to determine which buildings should cease to function as comprehensive high schools and when. To this end, the following list of criteria has been selected.” The list which followed recommended retaining those schools which: (1) accommodate the most complete selection of programs for students; (2) have the lowest operating and maintenance costs; (3) will require the lowest expenditure for major maintenance, renovation and improvement; (4) minimize the number of students bused, the length of the bus ride, and the cost of busing; (5) are located in the areas with the largest potential for growth in student enrollment; (6) are least desirable for alternative use by District 214; (7) meet the government requirements for the physically handicapped; (8) minimize the number of students who have to transfer schools; (9) are least likely to be sold or leased to other organizations; (10) minimize the number of feeder elementary districts which feed into any individual high school; (11) are within close proximity to supportive services and facilities; and (12) serve the greatest need for community-based programs.

During the early months of 1982 the Board’s administrative staff gathered and analyzed data relating to each of the 12 criteria, and the Board engaged a consulting firm to prepare demographic statistics and analyses based upon the 1980 census figures. On April 27, 1982, the Board received a report combining the demographic data derived from census reports with other factual information compiled by the administrative staff, including a weighting and ranking of the eight schools according to the 12 criteria. The report indicated that Arlington High School was the third least appropriate candidate for closing. The Board then instructed that certain of the criteria be reanalyzed regarding the three schools serving the earliest developed portions of the district — Arlington, John Hersey and Prospect High Schools. On' May 3 the Board met and reviewed the revised report which ranked the schools as follows, with the least appropriate candidate for closing indicated by the highest score:

Prospect High School - 653 points Arlington High School - 635 points John Hersey High School - 565 points

Board members commented on the revised report and raised certain issues for additional research by the administrative staff and each Board member personally inspected each of the eight schools. At the May 17, 1982, meeting Board members received follow-up reports containing information relating to the concerns raised at the May 3 meeting. A motion to close Hersey High School in accordance with the May 3 revised report ranking it the most appropriate school for closing was defeated on a 5-2 vote. A motion to close Arlington High School then carried 5-2. The minutes of the meeting include a prepared statement from each Board member explaining his or her vote.

Plaintiff on November 17, 1982, filed the instant complaint in two counts. Count I alleged that the defendants created an illusion that the adopted criteria would be justly followed in selecting the school for closing; that they ignored the criteria in reaching their decision; that the decision to close Arlington was arbitrary and capricious; and prayed that the decision and actions of the defendants be declared null and void. Count II additionally alleged that immediate and irreparable injury will be done to plaintiffs and others and prayed that defendants be temporarily and permanently enjoined from closing Arlington.

The Board filed an answer admitting the steps leading to adoption of the criteria on December 14, 1981, without ranking or weighting, asserting that the criteria were never considered binding or as a mandate, but only as standards or norms; further stating that the report received April 27, 1982, from its employee was merely received; and thgt ultimately each Board member made personal individual judgments not necessarily governed by weights or rankings in any report. The answer denied any alleged injury. As an affirmative defense, defendant alleged that the elected members are charged with the duties and powers in the decision made by the Board. It denied that plaintiffs were entitled to any relief and sought judgment for defendants.

At trial, the court received depositions, documents and trial memoranda. Witnesses were presented by each of the parties, including the testimony of each of the Board members. The trial court entered a written decision which included a summary of the case, stating, inter alia, “The record does not establish that the defendant Board ever adopted the criteria previously mentioned as rules to be applied in reaching a final conclusion *** that twelve criteria were not followed *** in its final decision process. *** a Board or ‘body’ acts arbitrarily when [it] fails to either follow rules or criteria that it led the public to believe it would follow, or when it fails to make findings of fact as to why it did not. *** Nevertheless, the court concludes that the establishment of criteria by a School Board, albeit for guidance or information only, compels a School District to either follow that criteria or give reasons in their decision as to why the criteria were not followed. *** The court finds that their failure to do so in this case resulted in arbitrary action.”

The court in the judgment order portion then made findings, inter alia, that defendants did in fact devise a procedure to follow in preparing to select a school for closing, by authorizing, on December 14, 1981, a set of criteria to serve as an objective standard against which candidate schools for closing were to be measured, and that the evidence shows that defendants disregarded the results. It then ordered that the decision of May 17, 1982, to close Arlington is arbitrary and capricious and null and void; and that defendants are enjoined from assigning current eighth grade students in Arlington attendance areas to other high schools and shall reassign them to Arlington and provide necessary staff and services to educate them as freshmen in the school year 1983-84.

Opinion

I

On appeal, defendants articulate several issues. We find, however, that we need consider only whether the Board’s decision to close Arlington High School and to reassign certain students was rendered void by reason of its failure to apply strictly the criteria which had been developed for the purposes of such decision.

It is significant, as noted by the trial court, that no one disputes the need of the Board to consolidate and close schools nor the power and duty of the Board to close schools in light of declining enrollment when there is no foreseeable change in the decline. Basically, the opening and closing of schools is a quasi-legislative function delegated to the Board by the legislature. The actions by the Board in the instant case were taken pursuant to the provisions of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 1 — 1 et seq.), under which a school board has the duty to establish attendance units within the district (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 21.3), and the power to assign pupils to the schools in the district (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 22.5), to control and supervise all public school houses in its district (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 22.10), and to decide when a site or building has become unnecessary, unsuitable or inconvenient for a school (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 22.13). The powers granted by the School Code here are discretionary unto itself and may not be delegated. (Board of Education v. Chicago Teachers Union Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111.) The legislature has placed the administration of schools within the domain of the school board and courts will not interfere with the exercise of the board’s powers unless such exercise is shown to be arbitrary or capricious. Pickering v. Board of Education (1967), 36 Ill. 2d 568, 225 N.E.2d 1, rev’d on other grounds (1968), 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731; Vance v. Board of Education (1971), 2 Ill. App. 3d 745, 277 N.E.2d 337.

Where the legislature has empowered a school board to perform certain functions, the courts will not interfere with the exercise of such powers or substitute their discretion for that of the school board unless the board’s action is palpably arbitrary, unreasonable or capricious. Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 419 N.E.2d 456; see Richards v. Board of Education (1960), 21 Ill. 2d 104, 171 N.E.2d 37.

In the instant case, the trial court voided the decision of the Board and found that a “board or ‘body’ acts arbitrarily when it fails to either follow rules or criteria that it led the public to believe it would follow, or when it fails to make findings of fact as to why it did not.” From the language of the statute it is clear that the legislature has vested in the school board discretionary control over school closings. “Discretion” has been defined as follows: “Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. But when a positive duty is enjoined, and there is but one way in which it can be performed lawfully, then there is no discretion.” (Elder v. Anderson (1962), 205 Cal. App. 2d 326, 331, 23 Cal. Rptr. 48, 51; Blalock v. Johnston (1936), 180 S.C. 40, 48, 185 S.E. 51, 54.) Plaintiffs’ contentions in the instant case would improperly abrogate and deprive the Board of the discretion vested in it.

A school board has a wide discretion in the exercise of its powers (People ex rel. McCollum v. Board of Education (1947), 396 Ill. 14, 71 N.E.2d 161, rev’d on other grounds (1948), 333 U.S. 203, 92 L. Ed. 649, 68 S. Ct. 461), and it may neither delegate to another nor otherwise limit the discretionary powers vested in it by statute. (Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127, 340 N.E.2d 7; Board of Trustees v. Cook County College Teachers Union Local 1600 (1976), 62 Ill. 2d 470, 343 N.E.2d 473). There is nothing in the statute which authorizes a school board to delegate its responsibilities and duties in administering a school district to an advisory committee. (Quality Education For All Children, Inc. v. School Board (N.D. Ill. 1974), 385 F. Supp. 803.) We find, therefore, that the Board acted within its discretion in the instant matter and conclude that to require a strict application of the criteria prepared by the several committees would impermissibly subordinate or limit the discretionary powers vested in the Board by the legislature.

Plaintiffs here urge that the adoption of the criteria was not an improper subordination of the Board’s powers but rather that the criteria became a rule by which the Board was bound. Section 10 — 20.5 of the School Code provides that it is a duty of the school board to adopt and enforce all necessary rules for the management and government of the public schools in its district. Rules adopted by the school board are to be filed for public inspection in the administrative office of the district. (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.5.) A school board is bound to act in accordance with the rules and regulations it has made pursuant to statutory authority (Sullivan v. Hannon (1978), 58 Ill. App. 3d 572, 374 N.E.2d 911); such rules have the force of law. Heifner v. Board of Education (1975), 32 Ill. App. 3d 83, 335 N.E.2d 600.

Not every interpretation by an agency has the status of a rule or regulation, however. (Sullivan v. United States (1954), 348 U.S. 170, 99 L. Ed. 210, 75 S. Ct. 182.) In Sullivan v. United States certain criminal indictments were claimed to be faulty because they were not obtained in accordance with procedures outlined in an executive order and in a circular letter of the Department of Justice. The Supreme Court in upholding the indictment stated that “[i]t was not the purpose of the Executive Order to direct how the responsibility should be exercised but to fix it in the Department of Justice. *** To make the system uniform, Circular Letter No. 2431 was sent to all District Attorneys. It was never promulgated as a regulation of the Department and published in the Federal Register. It was simply a housekeeping provision of the Department and was not intended to curtail or limit the well-recognized power of the grand jury ***.” 348 U.S. 170, 173, 99 L. Ed. 210, 216, 75 S. Ct. 182, 184.

In Jefferson v. Board of Education (1980), 82 Ill. App. 3d 877, 403 N.E.2d 486, this court considered a certain report “adopted by the [school] board” which was a part of the proceedings of a regular meeting and recorded the school board’s statement and adoption of policy. However, we held that the report had not attained the status of a bylaw, rule or regulation, because it had not been designated or adopted as such and was not included in the official publication of its bylaws, rules and regulations. 82 Ill. App. 3d 877, 881, 403 N.E.2d 486, 488.

The term “criterion” (plural: criteria) has been defined as “a standard on which a decision or judgment may be based; a standard of reference; a basis for discrimination” (Webster’s Third New International Dictionary 538 (1966) and such definition is commonly accepted. An examination of the minutes of the Board reveals that the Board adopted the criteria as such a standard or guideline, not as a “rule” by which it would be bound. The minutes of the November 23, 1981, Board meeting state that “[m]embers discussed the term ‘criteria’ and there was agreement that a criterion should be something that can be utilized as a measure to aid in the making of rational choices.” That the Board did not intend to be bound or limited by the criteria but adopted them only as a standard or measuring device is further illustrated by the November 30, 1981, minutes of the Board which state that “[t]he Board will also develop a list of principles *** which will be kept in mind as the criterioin [sic] are applied to the respective schools.” As a further indication that the criteria were only a guideline, we note that many of the provisions are couched in vague or general terms requiring a purely subjective judgment. Furthermore, at the time of adoption by the Board, the criteria had not yet been weighted. Thus, the criteria were incomplete in that they could not then be applied to the collected data to determine objectively which school was more appropriate for closure and, therefore, could not have been adopted as a “rule,” the strict application of which would lead to an objective determination.

The Board’s preamble to the criteria indicates that on December 14, 1981, when the criteria were purportedly adopted as a rule, the Board had not firmly decided that any school would be closed. It is unreasonable to conclude therefrom that the Board would so bind itself when there existed only a possibility of having to close a school. The record fails to show that the criteria were designated as a rule or regulation and plaintiffs have presented no evidence showing that the criteria were filed for public inspection as required by statute. (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.5; see Jefferson.) It is our opinion that the criteria in the case at bar, similar to the executive order and departmental letter in Sullivan v. United, States (1954), 348 U.S. 170, 99 L. Ed. 210, 75 S. Ct. 182, were only a housekeeping provision of the school board to reach a determination, and not in themselves a final rule, determination or mandate. They therefore should not be construed to curtail or otherwise limit the discretionary power of the Board to ultimately reach a decision to close Arlington High School and to consolidate the attendance areas. (See Potter v. School Directors (1974), 17 Ill. App. 3d 781, 309 N.E.2d 58.) The trial court properly concluded that the record does not establish that the Board ever adopted the criteria as mandatory rules to be applied in reaching its final decision as to which school should be closed. However, since the criteria were not a rule or mandate to be strictly followed, we find upon a review of the record that the Board retained its full discretionary powers. Accordingly, the trial court erred in concluding that the failure to follow the criteria was arbitrary and capricious.

II

Defendants contend that the trial court erred in holding that the Board was arbitrary in failing to make findings of fact or reasons as to why it did not follow the criteria. Plaintiffs respond that since the statute lacks guidelines for the exercise by the Board of the power to close a school when necessary that the trial court “sensibly” applied basic principles of administrative law. We must therefore examine the necessity for a finding of fact or reasons by the Board as a basis for the exercise of its power to close a school and reassign students to other schools within the district.

The constitutional duty of the State to provide and the right of the public to receive an efficient high-quality educational system (Ill. Const. 1970, art. X, sec. 1) is discharged by the State through local boards of education which are primarily responsible for fulfilling the constitutional mandate. (Allen v. Maurer (1972), 6 Ill. App. 3d 633, 640, 286 N.E.2d 135; Potter v. School Directors (1974), 17 Ill. App. 3d 781, 309 N.E.2d 58.) The authority to establish and maintain our system of free schools has of practical necessity been properly delegated by the General Assembly to the electorate of the several school districts, and their duly-elected school boards, because the General Assembly could not conveniently or efficiently attend to the details of establishing, maintaining, and operating our public schools, which include high schools as well as elementary and grade schools. Smith v. Board of Education (1950), 405 Ill. 143,147, 89 N.E.2d 893.

A board of education is a corporation or quasi-corporation (People v. Furman (1962), 26 Ill. 2d 334, 186 N.E.2d 262) analogous to other municipal corporations (People v. Deatherage (1948), 401 Ill. 25, 81 N.E.2d 581), created by general laws of the State to aid in the administration of the State government, and charged, as such, with duties purely governmental in character. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 187 N.E.2d 722.) To be thorough and efficient, school operations cannot depend upon the choice or whim of others, but must necessarily be controlled only by duly-constituted and qualified school officials. Board of Education v. Redding (1965), 32 Ill. 2d 567, 573, 207 N.E.2d 427; Allen v. Maurer (1972), 6 Ill. App. 3d 633, 286 N.E.2d 135.

Section 10 — 2 of the School Code provides that the directors of each district shall be a body politic and corporate; sections 10 — 20 and 10 — 21, that the board has the duties enumerated, including section 10 — 21.3, to establish one or more attendance units within the district; section 10 — 22.5, to assign pupils to the several schools; section 10— 22.10, to have control and supervision of all school houses in their district; and section 10 — 22.13, to decide when a site or building has become unnecessary, unsuitable or inconvenient for a school. (Ill. Rev. Stat. 1981, ch. 122, pars. 10-2, 10-20, 10-21, 10-21.3, 10-22.5, 10 — 22.10, 10 — 22.13.) Moreover, the members of the Board have broad discretion in the use of those powers within the limits of the grant. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 187 N.E.2d 722.) Nowhere do we find any expression by the legislature that any findings or reasons are necessary or must be provided by the Board nor any other statutory conditions or limitation for the exercise of the foregoing powers.

The trial court and plaintiffs rely upon Dunlop v. Bachowski (1975), 421 U.S. 560, 44 L. Ed.2d 377, 95 S. Ct. 1851, in which Bachowski, a defeated candidate for union election, filed a complaint with the United States Secretary of Labor alleging violations of a Federal statute. The statute required the Secretary to investigate the complaint (29 U.S.C. sec. 481 (1976)) and to determine whether he had probable cause to believe that a violation occurred and whether he should bring a civil action to set aside the election. The Secretary, whose investigation disclosed various violations, decided that action was not warranted and so advised Bachowski by letter which the court found may have sufficed as a brief statement of the grounds for denial for purposes of the Administrative Procedure Act (5 U.S.C. sec. 555(e) (1976)) but did not suffice as a statement of reasons required by the labor statute (29 U.S.C. sec. 481 (1976)) which specifically prescribed the Secretary’s duties. Such statement was deemed necessary to enable an intelligent judicial review and to supply complainant with reasons for the adverse determination. However, it appears clear that the Secretary was exercising a quasi-judicial rather than a quasi-legislative duty as in the instant case. Significantly, Justice Rehnquist, concurring in part and dissenting in part, observed that independent of any connection with judicial review a statement of reason is required by statute of the grounds for denial by the Administrative Procedure Act. (5 U.S.C. sec. 555(e) (1976); Dunlop v. Bachowski (1975), 421 U.S. 560, 593, 44 L. Ed. 2d 377, 401, 95 S. Ct. 1851, 1870.) We find Dunlop is inapposite and neither applicable nor persuasive.

The decision to close a school and to reassign the students to other attendance zones within the district is an exercise of the discretionary powers granted to the Board to act as a policy-making body, tantamount to the quasi-legislative power to make prospective regulations and orders. (See Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 427 N.E.2d 162.) The decision involves a public policy question concerning the school system and the district as a whole, and not an adversarial adjudication of the rights of individuals. A school board’s restructuring and determination of high school attendance zones within the school district is a quasi-legislative function. As such, the views of individuals presented to the Board at the public hearings were in the context of a town meeting and not evidence in a judicial sense. Polk v. School Board (Fla. App. 1979), 373 S.2d 960.

A board of education in the exercise of its discretionary powers may discontinue or abandon the use of a public school within the boundaries of its jurisdiction and assign the students thereof to other schools in the school system; the board must be able to act in a reasonable manner consistent with the public interest. (Silverman v. Board of Education (1975), 134 N.J. Super, 253, 339 A.2d 233; Brooks v. Shannon (1939), 184 Okla. 255, 86 P.2d 792.) In Brooks the court held that the board may act within its powers without the need of making any finding of the reason or necessity which induces the exercise of its discretion, because the law commits the government and conduct of the schools in general to the board of the district and places it beyond that of the patrons. No statement or finding that public benefit will be served is required where a legislative function is being performed by an administrative agency. (Karlson v. City of Camarillo (1980), 100 Cal. App. 3d 789, 808, 161 Cal. Rptr. 260, 271.) In City of Santa Cruz v. Local Agency Formation Com. (1978), 76 Cal. App. 3d 381, 389, 142 Cal. Rptr. 873, 878, the court stated that written findings of fact are customarily required in quasi-judicial or judicial proceedings, for in such context the individual rights of persons are involved; however, no statute or authority requires such findings in quasi-legislative or legislative determinations which involve an exercise of discretion governed by considerations of the public welfare. The court concluded that “[wjritten findings of fact are alien to legislative procedures, for no person has a right to the adoption of legislation.”

No statutory judicial review of the powers in the instant case is provided. Neither the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), now the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.), nor the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1001 et seq.) is here made applicable. The School Code does not require the Board to make written findings or reasons in support of its decision in the exercise of the powers in this case. Our supreme court has held that the principal reason given for requiring written findings by an administrative agency, in the absence of statutory command, is that they are necessary for orderly and efficient review; where the administrative decision is not subject to judicial review, however, there appears to be no substantial reason for requiring written findings in the absence of legislative requirement. (Telcser v. Holzman (1964), 31 Ill. 2d 332, 338, 201 N.E.2d 370.) We find the foregoing principles to apply in this case. In the absence of a statute or rule requiring an administrative board to make detailed findings of fact, none are required. Justice v. City of Casa Grande (Ariz. App. 1977), 116 Ariz. 66, 68, 567 P.2d 1195, 1197.

The admonition in Grocery Manufacturers of America, Inc. v. Department of Public Health (1979), 379 Mass. 70, 393 N.E.2d 881, is here applicable. Plaintiff (GMA) there challenged a food-labeling regulation for failure to include in the agency’s record a statement of the legislative facts supporting the regulation. In rejecting the contention, the court stated:

“There is no such requirement in the law of the Commonwealth. ‘[F]or the court to check back on the agency’s “reasons” and “determinationfs]” of fact and law would have an unhealthy tendency to substitute the court for the agency as policymaker.’ [Citation.] The GMA’s reliance on cases decided under the Federal Administrative Procedure Act is misplaced because this State’s Administrative Procedure Act (G. L. c. 30A) does not require agency findings of legislative facts in the record in a regulatory proceeding. Compare 5 U.S.C. sec. 553(c) (1976) with G.L. c. 30A, sec. 2. The United States Supreme Court has recently held that a reviewing court should not impose procedural requirements on administrative agencies in addition to those imposed by Congress. Vermont Yankees Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524-525, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978). We have recently stated that ‘the approach of a court to an agency regulation is as deferential as that to a legislative enactment.’ Greenleaf Fin. Co. v. Small Loans Regulatory Bd. [377] Mass. [282], [293], 385 N.E.2d 1364, 1371 (1979).” 379 Mass. 70, 79-80, 393 N.E.2d 881, 889.

No one here challenges the need to close one of the high schools because of declining enrollment nor the power of the Board to effect such closing. Likewise there is no suggestion of a failure of any school board member to act in what he or she in his or her judgment and discretion felt was in the best interest of the schools; their good faith or motives have not been questioned. The official records of the Board disclose that each of the members at its meeting of May 17, 1982, read individual statements concerning his or her vote on the question of closing Arlington. The statements were then appended and made a part of the minutes. The School Code does not require the taking of testimony or evidence or any public hearings as a condition or prerequisite to the Board’s exercise of the statutory powers here involved. The subject had been under discussion before the Board for a considerable period of time during which citizens and various committees were permitted to express their views at public meetings. However, no evidence or testimony was taken by the Board in a judicial sense and the views presented from the audience were in the context of a town meeting as characterized in Polk v. School Board (Fla. App. 1979), 373 S.2d 960. Moreover, the record shows that the Board officially considered various criteria and standards relative to their decision-making process and made personal inspections and tours of the schools of the system for the purpose of reaching the decision. It must be recognized that the voters of the school district have elected the Board to formulate and execute the educational policies for the district. The Board must be able to act in a reasonable manner consistent with the public interest in order to carry out its delegated duty to provide an efficient, high-quality educational system. Since the Board is primarily responsible for fulfilling the constitutional mandate, thorough and efficient school operations cannot depend upon the choice or whim of others. It is not for the courts to determine whether or not the means ultimately adopted by the Board are wise or expedient nor to interfere with the exercise of the powers by the members of the Board in matters confided to their discretion. If the opinion of the court or others is to be substituted for the judgment and discretion of the Board at the insistance of a disaffected student or taxpayer, the government and management of our schools will be seriously impaired and the position of school boards in dealing with such cases will be most precarious. The vote of the Board was recorded as being five memlpers in favor and two members opposed to the adoption of the action to close Arlington. The proponents and the opponents had had their say. We cannot question the wisdom of the final action. Right or wrong it is the decision of the Board adopted as a quasi-legislative function within its powers. Inasmuch as a statement of reason or finding of facts is not required, it was error to therefrom conclude that the Board therein acted arbitrarily, capriciously or unreasonably and that the ultimate action was null and void. Upon review of the entire record, we are unable to say that the ultimate decision itself, the decision to close Arlington and reassign the freshmen students, was so palpably arbitrary, capricious or unreasonable as to render it null and void.

Ill

Plaintiffs concede that the trial court’s decision does not rely upon estoppel but here suggest that the doctrine may provide an alternative ground for sustaining the ruling of the trial court. Equitable estoppel has been defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights which might otherwise have existed as against another party who has relied in good faith upon such conduct and has been led thereby to change his position for the worse. Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 416 N.E.2d 385.

The doctrine of estoppel may be applied against school boards or districts as well as against other municipal bodies. (Webster v. Toulon Township High School District No. 4 (1924), 313 Ill. 541, 145 N.E. 118; Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414, 444 N.E.2d 211; Stahelin v. Board of Education (1967), 87 Ill. App. 2d 28, 230 N.E.2d 465.) The doctrine may be applied even against the State when acting in a governmental capacity, but only under compelling circumstances. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957; People ex rel. Brown v. Illinois State Troopers Lodge No. 41 (1972), 7 Ill. App. 3d 98, 286 N.E.2d 524.) Whether estoppel may be applied in a given case is determined from a consideration of all the circumstances of the case. (Stahelin.) Although the application of equitable estoppel against a public body is generally disfavored and should not be invoked except in rare and unusual circumstances (Ponton v. Illinois State Board of Education (1978), 62 Ill. App. 3d 907, 909, 379 N.E.2d 1277), the doctrine may be applied where, under all the facts and circumstances, the acts of the public body have created a situation where it would be inequitable or unjust to permit it to negate what it has done or permitted to be done. Pioneer Processing, Inc.; Stahelin; City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604,165 N.E.2d 271.

An essential element of equitable estoppel is that, in reliance on the representation of another, the party asserting the estoppel must have done or omitted some act or altered his position in such a way that he would be injured if the other person is not held to the representation on which the estoppel is predicated. Department of Public Works & Buildings v. Exchange National Bank (1975), 31 Ill. App. 3d 88, 334 N.E.2d 810.

In Webster v. Toulon Township High School District No. 4 (1924), 313 Ill. 541, 145 N.E. 118, cited by plaintiffs, the voters and taxpayers relying on the statements and conduct of school district officials refrained from voting on the issuance of certain bonds. The voters asserted that they were induced to believe they would never have to pay, and that the bonds would not have come into existence if they had not been induced to refrain from voting. The court found that the voters had changed their position and had been injured in relying on the officials’ statements and conduct and accordingly held estoppel to be applicable. In In re Petition To Disconnect Certain Territory (1961), 30 Ill. App. 2d 336, 174 N.E.2d 574, petitioners who were voters and the land owner of record were persuaded by a city official to delay in exercising their right to disconnect specified property from the city. During the period of the delay the city annexed certain property whereby petitioners were prevented from meeting the statutory requirements for disconnecting. The court found that petitioners had been induced to alter their position to their detriment and upheld their assertion that estoppel applied.

Plaintiffs here assert that the Board represented that it would utilize the school closing criteria and act in accordance with the results obtained therefrom in making an objective determination of which school to close, and that they relied on such representation and were thereby induced to refrain from presenting to the Board arguments in opposition to the closing of Arlington High School and from actively campaigning for their special interest. Plaintiffs contend that their nonaction constituted a waiver of their constitutional right to petition government for a redress of grievances (see U.S. Const., amend. I; Ill. Const. 1970, art. I, sec. 5) and that such waiver constituted a substantial loss sufficient to estop the Board from refusing to follow the school closing criteria.

Plaintiffs have, however, failed to establish that they relied to their detriment or that they in any way changed their position for the worse as a result of the Board’s representations. Responsibility for determining when a school has become unnecessary is vested by statute in the school board (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 22.13), and there are no statutory procedures which must be followed in the exercise of that power which is discretionary and may not be delegated. (Cf. Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111.) Plaintiffs concede that the Board had no duty to involve the community in its decision and, in fact, could have selected a school for closure in any manner had it not “adopted the criteria.” The Board was not bound to consider any testimony or evidence from plaintiffs or other community members. The residents of a school district have no protectible interest invested in the integrity of the boundary lines separating attendance centers, nor any proprietary interest in the administrative determination of attendance centers within a school district. (Potter v. School Directors (1974), 17 Ill. App. 3d 781, 309 N.E.2d 58.) Unlike the parties who invoked estoppel in Webster and City of Palos Heights, plaintiffs herein were not induced to forego the exercise of an express statutory right. Although plaintiffs refer to certain constitutional rights, their contention here is that they were deprived of the opportunity “to present evidence to dispel important false assumptions, on the Board’s part, about the continued viability of Arlington; to publicly confront the Board’s bias in the event it was not willing to have those assumptions dispelled; and to gather support within their community, via petition drives and other means.” Plaintiffs, however, had no statutory right to participate in the making of the Board’s decision and therefore suffered no loss thereof by being precluded from such further participation or opportunity. Plaintiffs have not established a substantial detriment or loss necessary to invoke the doctrine of equitable estoppel.

For the reasons stated, the judgment of the trial court declaring the Board’s decision of May 17, 1982, null and void, enjoining implementation, and mandating reassignment of students to Arlington with necessary staff and services is reversed.

Reversed.

WILSON, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    BRENDA FULLER, Plaintiff-Appellant, v. LUTHER C. JUSTICE, Defendant-Appellee.
    Second District
    No. 82 — 843
    Opinion filed September 6, 1983.

      Bryan J. O’Connor III, Bernard R Nevoral, and James A. Corrigan, all of Nevoral & Corrigan, Ltd., of Chicago, for appellant.
    Donald Mateer, of Mateer & Erickson, of Rockford, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Brenda Fuller, a minor, appeals from the order of the circuit court of Winnebago County granting defendant’s motion for summary judgment. Plaintiff’s count I alleged wilful and wanton actions or omission of defendant which caused plaintiff’s injuries, and count II was based on a negligence theory patterned on Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. After defendant filed an answer and depositions were taken, defendant filed a motion for summary judgment. Plaintiff filed her response to defendant’s motion, and the court held a hearing on the motion. By letter opinion, the court granted defendant’s motion specifically ruling that “[ujpon review of pleadings, interrogatories, and depositions, the court finds that the plaintiff had to appreciate the risk of standing on the log.” The court entered an order granting defendant’s motion. Plaintiff filed a timely notice of appeal. We affirm.

On December 14, 1980, in the afternoon, plaintiff was playing with defendant’s daughter, Cecilia, at defendant’s residence. Plaintiff’s family and defendant were neighbors living across the street from one another. At the time of the injury, Cecilia was eight and plaintiff was 14 years old. When she was very young, plaintiff had contracted spinal meningitis. As a result of the illness, plaintiff remained out of school for two years, but she never missed a grade level. While at the time of trial she was in a grade two years younger than her age group, she maintained a “C” average in school and had never been set back nor had she failed to pass any grade level. Plaintiff testified she had previously suffered seizures (epilepsy) and was taking Phenobarbital and Dilantin during the period surrounding the day she was injured.

In her deposition, plaintiff testified that on the day of the accident Cecilia went inside the house to go to the bathroom, and then called to her from inside the house to come to the bedroom window. Responding to her friend’s call, plaintiff walked to the window and on her own initiative stood on a tree stump that was positioned directly under the window. Plaintiff testified that the round part of the log was on the ground and she noticed the dirt underneath the log was uneven prior to stepping on top of it. She also testified she noticed the bottom of the log had no bark and was smooth. While standing on the log, she kept both feet on the log’s surface and held onto the windowsill. She was on the log for several minutes and had concluded her conversation with Cecilia when she fell. Plaintiff did not know why the log moved, but she testified her weight was centered and that she did not shift her weight or move her feet prior to the fall. No one else observed plaintiff when she fell.

Plaintiff stated she had never before sat or stood on a log or any other similarly round object and was not aware that logs could roll. As a result of the fall, plaintiff was operated on and pins were placed in her arm. The injury precludes her participation in some sports, and she was excused by her doctor from gym activities during both 1981 and 1982.

Joan Justice, defendant’s wife, in her deposition testified that she did not see plaintiff fall, but went outside to help plaintiff and found her on the ground three to four feet from the house. After the fall, the log was between plaintiff and the house. Justice said the two logs on her property came from two front-yard trees which were cut down.

The family used these stumps as outdoor seats in the summertime. In addition, Justice testified that neighborhood children periodically would come on to her property and would play on the logs, and that she and her husband would tell them to get off the stumps because “[w]e wouldn’t want them to fall or hurt themselves.” No one was ever injured on these stumps prior to plaintiff’s fall.

The deposition testimony of defendant mirrored his wife’s statement that neighborhood children frequented the premises: “just about every kid in the neighborhood has stood on them at one time or another.” Defendant stated he thought plaintiff had stood on the stump prior to the day she was injured. Defendant testified he had to order the kids to get off the stump on numerous occasions and had seen them jump off the logs in the past, but had never seen children roll the logs.

Plaintiff frames the issue before this court as “whether a genuine issue of material fact exists as to whether the minor plaintiff appreciated the specific risk involved which would preclude entry of summary judgment?” Plaintiff challenges defendant’s attempt in his brief to broaden the issues here beyond the narrow issue described by plaintiff. Plaintiff implies that this court cannot discuss whether the stump was a dangerous condition or whether young children habitually played on the logs because the trial court did not expressly rule on these issues. However, an appellate court can affirm the trial court on any basis that appears in the record. (Stern v. Stern (1982), 105 Ill. App. 3d 805, 809, 434 N.E.2d 1164, 1168; Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, 394, 388 N.E.2d 157, 162.) Since these points were raised at the trial level, they were valid bases for affirming the trial court’s order even though the trial judge did not specifically discuss these points in that order.

Certain well-settled principles apply to trial court rulings on summary judgment motions. The sole function of the court reviewing the trial court’s entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.) If a genuine issue of material fact exists, a motion for summary judgment may not be granted. Manaban v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045.

In determining whether there is a genuine issue of material fact, a trial court is required to consider the pleadings and admissions, affidavits in support of and in opposition to the motion, and any other evidence before the court. (Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045.) Further, the trial court must construe the pleadings and affidavits most strictly against the moving party and most liberally in favor of the opponent in ruling on the motion. (Bard v. Harvey (1979), 74 Ill. App. 3d 16, 392 N.E.2d 371.) Since-the opposing party has the right to a trial if there is a genuine issue of fact, the right of the moving party to summary judgment must be clear and free of doubt, and the granting of the motion cannot be a matter of judicial discretion. (Manahan.) While a party against whom a motion for summary judgment has been filed need not prove his case at this preliminary stage, he is required to present some factual basis that would arguably entitle him to a judgment under the applicable law. (Martin v. American Legion Post No. 784 (1978), 66 Ill. App. 3d 116, 383 N.E.2d 672.) Facts unrelated to the essential elements of the plaintiff’s cause of action are immaterial, and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Mid States Vending Service, Inc. v. C.A.P., Inc. (1977), 45 Ill. App. 3d 947, 360 N.E.2d 448.) With these principles in mind, we consider the merits of plaintiff’s appeal.

Count II of plaintiff’s complaint asserts that defendant breached a duty owed to plaintiff on the basis of the rule established by the Illinois Supreme Court in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. In Kahn, the court held that the possessor of land is liable for injuries sustained by children when the injury is caused by a dangerous condition on the property and the owner knew or should have known that young people habitually frequent the area. This decision and its progeny have created a four-pronged test for the imposition of liability. A defendant landowner may be liable for harm to children on his or her premises if the plaintiff shows that (1) the landowner knew or should have known that the children habitually frequented the premises; (2) a dangerous condition was present on the land; (3) the dangerous condition was one that was likely to cause injury to children because of their inability to appreciate the risk involved; and (4) the burden of remedying the condition was slight when compared with the risk involved. Kahn; see also Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316; Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 428 N.E.2d 706; Whitcanock v. Nelson (1980), 81 Ill. App. 3d 186, 400 N.E.2d 998.

To ascertain if a duty exists, the threshold determination in any application of the Kahn test must be whether plaintiff has established the existence of a dangerous condition on the land. For purposes of this test, a dangerous condition is a condition which is likely to cause injury to children, who, by reason of their immaturity, might be incapable of appreciating the risk involved. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316.) Thus, the conditions might be dangerous for purposes of this analysis even though the condition would not involve an unreasonable risk of harm to adults. (Corcoran.) However, if the condition involved obvious risks which children generally would be expected to appreciate and avoid, the landowner is under no duty to remedy the condition. (Corcoran; Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806, 431 N.E.2d 1218; Whitcanock v. Nelson (1980), 81 Ill. App. 3d 186, 400 N.E.2d 998.) This is true even where the owner or occupier of land knows that children frequent the premises. As a landowner is not an insurer of the safety of children, he is not required to guard against the ever present possibility that children will injure themselves on common or obvious conditions. Corcoran; Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74; Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 420 N.E.2d 243; see also Feldscher v. E&B, Inc. (1983), 95 Ill. 2d 360.

11 Applying the foregoing principles of law to the case at bar, we conclude that the stump did not constitute a dangerous condition on the land. In Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, the two-year-old child fell into a ditch in a park near his home and suffered severe brain damage. In concluding that the ditch did not constitute a dangerous condition, the Illinois Supreme Court stated that the plaintiffs had failed to sustain their burden of alleging sufficient facts describing the condition to enable the trial court “to conclude that the condition exposes children to risks greater than those which normally attend their daily lives.” (73 Ill. 2d 316, 328.) For liability to attach, the Corcoran court held, the cause of injury must be “a dangerous condition on the premises,” and not merely a condition capable of causing injury. (73 Ill. 2d 316, 326.) In Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, 529, 421 N.E.2d 566, 568, this court recently reiterated the principle that an instrumentality or product does not become inherently dangerous merely because there is an abuse of it, or it is used for a wrongful purpose. (See also Donehue v. Duvall (1968), 41 Ill. 2d 377.) In practice, courts have labeled very few conditions as inherently dangerous. Explosives and poisons are inherently dangerous (Watts v. Bacon & Van Buskirk Glass Co. (1958), 20 Ill. App. 2d 164, 168, 155 N.E.2d 333, 335, aff’d (1959), 18 Ill. 2d 226), but a stick (Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 738, 428 N.E.2d 706, 709); a sickle (Hancock v. Luetgert (1976), 40 Ill. App. 3d 808, 810, 353 N.E.2d 165, 168); barbed wire (Snow v. Judy (1968), 96 Ill. App. 2d 420, 239 N.E.2d 327); and a boomerang (Maramba v. Neuman (1967), 82 Ill. App. 2d 95, 104, 227 N.E.2d 80, 83) are not. Therefore, we conclude, as plaintiff herself conceded, that the tree stump was not inherently dangerous.

An instrumentality, though not in itself dangerous, however, may become so when joined with other nondangerous instrumentalities or surroundings. (Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 739, 428 N.E.2d 706, 710; Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, 421 N.E.2d 566; Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 763-64, 404 N.E.2d 918, 920.) A condition in its surrounding muy so enhance the risk to unsuspecting children as to constitute a danger to them. (Bazos.) The burden rests with the plaintiff to allege facts which demonstrate that the combination of surroundings creates a risk greater than that to which children are exposed in their everyday lives. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 328.) In plaintiff’s complaint, she does not allege anything more than the fact that stumps were present in defendant’s yard. She does not cite any other instrumentality or condition which when combined with the tree stump created a dangerous instrumentality. In the absence of facts from which the trial court here could conclude either that the stump was inherently dangerous alone or became dangerous in combination with other conditions present on defendant’s property, plaintiff has failed to establish a duty under Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. The trial court here properly granted defendant’s summary judgment motion, for a Kahn cause of action is properly decided by summary judgment when the trial court can determine as a matter of law that the condition is not dangerous (Prince v. Wolf (1981), 93 Ill. App. 3d 505, 510, 417 N.E.2d 679, 682; Cole v. Housing Authority (1979), 68 Ill. App. 3d 66, 72, 385 N.E.2d 382, 387), and that no duty is owed to plaintiff. Barnes v. Washington (1973), 56 Ill. 2d 22.

While the absence of a dangerous condition is alone fatal to a Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, cause of action, we proceed nonetheless to an analysis of plaintiff’s contention regarding the third element of the Kahn test. Plaintiff emphasizes several facts from the record to support her position that she was unable to perceive the risk of standing on the log. Plaintiff alludes to the fact that she contracted spinal meningitis as a child and as a consequence, was forced to stay out of school for two years. Plaintiff fails, however, to show how her previous illness affected her ability to perceive the risk of standing on the log. To the contrary, the record indicates that plaintiff is of average intelligence and has never failed to pass any grade level. Nothing in the record suggests plaintiff suffered any mental impairment as a result of her illness. Thus, her prior medical condition is irrelevant to the determination whether she could perceive the risk involved in standing on the stump.

In addition to her prior medical history, plaintiff also argues that her testimony indicates she had no familiarity with logs, had never stood on one or on a similarly round object, and was unaware that a log could roll. This fact, plaintiff argues, in combination with the testimony of defendant and his wife that they had admonished children in the past not to play on the logs because of the possibility of injury demonstratés that a material fact exists whether plaintiff appreciated the risk.

The court in Kahn stated that liability exists when young children because of their immaturity are incapable of appreciating the risk attending the dangerous agency. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 624; see also Feldscher v. E & B, Inc. (1983), 95 Ill. 2d 360, 366-67.) This test is objective for it does not focus on the specific plaintiff’s appreciation of risk, but rather on the risk appreciated by young children of a similar age and experience. (See Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 738, 428 N.E.2d 706, 709; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 296, 393 N.E.2d 725, 731.) Applying an objective test to the case at bar, the trial court’s conclusion that the plaintiff had to appreciate the risk of standing on the log is not erroneous. While plaintiff testified she was not aware a log could roll, no reasonable child and especially a 14-year-old teenager would be unaware of a log’s propensity to roll. Plaintiff herself testified in her deposition that before she stood on the log, she observed that the dirt under the log was uneven. Thus, while plaintiff testified she didn’t appreciate the risk, we conclude as a matter of law that no similarly situated child could fail to appreciate the risk of standing on the log.

Plaintiff next maintains that the trial court did not enter judgment as to count I which alleges that defendant’s wilful and wanton actions proximately caused her injury. However, defendant’s motion for summary judgment requested judgment on plaintiff’s complaint and did not differentiate between count I and count II. Similarly, the trial court’s order entered judgment in favor of defendant and against plaintiff and did not differentiate between the two counts. We conclude, therefore, that the trial court entered summary judgment as to both counts.

Plaintiff offers minimal argument and cites only one case concerning her wilful and wanton count. The well-established rule is that bare contentions without argument or citation of authority do not merit consideration on appeal. (Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423; Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill. App. 3d 1055, 410 N.E.2d 295.) Moreover, it has also been held that contentions supported by some argument, but by absolutely no authority do not meet the requirements of Supreme Court Rule 341(e) (73 Ill. 2d R. 341(e)). (Wilson v. Continental Body Corp. (1981), 93 Ill. App. 3d 966, 418 N.E.2d 56.) Reviewing courts are entitled to have the issues clearly defined and to be cited pertinent authority; they are not a depository into which an appellant is to dump the entire matter of pleadings, court action, argument and research. (In re Marriage of Snow (1980), 81 Ill. App. 3d 1148, 401 N.E.2d 1352; Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 409 N.E.2d 477; see Morse v. Nelson (1977), 48 Ill. App. 3d 895, 363 N.E.2d 167.) The court is empowered to dismiss an appeal when the appellant’s presentation is so inadequate that an informed review of the issues is impossible. (Wilson.) Since plaintiff has failed to offer more than conclusory arguments that a genuine issue of material fact exists concerning her wilful and wanton count, we would be justified in considering her argument waived.

In any event, we believe the trial court properly granted summary judgment as to plaintiff’s wilful and wanton count. There can be no recovery in tort unless the defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95.) The existence of a legal duty is a question of law to be determined by the trial court. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13; Barnes v. Washington (1973), 56 Ill. 2d 22; Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 439 N.E.2d 1284.) Summary judgment is proper if a plaintiff’s complaint based on wilful and wanton misconduct fails to demonstrate a duty to act on the part of the defendant. Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1004, 365 N.E.'2d 80, 84.

On the facts as pleaded in plaintiff’s complaint, she was a social guest upon defendant’s premises. A social guest is a person who goes onto the property of another for companionship, diversion and enjoyment of hospitality. (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 673, 299 N.E.2d 108, 121.) A social guest is treated as a licensee and not as an invitee. Ciaglo v. Ciaglo (1959), 20 Ill. App. 2d 360, 156 N.E.2d 376.

A property owner has no duty to make his premises safe for a licensee. His only duty is to warn a licensee of concealed defects that are known to the owner and to refrain from injuring him wilfully or wantonly. (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162; DuMond v. City of Mattoon (1965), 60 Ill. App. 2d 83, 91, 207 N.E.2d 320, 324.) Wilful and wanton conduct is a course of action which shows either a deliberate intention to harm or an utter indifference to, or conscious disregard for, the safety of others. (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 336, 443 N.E.2d 1162, 1165; Kapka v. Urbaszewski (1964), 47 Ill. App. 2d 321, 324, 198 N.E.2d 569, 571.) To sufficiently plead wilful and wanton conduct, a plaintiff must allege facts demonstrating a duty of defendant and a breach of that duty which proximately caused the plaintiff’s injury. (Hubbard v. Aetna Insurance Co. (1976), 37 Ill. App. 3d 666, 669, 347 N.E.2d 396, 399.) The mere conclusory allegation of wilful or wanton conduct is not sufficient. Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452; Clay v. Chicago Board of Education (1974), 22 Ill. App. 3d 437, 318 N.E.2d 153.

Here, plaintiff’s complaint alleges three wilful and wanton acts: (1) defendant’s providing to plaintiff of a loose stump which defendant knew was unbalanced and defective; (2) defendant’s failure to warn plaintiff of the stump’s defective condition; and (3) defendant’s retention of the stump on his property when he knew children congregated there. Each of these three acts is predicated on the legal conclusion that the stump was defective and was a concealed defect. Plaintiff’s allegation that defendant provided to plaintiff a defective stump and failed to warn her of the stump’s condition fails to establish a duty absent the existence of a defective condition or a concealed defect. Similarly, defendant was under no duty to remove the stump from his property even though he was aware that children frequented the premises unless the stump was a defective condition or a concealed defect. Based upon our earlier discussion of count II, however, we conclude that the stump was not dangerous or defective. Furthermore, we hold that the stump was not a concealed defect. Rather, the uncontroverted fact indicates that plaintiff recognized the stump was on uneven ground and plaintiff has failed to establish any other basis upon which we could conclude that the stump was more dangerous than any other stump. (See Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 328.) To the contrary, the risk of falling off the stump here was that which inheres in standing on any stump and which was obvious to any child. In the absence of any disputed issues of material fact, we conclude that the trial court properly entered judgment in favor of defendant.

Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

UNVERZAGT and REINHARD, JJ., concur.


author: JUSTICE MILLS

text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellant, v. LEE S. HSUEH et al., Defendants-Appellees (Citizens Savings and Loan Association, Defendant).
    Fourth District
    No. 4-82-0785
    Opinion filed September 13, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Alfred B. LaBarre, Special Assistant Attorney General, and Roy Frazier, Assistant Attorney General, of counsel), for appellant.
    Roscoe Bonjean, of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Condemnation case.

Is evidence of “cost to cure” admissible?

Yes — but only if the cure is correlated to fair market value.

We affirm.

The Department of Transportation of the State of Illinois brought suit to condemn land owned by Lee and Elaine Hsueh, seeking a fee interest in 0.43 acres of defendants’ 7.03-acre tract for purposes of highway construction. The Hsuehs cross-petitioned, alleging damages to their remaining property resulting from the taking. After a jury trial, a verdict awarded the Hsuehs $15,000 as damages for the property taken and $52,000 as damages to the remainder.

The Department’s sole contention on appeal is that the trial court erred in allowing defendants to introduce evidence of the costs of rehabilitating the remainder.

. The property is located off Route 125 west of Springfield, Illinois. Improvements on the property consist chiefly of a one-story brick house which is divided into four separate family units, two single dwellings, an asphalt parking area and an asphalt roadway which provided access to the buildings. A substantial section of the roadway lay on the property taking by the Department.

Lee Hsueh testified that, as a result of the loss of the roadway, he needed to construct a new roadway. He testified he had employed Calhoun County Construction Corporation for construction work on the parking area and roadway and had paid the corporation $14,087.48 for work performed up to the filing of the law suit. He had also paid another contractor $2,295 for the construction of a temporary roadway.

Harry Rimbéy, president of Calhoun County Construction Corporation, identified exhibits of defendants which included a bill from the corporation to Hsueh in the amount of $14,087.48, and an estimate prepared by Rimbey for the construction of an alternate roadway for defendants. The total of the estimate was $46,767. Rimbey testified that remaining work included laying an asphalt surface at an estimated cost of $22,000.

James Call, defendant’s appraisal witness, testified that the market value of defendant’s property before the taking was $235,000 and the market value of the remainder after the taking was $170,200. He found the value of the property taken to be $12,040 and damages to the remainder to be $52,694. In evaluating the damages to the remainder, Call considered, among other things, the cost of tearing up the asphalt parking area and road, the cost of relocating water, sewer and gas lines, and the cost of installing steps and walkways among the buildings.

Charles Johnson, another appraisal witness for defendants, testified that the market value of the property before the taking was $275,000. He found the value of the property taken to be $14,000 and the damages to the remainder to be $50,000. Johnson testified that the remainder was significantly damaged by the need to restructure the traffic pattern on the property. He said there was “absolutely no question” that an alternate roadway was necessary.

The Department’s first appraisal witness, Fred Tedrowski, testified that the fair market value of the property before the taking was $145,000, the value of the property taken was $6,300 and the fair market value of the remainder after the taking was $127,100. Consequently, he found the damages to the remainder to be $11,600. Tedrowski testified that in determining the damage to the remainder he considered the poor access available to and from the highway after the taking.

The Department’s other appraisal witness, Wayne Briggs, testified that the fair market value of the property prior to the taking was $155,000, the value of the property taken was $12,350, and the value of the remainder after the taking was $138,150. Briggs then determined the damages to the remainder to be $4,500. Briggs testified that in evaluating the damages to the remainder he considered the necessity of a roadway from the existing parking area to two smaller dwellings.

The measure of recovery for damages to the remainder in a condemnation action is the depreciation in market value of the remainder resulting from the taking. (Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 191 N.E.2d 245; Department of Public Works & Buildings v. Maddox (1961), 21 Ill. 2d 489, 173 N.E.2d 448.) Costs incurred in adapting land to use after the taking are not recoverable items of damages in themselves; however, evidence of such costs may be admissible as factors in considering market value depreciation. (Bloomer; Department of Transportation v. Galley (1973), 12 Ill. App. 3d 1072, 299 N.E.2d 810; Department of Public Works & Buildings v. Seeber (1968), 93 Ill. App. 2d 271, 235 N.E.2d 269.) To be admissible, evidence of rehabilitation costs must have some bearing on the market value. While certain improvements may be desirable, it is improper to show the cost of an improvement when there is no evidence that the need of the improvement decreases the market value of the remainder. See Galley.

In the present case, there was insufficient evidence relating the cost of building a new roadway system to the market value of the remainder. Although all four appraisal witnesses testified that they considered the need to construct certain roadways in determining damages to the remainder, none testified as to the extent that Rim-bey’s proposed construction would enhance the market value of the remainder. Without such testimony, Rimbey’s estimate lacked a proper foundation. Consequently, the testimony of Rimbey and Hsueh regarding the costs of rehabilitation should have been stricken. Nevertheless, the error in failing to strike this testimony was harmless. The jury had viewed the premises and its verdict was within the range of the testimony. Under these circumstances, the verdict will not be disturbed absent a clear showing that it was the product of passion or prejudice or was affected by palpable error. (Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 191 N.E.2d 245.) There was no showing that the jury’s verdict in this case was the product of passion or prejudice or was affected by palpable error.

The judgment of the trial court is affirmed.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FERRELL HANDLEY, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0033
    Opinion filed September 6, 1983.

      ■Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and Howard Hood, both of State’s Attorneys Appellate Service Commission, . of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Ferrell Handley was convicted by an Adams County jury of two counts of aggravated battery, battery, and armed violence predicated on the felony of aggravated battery in a place of public amusement. (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 4, 12 — 3, 33A — 2.) Defendant was sentenced to five years’ imprisonment on the offense of armed violence and on appeal, raises vagueness and overbreadth challenges to section 12 — 4(b)(8) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(8).) We affirm.

Briefly, the record indicates that on October 2, 1982, the defendant stabbed Ray Rust outside of his apartment in Quincy, Illinois. The apartment was located inside Crazy Jerry’s Adult Bookstore and the entrance to the apartment was adjacent to a projection room in which individual booths were located to view pornographic films. The stabbing occurred several feet from the apartment entrance within the confines of the projection room. Both the adult bookstore and the projection room were open to the public.

Defendant argues on appeal that section 12 — 4(b)(8) of the Criminal Code of 1961 is void for vagueness and is overbroad as applied to the facts of this. case. Although no such argument was included in defendant’s post-trial motion, we will consider the merits to be certain that it does not raise plain error. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Defendant’s argument that the statute is void for vagueness rests upon his assertion that he was not given fair notice by the statute that the public place or amusement provision of the aggravated battery statute was applicable. Defendant also suggests that application of the statute to his conduct is arbitrary because had he been inside the Rust apartment, section 12 — 4(b)(8) would not have been applicable.

It is a well-settled rule that the due process clause of the Federal and State constitutions requires a statute to be sufficiently certain to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by law. (Colautti v. Franklin (1979), 439 U.S. 379, 58 L. Ed. 2d 596, 99 S. Ct. 675; Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839; People v. Schwartz (1976), 64 Ill. 2d 275, 356 N.E.2d 8; People v. Caliendo (1980), 84 Ill. App. 3d 987, 405 N.E.2d 1133.) Since criminal statutes are limited to words as their medium, mathematical certainty can never be expected however, and neither the United States or Illinois constitutions impose impossible burdens of specificity. (Caliendo.) When called upon to decide a vagueness question, a court will assume, absent evidence of a contrary legislative intent, that the words of the statute have their ordinary or popularly understood meaning. Schwartz.

Measured against this standard, we conclude that section 12— 4(b)(8) is sufficiently precise to give fair notice of what conduct is proscribed. Defendant’s argument is not that he was unaware that a battery is a criminal offense, but seems to be that he was not given sufficient notice that a battery committed in an area of public amusement is an aggravated battery. A similar argument was made in Caliendo. There the defendant contended that the phrase “great bodily harm” was not precise enough to give him notice of when a misdemeanor battery would be elevated to a felony. The court’s holding on this point is pertinent here:

“The legality of defendant’s conduct is not in doubt; it was clearly prohibited either as a misdemeanor or as a felony. Rather, defendant claims a constitutional right to be warned of the exact degree of punishment which follows prohibited conduct. To our knowledge, neither the United States nor the Illinois constitutions provide such a right. [Citation.] Both constitutions require only that a person of ordinary knowledge have fair warning that certain conduct is prohibited. [Citation.] This constitutional protection is designed to allow an individual to steer between lawful and unlawful conduct. However, this constitutional protection does not extend to an individual’s choice between two different forms of prohibited activity.” People v. Caliendo (1980), 84 Ill. App. 3d 987, 992, 405 N.E.2d 1133, 1138.

A statute must be declared void if it does not adequately warn potential violators of proscribed conduct, but that determination is to be made in light of the facts in the case at hand where first amendment rights are not involved. (People v. Garrison (1980), 82 Ill. 2d 444, 412 N.E.2d 483.) Here, defendant has not pointed to any word which he contends is vague. In fact, defendant has admitted that his conduct occurred within an area of public amusement. The mere fact that the legislature chose a general description of areas frequented by the public (“public way,” “public property,” or “public place of accommodation or amusement”) rather than spelling out each example of a public way or public amusement does not make the statute void for vagueness. (Garrison.) We conclude that the statute gave defendant clear notice not only that his conduct was prohibited, but further that such conduct could be prosecuted as a felony when committed in an area of public amusement. Defendant’s suggestion that had he been inside the apartment his acts would not have been aggravated battery under section 12 — 4(b)(8) is correct. In that situation, his conduct would have been punished even more severely as home invasion, a Class X felony. Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11.

Defendant next argues that his conviction for armed violence based on the felony offense proscribed by section 12 — 4(b)(8) cannot stand because section 12 — 4(b)(8) is inapplicable where the battery creates no threat to the public. Defendant notes that the purpose of section 12 — 4(b)(8) is to deter harm to the public and suggests that the battery here posed no harm because it occurred outside a private residence which just happened to be a public place of amusement.

The primary purpose of statutory construction is to ascertain the legislature’s intent by considering both the language used and the evil sought to be remedied. (People v. Dednam (1973), 55 Ill. 2d 565, 304 N.E.2d 627.) In People v. Cole (1977), 47 Ill. App. 3d 775, 362 N.E.2d 432, we upheld the constitutionality of this section against an attack that it violated equal protection and due process by creating an irrational classification of aggravated battery. We emphasized the legislature’s purpose to remedy the deteriorating condition of public safety and to preserve public order. The Committee Comments to section 12 — 4 indicate that this provision “involves a battery committed under aggravated circumstances from which great harm might and usually does result (although it did not in the particular case), and therefore it constitutes a more serious threat to the community than a simple battery.” Ill. Ann. Stat., ch. 38, par. 12 — 4, Committee Comments, at 465 (Smith-Hurd 1979).

We think that it is manifest that section 12 — 4(b)(8) is designed to deter the possibility of harm to the public, and whether or not harm actually occurs is irrelevánt. The plain language of the statute and comments thereunder clearly reveal that a possibility of harm to the public is not an element of the offense, but rather was the motivating factor in its enactment. Defendant’s suggestion that an exception should be created when the area of public amusement is adjacent to a private residence is consistent neither with the language nor spirit of the statute.

Defendant also refers to the doctrine of overbreadth in his brief and argues that application of the statute to the circumstances at bar would involve an overbroad application of the statute in violation of his right to due process of law. A statutory enactment, though sufficiently clear and precise to withstand a vagueness attack, may be impermissibly overbroad if it may reasonably be interpreted to prohibit constitutionally protected conduct. (Schwartz.) Defendant has provided neither authority or argument to support this claim and we are unable to find overbreadth problems here, either on its face or as applied.

Defendant’s final contention is that he did not receive credit for time spent in custody as provided by statute. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7(b).) The State has conceded error and accordingly, we remand the cause to the circuit court for the issuance of an amended mittimus to reflect the appropriate credit. In all other respects the judgment and sentence are affirmed.

Affirmed and remanded for issuance of an amended mittimus.

GREEN and MILLER, JJ., concur.