author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH R. SCHUMANN, Defendant-Appellant.
    Second District
    No. 83—0050
    Opinion filed December 27, 1983.

      John Panegasser, of Elmhurst, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Following a bench trial, defendant, Keith R. Schumann, was convicted of driving under the influence of alcohol (Ill. Rev., Stat. 1981, ch. 95x/2, par. 11 — 501(a)) and failure to reduce speed to avoid an accident (Ill. Rev. Stat. 1981, ch. 95/2, par. 11 — 601(a)). He appeals from his convictions and fines of $350 and $50 respectively, with costs. He contends that he was not proved guilty of either offense beyond a reasonable doubt, that the court erred in allowing a blood sample and the result of the blood analysis in evidence and that various rulings of the trial judge deprived him of a fair trial or the right to have the charges dismissed.

I

a. Defendant challenges the admission of the blood sample and the blood analysis on the basis of various regulations of the Illinois Department of Public Health (Department) (see Ill. Rev. Stat. 1981, ch. 95/2, par. 11 — 501.2). The regulations of the Department, entitled Standards and Procedures for Blood and/or Other Drug Testing by Breath, Blood and Urine Analysis (1982), were admitted into evidence upon the court taking judicial notice of them.

He first argues noncompliance with Department Rule 11.01(a) which states that the “[bjlood sample shall be collected in the presence of the arresting officer or other representative of the arresting officer’s agency who can authenticate the sample.” The operative facts in this connection are that defendant was taken from the scene of the occurrence by ambulance to Hinsdale Sanitarium and Hospital where he received treatment in the emergency room. Officer Stadwi-ser, upon his observation of defendant, believed him to be under the influence of alcohol and at his request defendant consented to a blood test. The officer then went into the X-ray room where defendant was to undergo the blood test; he saw no one else in the room. He witnessed defendant being taken to the X-ray room and met with the woman, identified as Vicki Linjuco, who was to withdraw the blood sample. The officer testified that he remained outside the room, and only an X-ray technician came in and out of the room periodically. Ms. Linjuco handed him two vials which appeared to contain blood and had labels on them. She testified that she withdrew two vials of blood from defendant’s arm after checking his patient arm band for proper identification. She further testified that Officer Stadwiser stood next to her while she withdrew blood from defendant, and that she then gave him the two vials of blood, which were identical.

There was conflicting evidence as to the presence of the officer who testified that he was standing just outside the room, while Vicki Linjuco testified that the officer was next to her while she withdrew the blood. We conclude, however, that under either version of the facts there has been compliance with the underlying purpose of the rule, to insure that the blood sample is authenticated as taken from the defendant by providing that it shall be taken in the presence of the officer who can testify to the identity of the defendant. The testimony assures that the defendant was the one from whom the blood was taken, since there were no other persons, other than hospital personnel, in the room during the procedure.

The defendant argues that the State failed to prove the identity of defendant since Vicki Linjuco could not identify him in court. She could not identify him because, she said, he was covered with blankets and X-ray equipment at the time of the taking of the blood sample. She did, however, identify him according to the name on his hospital arm band prior to taking the blood. In addition, Officer Stadwiser properly identified the defendant in court.

b. Defendant also challenges Rule 11.01(d)(4) which states that individual containers of blood “shall be appropriately and securely labeled to provide the following information: name of accused, date and time of collection, collecting attendant, authorizing officer’s signature and agency identification, type of anticoagulant/preservative.” As to the signature requirement, defendant argues that the officer’s name was printed in his own handwriting and that this does not constitute his signature. We do not agree. A signature is not required to be written in cursive handwriting. See A. T. Willett Co. v. Industrial Com. (1919), 287 Ill. 487, 493, in which the court noted that a signature is the act of putting down a man’s name at the end of an instrument to attest its validity and that words traced with a pen, stamped, printed, engraved or made legible by any other device, including a typewriter, are written.

Defendant also asserts that the type of anticoagulant/preservative was not indicated on the labels. The evidence shows that the name “disodium edetate sodium fluoride” is clearly written on the label. As defendant argues, no State’s witness testified as to what the agent is or what it does. Officer Stadwiser, however, did refer to the substance as an anticoagulant; he acquired the name of the agent by asking the person who withdrew the blood. In addition we take judicial notice that disodium edetate sodium fluoride is an anticoagulant/ preservative.

c. In general, the Department regulations provide that “[t]he identity and integrity of the sample shall be maintained through collection to analysis and reporting.” (Rule 11.01(d)(4).) Defendant contends that the blood samples were not taken directly to the Department as required by Rule 11.01(d)(5). He relies on the fact that the blood was withdrawn at approximately 3 a.m. on May 2, 1982, and that it was delivered to the Department at approximately 11:30 a.m. on May 3, 1982, a time span of more than 32 hours. It is relevant to note that the blood was withdrawn on a Sunday morning. It is not unreasonable that the officers would wait until Monday morning, a normal business day, to deliver the sample to the laboratory in Chicago. Further, there is no evidence that the samples may have been tampered with or contaminated. The defendant also fails to state how the 32-hour delay has prejudiced him in any way. We conclude that the purpose of the rule has been adequately complied with.

People v. Leffew (1975), 33 Ill. App. 3d 700, cited by defendant in support of his contention that the Department regulations must be strictly complied with, does not require a different conclusion. In Leffew, the doctor drawing the blood sample did not follow the Department rule prohibiting the use of alcohol to disinfect the area of the injection. The results of the blood test were excluded for the reason that the presence of the alcohol could easily produce inaccurate test results. In our -view, none of the particular objections of this defendant can be said to produce inaccurate test results.

d. Defendant next argues that Rule 11.01(b) was violated since the blood was not drawn “by a physician licensed to practice medicine, by a registered nurse, or by a trained phlebotomist.” The rule implements the provision in the Illinois Vehicle Code which provides that “only a physician authorized to practice medicine, a registered nurse or other qualified person approved by the Department of Public Health may withdraw blood” to determine its alcohol content. Ill. Rev. Stat. 1981, ch. 95x/2, par. 11 — 501.2(aX2).

Defendant contends that because Vicki Linjuco is called a medical technologist and not a phlebotomist, she was not qualified to withdraw defendant’s blood. She testified that while a phlebotomist is trained to draw blood but not analyze it, a medical technologist is trained to draw and analyze blood. She further testified that her work consists of drawing blood and then analyzing it; she is registered with the American Society of Clinical Pathologists; she does work in the area of phlebotomy on the night shift when no phlebotomist is on duty; and that she is then a phlebotomist “in a way.” The evidence showed that Vicki Linjuco was clearly qualified to withdraw defendant’s blood. Merely because she can perform more" tasks than a phlebotomist and is not called a phlebotomist is not sufficient criteria to find her unqualified to withdraw blood.

e. Defendant also contests Department regulations 11.01(d)(2) and (3). Both sections require that two containers or tubes be used to collect the blood sample. Defendant asserts that both containers of blood must be introduced at trial and that the State’s failure to produce a second vial was error. However, neither the statute nor the regulations require both vials to be produced at trial. Rule 11.01(d)(6) provides that the testing laboratory shall utilize one container for the Department analysis and shall retain the second container for at least one year. There was testimony that the second vial was kept in the laboratory refrigerator in the event the accused wished to have an independent analysis performed. The production of the second identical vial with the identical blood at trial would serve no purpose. Defendant attempts to justify his contention by reference to the best evidence rule. The rule, however, has no application since it cannot be said that introducing two identical vials rather than one amounts to the “best evidence.”

II

Defendant also contends that the chain of evidence regarding the blood samples was broken and consequently the blood and its analysis should have been excluded from evidence. He suggests that the chain of evidence was broken because Officer Carlson did not produce the receipt for the vials which he obtained when he delivered them to the Department. The officer testified that he delivered the vials of blood from the Oak Brook police department to the Department of Public Health in Chicago, took the samples to the toxicology department and was issued a receipt by the person to whom he gave the vials, Gail Rosenquist. There also was testimony that Gail Rosenquist is employed by the Department of Public Health in Chicago and that she gave one vial for analysis to a co-worker, Veronica Rotterman, and placed the other vial in the refrigerator, as previously noted, where it remained at the time of trial. Although the receipt was not present in court, it was testified that it was in the evidence file at the Oak Brook police department. There was also testimony from Gail Rosenquist that she received the vials from Officer Carlson on May 3, 1982. There was no evidence to contradict these links in the chain of evidence. The vials clearly were passed by Vicki Linjuco to Officer Stadwiser to the police department evidence refrigerator to Officer Carlson to Gail Rosenquist. We find no break in the chain of evidence.

III

Defendant contends that the State failed to prove him guilty beyond a reasonable doubt of each of the offenses charged.

The incident from which the charges arose occurred on May 2, 1982, at 2:05 a.m. Defendant was driving eastbound on Roosevelt Road in Oak Brook while another vehicle driven by Mary Mulvihill was also traveling eastbound at. approximately 45 miles per hour in a 50-mile-per-hour zone in the center lane of Roosevelt Road. She testified that, immediately prior to the accident, the headlights and taillights of her car were on. She saw no other vehicles on the road either behind her or in front of her. She heard a loud bang from the rear of her car and the trunk flew up. She did not see a car hit her but saw a car go into a ditch. Shortly after the accident Officer Paul Stadwiser of the Oak Brook police department arrived at the scene. He testified that two vehicles had been in an accident; the car driven by Mrs. Mulvihill had extensive rear-end damage and the car driven by defendant, found in a ditch, had extensive front-end damage. The officer found the defendant behind the wheel of his car, with signs of injury to his head and face. The windshield was broken, and it appeared that defendant had hit the windshield, as it was bent outward. The defendant told the officer that he was the driver of the car. The officer noted that defendant’s speech was slurred, a strong odor of alcohol emanated from his mouth, and he had difficulty comprehending what had transpired. In the officer’s opinion the defendant was under the influence of alcohol.

Defendant was then taken by ambulance to Hinsdale Sanitarium and Hospital where he received treatment in the emergency room. Officer Stadwiser, upon continued observation of defendant, still believed him to be under the influence of alcohol.

The defendant, the sole defense witness, testified that he had no recollection of the accident on May 2, 1982. The last thing he remembered was being at work during the afternoon of May 1 and next recalled being in the hospital for his injuries.

Section 11 — 501 of the Illinois Vehicle Code provides, inter alia, that a person shall not drive while under the influence of alcohol. (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(a)(2).) Under section 11 — 501.2, evidence of the concentration of alcohol in the person’s blood, as determined by a chemical analysis, is admissible (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.2(a)), and gives rise to a presumption that the person was under the influence of alcohol if the alcohol concentration was 0.10 or more (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.2(b)(3)). After this presumption of intoxication arises, defendant has the burden of producing evidence in his favor sufficient to rebut the presumption. People v. Hester (1980), 88 Ill. App. 3d 391, 393.

The blood analysis reveals that the concentration of alcohol in defendant’s blood was 0.183, above the level of presumptive intoxication. This evidence is unrefuted, and is thereby sufficient to prove defendant’s guilt.

We would agree, however, with the defendant’s argument that if the blood analysis had not been properly admitted, as we have concluded that it was, there would have been insufficient other evidence to find the defendant guilty beyond a reasonable doubt of driving under the influence of alcohol. This is so because the evidence of physical trauma to the defendant arising from the accident could have accounted for the symptoms which the officer described and no other tests of sobriety were administered. See, e.g., People v. Thomas (1975), 34 Ill. App. 3d 578, 580-81.

We also conclude that the evidence proved defendant’s guilt of failing to decrease speed to avoid the collision, beyond a reasonable doubt. (Ill. Rev. Stat. 1981, ch. 95%, par. 11 — 601.) Necessary proof is that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person or vehicle. In re Vitale (1978), 71 Ill. 2d 229, 238, vacated and remanded on different grounds (1980), 447 U.S. 410, 65 L. Ed. 2d, 228, 100 S. Ct. 2260; People v. Brant (1980), 82 Ill. App. 3d 847, 851.

The fact that, as defendant argues, the State failed to present any evidence as to the speed of his vehicle does not create a reasonable doubt. The evidence establishes that the speed limit was 50 miles per hour, that Mrs. Mulvihill was traveling at 45 miles per hour, that she saw no vehicles either behind her or in front of her and that while driving in the center lane she was struck from the rear. There was also evidence that she saw a car go into the ditch and defendant’s car was found there. From these facts the trier of fact could properly infer that defendant was driving carelessly and that he failed to reduce his speed to avoid colliding with the Mulvihill vehicle.

IV

We have also concluded that defendant’s claim of other trial errors is not meritorious.

a. Defendant first contends that the trial court abused its discretion in allowing a continuance to the State midway through trial. Pursuant to section 114 — 4(c)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(c)(2)), the trial court originally denied the State’s motion for a continuance because the stipulation had purportedly been entered into regarding the alleged testimony of a State’s witness who was to testify to the blood analysis and the blood alcohol content. The record is devoid of any written stipulation or any oral statement concerning the exact subject matter of the purported stipulation. As the trial progressed the court realized that the parties were not in agreement on the scope of the oral stipulation and on that basis the trial court continued the trial to a date when the witness would be available.

The granting or denial of a continuance to procure a witness is a matter within the sound discretion of the trial court and depends on the particular facts and circumstances surrounding the request. (People v. Koris (1982), 107 Ill. App. 3d 821, 828.) The determination to grant or deny a continuance will not be reversed unless there has been an abuse of discretion. (People v. Sullivan (1981), 95 Ill. App. 3d 571, 573.) Prejudice to the defendant must be shown before it can be said that the discretion has been abused. (People v. Young (1977), 46 Ill. App. 3d 798, 802.) We conclude that defendant has shown no prejudice by the granting of the continuance. Accordingly, the trial court did not abuse its discretion.

b. Nor was it error to permit Veronica Rotterman to testify as to the blood analysis even though she had not been previously listed as a witness. The witness who actually made the analysis was Ms. Rotter-man rather than Gail Rosenquist, whom had been listed and for whose testimony the trial had been continued. It appears from defense counsel’s statement in oral argument that he actually knew that Ms. Rot-terman had done the analysis. In addition the court recessed the trial to allow defense counsel to interview Ms. Rotterman.

Allowing an unlisted witness to testify is within the discretion of the trial court, and the exercise of that discretion will not be disturbed absent a showing of resulting surprise or prejudice; the burden of showing surprise or prejudice is on the defendant. (People v. Steel (1972), 52 Ill. 2d 442, 450.) The defendant has not sustained that burden on this record.

c. Finally, we conclude that the court did not err in permitting Officer Stadwiser to be recalled to testify to his writing on the vial. The determination whether to reopen proofs is left to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. (Harbeck v. Holland (1980), 81 Ill. App. 3d 250, 254.) At the time the officer was recalled the State was still presenting its case. Especially in light of the confusion regarding the purported stipulation and whether it encompassed the vial of blood or merely the testimony of the analysis results, we find no abuse of discretion in permitting him to formally identify the vial.

The judgment of the circuit court of Du Page County is therefore affirmed.

Affirmed.

NASH and VAN DEUSEN, JJ., concur.

      At trial, disodium was erroneously referred to as pisodium.

      Disodium edetate is listed as an anticoagulant in The Merck Index, An Encyclopedia of Chemicals and Drugs 449 (9th ed. 1976), and sodium fluoride is a preservative (Winek & Paul, Effect of Short-Term Storage Conditions on Alcohol Concentrations in Blood from Living Human Subjects, 29 Clinical Chemistry 1959 (1983)).


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    ROSEMARIE LEVY, Plaintiff-Appellant, v. NARROD MOVING SERVICES, INC., et al., Defendant-Appellees.
    Second District
    No. 83—66
    Opinion filed December 27, 1983.

      J. Daniel Azulay, of Azulay & Azulay, of Chicago, for appellant.
    Laura R. Petroff, of Charles N. Besser & Associates, of Chicago, for ap-pellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Rosemarie Levy, appeals from the dismissal of her complaint against defendant, Narrod Moving Services, Inc. (Narrod), pursuant to Narrod’s motion under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619).

Plaintiff sought to recover damages for the destruction of her personal property, which had been stored in Narrod’s warehouse, by a fire which occurred at the warehouse. Plaintiff’s complaint sought recovery from Narrod under theories of negligence (count I), res ipsa loquitur (count II), and wilful and wanton misconduct (count III). In count IV, she sought a declaratory judgment against Adams Clay Consumer Claims Agency (Adams) and Transport Indemnity Company (Transport) to define the conditions of their liability to plaintiff under an insurance policy. Plaintiff’s claim against Adams and Transport was settled for $7,000. Narrod raised this settlement as a bar to plaintiff’s cause of action against it, claiming that the settlement “fully satisfied” plaintiff’s claim. In its order dismissing plaintiff’s complaint the trial court found that “plaintiff’s claim has been fully satisfied both ex contractu and by statute.”

Plaintiff’s complaint sets forth the relevant facts in this case. These facts must be taken as true for the purposes of a motion to dismiss. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 284, 402 N.E.2d 599; Clement v. Prestwick (1983), 114 Ill. App. 3d 479, 479, 448 N.E.2d 1039.

The complaint against Narrod alleges, inter alia," the following facts. Plaintiff owned household goods and other personal property with a value of $78,161.17. On March 11, 1978, plaintiff delivered this property to Narrod for storage. Plaintiff agreed to pay $88.92 per month as a storage fee. Plaintiff made these payments. On June 8, 1979, plaintiff’s property was totally destroyed by a fire at Narrod’s warehouse.

Plaintiff attached a copy of a certificate of insurance to her complaint as Exhibit B. This certificate listed Narrod as the master policyholder and “Named Insured” and listed plaintiff as the “Insured.” The certificate was issued by Transport and indicated that “coverage B” (for property in storage) was to be provided. The “declared value” of the goods in storage at Narrod’s address was listed as $7,000, and the certificate of insurance stated that “TRANSPORT’S LIMIT OF LIABILITY IS THE DECLARED VALUE SHOWN ***.”

Narrod filed a motion to dismiss on October 7, 1982. In this motion it stated that the declared value of plaintiff’s goods was $7,000 and that this was “a specific declaration limiting any liability owed to plaintiff to the stated amount of $7,000 ***.” Narrod claimed that this limitation of liability was in accordance with section 7 — 204 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 7 — 204). Narrod’s motion stated that because plaintiff had received $7,000 in settlement of her claims against Adams and Transport, she had been “fully satisfied according to the terms and conditions of the policy, the Certificate of Insurance, and the Covenant and Agreement,” and thus, had been “fully satisfied both ex contractu and by statute.”

Narrod attached a copy of the “Comprehensive Movers’ & Ware-housemens’ Policy” issued by Transport as Exhibit A. As Exhibit C, Narrod attached a copy of the “Covenant and Agreement” entered between plaintiff and Adams and Transport. In this agreement plaintiff agreed to release all claims against Adams and Transport for $7,000. The agreement also indicated that the $7,000 was in partial settlement of plaintiff’s claim against Narrod. In the agreement, the parties expressly reserved plaintiff’s right to pursue her claim against Narrod, but agreed that any recovery against Narrod would be reduced by $7,000, the amount received pursuant to the settlement with Adams and Transport and the partial settlement with Narrod. Narrod conceded in the trial court that the terms of the “Covenant and Agreement” were binding upon it.

On November 18, 1982, plaintiff filed an answer to defendant’s motion to dismiss in which she admitted that the “declared value” of her goods as stated in the certificate of insurance was $7,000 and that she had requested Narrod to procure insurance coverage for the property to be stored. Plaintiff admitted that she had received $7,000 from Adams and Transport in full satisfaction of any and all claims she had against them.

On December 20, 1982, the trial court granted Narrod’s motion to dismiss.

Plaintiff raises the following issues on appeal: (1) whether the release of one obligor releases a co-obligor where the release agreement states that the parties intend otherwise; (2) whether a party who procures an insurance policy for another is a beneficiary of that policy even if not named as a beneficiary; (3) whether a defendant who acts negligently may escape liability because the plaintiff has been partially compensated by a collateral source; and (4) whether a warehouseman may have his liability limited when he does not limit it in a specific warehouse receipt or storage agreement. Narrod, however, concedes in its appellate brief that the release of Adams and Transport did not release it from liability and that it was not a beneficiary of the insurance policy issued by Transport. Therefore, we need not address the first two issues raised by plaintiff on appeal.

Since Narrod concedes these points, we must focus our attention on plaintiff’s contention that application of the collateral-source rule, as it applies to the payment of the $7,000 insurance settlement and Narrod’s separate liability, requires us to reverse the order of dismissal.

Plaintiff maintains that her claim against Narrod is not affected by her settlement with Adams and Transport. She contends that the money she received from them was the result of a settlement with her insurer. She argues that because Narrod did not pay any of the insurance premiums, that this payment came from a collateral source, and therefore, that her claim against Narrod remains intact.

Narrod argues that plaintiff cannot maintain this action against it because she has received full satisfaction of her loss. It contends that the $7,000 settlement fully compensated plaintiff for her loss, since the declared value of the property was $7,000, as listed in the certificate of insurance.

Generally, when a personal injury is occasioned by the negligence of another, the fact that the injured party has been compensated by insurance does not affect the injured party’s right to recover from the negligent party, where the negligent party has not paid the insurance premiums. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 362-63, 392 N.E.2d 1; Ross v. Cortes (1981), 95 Ill. App. 3d 772, 774, 420 N.E.2d 846; Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App. 3d 435, 444, 333 N.E.2d 716.) This rule, which is generally referred to as the collateral-source rule, is likewise applicable to property losses that have been compensated by insurance. Eacurco v. Haddad (1954), 3 Ill. App. 2d 480, 122 N.E.2d 605 (abstract); see also 22 Am. Jur. 2d Damages sec. 211 (1965).

Here, plaintiff received a settlement for $7,000 for her claim under an insurance policy. Narrod admits in its appellate brief that plaintiff paid the premiums for this insurance. Narrod also admits that it was not a beneficiary of this insurance policy. Since it is clear that plaintiff had this insurance procured for her own benefit, and that she paid the premiums and was the insured under the policy, we hold that the settlement for $7,000 that she received from Adams and Transport does not bar her cause of action against Narrod. (See Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 362-63, 392 N.E.2d 1.) The proceeds of this settlement constituted payment from a collateral source and Narrod cannot claim that these proceeds preclude plaintiff from pursuing her action for damages against Narrod.

The language of the “Covenant and Agreement,” which Narrod concedes is binding upon it, expressly provides that plaintiff may pursue her action against Narrod. However, it also provides that any recovery against Narrod would be reduced by $7,000. Thus, plaintiff has expressly agreed to deduct the first $7,000 of any recovery from Narrod, even though under the collateral source rule, she normally could recover from Narrod the amount paid to her by her insurer. While it is not clear from the record, a possible explanation for the inclusion in the “Covenant and Agreement” of this $7,000 reduction in any recovery against Narrod, is that Adams and Transport were negotiating for Narrod as the “master policyholder” and “named insured” under the “Comprehensive Movers’ & Warehousemens’ Policy” issued by Transport. In any event, the question remains whether plaintiff’s claim has been fully satisfied because the $7,000 “partial settlement” with Narrod was actually a “full settlement” because Narrod’s liability had been limited to the declared value of $7,000 listed in the certificate of insurance.

Plaintiff urges that Narrod failed to properly limit its liability in a warehouse receipt or storage agreement. She maintains that the certificate of insurance, with its declared value of $7,000, was insufficient to limit Narrod’s liability. Therefore, she contends that the trial court could not properly have found that her receipt of $7,000 compensated her for all the damages for which she was entitled to recover.

This alleged limitation of liability was advanced by Narrod below as a basis for dismissing plaintiff’s complaint. Narrod claimed that, in the certificate of insurance, it had properly limited its liability to $7,000. Therefore, it maintained that plaintiff’s claim had been fully satisfied and that her complaint must be dismissed under section 2— 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619).

Contrary to Narrod’s contention that the certificate of insurance accomplishes the same purposes as a warehouse receipt or a storage agreement, we conclude that on its face, the certificate of insurance is not, as a matter of law, a limitation of Narrod’s liability under section 7 — 204(2) of the Uniform Commercial Code (HI. Rev. Stat. 1981, ch. 26, par. 7 — 204(2)). Section 7 — 204(2) clearly contemplates an express limitation of liability in a warehouse receipt or storage agreement. The certificate of insurance does not meet the statutory requirements of a warehouse receipt (HI. Rev. Stat. 1981/ ch. lll2/3, par. 128), is not a storage agreement within the contemplation of section 7 — 204(2), and does not expressly limit Narrod’s liability. Therefore, the $7,000 declared value in the certificate of insurance is not a limit of Narrod’s liability. Thus, the $7,000 proceeds of plaintiff’s settlement with Adams and Transport and partial settlement with Narrod did not fuUy satisfy her claim.

For the foregoing reasons the order of dismissal entered by the circuit court of Lake County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and HOPF, JJ., concur.


author: JUSTICE LINDBERG

text:
    ALI YUSUF et al., Plaintiffs-Appellees, v. THE VILLAGE OF VILLA PARK, Defendant (Robert McDaniel et al., Intervening Appellants).
    Second District
    No. 82—823
    Opinion filed December 27, 1983.

      Joel M. Heilman, of Hartunian, Futterman & Howard, of Chicago, for appellants.
    Paul Harrison Stacey and William J. McGrath, both of Wheaton, for ap-pellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

This action involves an appeal from an order of the circuit court of Du Page County granting summary judgment for plaintiffs-appel-lees Ali Yusuf, individually and for the use and benefit of the Islamic Foundation, an Illinois not-for-profit corporation, and Board of School Trustees (formerly the County Board of School Trustees), for the use and benefit of School District No. 45. Plaintiffs’ lawsuit was filed on December 21, 1981, alleging that the action of the defendant Village of Villa Park denying plaintiffs’ application for a special use permit was arbitrary, capricious and unreasonable and denied plaintiffs their due process and equal protection rights under the Illinois and Federal constitutions.

At issue on this appeal is the zoning of certain property located on the west side of Addison Street in Villa Park, Illinois. To the north of the subject property is vacant land, and to the east are single-family homes. The subject property and all of the nearby Villa Park property are zoned for single-family homes; R-2 under the Villa Park zoning ordinance. The remaining land around the property lies in the village of Lombard. To the south of the property are single-family homes and to the west are a bank and two churches.

The property is owned by plaintiff Du Page County Educational Region for the use and benefit of School District No. 45 (District 45). On the property is a school house formerly used as a grammar school, a small parking lot and an area used by the neighborhood children as a playing field. Plaintiff Ali Yusuf (Yusuf) is a real estate investor. On November 7, 1980, he entered into an agreement to purchase the subject property, but performance was conditioned upon Yusuf being able to obtain a special use permit. On November 6, 1981, Yusuf assigned his interest in the property to the Islamic Foundation (Foundation). The Foundation is a religious association of 200 Muslim families which conducts various worship and educational activities for its members and which rents facilities from the village of Villa Park for these purposes.

Yusuf filed his special use permit application with the Villa Park Plan Commission (Plan Commission) in January 1981 and the Plan Commission held three hearings on the application in February and March 1981. In his application, Yusuf proposed that the subject property be operated as a day-care center and that the Foundation would use the facility as a culture center including a night school and a mosque. The day-care center would operate from 6:30 a.m. to 6 p.m., and night classes would be conducted until 9 p.m. five days each week. Worship services would be held on Friday and Sunday afternoons. To accommodate the additional cars expected to be parked at the culture center, Yusuf’s plans provided for the addition of 77 paved parking spaces.

At the close of hearings, the Plan Commission voted eight votes to one to deny Yusuf’s application. Plan Commission members expressed specific reasons for denying the application: the extended hours of operation would create additional traffic and would place additional burden on the neighborhood; the proposed center would utilize village services, but as a tax-exempt facility would generate no revenues; only two Villa Park families would use the center; and the paving of land to provide the additional parking spaces would exacerbate an already-serious flooding problem. On April 20, 1981, the Board of Trustees of Villa Park voted to accept the Plan Commission’s recommendation and to deny Yusuf’s application.

Plaintiffs thereafter filed on February 23, 1982, an amended complaint for declaratory and injunctive relief, alleging that the action of the village was arbitrary, capricious and unreasonable and denied plaintiffs their due process and equal protection rights under the Illinois and Federal constitutions. On June 9, 1982, plaintiffs filed a motion for summary judgment. The evidence upon which plaintiffs relied consisted of the transcripts of the proceedings before the Plan Commission and affidavits attached to the motion. The village filed a cross-motion for summary judgment and a response to plaintiffs’ motion. The trial court granted plaintiffs’ motion on August 3, 1982. Thereafter, the village and plaintiffs entered into an agreement in which the village agreed not to appeal the adverse judgment.

. Petitioners to intervene-appellants, Robert and Gail McDaniel (Mc-Daniels), who are owners of the home adjoining the subject property to the south, and the Villa-Bard Community Association (Association) learned of the agreement between plaintiffs and the village on approximately August 29, 1982, and petitioned the court on September 2, 1982, for leave to intervene and to file a motion for reconsideration of the order granting judgment to plaintiff. On September 15, 1982, the trial court ruled that the intervention petition was untimely, denied the petition, and entered a finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal. Petitioners filed a timely notice of appeal.

Petitioners assert that the trial court improperly denied their petition to intervene as untimely. Petitioners argue that once they learned their interests were not being adequately represented and protected by the village, they acted diligently and filed their intervention petition in a timely fashion. In response, plaintiffs argue that the trial court did not abuse its discretion in denying petitioners’ intervention petition. Plaintiffs contend that since petitioners were aware of the litigation from its inception and raised no new grounds for relief in their petition, the decision not to intervene prior to judgment precludes their post-judgment attempt to intervene. Plaintiffs also argue that the case authority cited by petitioners is inapposite and that petitioners have no standing to intervene because they alleged only a general interest in the zoning decision based upon the proximity of their property to the subject property.

The first issue presented is whether petitioners have standing to maintain this appeal. Plaintiffs contend petitioners may not appeal from the judgment on the merits because they were not parties to the litigation in the trial court. Petitioners cite Nott v. Wolff (1960), 18 Ill. 2d 362, as authorizing their appeal in this case. In Nott, two landowners in the village of Wilmette planned to build a motel, but after village residents submitted a petition to the village board requesting that the zoning ordinance be amended to prohibit the construction of a motel, the landowners filed a petition for writ of mandamus requesting the village manager to issue them a building permit. The hearing referee, after considering the evidence, ruled the amended ordinance was void as applied to the subject property and recommended that the court issue the writ of mandamus. The trial court affirmed the referee’s finding and certified the case for direct appeal to the supreme court. The defendant village did not prosecute the appeal, but a bank which was not a party in the trial court appealed as an owner of property adjoining the land on which the motel was to be constructed. The supreme court rejected the appellee’s claim that the appeal should be dismissed because the bank was not a party of record, was not injured by the judgment, and did not have an appealable interest. Instead, the Nott court held the bank had standing to maintain the appeal.

The similarities between Nott and the instant case require the conclusion that petitioners here have standing to maintain this appeal. Both the appellant in Nott and the petitioners here were not parties in the trial court. In both cases, the municipality representing the public chose not to appeal, and the party seeking to appeal alleged as its injury the diminution in value of its property which was in the vicinity of the subject property. Plaintiffs in their appellate brief fail to address petitioners’ contention that Nott controls the instant case. In light of the similarity between the facts in Nott and those here and in the absence of contrary authority cited by plaintiffs, we conclude petitioners possessed the requisite standing to maintain this appeal.

The next issue is whether petitioners had standing in the trial court to file their intervention petition. Plaintiffs argue that petitioners have failed to demonstrate an injury sufficient to confer standing to challenge the trial court’s action. The only authorities cited by plaintiffs, however, are cases stating the general principle that a party must have a direct injury or personal stake to possess standing.

Petitioners respond that their allegations in their intervention petition demonstrate a special and not simply a general injury, and therefore, such allegations confer standing. In their petition, petitioners allege: the McDaniels own and reside at the property adjoining the subject property; the members of the association are homeowners located in the vicinity of the subject property; and the proposed nonconforming use would result in additional traffic and noise at extended hours of the day and night, would have a substantial adverse impact upon the members’ and McDaniels’ quiet enjoyment of their property, and would have an adverse impact on the value of their property which is near the subject property. We conclude these facts constitute sufficient allegations of injury to confer standing, for adjoining landowners possess rights which can be affected adversely by declaratory judgment actions and these rights constitute an interest in the zoning decisions which is distinct from that which the general public can assert. (Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 495-96; Bredberg v. City of Wheaton (1962), 24 Ill. 2d 612, 623-24; Truchon v. City of Streator (1979), 70 Ill. App. 3d 89, 92-93, 388 N.E.2d 249, 251-52.) Thus, plaintiffs’ claim that petitioners lack standing in the trial court to contest the zoning decision is unpersuasive.

Plaintiffs argue that even if petitioners had standing to intervene, their intervention petition was not timely and therefore, the trial court’s denial of their intervention petition was not an abuse of discretion. Whether intervention is sought as a right or by leave of court, the petition must be timely filed. (Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill. App. 2d 112, 239 N.E.2d 492.) Section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 408), which governs the right to intervene, is to be liberally construed. (Wheeling Trust & Savings Bank v. Village of Mount Prospect (1975), 29 Ill. App. 3d 539, 331 N.E.2d 172.) The determination of whether a petition is timely is a matter left largely to the sound discretion of the trial court. Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 309 N.E.2d 763.

Presented with circumstances similar to those in the case at bar, the court in Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 377 N.E.2d 1152, held that the intervention petition of homeowners was timely even though filed after trial and after the trial court had entered its order approving an agreement between the developer and the village. In Standard Bank, the plaintiffs-landowners challenged the denial by the defendant-village of a site plan which provided for the development of the subject property as a shopping center. Following a trial, judgment was entered for the landowners, and subsequently the village entered into an agreement with the landowners which provided the village would not appeal the decision. Six days after the court approved the agreement, the petitioners filed an intervention petition wherein they admitted that they were aware of the litigation but had believed their interests were adequately represented by the village prior to the settlement. The trial court denied the petition as untimely. On appeal, the First District of our appellate court reversed. Prior to the time the landowners and the village reached their agreement, the court stated, the petitioners had “no reason to expect that their interests did not coincide with those of the Village and that they could not rely upon the Village to represent them adequately.” (61 Ill. App. 3d 174, 178, 377 N.E.2d 1152, 1154.) Since the petitioners sought leave to intervene six days after the trial court approved the agreement, the appellate court held the petition was timely.

The factual similarity between Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 377 N.E.2d 1152, and the case at bar persuades us that the trial court here abused its discretion in denying petitioners’ intervention petition. Within' five days of learning of the board’s decision not to appeal, petitioners sought leave to intervene. Like the petitioners in Standard Bank, petitioners here were aware of the progress of the litigation, but reasonably believed their interests were protected adequately by the village. Plaintiffs unpersuasively attempt to distinguish Standard Bank by stating that there, the proposed zoning change was more radical than the change in the instant case. The nature and severity of the zoning change are unrelated to the timeliness of the petition. Thus, the trial court’s denial of petitioners’ intervention petition was an abuse of discretion and constitutes reversible error. See City of Lockport v. County Board of School Trustees Will County (1971), 2 Ill. App. 3d 970, 276 N.E.2d 13.

In addition to asserting their right to intervene, petitioners contend the trial court awarded judgment improperly to plaintiffs and instead should have entered summary judgment in favor of the village. In response, plaintiffs argue summary judgment was entered correctly in their favor and emphasize the fact that the affidavits attached to their motions were uncontradicted. Since the village failed to file any counteraffidavits, plaintiffs contend, the trial court was required to accept as true the facts alleged in the uncontradicted affidavits and to enter judgment in their favor. In reply, petitioners argue that plaintiffs’ motion for summary judgment incorporated by reference the transcripts of the hearings before the Plan Commission. Since the transcripts contain facts which not only controvert facts in plaintiffs’ affidavits, but also establish petitioners’ right to judgment as a matter of law, petitioners contend, the trial court erred in granting plaintiffs’ motion for summary judgment.

The principles with respect to summary judgment motions are well settled. If a genuine issue of material fact exists, a motion for summary judgment may not be granted. (Manahan 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 from doubt, and the granting of the motion cannot be a matter of judicial discretion. (Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045.) 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 upon the applicable law. (Martin v. American Legion Post No. 78b (1978), 66 Ill. App. 3d 116, 383 N.E.2d 672.) Facts unrelated to the essential elements of plaintiffs’ 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.

A party need not support his summary judgment motion with affidavits. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) However, if a party moving for summary judgment does file supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts in the movant’s affidavits stand as admitted. (Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 385, 425 N.E.2d 1055, 1058.) A party opposing a motion for summary judgment supported by affidavits cannot defeat the motion relying solely upon his complaint (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380), and even the allegations of the verified complaint cannot prevail over the uncontradicted facts set forth in affidavits submitted by the movant. LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 702-03, 355 N.E.2d 70, 76.

Because our review of the pleadings and affidavits discloses that not all of the material facts were resolved, we conclude the entry of summary judgment in favor of plaintiffs was error. In its answer, defendant village averred that the proposed use would result in increased traffic congestion. Plaintiffs did not raise the issue of traffic congestion in their complaint, and the issue is only mentioned briefly in one of the affidavits attached to plaintiffs’ motion for summary judgment. Stephen M. Park, a professional urban planner, supported his opinion that the highest and best use of the subject property was the use proposed by plaintiffs with the following statement: “Alternative uses such as multi-family, offices, or commercial land use most often produce higher traffic and parking volumes because of the higher intensity of use ***.” Even though the village failed to file a coun-teraffidavit challenging this statement, Park’s affidavit does not resolve the factual issue of whether the proposed use would increase traffic in the neighborhood. The statement is conclusory and is unsupported by facts in the affidavit. Furthermore, the conclusion is stated in general terms emphasizing that “in most cases” the traffic is greater when land is converted to commercial or multifamily uses. Therefore, we do not believe Park’s uncontroverted affidavit is dispos-itive of the fact question whether the proposed use would have an adverse impact on the neighborhood traffic. We note that plaintiffs at oral argument did not contend that the traffic question was resolved by the affidavit, but rather argued only that the concerns over traffic were unsupported conclusions and therefore were not facts capable of precluding summary judgment. Viewing the pleadings and affidavits in a light most favorable to the nonmovant, we conclude the impact of the proposed use on traffic is a disputed question of fact.

To prevent summary judgment, however, a fact issue must not only be disputed; it must also be material to resolution of the lawsuit. The Villa Park ordinance pertaining to special uses states that no special use shall be granted by the Board of Trustees unless the Plan Commission finds that the location of the proposed use site with respect to the streets giving access to it shall be in harmony with the appropriate and orderly development of the district. A fair reading of this ordinance suggests the effect of a proposed use on the neighborhood traffic flow as a relevant consideration in ruling on a special use application. As the court stated in St. James Temple of the A.O.H. Church of God, Inc. v. Board of Appeals (1968), 100 Ill. App. 2d 302, 310, 241 N.E.2d 525, 529, cert, denied (1969), 395 U.S. 946, 23 L. Ed. 2d 464, 89 S. Ct. 2019:

“We realize that traffic congestion during church services is always present no matter where a church might be located, but a municipality must consider traffic and parking as important factors in determining whether the public safety and welfare are protected through the grant of a special use.”

Therefore, the impact of the proposed use on traffic was material to the trial court’s determination whether the Board of Trustees’ action in denying the special use permit was arbitrary and capricious. Since the impact of the proposed use on traffic is disputed and unresolved, the trial court erred in granting summary judgment to plaintiffs.

The record also discloses that the question of public need for the proposed use was unresolved when the trial court granted summary judgment. This issue is clearly material to the resolution of the dispute because the Villa Park planning ordinance expressly requires consideration of the public need of the proposed use before denying or granting a special use application. In its motion for summary judgment, the village argued that the existing day-care centers in the area were operating at less than full capacity. The village further argued that plaintiffs’ evidence had only shown that the location was convenient for the proposed use, not that the location was required, and that the showing of convenience was insufficient to establish public need.

In their reply brief supporting their summary judgment motion, plaintiffs challenged the village’s contention that the record demonstrated lack of public need for the proposed use. Plaintiffs referred to the affidavit of Stephen Park, “whose analysis of the subject property and surrounding area clearly and irrefutably established the many benefits of the proposed use.” Plaintiffs further cited as evidence of public need the fact that the subject property was centrally located for the members of its congregation. Parks’ affidavit does state one benefit of the proposed use; that the property will act as a buffer between the high density population areas to the west and the single-family residential areas on the east of Addison Street. This conclusion, however, is not dispositive of the factual question of whether there is a public need for the proposed use. We cannot say, as a court must when affirming a summary judgment order, that the movant’s right to judgment is free from doubt. Fryison v. McGee (1982), 106 Ill. App. 3d 537, 540, 436 N.E.2d 12, 14.

While we predicate our reversal on the existence of disputed issues of material fact, we believe the entry of summary judgment also was error because the trial court considered the transcripts of the hearing testimony in ruling on the motion. In its order, the trial court expressly stated it considered “the entire record together with transcripts of the testimony taken at the rezoning hearing ***.” A trial court in a declaratory judgment action challenging the constitutionality of the statute should not consider the testimony before the zoning agency. Zoning ordinances are enacted under legislative authority to provide for the public health, safety and welfare. (Anthony v. City of Kewanee (1967), 79 Ill. App. 2d 243, 247, 223 N.E.2d 738, 740.) Where the ultimate authority to rule on a specific application resides in a board of trustees, as is true in the case at bar, the board is acting in a legislative and not in an administrative capacity. As a result of the separation-of-powers doctrine, courts are without power generally to inquire into the wisdom of an ordinance or the motives of the legislature for enacting it. (Anthony.) When the governing authority of the municipality performs its legislative function, the propriety of the exercise of its discretion is not dependent upon the adequacy or sufficiency of the supporting evidence. Siegel v. City of Chicago (1970), 127 Ill. App. 2d 84, 104, 261 N.E.2d 802, 812; Anthony v. City of Kewanee (1967), 79 Ill. App. 2d 243, 223 N.E.2d 738.

The legislative body’s decision regarding the zoning application is not subject to administrative review by the courts (Smith v. County Board (1980), 86 Ill. App. 3d 708, 715, 408 N.E.2d 452, 459), and a trial court is without subject-matter jurisdiction to review an ordinance enacted by a legislative body if the plaintiff’s complaint seeks judicial review pursuant to the Administrative Review Act. (Young v. City of Belleville (1983), 115 Ill. App. 3d 960, 451 N.E.2d 913.) Rather, the zoning ordinance must be challenged by a declaratory judgment action where the court will consider such independent evidence as the parties seek to introduce. (Smith v. County Board (1980), 86 Ill. App. 3d 708, 715, 408 N.E.2d 452, 459; see Northwestern University v. City of Evanston (1977), 55 Ill. App. 3d 609, 370 N.E.2d 1073, rev’d on other grounds (1978), 74 Ill. 2d 80.) The zoning ordinance is presumed valid, and the party attacking the ordinance bears the burden of proving its invalidity. (Cosmopolitan National Bank v. County of Cook (1983), 116 Ill. App. 3d 1089, 1094, 452 N.E.2d 817, 822.) A property owner may overcome this presumption by showing with clear and convincing evidence that the ordinance as applied to him is unreasonable, arbitrary and bears no reasonable relation to the public health, safety, morals or welfare. (Cosmopolitan.) The nature of the proof relevant to a declaratory judgment action differs from that introduced before a zoning body.

“[In the court action, the] validity of the ordinance is presumed and such validity does not depend on the evidence presented at the hearings before the Zoning Board of Appeals. The transcripts of the testimony are at best secondary evidence, self serving and hearsay. The attack upon the validity of the ordinance is an independent action unrelated to the hearings before the Board of Zoning Appeals. To permit the introduction of the transcripts would deprive the Defendants of their right to have primary or direct evidence presented in open court for assessment and evaluation by the court.” (Anthony v. City of Kewa-nee (1967), 79 Ill. App. 2d 243, 249, 223 N.E.2d 738, 741; see also Smith v. County Board (1980), 86 Ill. App. 3d 708, 715, 408 N.E.2d 452, 459.)

Since the function of the trial court in a declaratory judgment action challenging the application of a zoning ordinance to a specific property is to conduct a trial de novo and not simply to evaluate the zoning body’s ruling by standards of administrative review, we conclude the trial court erred in considering the transcripts of the Plan Commission hearing.

Petitioners argue that plaintiffs cannot contend that the trial court erred in considering the transcripts of proceedings before the Plan Commission because plaintiffs introduced those transcripts by incorporating them in their summary judgment motion. Petitioners rely upon Karas v. Snell (1957), 11 Ill. 2d 233, where the supreme court held that a report of proceedings of a prior trial could be used in opposition to a motion for summary judgment because the movant had not objected to use of the transcript in the trial court. We believe Karas is distinguishable from the case at bar. In Karas, the court specifically found that the testimony in the certified transcript of record

was competent and relevant evidence. The only argument raised by the party opposing its introduction was that the transcript was not in the form of an affidavit. Here, in contrast, the evidence was not competent and relevant to the trial court’s determination whether the defendant’s action was arbitrary and capricious. We recognize that two courts have allowed introduction of hearing transcripts in a declaratory judgment action on the theory that even though their introduction was improper, the error was waivable. (See Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 575, 421 N.E.2d 285, 296-97 (plaintiffs cannot assert as error on appeal introduction in the trial court of hearing transcripts when plaintiffs were the parties who offered the transcripts to the trial court for admission); Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 242, 309 N.E.2d 763, 772 (file of proceedings before the zoning board of appeals although inadmissible upon proper objection was admissible if offered and received into evidence without objection).) Although we reverse the order of the trial court because of the existence of factual issues, we note that consideration of the hearing transcripts was error so that upon remand, the transcripts are not used in evaluating the action of the defendant village.

Accordingly, we reverse the order of the circuit court of Du Page County and remand this cause for a trial.

Reversed and remanded.

UNVERZAGT and REINHARD, JJ., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO J. GOMEZ, Defendant-Appellant.
    Third District
    No. 3—83—0087
    Opinion filed December 21, 1983.

      Joseph Trujillo, of Moline, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Defendant Mario J. Gomez appeals from his sentence, following conviction for residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) Gomez was sentenced to the mandatory minimum for the Class I felony offense, that being four years’ imprisonment in the Department of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(4).) He seeks to raise two issues on appeal: (1) whether this sentence violated the United States and Illinois constitutional bans against cruel and unusual punishment (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, sec. 11), and (2) whether his sentence violates the equal protection of the laws as guaranteed by the United States Constitution. U.S. Const., amend. XIV.

Defendant Gomez was tried by the court and found guilty of residential burglary. The presentence report indicated that the defendant was a high school dropout, and 17 years old at the time he committed the offense. He had no significant criminal record at all. There was no evidence in aggravation presented by the State, and it argued that the appropriate sentence was the mandatory minimum of four years. (See Ill. Rev. Stat. 1981, ch. 38, pars. 1005-5-3.2, 1005-8-l(a)(4).) The court thereafter ordered commitment with the Department of Corrections for the four-year term. In so doing, the court indicated that if he had any discretion, this defendant would be a prime candidate for probation.

The first issue sought to be raised by the defendant is whether the mandatory four-year term constitutes cruel and unusual punishment, under the eighth amendment to the United States Constitution and article I, section 11 of the Illinois Constitution of 1970. In so arguing, the defense seeks to overcome the presumption of constitutionality attaching to legislative enactments. The State first contends that the issue has been waived by the failure of the defense to present the issue to the trial court. We agree, as the record is devoid of any indication that this issue or argument was presented to the trial judge at the time of, or after, sentencing of the defendant. We nevertheless note that the legislature, in enacting the residential burglary statutory provisions, including the mandatory minimum jail sentence, determined that this type of burglary is a very serious offense, inherent in which is the possibility of serious danger. (See People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185.) In so concluding, the legislature was expressing the will of the citizens of this State, faced with the rising incidence of such burglaries and their attendant dangers, injuries, and occasional deaths. The test for the constitutionality of a criminal penalty is whether that penalty is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. (People v. Wright (1974), 18 Ill. App. 3d 1028, 310 N.E.2d 494.) It was the moral outrage of the community which prompted the legislative enactment of mandatory sentences in the first place. While we may agree that in particular instances the mandatory imprisonment provisions are ill-suited, we would not conclude that mandatory minimum of four years for the offense of residential burglary is either cruel, degrading or wholly disproportionate to the offense as to shock the moral sense of the community. As the State correctly points out, a burglar may believe that a home is uninhabited, but can never be really sure. Further, the potential for serious damage, both physical and psychological, is present whenever someone unlawfully enters the residence of another. Illinois has taken a firm position in favor of the sanctity of the home against intrusion, and the basis of that position is well founded. As to defendant’s argument that the sentence violates the Illinois constitutional provision requiring sentences to be determined according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship, we note that mandatory mínimums have been upheld for a number of other crimes. (People v. Wright (1974), 18 Ill. App. 3d 1028, 310 N.E.2d 494 (armed robbery); People v. James (1976), 38 Ill. App. 3d 594, 348 N.E.2d 295 (unlawful delivery of 30 grams or more of a substance containing LSD); People v. Koeppen (1974), 21 Ill. App. 3d 478, 315 N.E.2d 679 (murder).) The seriousness of the offense of residential burglary has already been noted, as has the legislature’s determination of what an appropriate sentence for such criminal activity should be. We find no violation of the Illinois Constitution in the sentence handed down in this case.

The next issue raised is whether the sentencing provision violates the defendant's rights to equal protection under the law. The appropriate scope of review was set forth in People v. Perine (1980), 82 Ill. App. 3d 610, 615, 402 N.E.2d 847, wherein the court stated:

“In determining whether a given legislative classification denies a person the equal protection of laws, where that person is not a member of a suspect class or has not been deprived of a fundamental right, the courts restrict their role to determining whether the particular legislative classification is rationally designed to further a legitimate State purpose. [Citations.] The equal protection clause does not mean that a State may not draw lines that treat one class of individuals or entities different from one another; the test is whether the difference in treatment is an invidious discrimination. [Citation.] There is a presumption in favor of the validity of the classification made by the legislative body and one who assails it has the burden of proving the classification to be arbitrary. [Citation.]”

The State is correct in stating that the legislature has broad latitude and discretion in classification, especially in the criminal area. (People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407.) If there is a rational basis for the differences in classification, then the legislative determination will be upheld.

In the instant case, there is a rational basis for distinguishing between residential burglary and nonresidential burglary, and that basis has already been alluded to previously. The basis is the emphasis and value placed upon the privacy and sanctity of the home. The special treatment afforded a person’s right to be free from intrusion into the home was a basic freedom guaranteed in our Constitution, and has continued to receive high protection from intrusions of all natures. (See Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) Furthermore, the State correctly notes other considerations which justify a difference in treatment for those violating the sanctity of a residence, as opposed to a nonresidence. It notes the propriety of a legislative determination that residential burglary contains more possibility for danger and serious harm than that of places not used as dwellings. There is a considerably greater chance of injury and danger to persons in the home context than in the burglary of a place of business. We can note that most businesses are closed at night, often -with few or no persons present, or with those hired to act as guards only; while most homes at night contain people unprepared for criminal intrusion. Furthermore, the legislature may well have been concerned with protection for the elderly and the handicapped, or the young and others unable to protect themselves, when it enacted the stiff penalties for residential burglary. These people are clearly more often the victims in their homes than in the nonresidential burglary context. The legislative determination to treat residential burglars different than nonresidential burglars finds a rational basis, and we will not overturn the sentencing provisions.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE TRAPP

text:
    MICHAEL R. SEVERE et al., Plaintiffs-Appellants, v. ROBERT D. MILLER, M.D., et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0182
    Opinion filed December 22, 1983.

      Robert D. Owen and Linda M. Castleman, both of Owen, Roberts, Susler & Murphy, P.C., of Decatur, for appellants.
    Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellee Robert D. Miller.
    Jerald E. Jackson and William O. Martin, Jr., both of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees Gerald Snyder and Stat Medical Services, Ltd.

      Evan H. Johnson, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee St. Mary’s Hospital.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs, Michael and Sharree Severe, appeal from an order of the circuit court of Macon County dismissing with prejudice their three-count complaint as barred by the five-year statute of limitations. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205.) At issue is the appropriate period of limitation for actions against tortfeasors for damages arising under section 15 of “An Act to revise the law in relation to husband and wife” (Husband and Wife Act) (Ill. Rev. Stat. 1981, ch. 40, par. 1015). We affirm.

On November 12, 1982, plaintiffs filed a three-count complaint against defendants, Robert Miller, M.D., Gerald Snyder, M.D., STAT Medical Services Ltd., and St. Mary’s Hospital of Decatur for damages sustained by plaintiffs for medical expenses they were obligated to pay for their minor daughter under section 15 of the Husband and Wife Act. Plaintiffs allege that from September 8, 1976, until September 16, 1976, defendants provided medical care for their minor daughter who was born on August 24, 1976, and that defendants negligently failed to diagnose, to test, and to otherwise apply that degree of skill and care which good medical practice required. Plaintiffs allege that as a proximate result of the defendants’ acts and omissions, their daughter became permanently disabled and they became liable for large sums of money spent for her care.

Defendants moved to dismiss plaintiffs’ complaint as barred by “the statute of limitation.” The trial court granted the motions, relying on the five-year period of limitations provided in section 13 — 205 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 13— 205.) On appeal, plaintiffs argue that the trial court applied the wrong statute of limitations and erred in dismissing their complaint. Plaintiffs suggest that the appropriate statute of limitations is section 13— 203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 203). Defendants argue that the trial court properly dismissed plaintiffs’ action regardless of which statute is applied.

The statutes at issue are summarized, as follows:

“*** Actions for damages for loss of consortium or other actions deriving from injury to the person of another shall be commenced within the same period of time as actions for damages for injury to such other person.” Ill. Rev. Stat. 1981, ch. 110, par. 13-203.
“Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11 — 13 of ‘The Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of .personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” Ill. Rev. Stat. 1981, ch. 110, par. 13— 205.
“If the person entitled to bring an action, specified in Sections 13 — 201 through 13 — 212 of this Act, at the time the cause of action accrued, is under the age of 18 years, or under legal disability, or imprisoned on a criminal charge, he or she may bring the action within 2 years after the disability is removed.” Ill. Rev. Stat. 1981, ch. 110, par. 13 — 211.

Plaintiffs’ position both here and in the trial court rests upon their contention that section 13 — 203 governs their cause of action. Plaintiffs argue that by the plain language of section 13 — 203 their action is an “[action] deriving from the injury to the person of another,” their daughter, and that their suit must be commenced “within the same period of time as actions for damages for injury to such other person.” (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 203.) Plaintiffs suggest that inasmuch as their daughter may bring suit until 1996 under the tolling provisions for minors found in section 13 — 211 of the Code of Civil Procedure, they also have the same period of time to bring suit. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 211.) In support of defendants’ position, they rely on Fess v. Parke, Davis & Co. (1983), 113 Ill. App. 3d 133, 446 N.E.2d 1255, appeal denied (1983), 94 Ill. 2d 552, in which the appellate court rejected the same argument as advanced by the plaintiffs here. Defendants also suggest that plaintiffs’ suit is not a derivative suit governed by section 13 — 203 of the Code of Civil Procedure.

In Fess, the appellate court found section 13 — 203 applicable to a suit by the parents of an injured minor to recover damages for hospital expenses, lost income, and consortium occasioned by the alleged negligence of Parke, Davis & Co. The parents there also made the argument that they had the benefit of the minor’s disability under the plain language of section 13 — 203. The appellate court disagreed. Focusing on the clear language of section 13 — 211 of the Code of Civil Procedure, the court noted that the disability of infancy applied only to persons under the age of 18 and that plaintiffs, as adults, fit within neither the language nor the spirit of the statute.

We agree with the Fess court that section 13 — 203 is the appropriate period of limitations. In Graul v. Adrian (1965), 32 Ill. 2d 345, 205 N.E.2d 444, the supreme court first recognized that a parent could sue a tortfeasor to recover sums expensed for a minor for medical and funeral expenses occasioned by the third party’s negligence. In Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505, the supreme court noted that “consequential-damage actions,” such as actions for loss of consortium, dramshop actions, and actions by parents for expenses for medical care (see Waller v. City of Chicago (1882), 11 Ill. App. 209; Seymour v. Union News Co. (7th Cir. 1954), 217 F.2d 168) were governed by the five-year period of section 13 — 205 as a civil action not otherwise provided for. The court held that the general two-year period for personal injury actions (see Ill. Rev. Stat. 1981, ch. 110, par. 13 — 203) was not applicable to a consortium action because a consortium action was not based upon an injury to the plaintiff’s person. In drawing this distinction between direct personal injury and actions arising from the injury, the supreme court gave the legislature an explicit invitation to amend the statutes as follows:

“[0]ur appellate courts have held that this language in our limitation statute [“actions for damages for an injury to the person,”; see Ill. Rev. Stat. 1981, ch. 110, par. 13 — 203] applies only to direct personal injury to the plaintiff. Our legislature has long acquiesced in this interpretation of this language. We find the inaction of our legislature in the face of the judicial construction which has been given to the meaning of the statute more persuasive than the decisions from the other jurisdictions. The cause of action for loss of consortium is derivative just as the causes of action considered in the above appellate cases [consortium actions, dramshop actions, actions by parents for expenses of care and loss of support and actions for liability under the Husband and Wife Act] were derivative.” Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505, 507. See also Juechter v. Grace (1977), 55 Ill. App. 3d 606, 371 N.E.2d 179.

The legislature responded to this invitation through the passage of section 14.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 15.1, now Ill. Rev. Stat: 1981, ch. 110, par. 13 — 203), which provides that consortium actions and actions deriving from an injury to the person of another shall be governed by the same period of time as actions for damages for injury to such other person. Thus, it is clear from Graul and Mitchell that the parents’ suit here is derivative since the right of action arises out of the injury to the person of another and their obligation under the Husband and Wife Act to pay for medical expenses. We agree with plaintiffs that section 13 — 203 is the applicable statute of limitations for their action.

We next consider what period of time governed the minor’s cause of action against the defendants, since this period governs plaintiffs’ action under the terms of section 13 — 203. Actions against physicians or hospitals for damages arising out of patient care are subject to a two-year statute of limitation. (Ill. Rev. Stat. 1981, ch. 110, par. 13— 212.) In the case of minors, the period of limitation is also two years but it does not begin to run until the disability is removed. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212.) The proper interpretation of section 13 — 203 is that plaintiffs shall have the same period of limitation as their minor child from whom the action derived. Since the minor also had two years (tolled during infancy), then plaintiffs are entitled to two years. Nowhere in either sections 13 — 203 or 13 — 211 is there any indication of an intent to extend the period of limitations for plaintiffs or provide for a tolling of the applicable period. The explicit language of section 13 — 211 requires that the person be under 18 years at the time the cause of action accrues.

It is an established rule regarding statutes of limitations that no exceptions which toll the statute or enlarge the scope will be implied. (Fisher v. Rhodes (1974), 22 Ill. App. 3d 978, 317 N.E.2d 604.) We find nothing in the language of sections 13 — 203 or 13 — 211 that leads to the conclusion that the legislature wished to extend the period of limitation for actions similar to plaintiffs’. Rather, section 13 — 203 evinces an intent to bring uniformity to the period of limitation which governs both the derivative and the direct action. By our holding we make it clear that the statute of limitation governing the minor’s action is equally applicable to the derivative action.

Finally, we note that neither party has suggested that section 13 — 212 of the Code of Civil Procedure is the period of limitation which governs plaintiffs’ action. This statute, by its explicit terms, applies to “action[s] for damages for injury or death against any physician or hospital.” (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212.) Plaintiffs’ action is not an action for damages for injuries but is an action for damages arising from their liability under the Husband and Wife Act. Their cause of action is governed by section 13 — 203 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 203.) Since plaintiffs’ action was not brought within two years from the date it accrued, the trial court properly dismissed their complaint.

For the foregoing reasons, the order of the trial court dismissing plaintiffs’ action with prejudice is affirmed.

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE GREEN JUSTICE WEBBER,

text:
    BI-PETRO REFINING COMPANY, INC., Plaintiff-Appellant, v. HARTNESS PAINTING, INC., Defendant-Appellee.
    Fourth District
    No. 4—83—0434
    Opinion filed December 29, 1983.

      WEBBER, J., specially concurring.
    Phelan, Pope & John, Ltd., of Chicago (Michael A. Pope and Mary Patricia Benz, of counsel), for appellant.
    Robert D. Winters and Donald E. Brilley, both of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff brought a two-count complaint, later amended, in the circuit court of Macon County. The first amended count sought recovery in contract and the second amended count sought recovery in tort. The first amended count was dismissed with leave granted to file a further amended count. The second amended count was dismissed with prejudice on the grounds that plaintiff was seeking recovery solely for economic losses. The trial court found there was no just reason for delaying enforcement or appeal of the dismissal of count II as provided in Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). Plaintiff appeals and we reverse.

Plaintiff’s complaint alleges that (1) prior to November 1981, defendant entered into an oral contract with it to “dismantle, move, repair and reassemble” a 50,000-barrel oil tank from one of plaintiff’s premises to another of plaintiff’s premises; (2) as a proximate result of defendant’s negligent acts in fulfilling the contract, on November 12, 1981, the tank “suddenly and violently ruptured” while being filled with water; (3) during the rupture components of the tank collided with external objects endangering the safety of person and property; and (4) the rupture caused damage to the tank itself, other tanks, and other of plaintiff’s property on the premises as well as the loss of the rental income of the tank and other lost profits.

The trial court dismissed the count as seeking recovery in tort solely for economic losses, which the Illinois Supreme Court precluded in its decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. Plaintiff argues that Moorman does not forbid recovery here because: (1) The contract was a service contract and Moorman does not apply to service contracts; (2) Moor-man does not bar recovery in tort when there is physical harm to property other than the product itself; and (3) Moorman does not bar recovery for damages caused by a sudden and dangerous occurrence which is tortious in nature, such as the occurrence here. We hold that the facts alleged here describe a sudden and dangerous occurrence that is tortious in nature which under Moorman states a cause of action. We therefore do not consider plaintiff’s other arguments.

Under Moorman there is no recovery in tort for solely economic losses. The inquiry then is whether the damages alleged are “physical harm or property damage” recoverable in tort or nonrecoverable economic losses. The discussion in Moorman indicates that the characterization of damages flows not from what is damaged, but rather what defect caused the damage and how the damage occurred.

“The demarcation between physical harm or property damage on the one hand and economic loss on the other usually depends on the nature of the defect and the manner in which the damage occurred. [Citation.] As one commentator observed in applying the definition of economic loss with respect to damage to the product:
‘When the defect causes an accident “involving some violence or collision with external objects,” the resulting loss is treated as property damage. On the other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss.***’ ” (91 Ill. 2d 69, 82-83, 435 N.E.2d 443, 449; see also Vaughn v. General Motors Corp. (1983), 118 Ill. App. 3d 201, 203, 454 N.E.2d 740, 741, and Bertschy, The Economic Loss Doctrine In Illinois After Moorman, 71 Ill. B.J. 346 (1983).) “ '*** [T]he items for which damages are sought, such as repair costs, are not determinative. Rather, the line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk, and the manner in which the injury arose. These factors bear directly on whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to a particular claim.’ ” Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85, 435 N.E.2d 443, 450.

Moorman quotes with approval the reasoning of Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co. (3d Cir. 1981), 652 F.2d 1165, 1173:

Thus, the distinction between property damage and economic loss delineates between the types of duties and recovery provided by tort as opposed to contract.

“Tort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence of the nature described above. The remedy for economic loss, loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental cause, on the other hand, lies in contract.” (91 Ill. 2d 69, 86, 435 N.E.2d 443, 450.)

Economic loss then is closely allied to the contractual concept of loss of the benefit of the bargain (Vaughn), and there is no recovery in tort for a product’s failure to meet a consumer’s expectations. Fireman’s Fund American Insurance Cos. v. Burns Electronic Security Services, Inc. (1980), 93 Ill. App. 3d 298, 417 N.E.2d 131.

With the discussion of Moorman in mind, we examine the nature of the defect, the manner in which the injury arose, and the risk involved in the incident alleged here. These factors are interrelated and not easily separated for discussion. However, each provides a distinctive insight into the definitional problem presented by Moorman.

Here, the count alleged that the tank “suddenly and violently ruptured” while being filled with water and that components of the tank collided with external objects endangering the safety of persons and property. The count also alleged that the rupture not only caused damage to the tank itself but also damage to other property. On the other hand, in Moorman the court described the complaint as allegedly that over a course of months, a crack had developed in a steel tank but was not discovered until the contents of the tank had been emptied. The court concluded that the occurrence there was not of the sudden and dangerous type giving rise to a cause of action in tort for economic damages.

Several examples of the type of occurrence which falls within a tortious sudden and dangerous incident are given in Moorman. (Cloud v. Kit Manufacturing Co. (Alas. 1977), 563 P.2d 248 (trailer damaged from a fire caused by the ignition of polyurethane padding that came with the trailer); Pennsylvania Glass (faults in design alleged to have enhanced damages caused by fire to a front endloader); and Russell v. Ford Motor Co. (1978), 281 Or. 587, 575 P.2d 1383 (defective axle assembly caused pickup to overturn resulting in damage only to the pickup).) Here it is alleged that a tank with the capacity of 50,000 barrels of liquid suddenly burst. We conclude that this type of occurrence is of the same sudden and dangerous character as those found in Cloud, Pennsylvania Glass, Russell and Vaughn (car brakes suddenly failed resulting in collision and damage to only the car).

The risk alleged here was also different than that in Moorman. Here, destructive results could have followed the rupture. There, the risk was only that a slow loss of contents would take place.

The allegations here that the tank ruptured did set forth a failure of the repaired tank to fulfill the direct economic expectations of its owners because the purpose of the tank to hold its contents was the obvious purpose for which it was intended. That, of itself, would not have permitted recovery in tort for economic damages. (Alfred N. Koplin & Co. v. Chrysler Corp. (1977), 49 Ill. App. 3d 194, 364 N.E.2d 100 (no recovery in tort for economic damages for failure of air conditioner to cool premises).) However, we interpret Moorman to not prevent recovery for economic damages for negligent repair when the product fails to fulfill its intended purpose if the failure results in a sudden violent occurrence.

The questions presented are complicated but we hold that amended count II of plaintiff’s complaint stated a cause of action in tort. Accordingly, we reverse the order dismissing that count.

Reversed and remanded.

MILLER, J., concurs.

JUSTICE WEBBER,

specially concurring:

I concur that count II of the second amended complaint states a cause of action in tort under the rule of Moorman and should be reinstated.

However, I also believe that a word of caution is in order. Under section 2 — 613 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613) alternative causes of action may be pleaded even though inconsistent. It is thus possible to plead both contract and tort in the same complaint, but in different counts. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

This becomes a delicate matter for the trial court to handle. In this case, while the contract theory and the tort theory are stated, in different counts, the complaint as a whole does not make clear that these are alternatives. Obviously the plaintiff is entitled, if he prevails, to only one recovery.

I would require as a condition of reinstatement of the amended count II that the plaintiff again amend to state clearly and unequivocally that the legal theories of recovery are in the alternative.