author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT L. REYNOLDS, Defendant-Appellant.
    First District (2nd Division)
    No. 84—1339
    Opinion filed April 16, 1985.
    James E. Gierach, of Gierach & Schussler, Ltd., of Oak Lawn, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Peter D. Zaper, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

After negotiations with the State through his counsel, defendant pleaded guilty to charges of driving under the influence of alcohol and improper lane usage. He was placed on supervision for one year, referred to the Alcoholic Evaluation Program, and was fined $250 by Judge William J. O’Connell. Other charges were stricken with leave to reinstate on motion by the State and the hearing on a charge of failure to comply with the Illinois implied consent statute (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1) was continued for approximately one year.

After a subsequent evidentiary hearing on March 1, 1984, Judge Edwin J. Richardson found that defendant was able but refused to submit to a breathalyzer test on the date of his arrest, and his driver’s license was ordered suspended. On appeal, defendant contests the license suspension, contending that there was insufficient evidence to support the circuit court’s finding that he refused to submit to a request to take a breathalyzer test, and that the implied consent statute is unconstitutional as applied to him.

At the implied consent hearing, a Sauk Village police officer testified that on the afternoon of January 1, 1983, he stopped defendant for speeding, passing another car in a well-marked no-passing zone, and weaving across the center line. When he asked defendant to produce his driver’s license, he smelled a “strong odor of alcohol” on defendant’s breath. Defendant admitted that he had “had a few drinks,” and “needed support” to walk to the back of the car. Defendant then was advised both at the arrest scene and at the police station of the implied consent statute; specifically, he was requested to take a breathalyzer test and told of the consequences of refusing to submit to that test. Defendant refused to take that test at the arrest scene and at the police station. Four traffic citations were issued, and a report and sworn affidavit indicating defendant’s refusal were prepared and signed at the station.

On cross-examination, the officer stated that while in the course of transporting him to the station, defendant told him he had “an asthma problem” and “was having problems breathing.” Defendant said he “could not” take the test while in the squad car because he could not breathe and needed medical attention. Defendant told him that he had medication on his person and requested permission to use it so that he could breathe. The officer denied that permission. Defendant continued to request that he be allowed to use his medication; however, the officer did not permit him to do so until he arrived at the police station after a brief ride, even though defendant “was laboring in his breathing.” The officer inspected the medication, a spray can that defendant used, and recorded its name on his report, “Medihaler-Iso[proterenel Sulfate],” which he was told was asthma medication. Sauk Village paramedics were called to the police station. The paramedics came after defendant had used his medication, and he then refused to be transported by or to take medical aid from the ambulance attendant. Later, after taking the medication at the station, he “was able to breathe much easier.” The officer told the breathalyzer operator that he had permitted defendant to take his medication, “so [that] he could make the determination to see if it was not substantial [sic] to take the breathalyzer.”

On redirect examination, the officer testified that the second time he asked defendant to take the test, five or 10 minutes after he used his inhaler, the officer did not “notice anything unusual” about defendant’s breathing. Defendant “indicated” thereafter that he didn’t want to take the test.

Defendant testified at the hearing. He suffered from asthma all his life. The attacks were bad enough a number of times so as to require hospitalization. At the scene of his arrest, his asthma attack became “very severe” when he was handcuffed and put in the squad car. The medication referred to by the officer had been prescribed for his condition, and he carried it in his pocket. He repeatedly asked the officer to be allowed to use the medication, which was refused him until he got to the police station. On the way to the station the officer radioed ahead to have paramedics meet them there. He “couldn’t breathe whatsoever” when he arrived at the station. He was in “very bad shape” and he “couldn’t think.” When he was requested again by the officer to take the breathalyzer test, he said he “can’t breathe” or “blow in any pipe.” He heard the officer and another officer saying they were not sure that they could administer the breathalyzer test because of the medication and the “conditions involved.”

On cross-examination, he testified that after such an attack, it usually took “a day or two” before he could resume breathing normally. He had been rushed to the intensive care unit a number of times for asthma attacks. Although “a period of time” elapsed between his taking medication at the station and the second request by the officer that he take the breathalyzer test, he was still gasping for air. On redirect, he testified that at that time he “was unable to” blow into the tube, and was barely able to breathe. Stress is one of the elements which affect his asthmatic condition.

The circuit court found that defendant’s breathing returned to normal after taking his medication and that he could have taken the breathalyzer test but refused.

Defendant asserts that the circuit court’s finding that he was able but refused to take the breathalyzer test was against the manifest weight of the evidence. The record evidence here shows that defendant was experiencing an asthma attack during the course of his arrest. Both he and the arresting officer so testified. The State argues that defendant’s refusal of medical attention from an ambulance attendant indicates that he recovered shortly after his arrest. In contraposition was defendant’s evidence .that he had suffered from asthma all his life, had carried necessary medications with him and, through previous experience, knew what to do to restore his breathing. Evidence as to the seriousness of the attack and the extent to which it rendered defendant unable to take the test thus was in conflict and properly was to be determined by the trier of fact. Since implied consent hearings are to proceed in the same manner as other civil proceedings and the Supreme Court Rules on civil appeals (87 Ill. 2d R. 301 et seq.) are applicable (Ill. Rev. Stat. 1983, ch. 951/2, par. 501.1(c); People v. Malloy (1979), 76 Ill. 2d 513, 519, 395 N.E.2d 381), this court cannot disturb the circuit court’s findings unless they are contrary to the manifest weight of the evidence (People v. Schuberth (1983), 115 Ill. App. 3d 302, 304, 450 N.E.2d 459; People v. Bafia (1983), 112 Ill. App. 3d 710, 717-18, 445 N.E.2d 878); we hold they are not.

Defendant insists that under the evidence submitted, he clearly was “unable” to take the sobriety test and therefore did not “refuse” to take it within the meaning of the statute, citing Burson v. Collier (1970), 226 Ga. 427, 175 S.E.2d 660, and State v. Rajala (1975), 54 Ala. App. 502, 310 So. 2d 223. In Burson, defendant twice was unable to complete a breath test because he suffered from emphysema and in Rajala, the asthmatic and emphysematous defendant was unable to blow enough air into the breathalyzer to complete the test.

The facts in the instant case are otherwise. Here, after a trial upon the merits, the circuit court chose to believe evidence that defendant’s breathing returned to normal and that he could have taken the test but refused. Defendant elected to stand upon his own testimony that it took “a day or two” before he could resume normal breathing, rather than submitting substantive medical evidence of his condition. The circuit court was faced with the problem of accepting the version of the arresting officer or that of defendant and relied upon the former. If there is any medical evidence which demonstrates that one who suffers from asthma cannot perform the breathalyzer test until “a day or two” after an attack, it should have been presented to the circuit court at trial, but was not. Had defendant thus shown his inability to take the test with such evidence, the circuit court would have been justified in finding him “unable” to do so. See, e.g., People v. Schuberth (1983), 115 Ill. App. 3d 302, 305, 450 N.E.2d 459. Cf. Burson v. Collier (1970), 226 Ga. 427, 175 S.E.2d 660 and State v. Rajala (1975), 54 Ala. App. 502, 310 So. 2d 223.

Also questioned by defendant is the accuracy of the breathalyzer test, which he asserts may have been compromised by his having inhaled medication. He maintains that the police could have just as easily and efficiently administered a blood or urine test that would not have exacerbated his medical condition. (See Ill. Rev. Stat. 1983, ch. 95x/2, par. 11 — 501.1(a).) Of course, those tests might have been initiated by the paramedics who had been called to the police station by reason of the alleged severity of the attack and the selection of which remaining alternative tests should be given would not have been at defendant’s instance (see People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546), but would have remained the option of the State. Absent evidence that defendant’s breathing returned to normal, the State’s failure to initiate other tests could have become important to the disposition of this case; however, in view of our conclusion that the circuit court’s findings were not against the manifest weight of the evidence, the availability of alternative tests is of no moment here.

For the same reasons set forth in the preceding paragraph, defendant’s assertion that the implied consent law as applied to him violated his fourteenth amendment rights of due process and equal protection is unpersuasive. That argument is based upon the police officer’s failure to arrange for testing alternatives to the breathalyzer because such other tests would not have further aggravated defendant’s breathing. As above noted, because the circuit court had the right to believe under the evidence that defendant’s breathing returned to normal and could have taken the breathalyzer but refused, there was no occasion for an alternative test to have been administered. Defendant did not ask for them and, under the record evidence, the authorities need not have offered them. We find no constitutional impediment to the implied consent statute as applied in this case.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

PERLIN and BILANDIC, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    DONALD B. MacNEAL, INC., Plaintiff-Appellant, v. INTERSTATE FIRE AND CASUALTY COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 84—723
    Opinion filed April 10, 1985.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll and Lloyd E. Williams, Jr., of counsel), for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Donald B. MacNeal, Inc., brought this action for declaratory judgment against its excess insurer, defendant Interstate Fire and Casualty Company. Plaintiff sought recovery under an umbrella insurance policy for $100,000, which it paid to settle a claim when the underlying primary insurer became insolvent. The trial court entered judgment on the pleadings in favor of defendant, and plaintiff appeals.

Plaintiff purchased primary and excess liability insurance for the operation of its recreational facility known as Holiday Park. The primary liability insurance policy was issued by All-Star Insurance Corporation. The initial policy provided bodily injury liability coverage of $100,000 per person, effective December 1, 1972, to April 1, 1974. A successor policy, effective April 1, 1974, to April 1, 1975, provided coverage of $300,000 per person. The excess insurance policy issued by defendant provided umbrella bodily injury liability coverage of $1,000,000 for any one occurrence, effective June 14, 1973, to June 14, 1976. Defendant’s liability applied “in excess of (1) the amount recoverable under underlying insurance as set out in Item 4.” Item 4 described the “Underlying insurance” for Holiday Park as “Comprehensive General Liability” issued by All-Star and stated the limits of insurance as “$100/300/50,000.” Alternatively, defendant’s liability was “in excess of *** (2) $10,000.00 ultimate net loss in respect of each occurrence not covered by said underlying insurance.”

A business invitee sustained a serious injury at Holiday Park on July 4, 1974, and filed an action against plaintiff in 1975 requesting $1,000,000 in damages. On March 1, 1977, All-Star was ordered into liquidation because of insolvency. While the personal injury action was pending, plaintiff filed the present complaint for declaratory judgment against defendant, pursuant to section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 701). Plaintiff sought a declaration of rights and obligations of the parties arising out of defendant’s excess insurance policy involving All-Star’s insolvency. Thereafter, the personal injury suit against plaintiff was settled for $1,000,000; plaintiff paid $100,000 and defendant paid $900,000. Plaintiff and defendant agreed that the payments would not prejudice the rights of either to a determination of their ultimate respective rights and obligations under the excess insurance contract.

Thereafter, plaintiff filed an amended complaint seeking reimbursement for the defense and compromise of the claim in excess of $10,000 ($139,135.84) or in excess of $100,000 ($49,135.84). Defendant’s answer stated that its coverage was in excess of $300,000 ultimate loss. Plaintiff sought judgment on the pleadings, maintaining that defendant was obligated to pay the entire $1,000,000 coverage under its excess policy because the “amount recoverable” from the insolvent underlying insurer was zero. Plaintiff requested reimbursement for $100,000 which it had contributed to the $1,000,000 settlement. Defendant asserted that the “amount recoverable” from the underlying insurance was the face value of the primary policy.

Defendant filed a counterclaim for declaratory judgment seeking $200,000 reimbursement from plaintiff. Defendant also moved for judgment on the pleadings. The trial court, finding that defendant did not assume the obligations of the primary insurer for plaintiff, denied plaintiff’s motion and granted defendant’s motion for judgment on the pleadings. The issue raised by defendant’s counterclaim was reserved by the trial court. After the trial court granted defendant’s motion to dismiss its counterclaim with prejudice, plaintiff filed this appeal.

The issue on appeal is whether under the language of the insurance contract plaintiff (insured) or defendant (excess insurer) is obligated to bear the loss resulting from the insolvency of the primary insurer. Plaintiff maintains that the language of the insurance contract which provided coverage for amounts “in excess of the amount recoverable under underlying insurance” requires defendant to reimburse plaintiff for the $100,000 paid to settle the personal injury action. Plaintiff argues that this $100,000 was within the coverage of the underlying insurance which was not paid by the underlying primary insurer, All-Star. Since All-Star was ordered into liquidation, plaintiff claims that the “amount recoverable” was zero. Defendant contends that as an excess insurer, it does not bear the risk of a primary insurer’s insolvency because it did not contract to assume that risk.

Since both parties have filed motions for judgment on the pleadings, it is generally conceded that no fact questions exist and that the issues presented to the court are solely questions of law. (Zipf v. Allstate Insurance Co. (1977), 54 Ill. App. 3d 103, 369 N.E.2d 252.) Moreover, construction of an insurance policy presents only a question of law (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601), and this issue is, therefore, appropriate for determination by means of judgment on the pleadings. See Kravis v. Smith-Marine, Inc. (1974), 20 Ill. App. 3d 470, 314 N.E.2d 577.

Under established rules of construction, if a provision of an insurance contract is ambiguous, it will be construed in favor of the insured and against the insurer who drafted the instrument (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921) and seeks to limit its liability. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) A provision in an insurance contract is considered to be ambiguous if it is subject to more than one reasonable interpretation. (Reserve Insurance Co. v. General Insurance Co. of America (1979), 77 Ill. App. 3d 272, 395 N.E.2d 933.) The provision at issue is as follows:

“Item 3. Limit of Liability: The limit of the company’s liability shall be ***.
(a) $1,000,000 single limit any one occurrence ***.
* * *
in excess of
(1) The amount recoverable underlying insurance as set out in Item 4
or
(2) $10,000 ultimate loss in respect of each occurrence not covered by said underlying insurance.”

Item 4 listed the underlying insurance for Holiday Park as the Comprehensive General Liability policy issued by All-Star.

Similar language in an excess-insurance contract was considered by the Supreme Court of California in Reserve Insurance Co. v. Pisciotta (1982), 30 Cal. 3d 800, 812, 640 P.2d 764, 770, 180 Cal. Rptr. 628, 634. In that case the relevant condition stated:

“The Company [CNA] (excess insurer) shall only be liable for the ultimate net loss in excess of ***:
(1) the amount recoverable under the underlying insurance as set out in the schedule of the underlying insurance ***.”

The court considered whether the wording of the excess policy required the excess insurer to provide coverage that the primary insurer would have assumed had it not become insolvent. The court reasoned:

“CNA assumed liability for any excess over the ‘amount recoverable’ under the underlying policy. That language might possibly be interpreted either to expose CNA only for amounts over the dollar limits of the underlying insurance or to expose CNA for amounts which the insured is not able to actually recover from the underlying insurer because of its insolvency. Because there are two meanings which may reasonably be attributed to the term in question, it is ambiguous and under settled principles must be construed in favor of the insured.” (30 Cal. 3d 800, 814-15, 640 P.2d 764, 772, 180 Cal. Rptr. 628, 632.)

The court concluded that the excess insurer’s policy included the risk of the primary insurer’s insolvency within the scope of its coverage.

We adopt the reasoning of Pisciotta and conclude that defendant’s term limiting liability in excess of the amount recoverable under underlying insurance was subject to two interpretations and is, therefore, ambiguous. Construing the ambiguous phrase “amount recoverable” most strongly against the insurer and in favor of the insured, we hold that the language of the excess insurance contract requires defendant to assume the risk of the primary insurer’s insolvency. See State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.

The policy language in the present case and in Pisciotta is different from that contained in Molina v. United States Fire Insurance Co. (4th Cir. 1978), 574 E2d 1176, and St. Vincent’s Hospital & Medical Center v. Insurance Co. of America (1982), 117 Misc. 2d 665, 457 N.Y.S.2d 670. Those cases held that insolvency of the primary insurer did not require the excess insurer to assume the primary’s obligation. In Molina, however, the excess policy indemnified the insured for “the ultimate net loss in excess of the retained limit,” where “retained limit” was defined as “the total of the applicable limits of the underlying policies ***.” (574 F.2d 1176, 1178.) In St. Vincent’s, the excess insurer was obligated to indemnify the insured for the “excess of the amounts specified” in the primary insurance policies. (457 N.Y.S.2d 670, 672.) Clearly, the language in Molina and St. Vincent’s reveals that the insurance provided that the excess insurer would pay for losses in excess of a fixed amount, the primary policy limits. In contrast, the term “amount recoverable” can be interpreted as a variable amount which depends on the actual amount recoverable from the primary insurer, not the fixed policy limits.

Defendant argues that the maintenance clause requires plaintiff to assume the responsibility for the underlying primary insurance. The maintenance clause provides that failure of the insured to maintain primary insurance will not invalidate the policy, “but in the event of such failure the company shall only be liable to the same extent as they would have been had the insured complied with said condition.” It is obvious that plaintiff did maintain the underlying primary insurance during the applicable policy period. It was not until after the accident in 1974, the filing of the personal injury action in 1975, and the expiration of the policies in question on April 1, 1975, and June 14, 1976, that All-Star was ordered into liquidation on March 1, 1977. Questions of the applicable coverage provided by an insurance policy can be determined only as of the time of the incident creating potential liability. (Hawkeye Security Insurance Co. v. Sanchez (1984), 122 Ill. App. 3d 183, 460 N.E.2d 873.) Since plaintiff carried the primary insurance policy at the time of the accident giving rise to potential liability, plaintiff fulfilled its contractual obligation under the maintenance clause. Therefore, even if the maintenance clause did require plaintiff to assume responsibility for primary insurance, it did not shift the risk of the primary insurer’s insolvency to plaintiff (insured) in this instance.

Defendant also maintains that excess insurance coverage is not operative absent primary insurance. Defendant’s contention again overlooks the fact that plaintiff retained primary insurance at the time of the incident creating liability for both primary and excess insurance. Moreover, the cases offered by defendant to support this proposition concern the issue of whether excess insurance coverage should apply at all. (Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 442 N.E.2d 1362; Farmers Automobile Insurance Association v. Iowa Mutual Insurance Co. (1966), 77 Ill. App. 2d 172, 221 N.E.2d 795.) Here, defendant admits in its pleadings that the excess coverage should apply. The issue is whether defendant should assume the primary insurance coverage, and we have concluded that defendant’s policy language requires it to do so.

Defendant finally claims that it did not assume the risk of the primary insurer’s insolvency because the reduced premium for excess insurance reflects its intention to place that risk upon the insured. The intention of the parties to a contract is expressed in the words of the contract and an insurance policy must be construed as a whole. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) We have examined the language of the contract and have concluded that it requires defendant to assume the risk of primary insurer’s insolvency. The fact that defendant offered its excess policy at a reduced rate does not change the interpretation of the entire contract. Defendant’s language admitting its liability controls the amount of coverage it must pay to settle a suit, not the amount it charges its insured for excess insurance. Construing the policy as a whole to give effect to the intention of the parties requires defendant to pay the entire settlement.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

WHITE, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE WHITE

text:
    AMERICAN NATIONAL BANK & TRUST CO., Trustee, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (3rd Division)
    No. 84—2153
    Opinion filed March 20, 1985.
    James D. Montgomery, Corporation Counsel, of Chicago (Philip L. Bronstein and Julie Elena Brown, Assistant Corporation Counsel, of counsel), for appellant.
    Allegretti, Newitt, Witcoff & McAndrews, Ltd., and Murphy, Mitchell & Jaffe, both of Chicago (George P. McAndrews, Charles W. Shifley, Robert C. Ryan, Thomas J. Murphy, and John F. Fennig, of counsel), for appellee.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

On June 1, 1983, plaintiff, American National Bank & Trust Co. (bank), as trustee under trust No. 33832, filed an application with the Chicago Zoning Board of Appeals (zoning board) for a special-use variance for the purpose of operating a sanitary landfill. By letter dated June 24, 1983, the department of planning of the city of Chicago voiced objections to plaintiff’s application on the ground that a substantial portion of the proposed landfill site contained public rights-of-way owned by the city. Thereafter, the bank commenced this declaratory judgment action to quiet title to the land, naming the city of Chicago (city) as defendant.

Prior to resolution of the declaratory judgment action, the zoning board held a hearing on the bank’s application at which several residents of a community near the proposed site appeared and testified against approval of the bank’s application. The zoning board denied the bank’s application and mailed notice thereof to the bank on March 8, 1984. On March 22, 1984, the bank amended the complaint for declaratory judgment to add a count seeking administrative review of the decision of the zoning board, and a count seeking a mandate that the department of consumer services of the city of Chicago grant it a permit to operate the landfill. On April 10, 1984, the city filed a motion to dismiss the count for administrative review, alleging as basis for the motion that the bank failed to name and serve certain parties as required by the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.). In response to the city’s motion the bank, on April 11, 1984, served summonses on the zoning board and on the department of consumer services. On April 16, 1984, the court denied the city’s motion to dismiss and allowed the bank to amend its complaint to name the zoning board, the department of consumer services, and the community residents who appeared at the administrative hearing as defendants. Summonses were issued to the community residents on April 17, 1984. Thereafter the bank filed a motion for summary judgment which was granted as to the administrative review count of the complaint. The circuit court reversed the resolution of the zoning board with instructions to issue the special-use variation which the bank sought should the application conform to all ordinances. The city appeals.

On appeal it contends, inter alia, that the circuit court lacked subject matter jurisdiction because of the bank’s failure to procure issuance of summonses to all parties within the 35-day time period prescribed in section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103).

Section 3 — 103 of the Administrative Review Law provides:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103.)

Further, section 3 — 107 of the Administrative Review Law provides:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 107.)

The 35-day period for issuance of summons is mandatory and not jurisdictional, and failure to secure issuance of summons within the period will not preclude judicial review. (City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 454 N.E.2d 652; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842.) However, the 35-day period is intended to insure that the plaintiff cannot unduly delay review (City National Bank & Trust Co. v. Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 439 N.E.2d 1301, affirmed (1983), 97 Ill. 2d 378, 454 N.E.2d 652), and the plaintiff must show a good-faith effort to have the clerk issue the summons within the 35 days to warrant relaxation of the filing period. Moretti v. Department of Labor (1983), 119 Ill. App. 3d 740, 457 N.E.2d 114.

In the case at bar, the bank failed to act with diligence to procure issuance of the summonses. On April 10, 1984, 33 days after the bank was served notice of the zoning board’s resolution, the city filed a motion to dismiss that portion of the complaint seeking administrative review based upon the bank’s failure to comply with sections 3 — 103 and 3 — 107 of the Administrative Review Law. The bank obtained service of summons on the zoning board and the department of consumer services the next day. These summonses were timely. However, the bank neglected to have summonses issued to four community residents who were parties of record to the proceedings before the zoning board until April 17, 1984, 40 days after it was served notice of the zoning board’s resolution. The bank’s excuse for the late issuance of summonses to the community residents is that the city did not object to lack of summonses to the community objectors until the April 16, 1984, hearing on the city’s motion to dismiss. We note first that the burden was squarely upon the bank to name and serve all persons who were parties of record to the proceedings before the zoning board (Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 95 N.E.2d 864; Moretti v. Department of Labor (1983), 119 Ill. App. 3d 740, 457 N.E.2d 114; Lewis v. Trainor (1977), 51 Ill. App. 3d 180, 366 N.E.2d 579), and second, that the city’s motion to dismiss cited the pertinent sections of the Administrative Review Law and thus put the bank on notice that summonses should be served the four community objectors.

We conclude that the bank was not diligent in obtaining issuance of the summonses and that the circuit court erred in denying the city’s motion to dismiss.

In light of our conclusion that the circuit court lacked jurisdiction to review the resolution of the zoning board, we need not consider the city’s other contentions.

For the aforementioned reasons the judgment of the circuit court of Cook County is reversed.

Reversed.

McGILLICUDDY and RIZZI, JJ., concur.

       The hearing was held upon request of the circuit court of Cook County.


author: JUSTICE BERLIN

text:
    LADEREK GUYTON, a Minor, by his Mother and Next Friend, Mary Guyton, Plaintiff-Appellant, v. HAZEL ROUNDY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—0488
    Opinion filed March 19, 1985.
    Rehearing denied April 16,1985.

      Burke & Burke, Ltd., of Chicago (Dennis J. Burke, of counsel), for appellant.
    DeJong, Poltrock & Giampietro, of Chicago (Wayne B. Giampietro and Mildred F. Haggerty, of counsel), for appellee Hazel Roundy.
    Fraterrigo, Best & Beranek, of Chicago (Fredrick J. Fraterrigo and Gary M. Feiereisel, of counsel), for appellee Chicago Board of Education.
   JUSTICE BERLIN

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Cook County granting summary judgment to both defendants.

In June 1983, plaintiff filed his two-count third amended complaint in which he alleged: In February 1980, plaintiff was nine years old and attended Ignace Jan Paderewski elementary school. His teacher, defendant Roundy, “ordered and compelled” plaintiff to move a “large” desk from her classroom to another classroom. While moving the desk plaintiff fell, and was injured. In count I plaintiff contended that defendant, Chicago Board of Education (board), “through its agent and servant Hazel Roundy was guilty of one or more of the following acts of negligence:

“(a) Negligently and carelessly ordered the plaintiff to carry a large desk beyond his capacity or skill to handle;
(b) Negligently and carelessly failed to provide adequate supervision of the plaintiff so as not to bring harm to him and others;
(c) Negligently and carelessly operated and controlled the activities of the students in a manner which would not prevent harm to plaintiff and others;
(d) Negligently and carelessly failed to keep a proper lookout during the activities of her students so as not to prevent harm to plaintiff and others.”

Count II alleged the same facts, and contended that defendants were guilty of wilful and wanton conduct in that they:

“(a) Wilfully and wantonly ordered plaintiff to carry a large desk outside the classroom knowing that this activity could cause him injury since the desk was too large for him to carry;
(b) Wilfully and wantonly ordered plaintiff to engage in a dangerous activity, to wit, moving heavy furniture;
(c) Wilfully and wantonly ordered plaintiff to perform an activity, such as moving heavy furniture, which was beyond the scope of their duty and obligation in providing an education for plaintiff.”

Roundy filed a motion for summary judgment, attaching as exhibits thereto her affidavit, the transcript of plaintiff’s deposition, and two pictures of the desk involved. In her affidavit, Roundy stated that on the date in question, her own classroom had too many desks and another classroom across the hallway was in need of more desks. She requested three or four students, including plaintiff, to assist her in moving some desks to the other classroom. She asserted that the desks involved “were small student desks,” and that the top of the desks measured 14 inches by 22 inches. She stood in her classroom doorway so she could observe both the classroom and the students moving the desks the “20 or 30 paces” across the hallway to the other classroom. She saw plaintiff fall. She saw nothing on the hallway floor to trip plaintiff, nor was he “shoved or pushed” by anyone else. She further contended that she had in the past requested students to move similar desks, all without incident, and that “plaintiff was having no difficulty moving the desk until he tripped and fell.” Her statement that “it appeared that [plaintiff] tripped over his own feet” was subsequently stricken by the trial court as a conclusion.

In relevant part, plaintiff’s deposition testimony was that he had not moved desks on previous occasions; that Roundy did not give him any instructions as to how the desk was to be moved; and although he did not think he was strong enough to move the desk, he did not so advise Roundy. He did not know what caused him to fall.

The board also filed a motion for summary judgment, contending that it could be liable only under a theory of respondeat superior and that because Roundy’s motion for summary judgment should be granted, the board’s motion should also be granted.

In response to the motions for summary judgment, plaintiff filed an unverified pleading in which he asserted that Roundy’s actions were “beyond the scope of her duty and obligation in providing an education to the plaintiff, and further there are questions of fact which preclude the granting” of defendants’ motions.

The trial court granted defendants’ motions for summary judgment, finding, as to count I, that teachers are not liable for ordinary negligence in matters within the teacher-student relationship; and, as to count II, that the complaint did not allege facts demonstrating wilful and wanton conduct by defendants. Plaintiff appeals.

The relevant provision of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 34 — 84a) provides, in pertinent part:

“Teachers and other certified educational employees shall maintain discipline in the schools, ***. In all matters relating to the discipline in and conduct of the schools and school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the'absence of their parents or guardians.”

In Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, our supreme court held that this statute “confer[s] upon teachers and other certified educational employees immunity from suits for negligence arising out of ‘matters relating to the discipline in and conduct of the schools and the school children.’ In order to impose liability against such educators, a plaintiff must prove wilful and wanton misconduct.” 63 Ill. 2d 165,173.

In Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 20-21, 462 N.E.2d 877, the court stated:

“One matter is very clear: teachers are not liable for ordinary negligence in the performance of their supervisory duties. [Citations.] The School Code confers upon a teacher the status of a parent or guardian with regard to ‘all activities connected with the school program.’ [Citation.] The status in loco parentis shields a teacher from liability in both nondisciplinary and disciplinary matters.”

This immunity is based on public policy considerations. “In the interest of student-teacher harmony, litigation between them should not be encouraged — absent wilful and wanton conduct.” Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165,171, 395 N.E.2d 538.

Plaintiff asserts that the statutory immunity recognized in Kobylanski applies only to matters relating to the “discipline in and conduct of” the schools and school children, and that the activity here in issue falls outside of that protective scope. Plaintiff contends that the trial court here should not have granted summary judgment as to count I of the complaint (alleging negligence) because moving desks should be considered to be an activity which is “outside of the student-teacher relationship” and therefore the statutory immunity does not apply. Plaintiff correctly notes that courts have found some activities to be outside of the scope of section 34 — 845a. For example, Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, and Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, upheld actions for negligence against school boards for providing allegedly defective equipment to students. Conceding that these cases are not directly on point with the instant case, plaintiff argues that they indicate the “willingness” of courts to allow exceptions to the immunity recognized in Kobylanski. Plaintiff urges this court to find that the activity here — moving desks — should likewise be deemed to be outside of the protection provided in Kobylanski.

Roundy responds that the cases cited by plaintiff all relate to situations “where the student-teacher relationship was obviously not involved,” while in the present case the teacher’s request that a student move a small desk across a hallway is related to a teacher’s responsibility to maintain an orderly classroom and consequently falls within the student-teacher relationship.

There is no single test for determining the scope of the duties encompassed by the statute; courts have stated that teachers are immune from negligence in activities which are “connected with the school program” (O’Brien v. Township High School District 21b (1980), 83 Ill. 2d 462, 467, 415 N.E.2d 1015) and activities which involve the “teacher-student relationship in matters relating to the teacher’s personal supervision and control of the conduct or physical movement of a student ***.” Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52, 373 N.E.2d 1323.

In our opinion, the activity here in issue, the moving of a single student’s desk by a student, is not “beyond” or “totally outside the ambit of a teacher’s supervisory function” and does fall within the parameters of a supervisory activity which is “connected with the school program.” (O’Brien v. Township High School District 21b (1980), 83 Ill. 2d 462, 467-68, 415 N.E.2d 1015; see also Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452.) We conclude that, under these facts, defendants were immune from liability for negligent conduct. Therefore, the trial court properly entered summary judgment for defendants on count I of the complaint.

In count II, plaintiff alleged that Roundy’s actions constituted wilful and wanton conduct. Plaintiff contends that the question of whether Roundy’s conduct amounted to wilful and wanton was for a jury to decide, and that therefore the trial court erred in granting summary judgment. Plaintiff also contends that there existed issues of material fact which should have defeated the motion for summary judgment, pointing to plaintiff’s statement that he was having “difficulty” moving the desk, while Roundy’s affidavit states she did not observe plaintiff having any difficulty in moving the desk.

Defendants respond that the court properly entered summary judgment in their favor on count II because even construing the facts in the light most favorable to plaintiff, there is no indication here of any wilful and wanton misconduct.

In Lynch v. Board of Education (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447, the supreme court quoted with approval a definition of wilful and wanton conduct from an earlier decision:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.”

In order to state a cause of action for wilful and wanton conduct, the plaintiff must allege facts “from which the law would raise a duty and which would show that the intentional breach of the duty resulted in injury. The mere conclusory allegation of wilful and wanton conduct is not sufficient. [Citation.]” (Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 385, 394 N.E.2d 452.) Summary judgment will be granted when there are no issues of material fact, and movant is entitled to judgment as a matter of law. Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App. 3d 1011, 415 N.E.2d 492.

The issue presented is whether the pleadings, depositions and affidavits “will support a finding of an issue of fact as to whether the defendant was guilty of willful and wanton conduct.” (Poynter v. Kankakee School District No. 111 (1977), 55 Ill. App. 3d 46, 48, 370 N.E.2d 667.) To defeat summary judgment, the disputed factual issue must be material to the essential elements of either the cause of action or the defense thereto. First National Bank v. Lambert (1982), 109 Ill. App. 3d 177, 440 N.E.2d 306.

We do not find that plaintiff has demonstrated the existence of a material issue of fact. Plaintiff did not file a counteraffidavit, but relied on plaintiff’s deposition statement that he was having “difficulty” moving the desk. We find unsupported conclusions are insufficient to raise a material issue of fact. See, Anderson “Safeway” Guard Rail Corp. v. Champaign Asphalt Co. (1971), 131 Ill. App. 2d 924, 928, 266 N.E.2d 414.

While the question of whether or not certain conduct amounted to wilful and wanton misconduct is normally a jury question (Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877, reviewing courts have not hesitated to affirm a trial court’s determinations that allegations in a complaint failed, as a matter of law, to allege wilful and wanton misconduct. 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; Cipolla v. Bloom Township High School District No. 206 (1979), 69 Ill. App. 3d 434, 388 N.E.2d 31.

Our courts have repeatedly held that a teacher’s failure to supervise student activities during which a student was injured does not in itself constitute wilful and wanton conduct. See Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452 (elementary school teacher not guilty of wilful and wanton conduct when she appointed as monitor for students’ entry into a bathroom a student whom she knew had allegedly threatened plaintiff on prior occasions, and on this occasion plaintiff was assaulted in the bathroom); Clay v. Chicago Board of Education (1974), 22 Ill. App. 3d 437, 318 N.E.2d 153 (conduct of teacher in absenting herself from classroom during which time plaintiff was assaulted by a student who had been previously involved in similar behavior did not constitute wilful and wanton conduct); see also Woodman v. Litchfield Community School District No. 12 (1968), 102 Ill. App. 2d 330, 242 N.E.2d 780; Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, 283 N.E.2d 899.

In our opinion, the conduct here complained of— Roundy’s alleged failure to properly supervise plaintiff’s activity — did not constitute wilful and wanton misconduct.

We conclude that the trial court did not err when it determined that plaintiff’s complaint failed to allege facts which constituted wilful and wanton conduct, and granted defendant’s summary judgment on count II of the complaint.

Affirmed.

STAMOS, P.J., and BILANDIC, J., concur.


author: JUSTICE BILANDIC

text:
    DORIS L. ANDERSON, Plaintiff-Appellant, v. WOODLAWN SHELL, INC., et al., Defendants-Appellees (Joyce A. Rutherford et al., Defendants).
    First District (2nd Division)
    No. 84—0406
    Opinion filed March 26, 1985.
    Rehearing denied April 23,1985.
    Jules Pfeiffer and Eugene Lieberman, both of Chicago, for appellant.
    Robert S. Soderstrom and Jacqueline A. Criswell, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellées.
   JUSTICE BILANDIC

delivered the opinion of the court:

In this negligence action, plaintiff Doris L. Anderson appeals from the entry of an order granting summary judgment in favor of defendants Woodlawn Shell, Inc. (Woodlawn), Raymond B. Blake and Audrey Blake.

The material facts of this case are not in dispute. On December 1, 1982, at approximately 9:30 a.m., plaintiff drove her 1973 Pontiac Ventura up to a self-serve island located on the premises of defendant Woodlawn which, at that time, was leased to and operated by defendants Raymond and Audrey Blake. Four signs furnished by the lessor, Shell Oil Company, were posted on defendants’ place of business instructing customers to “Please stop engine. No smoking.”

After placing her car in park and turning the ignition off, plaintiff left her vehicle, went inside a building, and prepaid the cashier for the amount of gasoline she wished to purchase. Plaintiff then returned to the self-serve island and proceeded to pump gasoline into the fuel tank of her Ventura. The location of the tank necessitated that plaintiff stand directly in back of the car in order to pump gasoline. While doing so, plaintiff heard another vehicle pull up to the self-serve island. Turning around, plaintiff observed that a car had stopped directly behind her at a distance of approximately five feet. Defendant Joyce A. Rutherford was the driver of this car; defendant David De Bruce was seated next to her on the passenger side. Neither of these defendants is involved in the present appeal.

Rutherford left her vehicle to prepay the cashier. Although the transmission of her car was allegedly placed in the “Park” position, Rutherford conceded that she had left the motor running and failed to engage the emergency brake. Plaintiff, shortly thereafter, heard the sound of “tires rolling” behind her. Looking over her shoulder as she continued to pump gasoline, plaintiff then saw the Rutherford vehicle moving toward her. The front bumper of this car struck plaintiff at approximately knee level, pinning her between the two cars. Soon afterwards, the Rutherford vehicle was backed away from the plaintiff, and she was taken to Billings Hospital for treatment of leg injuries.

On January 27, 1983, plaintiff instituted the present action seeking to recover damages for the injuries she sustained on December 1, 1982. In her amended complaint filed on July 27, 1983, plaintiff claimed that defendants Woodlawn, Raymond and Audrey Blake breached a legal duty to protect her, i.e., by “exposing *** customers to dangerous and unsupervised vehicles without control or attendance or [sic] by their agents or servants,” and by “permitting] an unattended vehicle to be left, with its motor running, and with its gear-shift apparatus in or near ‘drive’ position, at a point directly behing [sic] plaintiff ***.” Following a hearing on Woodlawn, Raymond and Audrey Blake’s joint motion for summary judgment, the trial court found as a matter of law that these named party defendants had no duty to employ an attendant at the self-serve island of the gas station for the purpose of warning customers to turn off their engines. An order was entered granting summary judgment in defendants’ favor, after which plaintiff timely filed her notice of appeal.

I

The issue presented is whether defendants, under the circumstances in this case, exercised reasonable care to protect plaintiff from the negligent act of a third party.

This action was brought under the theory of common law negligence. Plaintiff’s complaint does not allege the violation of a duty established by statute or ordinance. Therefore, as a prerequisite to a successful negligence claim, it is necessary for plaintiff to show that defendants owed a duty to protect her from the injuries she sustained. (Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 150, 224 N.E.2d 859.) Plaintiff had the implied, if not express, invitation to enter defendants’ premises for a purpose connected with defendants’ business. By purchasing gasoline from defendants, plaintiff was serving both her own as well as defendants’ interests. Thus, because plaintiff was a business invitee, defendants owed her the duty of exercising reasonable care for her safety. (Mock v. Sears, Roebuck & Co. (1981), 101 Ill. App. 3d 103, 106, 427 N.E.2d 872.) We note, however, that a business proprietor is not the insurer of his customer’s safety. (Perminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 476, 328 N.E.2d 290.) As a result, the question now before us is whether the defendants had sufficient notice or knowledge of previous accidents similar to that involved herein so as to give rise to a duty to protect the plaintiff from a third party’s negligent conduct.

In Illinois, the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 116.) However, contrary to plaintiff’s contention, the issue of whether a duty exists in the first instance must be determined by the courts as a matter of law. (Crenshaw v. Commonwealth Edison Co. (1985), 131 Ill. App. 3d 219, 221, citing Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) This is “because liability for common law negligence is not absolute but rather it is based on fault.” (Fancil.v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538.) The creation of a legal duty does not depend on foreseeability alone. (Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 925, 393 N.E.2d 580, aff’d (1980), 82 Ill. 2d 313.) Rather, in determining whether a duty does exist, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant must also be taken into account. Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 905, 407 N.E.2d 671, appeal denied (1980), 81 Ill. 2d 601.

In this case, the record is devoid of any evidence suggesting that plaintiff’s accident was reasonably foreseeable. The deposition testimony of Raymond Blake indicates that he had no knowledge of any prior accidents during the four years in which he had operated Woodlawn’s self-serve island. Raymond’s wife, Audrey, stated in her deposition that the only hazard she had seen was when a customer would drive away from the station with the pump nozzle still in his fuel intake. Furthermore, plaintiff adduced no evidence of previous incidents even remotely similar to the one in question that would give notice to defendants of the possibility of such accidents. In retrospect, plaintiff can assert that defendants should have foreseen that the unfortunate event in this case might conceivably occur; however, it is clear that such an occurrence was not “objectively reasonable to expect.” (Winnett v. Winnett (1974), 57 Ill. 2d 7, 13, 310 N.E.2d 1; see also Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465.) Consequently, defendants did not owe a duty to protect plaintiff from the type of harm she suffered under the circumstances of this case.

There is no dispute that defendants’ customers had to leave their vehicles in order to prepay for gasoline. However, as plaintiff has readily acknowledged, “Mr. Blake had posted signs at pumps telling customers to stop their engines.” Specifically, there werefour such signs furnished by the Shell Oil Company. Raymond Blake testified in his deposition that each sign was about 1 foot by 1 foot and “conspicuous enough” so as to be “[vjisible to everyone.” Under Illinois law, defendants had the right to assume that their warnings and instructions would not only be read, but also carried out. (Cf. Curry v. Louis Allis Co. (1981), 100 Ill. App. 3d 910, 915, 427 N.E.2d 254, appeal denied (1982), 88 Ill. 2d 550, citing Bakovich v. Peoples Gas Light & Coke Co. (1963), 45 Ill. App. 2d 182, 195 N.E.2d 260.) It is our opinion, therefore, that defendants fulfilled their duty of exercising reasonable care to protect plaintiff from the independent, unforeseeable act of negligence which caused her injuries here.

We stress that defendants were not insurers of their customers’ safety. (Perminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 476.) “No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.” (Prosser, Torts sec. 31, at 146 (4th ed. 1971).) Because the creation of a legal duty “requires more than the possibility of occurrence” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 376), plaintiff has failed to establish the prerequisite to a successful negligence action. “[Wjhere a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits on file, summary judgment for the defendant, is proper.” Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 641, 428 N.E.2d 662, appeal denied (1982), 91 Ill. 2d 557.

For the reasons set out herein, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

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


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. HARVEY L. MORROW, Petitioner-Appellant.
    First District (1st Division)
    No. 82—2178
    Opinion filed April 15, 1985.
    Deborah Liebow, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin M. Sheehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner, Harvey Morrow, was convicted of murder and attempted rape. This court affirmed those convictions on January 7, 1984. Petitioner was represented in both proceedings by the Cook County public defender. Petitioner subsequently filed a pro se post-conviction petition, alleging ineffective assistance of counsel both at trial and on appeal. Respondent filed a motion to dismiss the petition, and the office of the public defender subsequently filed a motion to appoint counsel other than the public defender due to the alleged conflict of interest caused by petitioner’s assertions, which the trial court denied. The record shows that petitioner was not present at this hearing, nor was he present at a subsequent hearing on the State’s motion to dismiss, at which he was represented by a public defender other than his trial or appellate counsel. At that time, petitioner’s counsel stated that he had consulted with petitioner several times in efforts to ascertain the basis of petitioner’s allegations. He further stated:

“I have read the transcript and I feel that the things [petitioner] wants to raise have been covered by the Appellate Court and it would be repetitious and I don’t think it would fall within the act.”

The post-conviction petition was dismissed without further hearing.

Petitioner now appeals, claiming error in both the denial of the motion to appoint new counsel and in the dismissal of his petition. The facts before us are identical to those in People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169, and, accordingly, we remand this cause for a new post-trial hearing on defendant’s allegation of ineffective assistance of trial counsel.

In Smith, petitioner filed a pro se petition alleging that his counsel at trial, an assistant public defender, was incompetent for various assigned reasons. Upon the filing of his petition, the trial court appointed a public defender to represent petitioner in the post-conviction proceedings. Thereafter, petitioner moved to vacate the appointment and for the appointment of counsel other than the public defender. Petitioner was represented at this hearing by a public defender other than the one who represented him at trial. At the court’s request, counsel summarized the allegations contained in the post-conviction petition. Subsequently, without hearing additional evidence, the trial court denied the motion to appoint other counsel and dismissed the petition. The supreme court reversed, stating its belief that an inherent conflict-of-interest situation for the public defender’s office arose under the circumstances presented, where a representative from that office was required to present a petitioner’s cause which was based in part upon charges of incompetent representation at trial by the public defender. The court went on to hold that such circumstances should be avoided by the appointment of counsel other than the public defender to represent petitioner at a new hearing on his petition. People v. Smith (1967), 37 Ill. 2d 622, 624.

The State cites subsequent decisions in which the supreme court has rejected a “per se rule” disqualifying an entire public defender’s office in situations where one of its members is confronted with a conflict of interest, and has prescribed a case-by-case inquiry designed to determine whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office. (People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157; People v. Walton (1979), 78 Ill. 2d 197, 399 N.E.2d 588; see also, People v. Neely (1980), 85 Ill. App. 3d 1016, 407 N.E.2d 814.) These cases are inapposite on their facts, however, and do not overrule the clear holding of People v. Smith (see People v. Walton (1979), 78 Ill. 2d 197, 201). Further, we believe that the court’s rationale in Smith has been reaffirmed by its most recent pronouncement in People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, where it was held that when a post-trial hearing is to be conducted on a defendant’s allegation that his trial counsel was ineffective, counsel other than his originally appointed counsel should be appointed to represent him at the hearing. Accord, People v. Simpson (1984), 129 Ill. App. 3d 822.

Based on the foregoing, we reverse the dismissal of petitioner’s pro se petition and remand the cause for a new hearing with appointed counsel other than the public defender’s office.

Reversed and remanded with directions.

McGLOON, P.J., and CAMPBELL, J., concur.


author: JUSTICE PERLIN

text:
    LONDON TRENT, Plaintiff-Appellant, v. BRASCH MANUFACTURING COMPANY, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—2269
    Opinion filed April 9, 1985.

      Arnold & Kadjan, of Chicago (Mark H. Mennes and Gregory R. Sun, of counsel), for appellant.
    Jerome H. Torshen, Ltd., and Garretson & Santora, both of Chicago (Jerome H. Torshen and Abigail K. Spreyer, of counsel), for appellee Thermodynamics, Inc.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll and Lloyd E. Williams, Jr., of counsel), for appellee Brasch Manufacturing Company.
    Haskell & Perrin, of Chicago (Kevin W. Doherty, of counsel), for appellee Gould, Inc.
   JUSTICE PERLIN

delivered the opinion of the court:

London Trent, plaintiff, appeals from the dismissal with prejudice of count I of his amended complaint for failure to state a cause of action in strict liability in tort. Plaintiff filed a two-count amended complaint alleging that he was injured while “checking the thermostat” of the heating, ventilating and air-conditioning system (HTVAC) in the Dearborn Park Plaza Building in Chicago. Plaintiff sought damages from defendants along the distributive chain of the HTVAC who had manufactured, designed, distributed, sold, installed and serviced the “electric duct heater,” “air handling unit,” “control panel” and “fuses” of the HVAC.

Count I of the amended complaint was based on strict liability in tort and alleged that “said electrical devices” were “defective, unsafe and unreasonably dangerous for their foreseeable use,” as a proximate result of which the electric duct heater and control panel “exploded,” injuring plaintiff. Count II of the amended complaint, alleging similar facts, sounded in negligence.

Certain defendants filed motions to dismiss count I of the amended complaint contending that the instrumentalities of which plaintiff complained were not “products” within the ambit of strict liability in tort because they were “component and indivisible parts [of]” a building. The trial court agreed, and count I was accordingly dismissed with prejudice as to all defendants. At the close of the hearing on plaintiff’s motion to reconsider, the trial court denied plaintiff’s motion stating that “once that object, ***, is attached to real estate; namely, a building, it is no longer a product for purposes of strict tort liability.” Plaintiff appeals contending that the trial court erred in holding that because the HVAC was attached to a building it could not be labelled a “product” for purposes of strict liability in tort.

I

The primary issue before this court is whether the HVAC, having been installed in a building, may be deemed a “product” for purposes of strict liability in tort.

A brief review of the doctrine of strict products liability may be in order. In Greemnan v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 62, 377 P.2d 897, 900, 27 Cal. Rptr. 697, 700, the case regarded as “the progenitor” (Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376, 365 N.E.2d 923) of the doctrine, the California Supreme Court held that a “manufacturer is strictly liable in tort when an article he places on the market, knowing it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” That court stated that the purpose of strict liability is “to insure that the cost of injuries resulting from defective products is borne by the manufacturers who put such products on the market rather than by the injured persons who are powerless to protect themselves.” Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 63, 377 P.2d 897, 901, 27 Cal. Rptr. 697, 701.

In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, the Illinois Supreme Court adopted the doctrine of strict liability in tort as set out in section 402A of the Restatement (Second) of Torts. That section provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” (Restatement (Second) of Torts sec. 402A (1965).)

In Suvada, the court stated that liability for a defective product extended to a manufacturer, one who holds himself out to be a manufacturer, a seller, a contractor, a supplier, the assembler of parts and the manufacturer of a component part. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617.

In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 74, 435 N.E.2d 443, our supreme court noted with regard to the origins of the doctrine of strict liability:

“The tort law of products liability stems from the contract cause of action for breach of warranty. In McPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, liability in negligence was imposed upon a manufacturer to an ultimate consumer without privity of contract. Subsequently, courts began to hold manufacturers liable for personal injuries without negligence; the theory generally utilized to reach the manufacturers was based on the law of sales warranty. [Citations.] However, recognition of the difficulties facing consumers with respect to items such as notice and privity led most courts to abandon the privity requirement in implied-warranty actions [citations] and to ultimately abandon the fiction of warranty in favor of strict liability in tort.”

Although the Illinois Supreme Court has not defined specifically a “product” for purposes of strict liability in tort, our appellate court has repeatedly stated that “the social policy justifications” underlying the adoption of strict liability, rather than a dictionary definition of the term “product,” should be determinative of that issue. Strict liability did not evolve simply because something was a “product”; “[t]he policy reasons brought it into being and continued to expand it. It is those reasons then that should determine what is a product ***.” (Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376, 384; Heller v. Cadral Corp. (1980), 84 Ill. App. 3d 677, 406 N.E.2d 88; Immergluck v. Ridgeview House, Inc. (1977), 53 Ill. App. 3d 472, 368 N.E.2d 803.) “Thus, the social policy underlying the doctrine [of strict liability] has become the definition of ‘product.’ ” Symposium on Products Liability: What is or is not a Product Within the Meaning of Section I¡.02A, 57 Marq. L. Rev. 623, 626-27 (1974).

A general statement of the social policy underlying strict liability appears in comment c of section 402A, which states:

“On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.” Restatement (Second) of Torts sec. 402A, Explanatory Notes, comment c, at 349-50 (1965).

This court has stated that the policy reasons to be considered in determining whether something constitutes a “product” for purposes of strict liability are: “(1) the public interest in human life and health; (2) the invitations and solicitations of the manufacturer to purchase the product; (3) the justice of imposing the loss on the manufacturer who created the risk and reaped the profit; and (4) the superior ability of the commercial enterprise to distribute the risk of injury proximately caused by the defective condition of its product by passing the loss on to the public as a cost of doing business.” Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520, 527, 455 N.E.2d 142; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612; Heller v. Cadral Corp. (1980), 84 Ill. App. 3d 677, 406 N.E.2d 88; Immergluck v. Ridgeview House (1977), 53 Ill. App. 3d 472.

In Immergluck, this court noted as a further policy consideration “ ‘the disparity in position and bargaining power which forces the consumer to depend entirely on the manufacturer and the difficulty of requiring the injured party in consumer products cases to trace back along the channel of trade to the source *** of the defect in order to prove negligence ***.’” (Immergluck v. Ridgeview House, Inc. (1977), 53 Ill. App. 3d 472, 474.) Whether the “product” is in the stream of commerce is also relevant. Immergluck v. Ridgeview House, Inc. (1977), 53 Ill. App. 3d 472; see Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520, 455 N.E.2d 142; Moorman Manufacturing Co. v. National Tank Co. (1980), 92 Ill. App. 3d 136, 414 N.E.2d 1302, rev’d in part, aff’d in part (1982), 91 Ill. 2d 69, 435 N.E.2d 443.

Based on section 402A of the Restatement and these policy considerations, this court has consistently held that “buildings” are not “products” for purposes of strict liability in tort. Lowrie (open-air parking garage and parking spaces therein not products); Immergluck (sheltered-care facility not a product); Heller (condominium not a product).

In Heller, where plaintiff had alleged property damage as a result of defective construction of a condominium, the court noted that the policy considerations underlying strict liability in tort did not support a finding that a condominium unit was a “product,” since:

“A finding that a condominium is not a product would not leave plaintiff without a remedy .for the alleged defects. No difficulty of access to a remote manufacturer or supplier exists here. Finally, inasmuch as plaintiff has not alleged any personal injury or threat of harm arising from the alleged defects, imposition of strict liability is not required under these circumstances to advance the public interest in human life and health.” Heller v. Cadral Corp. (1980), 84 Ill. App. 3d 677, 680.

The Heller court noted that jurisdictions which have applied strict liability to a building have done so in the context of “mass-produced” homes (see, e.g., Schipper v. Levitt & Sons (1965), 44 N.J. 70, 207 A.2d 314; Kriegler v. Eichler Homes, Inc. (1969), 269 Cal. App. 2d 224, 74 Cal. Rptr. 749), and/or have focused on a defective product within the home, not the home itself. (Heller v. Cadral Corp. (1980), 84 Ill. App. 3d 677.) Buildings are not typically mass-produced, but rather are the result of an “ongoing contractual relationship between the purchaser and builder.” Thus the policy considerations which brought products liability into being “do not exist in the context of building construction.” Comment, Strict Liability & the Building Industry, 33 Emory L.J. 175, 209 (1984).

It does not necessarily follow, however, from the premise that “buildings” are not “products” that an item, such as the HVAC in the instant case, which has become attached to a building cannot be found to be a “product” for purposes of strict liability in tort. In Moorman, this court found a grain storage tank which had been installed in a processing plant to be a “product,” stating:

“The question of whether something is a product is determined by looking to the policies supporting the strict liability in tort doctrine. We have discussed these policies above — the manufacturer’s special responsibility to buyers, the need to protect helpless buyers, and the cost-spreading capacity of the manufacturer. The fact that this plaintiff can proceed under other theories does not weaken the policies supporting the application of the doctrine of strict liability in tort here. The tank in question was placed into the stream of commerce by the defendants, who presumably reaped a benefit from the sale. The mere fact that the tank has apparently become a part of the real estate is not, of itself, sufficient reason to say that it is not a product.” (Emphasis added.) Moorman Manufacturing Co. v. National Tank Co. (1980), 92 Ill. App. 3d 136,146.

Defendants here rely upon the case of Walker v. Shell Chemical, Inc. (1981), 101 Ill. App. 3d 880, 428 N.E.2d 943, for the proposition that an HVAC which has been installed into a multi-unit dwelling is not a “product.” In Walker, a welder brought a cause of action against the designers and manufacturers of a “fabricated guardrail” for injuries sustained on a construction site when the guardrail broke. Acknowledging the previous Illinois cases discussed herein, the court stated that “if the guardrail involved in the instant case was actually a component and indivisible part of the entire building structure, it may not be considered as a product.” (101 Ill. App. 3d 880, 883.) Defendant maintains that the ffVAC was a “component and indivisible part of the entire building structure” and therefore not a product under Walker.

This court interpreted Walker in Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520. Plaintiff sought damages for personal injuries suffered when her hand was caught in a conveyor system installed in a post office building. On appeal, this court reversed the trial court’s finding that a conveyor was not a “product,” stating:

“Our holding in Walker should not be read so broadly as to incorporate the law of fixtures into products liability law. What items are to be deemed products must be based on the underlying policies for strict liability in tort ***. Walker imposes a limitation on the application of strict liability only with regard to those items which are an indivisible part of the building structure itself, such as the bricks, supporting beams and railings. Such items are significantly different than a conveyor system housed in a building since they do not have an indivisible identity prior to installation but are rather indivisible component parts of the building itself.” (Emphasis added.) 118 Ill. App. 3d 520, 529.

Our review of Illinois case law and the policy considerations underlying strict liability persuade us that the question of whether an article is “attached” to real estate is not the ultimate test; rather an analysis in terms of the policy considerations supporting the imposition of strict liability must be employed to determine whether this HVAC constitutes a “product.” Suvada v. White Motor Co. (1965), 32 Ill. 2d 612; Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520; Heller v. Cadral Cory. (1980), 84 Ill. App. 3d 677; Immergluck v. Ridgeview House, Inc. (1977), 53 Ill. App. 3d 472; Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376.

Although, due to the incomplete factual record before this court, we do not reach the issue of whether the HVAC in this instance is in fact a product for purposes of strict liability, we do hold that the trial court erred in dismissing Count I of plaintiff’s amended complaint solely on the basis that because the HVAC was “attached” to real estate it was, as a matter of law, not a “product.”

II

For the first time on appeal, defendants contend that even assuming the HVAC may be deemed to be a “product” for purposes of strict liability in tort, the dismissal with prejudice of count I of plaintiff’s amended complaint should be affirmed because the factual allegations of the complaint are allegedly inadequate to state a cause of action in strict liability. Defendants maintain that plaintiff failed to allege the location of the explosion within the building, what plaintiff was doing and where he was when the explosion occurred, the location of the thermostat or the location of the electric duct heater within the building.

At the time of defendants’ motion to dismiss in the trial court, the parties and the court focused narrowly on the issue of whether the HVAC was a “product.” Other short-comings in the complaint, now alleged by defendants, were not “specifically” pointed out as is required by the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615(a).

Dismissal of an action due to pleading deficiencies is a “drastic punishment” when imposed upon a litigant. (McCarthy v. Allstate Insurance Co. (1979), 76 Ill. App. 3d 320, 324, 395 N.E.2d 139.) The Code is intended to allow amendments to pleadings so as to allow cases to be decided on their merits rather than on procedural technicalities. (Anderson v. Rick’s Restaurant & Cocktail Lounge (1977), 45 Ill. App. 3d 992, 360 N.E.2d 465.) Although a reviewing court may affirm a judgment on any basis appearing in the record (Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177), “justice would not be served by affirming a dismissal of a judgment against a party on the basis of a pleading defect which could be remedied by amendment.” Village of Pawnee v. Knostman (1983), 115 Ill. App. 3d 842, 854-55, 450 N.E.2d 1272.

We believe it would be unjust, therefore, here to affirm the trial court’s dismissal of count I of plaintiff’s amended complaint on the basis of “pleading deficiencies” alleged by defendants for the first time on review.

For the reasons stated herein, the order of the trial court dismissing count I of plaintiff’s amended complaint is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

STAMOS, P.J., and BILANDIC, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE LARSON, Defendant-Appellant.
    First District (1st Division)
    No. 83—0609
    Opinion filed April 15, 1985.

      James J. Doherty, Public Defender, of Chicago (Karen S. Szpajer, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and John L. Malevitis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Dale Larson, an insanity acquittee, appeals from the judgment and order of the circuit court of Cook County utilizing the factors in aggravation in the extended-term statute (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1005-8-2, 1005-5-3.2(b)(2)) to set his maximum period of criminal commitment at 80 years less credit for good behavior, pursuant to section 5 — 2—4(b) of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).) Both defendant and the State now contend that the trial court erred in determining his maximum period of commitment. Defendant also contends that the commitment period constituted improper punishment and that the trial court’s determination violated his rights to equal protection and due process of the law.

In a bench trial it was stipulated that on November 21, 1978, defendant’s mother and stepfather were stabbed to death inside their home, which was then set on fire. Defendant, who lived with them, was arrested 11 days later while driving a stolen automobile. He later admitted stabbing the victims and setting fire to the house. Defendant was found not guilty of theft and two counts of murder by reason of insanity. After holding a hearing on whether defendant was in need of further mental treatment, the court committed him to the Department of Mental Health and Developmental Disabilities (DMHDD) for an indefinite period not to exceed a maximum of 80 years, less credit for good behavior and time served. See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b); People v. Thiem (1980), 82 Ill. App. 3d 956, 403 N.E.2d 647.

In a previous appeal, defendant contested the propriety of the commitment order. This court remanded the cause in a Rule 23 order entered on October 28, 1982, directing the trial court to clarify its basis for setting the maximum commitment period. On remand, the trial court indicated that he believed that section 5 — 2—4(b) allowed him, in determining the maximum commitment period, to consider both the facts of the case and the factors in aggravation in the extended-term statute. The court then reaffirmed the 80-year commitment order because the murders were accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty” under the extended term statute. See Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)(2).

Initially, we consider defendant’s contention that the criminal commitment statute should be construed as requiring that the trial court, in setting the maximum commitment period, use only the 40-year maximum sentence for murder in section 5 — 8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1(a)(1)).

In construing a statute, the court should look first and foremost to the terms of the statute as the best means of ascertaining the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585.) A court may not read a limitation into a statute which the legislature has not seen fit to enact nor may it, by subtle construction, alter the plain meaning of the words employed. People ex rel. Pauling v. Misevic (1964), 32 Ill. 2d 11, 15, 203 N.E.2d 393, cert, denied (1965), 380 U.S. 963, 14 L. Ed. 2d 154, 85 S. Ct. 1107; People v. Javurek (1976), 40 Ill. App. 3d 218, 220, 351 N.E.2d 897.

The commitment of persons acquitted by reason of insanity is governed by section 5 — 2—4(b), which provides in relevant part:

“that the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).

The terms of section 5 — 2—4(b) provide a formula for computing the maximum period of criminal commitment. (In re Commitment of Guy (1984), 126 Ill. App. 3d 267, 269, 466 N.E.2d 1252.) The term “maximum sentence” referred to in section 5 — 2—4(b) contemplates that the trial court must refer to the existing sentencing scheme in order to determine the most punitive sanction that could have been imposed for the most serious crime charged, which is then reduced by credit for good behavior. (In re Commitment of Guy (1984), 126 Ill. App. 3d 267, 269; People v. Tanzy (1982), 108 Ill. App. 3d 59, 60-61, 438 N.E.2d 922, modified (1983), 99 Ill. 2d 19.) When compared with the 80-year maximum sentence available under the extended-term statute, the 40-year maximum sentence under section 5 — 8—1 simply is not the “maximum sentence” that can be given under the section 5 — 2—4(b) formula. Moreover, nothing in the plain language of the statute indicates that the words “maximum sentence” are to be limited by the maximum sentence available under section 5 — 8—1 of the Unified Code of Corrections. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1.) In the event that the legislature had intended to impose such a limitation, it could have clarified this statute via express language to that effect. Absent any express intent to the contrary, we must read section 5 — 2—4(b) to be in accord with the ordinary use and meaning of its terms. People v. Hampton (1983), 121 Ill. App. 3d 273, 276, 459 N.E.2d 985.

People v. Tedford (1982), 109 Ill. App. 3d 195, 440 N.E.2d 329; People v. Leppert (1982), 105 Ill. App. 3d 514, 434 N.E.2d 21, appeal denied (1982), 91 Ill. 2d 576, relied on by defendant do not address the precise issue presented here. The courts in those cases had no occasion to consider the applicability of the extended term statute to section 5 — 2—4(b) since the factors in aggravation were not present under the facts of those cases.

We also reject the State’s contention that the trial court should have determined defendant’s maximum commitment period based on a maximum sentence of natural life. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1(a)(1).) Courts will not construe a statute in such a way as to render part of the statute a nullity. (People v. Tarlton (1982), 91 Ill. 2d 1, 5, 434 N.E.2d 1110.) The State’s position would render superfluous that language in section 5 — 2—4(b) which automatically gives insanity acquittees credit for good behavior (People v. Tanzy (1983), 99 Ill. 2d 19, 457 N.E.2d 390; In re Commitment of Guy (1984), 126 Ill. App. 3d 267), because such credit is not permitted when a term of natural life is imposed. (See Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 6—3(a)(2).) Moreover, use of a natural life sentence would undermine the legislative objective that a definite outer perimeter to defendant’s commitment period be set at the time the initial commitment order is issued. (See People v. Tanzy (1983), 99 Ill. 2d 19, 21.) We find that a term of natural life is not a permissible “maximum sentence” under section 5 — 2—4(b).

Defendant next contends that the trial court’s utilization of the extended-term statute constituted punishment because the statute was designed primarily to enhance the punishment of the guilty. Even if true, the fact that the maximum period of criminal commitment is determined by reference to the extended-term statute does not mean that defendant’s commitment period constitutes a “sentence” or punishment. (See People v. Tedford (1982), 109 Ill. App. 3d 195, 197, 440 N.E.2d 329; Raimondo v. Pavkovie (1982), 107 Ill. App. 3d 226, 437 N.E.2d 712, appeal denied (1982), 92 Ill. 2d 573.) The purpose of criminal commitment is the treatment of the acquittee’s mental illness and the length of confinement is limited to the time necessary for his recovery. (People v. Tanzy (1983), 99 Ill. 2d 19, 21; see also, Jones v. United States (1983), 463 U.S. 354, 370, 77 L. Ed. 2d 694, 709, 103 S. Ct. 3043, 3052.) Utilization of the extended-term statute does not change the rehabilitative focus of criminal commitment. It also does not alter the indefinite character of the commitment period, since defendant may be released anytime he regains his sanity. The trial court’s actions simply provided for a potentially longer period in which defendant could receive treatment subject to judicial review. See People v. Valdez (1980), 79 Ill. 2d 74, 86, 402 N.E.2d 187.

Moreover, the trial court’s characterization of defendant’s conduct as “exceptionally brutal or heinous behavior indicative of wanton cruelty” did not indirectly punish defendant, who was not criminally responsible for that conduct. Application of the extended-term statute is determined by the “offense” rather than by the extent or nature of defendant’s participation (People v. Gray (1980), 87 Ill. App. 3d 142, 153, 408 N.E.2d 1150, appeal denied (1980), 81 Ill. 2d 604, cert, denied (1972), 405 U.S. 930, 30 L. Ed. 2d 804, 92 S. Ct. 983), and there is no question but that the offense in the present case was accompanied by conduct coming within the statutory language. Courts have recognized that the dangerousness manifested by an insanity acquit-tee’s criminal acts justifies additional safeguards prior to his release from detention. See People v. Gamble (1983), 117 Ill. App. 3d 543, 545, 453 N.E.2d 839, appeal denied (1983), 96 Ill. 2d 562; People v. Thiem (1980), 82 Ill. App. 3d 956, 403 N.E.2d 647.

Defendant also argues that utilization of the extended-term statute to set the maximum period of criminal commitment violates his right to equal protection of the laws where the legislature has prohibited such a length of commitment for a defendant found unfit to stand trial. (See Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 25(g)(2) and 104 — 25(g)(4).) More specifically, he argues that unfit defendants and insanity acquittees are similarly situated with respect to involuntary noncivil commitment, because both groups contain persons whose commitment is predicated on a finding of mental illness, dangerousness and proof of a criminal act.

Where a statutory classification provides different procedures for treating two groups, equal protection requires only that the classification is based on a rational difference of condition or situation and that the classification is reasonably related to a legitimate governmental objective. The burden is on the person challenging the law to overcome the presumption of validity. People v. Valdez (1980), 79 Ill. 2d 74, 83-84, 402 N.E.2d 187; Garcia v. Tally (1978), 72 Ill. 2d 1, 377 N.E.2d 10.

In the case at bar, the different procedures are based on a substantial difference in circumstances. Where a criminal defendant has been found unfit to stand trial, the State retains a strong interest in bringing him to trial. However, the legislature has determined that the State’s interest in determining whether an accused would become competent in the near future will not justify a commitment period which exceeds the maximum sentence he would have received had he been convicted and sentenced under section 5 — 8—1. (See Ill. Rev. Stat. 1981, ch. 38, par. 104 — 25(g)(4); see also People v. Rink (1983), 97 Ill. 2d 533, 543-44, 455 N.E.2d 64.) The unfit defendant’s commitment period is limited because he may be brought to trial for his crimes if he recovers from his mental illness during the commitment period. Ill. Rev. Stat. 1981, ch. 38, par. 104 — 25(g)(1); People v. Raseaitis (1984), 126 Ill. App. 3d 600, 607, 467 N.E.2d 1098.

In contrast, an insanity acquittee must either be released or civilly committed at the conclusion of his criminal commitment period. (See Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 231-33, 437 N.E.2d 712.) Consequently the primary interest of the State in the commitment of the acquittee is the protection of society. People v. Valdez (1980), 79 Ill. 2d 74, 82-83, 402 N.E.2d 187; People v. Javurek (1976), 40 Ill. App. 3d 218, 220, 351 N.E.2d 897.

Because the unfit defendant faces the possibility of being tried and ultimately incarcerated for his crimes while the insanity acquittee does not, the legislature clearly had a rational basis for determining the unfit defendant’s maximum period of involuntary commitment differently from that of the insanity acquittee. The different procedures are substantially related to important governmental objectives and do not reflect discrimination against insanity acquittees. Our holding that the trial court’s construction of section 5 — 2—4(b) does not violate defendant’s equal protection rights “accords with the widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.” Jones v. United States (1983), 463 U.S. 354, 370, 77 L. Ed. 2d 694, 709, 103 S. Ct. 3043, 3052-53.

We also reject defendant’s final contention that a due process violation occurs if an insanity acquittee is subject to an extended term of criminal commitment while the unfit defendant is not. The due process clause requires only that a statute is reasonably designed to accomplish constitutionally permissible objectives. (People v. Raseaitis (1984), 126 Ill. App. 3d 600, 608, 467 N.E.2d 1098; People v. Burton (1981), 100 Ill. App. 3d 1021, 427 N.E.2d 625, appeal denied (1981), 85 Ill. 2d 568.) Here, the primary objectives of section 5 — 2—4 were to insure that insanity acquittees would not be indeterminately institutionalized, while protecting society from the premature release of mentally ill persons who have been proved capable of dangerous acts. (People v. Hampton (1983), 121 Ill. App. 3d 273, 276-77, 459 N.E.2d 985; Governor’s Commission for Revision of the Mental Health Code of Illinois, Report 3-4, 46-48 (1977).) The trial court’s construction of section 5 — 2—4(b) clearly furthers the State’s interest by allowing the courts to consider the dangerousness of the acquittee’s acts in setting his maximum commitment period. It also provides a potentially longer period in which the court can monitor the treatment being rendered defendant and review any decision to release him. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 2—4(b), (i); People v. Valdez (1980), 79 Ill. 2d 74, 85-86, 402 N.E.2d 187.) Utilization of the extended-term statute also protects the acquittee from the threat of indeterminate commitment because it provides a maximum sentence which can be mechanically applied by the trial court to set a definite outer limit to defendant’s criminal commitment period. Defendant is also protected from unjustified institutionalization by provisions requiring periodic review of his condition by mental health professionals and release if he regains his sanity and is no longer dangerous to himself or society. (79 Ill. 2d 74, 85-86.) Accordingly, we find that the trial court’s interpretation of section 5 — 2—4(b) as allowing utilization of the extended-term statute to determine the maximum period of criminal commitment reasonably balances and protects the interests of society and those of the insanity acquittee.

For the reasons stated, the judgment and order of the trial court are affirmed.

Affirmed.

McGLOON, P.J., and CAMPBELL, J., concur.