author: JUSTICE JIGANTI

text:
    JOSEPH MOON, a Minor, by Seung Moon, his Father and Guardian, Plaintiff, v. ROY W. THOMPSON, Defendant and Third-Party Plaintiff-Appellant (Seung Moon et al., Third-Party Defendants-Appellees).
    First District (4th Division)
    No. 84—115
    Opinion filed September 20, 1984.

      Rooks, Pitts, Fullagar & Poust and Mountcastle & DaRosa, P.C., both of Wheaton (Nancy A. McKeating and David G. Mountcastle, of counsel), for appellant.
    Brenner, Mavrias, Dorn & Alm, of Chicago (Bruce Farrel Dorn, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The sole issue raised in this appeal is whether the common law doctrine of parental tort immunity bars an action for contribution against the parents of an injured minor child. The minor plaintiff, Joseph Moon, was riding his bicycle when he was struck by an automobile driven by the defendant, Roy Thompson. A lawsuit for personal injuries was filed against the defendant on behalf of the plaintiff by the plaintiff’s father. The defendant answered the complaint and filed a third-party action for contribution against the plaintiff’s parents. The trial court dismissed the third-party complaint, finding that the parental tort immunity doctrine barred an action for contribution against the plaintiff’s parents. The defendant now appeals the trial court’s order dismissing his third-party complaint.

The essence of the defendant’s argument on appeal may be summarized briefly. The defendant maintains that the parents were under a statutory duty to properly instruct their son in regard to the laws pertaining to the operation of a bicycle. (See Ill. Rev. Stat. 1977, ch. 951/2, par. 11—1501(b).) Because the third-party complaint alleges that the plaintiff’s parents were negligent in fulfilling this statutory duty, the defendant contends that Illinois case law supports an action for contribution against the parents. We agree.

The doctrine of contribution among joint tortfeasors was first adopted by the Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437. The Skinner decision was later codified by the legislature in the Contribution Among Joint Tortfeasors Act. (Ill. Rev. Stat. 1979, ch. 70, par. 302.) The Act provides: “[wjhere 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them ***.” Ill. Rev. Stat. 1979, ch. 70, par. 302(a).

The law favoring contribution has occasionally clashed with certain statutory immunities which would defeat a direct action against the party from whom contribution is sought. In the cases addressing this issue, the Illinois courts have balanced the competing public policy concerns supporting contribution and immunity, and generally have found that the law of contribution must prevail over a conflicting principle of immunity. For example, in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, the Illinois Supreme Court encountered the immunity provided to employers under the exclusivity provision of the Workers’ Compensation Act. (See Ill. Rev. Stat. 1981, ch. 48, pars. 138.5(a), 138.11.) The court found that despite the protection provided to employers from a direct suit by employees, a third party who had been sued by an injured employee could bring a third-party action for contribution against the employer. In reaching its decision, the court stated that “[t]he intent of the contribution statute was to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege.” (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9, 461 N.E.2d 382, 386.) Thus, the court concluded that the public policy considerations supporting contribution superseded the immunity provided to employers by the Workers’ Compensation Act when the two principles came into conflict. See also Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437.

Similarly, in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, the issue before the court was whether the interspousal tort immunity doctrine barred a third-party contribution action against a third-party defendant who had been married to the plaintiff in the primary action when the cause of action arose. The Illinois statute containing the interspousal tort immunity doctrine states that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Ill. Rev. Stat. 1979, ch. 40, par. 1001.) The Wirth court noted the conflict between the interspousal tort immunity doctrine and the Contribution Act, stating that the recent trend in Illinois had been to curtail common law tort doctrines to allow contribution among joint tortfeasors and that “to allow a loophole to contribution would mar our promising new contribution and comparative negligence schemes as well as detract from an equitable development of these doctrines.” (Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1080, 430 N.E.2d 236, 241.) Furthermore, the court observed that if the legislature had intended to preserve interspousal tort immunity as a bar to contribution from a negligent spouse, specific language would have been included in the Contribution Act as had been done in other jurisdictions. Accordingly, under the law of Illinois, the Wirth court found that the public policy considerations inherent in the Contribution Act outweighed those which concerned the interspousal tort immunity doctrine.

In Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221, the court addressed the interplay between the Contribution Act and the common law parental tort immunity doctrine, a setting which also comprises the conflict at issue in the case at bar. Unlike the case at bar, however, the Larson court did not encounter facts touching peripherally upon the issue of a parent’s negligent supervision of his child. In Larson, the father of three minor children was driving an automobile which collided with a car driven by the defendant. The children’s mother brought suit against the defendant for negligence. The defendant filed a third-party contribution action against the father. Although the children would have been barred by the parental tort immunity doctrine from bringing a direct suit against their father, the appellate court found that the defendant nonetheless could pursue an action for contribution against the father under the Contribution Act. In reaching its decision, the court cited the Wirth opinion and stated that no public policy considerations would be sacrificed by the application of the Contribution Act over the competing provisions of the parental tort immunity doctrine. The Larson court specifically stated, however, that it declined to decide whether a contribution action would lie if the third-party complaint alleged that the parent-third-party defendant had negligently supervised the actions of his child. Although the Larson court discussed the concept of negligent supervision at great length, the court’s holding was expressly limited in its application to exclude actions for negligent supervision. Whether negligent supervision of a minor child will support a third-party action for contribution has thus remained an open question in Illinois.

It is against this background of Illinois case law that we address the facts presented in the case at bar. The plaintiff has argued that this is solely a case of negligent supervision which should defeat an action for contribution. In essence, the plaintiff maintains that parental supervision of a child is by its very nature a personal and private aspect of the family unit which falls squarely within the confines of the parental tort immunity doctrine. In such a situation, the plaintiff contends, a parent’s authority, discretion and control in rearing his child should prevail over any conflicting provisions of the Contribution Act. Under the facts of the instant action, we disagree.

The defendant has alleged in his third-party complaint that the plaintiff’s parents negligently performed a statutory duty to oversee the actions of their child. The Illinois Motor Vehicle Code makes it unlawful for a parent to “authorize or knowingly permit” his child to violate any provisions of the Code, including those provisions which set forth the law pertaining to the operation of bicycles. (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—1501(b).) The defendant observes that “[t]he statute itself denies parents the discretion to do as they see fit and tells them what they must do.” In other words, the defendant maintains that a parent’s discretion and control in overseeing his child’s use of a bicycle has already been circumscribed by the legislature and that therefore, no compelling public policy considerations would suffer by allowing a third-party to pursue a contribution action against the parent.

We believe that the defendant’s reasoning is sound. This is not a pure case of negligent parental supervision; rather, the parental supervision at issue in this case concerns a statutory duty imposed upon parents by the legislature. The legislature has already determined that it is a proper exercise of its police power to dictate the manner in which a parent shall instruct and supervise his child’s operation of a bicycle. Thus, we do not believe that a third-party action for contribution would violate the private confines of the family unit in any manner other than that already condoned and prescribed by the legislature. Because this is not an action concerned with a parent’s private and personal right to supervise the actions of his child, we believe that the Larson decision controls the facts presented in the case at bar. As in Larson, there are no compelling public policy considerations that dictate the protection of the parental tort immunity doctrine in regard to actions for contribution. Accordingly, we find that the trial court improperly dismissed the defendant’s third-party action for contribution against the plaintiff’s parents.

We believe this conclusion is supported by the trend represented by the Doyle, Wirth, and Larson cases, wherein the provisions of the Contribution Act prevailed against a competing principle of immunity. We further think the above reasoning is proper in light of the manner in which the parental tort immunity doctrine has been eroded by the Illinois courts in recent years. In Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, the court allowed a father to recover for personal injuries when he was negligently struck by a car driven by his minor daughter while he was a pedestrian on a city street. Because the accident had no direct connection to the family relationship, the parental tort immunity doctrine did not bar an action by the father against his daughter. Similarly, in Cummings v. Jackson (1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127, a child was injured by an automobile. The driver of the automobile alleged that the child’s parent had failed to trim certain trees which blocked the child from the driver’s view. The driver pursued an action for contribution against the parent for the child’s injuries. The court found that because the parent’s duty to maintain the trees was a duty owed to the general public, the driver’s third-party action for contribution would lie against the parent.

In the case at bar, the legislature has removed a parent’s control of his child’s operation of a bicycle outside the very private inner-circle of the family relationship. As in Schenk, the public policy considerations necessitating protection of the family unit will not be disturbed if the parental tort immunity doctrine is not strictly observed in this case. Furthermore, as in Cummings, the duty of the plaintiff’s parents to instruct their child regarding the operation of a bicycle was a duty imposed for the safety of both the child and the general public. Where strict application of the parental tort immunity doctrine has been found unnecessary by the Illinois courts absent compelling policy reasons to the contrary, we do not believe that the rationale underlying the parental tort immunity doctrine was sufficient to prevail over the allowance of an action for contribution in the case at bar.

For the reasons stated above, the trial court’s order dismissing the defendant’s third-party complaint is reversed.

Reversed.

JOHNSON and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE CANNON, Defendant-Appellant.
    First District (5th Division)
    No. 83—2158
    Opinion filed September 21, 1984.
    Jeffery M. Leving, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

On December 28, 1981, the defendant, Lawrence Cannon, was sentenced to a term of three years’ probation upon his conviction for robbery, and on September 13, 1982, he was sentenced to a concurrent term of 30 months' probation for felony theft. (Ill. Rev. Stat. 1981, ch. 38, pars. 18—1, 16—1.) Subsequently, on September 6, 1983, he was found guilty of violating probation by committing the offense of retail theft, his probation was revoked and he was sentenced to concurrent terms of five years in the penitentiary. He appeals, contending the trial court abused its discretion by striking his subpoena for statistical evidence from the State, which he claims deprived him of the right to present evidence of an impermissible standard in its institution of felony probation revocation proceedings prior to trial on the criminal charge which constitutes the violation.

The record shows that on December 28, 1981, the defendant entered a plea of guilty to the offense of robbery before Judge Mahon and was sentenced to a term of three years’ probation. On September 13, 1982, defendant appeared before the same judge and entered another plea of guilty to a charge of theft by embezzlement of approximately $12,000 from his employer; he was sentenced to 30 months’ probation, including one year of periodic imprisonment upon the latter plea.

On December 30, 1982, the defendant was charged by misdemeanor complaint with retail theft. The State then filed two petitions asserting a violation of probation, and the defendant moved to delay proceedings on the petitions until the disposition of the retail theft case. Defendant also caused the State’s Attorney of Cook County to be served with a subpoena duces tecum as follows:

“YOU ARE COMMANDED ALSO to bring the following: (1) The Cook County States Attorney’s Office practice in proceeding in Felony violation of Probation Hearings when the underlying basis for V.O.P. is a misdemeanor charge. Does V.O.P. hearing proceed first, or the trial of the misdemeanor charge which is the basis for the V.O.P. (2) Bring statistics for the last two years showing how the Cook County State’s Attorney Office has proceeded in Felony V.O.P. Hearings when the basis of the V.O.P. Hearings were misdemeanor charges (was the misdemeanor tried first, or was the V.O.P. Hearing tried first?) in your possession or control.”

After hearing the arguments of counsel, the trial court granted the State’s motion to strike the subpoena duces tecum and denied the defendant’s motion to delay probation revocation proceedings.

Briefly, the evidence at the revocation hearing showed the defendant was in a T. J. Maxx retail store on December 30, 1982. A security guard testified that he saw the defendant go to the rear of the store with two pairs of men’s slacks. He put one pair inside the waist area of his trousers and the other pair inside his jacket underneath the left arm. Defendant then walked through the store to its only exit on Cicero Avenue, passing the cash registers without stopping. The security guard and a store manager caught the defendant in their parking lot and brought him inside to the security office, where defendant asked if he could be given a “break” because he had a wife and six children and was on probation.

For the defense, Debra Adams and defendant’s 12-year-old son testified they had been in the store with the defendant, but left him inside to go to another store in the shopping mall. Each said the defendant yelled to them when they were about 300 feet away, but that they did not see him after that time. Defendant testified that Debra Adams was his girl friend and that he yelled to her for the purpose of getting her to come back and pay for the pants. He admitted he had them on his arm, but said he went no further than the store vestibule to call Debra. He denied the pants were concealed on his person and denied that he was outside the store premises.

Defendant contends that the trial court erred by striking his subpoena for statistical evidence from the State. He maintains that because of the court’s action, he was denied the right to present evidence of an impermissible standard used by the State in its decision to proceed for a probation revocation prior to the trial of the underlying misdemeanor charge of retail theft. He further states that statistics regarding “office policy” of the State’s Attorney in probation revocation proceedings are relevant to prove an impermissible standard.

A subpoena duces tecum will be quashed if the requesting party fails to show: (1) that the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) that the requesting party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and is not intended as a general “fishing expedition.” (United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090.) Defendant is entitled to material which tends to negate his guilt as to the offense charged, and to evidence material to the preparation of his case not covered by the Supreme Court Rules. (People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319.) In order for a defendant to invoke a defense based on the theory of denial of equal protection of the law, he must show not only selectivity but also the application by law enforcement officials of an unjustifiable or impermissible standard in making the selection. (Oyler v. Boles (1962), 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 50; People v. Brandstetter (1982), 103 Ill. App. 3d 259, 270, 430 N.E.2d 731.) In the absence of evidence that the defendant has been illegally discriminated against, the court may not determine that the prosecutor has exercised his lawful discretion arbitrarily against defendant or that he applied an impermissible standard by basing his decision on a characteristic of the defendant, such as race, religion or nationality, to the defendant’s disadvantage. People v. Golz (1977), 53 Ill. App. 3d 654, 368 N.E.2d 1069.

In the instant case, defense counsel argued that the prosecution arbitrarily chose to institute the revocation proceedings prior to trial on the misdemeanor charge of retail theft, thereby depriving defendant of a right to defend himself. As to the subpoena, he argued that he needed statistical evidence from the State to show bias on the part of the State, stating that defendant is a member of the minority race. Defense counsel did not show that the requested statistical data in the subpoena would tend to support any allegation of fact based on a discriminatory bias against the defendant. He merely speculated that these files would aid his defense; such speculation amounted to nothing more than a general “fishing expedition.” Furthermore, the law in Illinois is that a defendant has no right, nor is the State obligated, to delay defendant’s probation revocation hearing until after a trial for the underlying offense which constituted the violation of probation. (People v. Huff (1976), 44 Ill. App. 3d 273, 357 N.E.2d 1380.) We therefore hold that there is no merit to the contention of the defendant.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE LINN

text:
    SHARON SERPICO, Petitioner-Appellee, v. JAMES URSO, Respondent-Appellant.
    First District (4th Division)
    No. 83—1566
    Opinion filed September 20, 1984.
    Edward D. Rosenberg, Steven R. Lake, Mary D. Paulsen, and Alan J. Toback, all of Lake, Rosenberg & Associates, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Robert F. Cleary, Catherine Quattrocchi, and Sean McDermott, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Prior to pleading guilty, defendant, who first appeared pro se in response to a summons and complaint charging him with the paternity of plaintiff’s child, was not fully informed of certain statutorily prescribed rights as required under section 5 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1355). Alleging the trial court’s failure to comply with the statute, defendant petitioned to vacate his guilty plea. The court, denying the petition, found defendant to be the father of plaintiff’s child and, after a support hearing, ordered him to pay $30 per week child support.

Defendant appeals from the denial of his petition and from the order for child support. He also claims as error the trial court’s sustention of the State’s objection to calling the prosecuting attorney as an occurrence witness at the hearing on the petition.

We vacate in part, affirm in part, and remand.

Defendant, James Urso, was served with a summons and complaint charging him with the paternity of a child born to plaintiff, Sharon Serpico. On October 6, 1982, defendant appeared pro se before the bench in the circuit court of Cook County in response to the summons. He alleges that while waiting for his case to be called between 9 a.m. and 2 p.m., he consumed at least five ounces of whiskey and that as a result thereof he was unable to comprehend either the nature of the proceedings or of the admonitions he received, as mandated by section 5 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1355).

A dispute exists as to whether defendant was informed of any of these rights prior to the court’s asking for his plea. The State contends that upon entering the courtroom, defendant was handed a sheet of paper containing some, though concededly not all, of the rights set forth in section 5 of the Act. Defendant, on the other hand, claims that he never received anything advising him of his rights prior to the court’s asking him if he was “ready to admit or deny being the father” of plaintiff’s child.

It is undisputed that defendant, in response to the court’s question, admitted paternity, whereupon the trial court made a “legal finding” that defendant was the father of plaintiff’s child. The court then asked defendant if he knew he had a right to a trial on the issue and to a blood test, to which defendant answered in the affirmative. The court then asked defendant if he was waiving his rights and admitting paternity, and defendant answered, “Yes.”

Defendant subsequently obtained counsel and filed a petition to vacate his guilty plea and to grant him leave to file a jury demand. The petition alleged that defendant was intoxicated at the time of the October 6 hearing and that he was therefore incapable of understanding and does not remember receiving any admonition of his rights given pursuant to section 5 of the Paternity Act. It further alleges that he was not advised of any of his rights under the Act until after his guilty plea was entered and that when he was advised, it was as to fewer than all of the prescribed rights.

A hearing was held on the petition to vacate on December 2, 1982. Defendant called, as his first witness, Assistant State’s Attorney Cynthia Brown. Ms. Brown was the prosecuting attorney on the case and objected to being called as a witness. The court asked both parties to submit briefs on the issue of whether Ms. Brown could be called to testify by the defense, and the case was continued.

On January 31, 1983, the cause again came on for hearing. After arguments of counsel, the court sustained the State’s objection to calling Ms. Brown as a witness. The hearing proceeded on the matters of fact raised in defendant’s petition.

Defendant called Sharon Serpico as an adverse witness. She testified that on the day of the October 6 hearing, defendant drove her to and from the courthouse. She further testified that she had not smelled any alcohol on defendant’s breath but that he had left the courtroom after telling her he was going to put money in the parking meter. She stated that she did not find his behavior odd in any way and that his driving on the way home from the hearing was fine.

Defendant testified on his own behalf. He testified that he had been drinking heavily prior to the hearing, and he denied ever having received any sheet of paper advising him of his rights. When examined on his understanding of the terms contained on the sheet of paper he allegedly received, defendant testified that he did not know the meaning of the terms “out of wedlock” or “the right to confront all witnesses” that may be brought against him. He further denied understanding the meaning of having a right to a blood test, what a jury trial was, or of being held responsible for the support of the child should he be found to be the father.

At the conclusion of the hearing, defendant’s petition to vacate his guilty plea and for leave to file a jury demand was denied. A support hearing was held on May 24, 1983, at which time defendant amended and renewed his petition to vacate the plea of guilty entered October 6, 1982. The amended petition was denied. Following testimony by defendant and plaintiff, defendant was ordered to pay Sharon Serpico the sum of $30 per week child support. It is from the entry of this order and from the other adverse rulings entered in the course of these proceedings defendant now appeals.

On appeal, defendant contends that the trial court failed to advise him of certain statutory rights in compliance with section 5 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1355). Section 5 reads in

pertinent part as follows:

“*** |jp0n the first appearance of the accused, the Judge shall fully advise him of his rights to counsel and to a complete transcript of the proceedings in the cause. The judge shall further inform the defendant that he may plead not guilty, that if a blood test conclusively excludes him as a father he must be found not guilty, that he must be proven guilty by a preponderance of the evidence, that he has a right to a trial by jury in the cause, and that if he is proven to be the father of a child born out of wedlock he will be liable for the support, maintenance, education and welfare of the child until the child attains the age of 18, as well as the reasonable expenses of the mother during the period of her pregnancy, confinement and recovery. If the defendant desires counsel and has been unable to obtain same before the date upon which he appears, the court shall recess or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge. ***” (Emphasis added.)

The State claims that the trial court complied with section 5 on the grounds that (1) the word “shall” as it appears in the Act should be construed as merely directory rather than mandatory, and (2) even if construed as mandatory, the sheet of paper handed to defendant prior to hearing coupled with the court’s admonitions substantially complied with the Act’s requirements. We find no merit in either of these contentions.

Whether an enactment is directory or mandatory depends on the legislative intention, to be ascertained from the nature and object of the act and the consequences which would result from any given construction. (Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 454 N.E.2d 29.) The general rules for the construction of statute as either mandatory or directory were set forth in Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335, as follows:

“*** The use of the words ‘shall’ or ‘must’ is generally regarded as mandatory. However, the term ‘shall’ does not have a fixed or inflexible meaning. It can, in fact, be construed as meaning ‘may,’ depending on the legislative intent. However, ‘[wjhere the word is employed with reference to any right or benefit to anyone, and the right or benefit depends upon giving a mandatory meaning to the word, it cannot be given a permissive meaning. ***’ ”

Thus, the word “shall” may be held to be merely directory only where no advantage is lost, no right is destroyed, and no benefit is sacrificed, either to the public or to any individual. (Clark v. Brown (1970), 121 Ill. App. 2d 280, 257 N.E.2d 565.) Such is not the case in the present action.

In section 5 of the Paternity Act, the word “shall” is employed with reference to the defendant’s right to counsel, to a complete transcript of the proceedings, to plead not guilty, to be proved guilty by a preponderance of evidence, and to a trial by jury. Because these rights depend on giving the word “shall” a mandatory construction, it cannot be given a merely directory meaning. It was therefore incumbent upon the trial court to “fully advise” defendant of these statutorily granted rights. To deprive him of such admonitions was error.

The State alternatively argues that even if the word “shall” as it appears in section 5 of the Paternity Act is given a mandatory construction, the trial court, by a combination of written and oral admonitions, substantially complied with the provision. The State supports its position with the “statement of rights” allegedly given to defendant and the report of proceedings from the October 6 hearing.

The “statement of rights” handed out by the trial court to defendant reads as follows:

“1. YOU ARE CHARGED with being the father of a child born out of wedlock. That is why you are in Court today.
2. YOU HAVE THE RIGHT to an attorney. If you cannot afford one, the Court will appoint a Public Defender for you.
3. YOU HAVE THE RIGHT to take a blood test; but the results may be used for or against you.
4. YOU HAVE THE RIGHT to a jury trial.
5. YOU HAVE THE RIGHT to confront all witnesses that may be brought against you.
6. IF YOU ARE FOUND to be the father of the child, you will be responsible for the support of the child until the child reaches the age of 18.”

After defendant was allegedly handed this sheet, the proceedings, as documented in the report of proceedings upon which the State also relies as evidence that the trial court substantially complied with section 5, commenced as follows:

“Q. Mr. Urso did you read your rights?
A. Yes.
Q. Do you have any questions about your rights or our procedure?
A. No.
Q. Are you ready to admit or deny being the father?
A. I admit it.
* * *
Q. I will make a legal finding that you are the father. Are you working?
A. Yes.
Q. As to whether or not you are the father.
A. Yes.
Q. And you have the right to a blood test?
A. Yes.
Q. And you are waiving your rights and admitting that you are the child’s father?
A. Yes.”

An examination of the combined admonitions set forth on the printed sheet and given to defendant verbally by the court reveals that defendant was never advised of his right to plead not guilty, of the necessity that he be proved guilty by a preponderance of the evidence, or of the fact that if the blood test excluded him as the father, he must be found not guilty. Neither was defendant advised of the total responsibility to plaintiff and plaintiff’s child that attaches to a finding of guilt. Defendant was never asked if he desired counsel nor informed that the proceedings would recess if he desired to obtain counsel, which he subsequently did. Lastly, defendant was never informed that he had the right to a complete transcript of the proceedings. The State acknowledges the court’s failure to advise defendant of these rights but claims that the court nevertheless made a “substantial and reasonable” effort to comply with the statutory provisions. The State asserts that the trial court’s failure to advise the defendant “of a few rights” was not so substantial as to disadvantage this defendant.

The State’s casual characterization of a defendant’s right to plead not guilty, to be informed of the State’s burden of proving him guilty by a preponderance of evidence, and to be informed of the full consequences attached to a guilty plea as merely “a few rights” is legally inappropriate. The omission to advise a defendant of these important rights, and the attempt by the State to minimize that omission is unacceptable to this court. On the facts before us, we cannot find that the trial court substantially complied with the mandate of section 5.

Defendant next claims as error the trial court’s sustention of the State’s objection to calling the prosecuting attorney as an occurrence witness. Defendant asserts that Ms. Brown, the assistant State’s Attorney, was competent to testify to defendant’s intoxication and to the events and circumstances surrounding the purported admonitions given him. The State does not claim that Ms. Brown was incompetent to testify, but points out that there was at least one other witness competent to testify and that it was in the discretion of the trial court to decide whether Ms. Brown would be allowed to testify. The applicable law supports the State’s position.

A trial court has wide discretion in refusing to permit attorneys to testify at a trial wherein they also serve as advocates, especially where there are other witnesses available. (People v. Tate (1978), 64 Ill. App. 3d 1, 380 N.E.2d 976.) Such testimony is allowed when the trial court, in its discretion, finds that it is necessary. (People v. Jackson (1982), 105 Ill. App. 3d 750, 433 N.E.2d 1385.) Because courts are especially reluctant, and rightfully so, to allow lawyers, including prosecuting attorneys, to be called as witnesses in trials in which they are advocates, a court may, without abusing its discretion, refuse to allow the defense to call as a witness the State’s Attorney trying the case. (People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208, cert, denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.) This is especially so where, as here, another witness is available to testify and could testify as easily as counsel. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

The able and concerned trial court, before ruling on the State’s objection to defendant’s calling the assistant State’s Attorney as a witness, had both parties submit briefs on the issue. After reading the briefs and hearing argument of counsel, the trial court exercised its broad discretion and sustained the State’s objection, no doubt having taken into account the necessity of counsel’s testimony and the availability of other witnesses. Given the general disfavor with which calling a participating advocate to testify is viewed, and the wide discretion afforded the trial court regarding these matters, we will not disturb the trial court’s ruling on the State’s objection to calling Ms. Brown as a witness.

For all of the foregoing reasons, we vacate the orders of: October 6, 1982, finding defendant to be the father of plaintiff’s child; December 2, 1982, denying defendant’s petition to vacate his guilty plea; and May 25, 1983, denying defendant’s motion to open the prior plea of guilty and ordering him to pay child support. We vacate in part the order of January 31, 1983, denying defendant’s amended petition and petition to vacate the guilty plea and to grant him a trial by judge or jury.

We affirm the order entered January 31, 1983, to the extent that it denies defendant the right to call Assistant State’s Attorney Cynthia Brown as a witness and remand for a continuation of the proceedings.

Vacated in part, affirmed in part, and remanded.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE WHITE

text:
    BETTY THOMPSON, Plaintiff-Appellant, v. TORMIKE, INCORPORATED, d/b/a Marco’s Dog House, Defendant-Appellee.
    First District (3rd Division)
    No. 83—1670
    Opinion filed September 28, 1984.
    Ettinger & Schoenfield, Ltd., of Chicago (Rick M. Schoenfield and Craig J. Katz, of counsel), for appellant.
    Sherwin Greenberg, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Betty Thompson, appeals from an order of the trial court granting the motion of defendant, Tormike, Incorporated, to dismiss plaintiff’s complaint for failure to state a cause of action. The complaint alleged that: (1) on or about January 10, 1981, plaintiff was injured when she slipped and fell in the parking lot of Marco’s Dog House, a restaurant owned and operated by defendant; (2) defendant maintained the parking lot to the restaurant in a condition dangerous to life and detrimental to health by allowing an unreasonable amount of ice to accumulate thereon; (3) as a result of the condition of the parking lot plaintiff was injured in her head, body and limbs and suffered bodily pain and injury and mental anguish; and (4) the parking lot constituted a public nuisance in violation of chapter 99, section 4, of the Municipal Code of Chicago.

Plaintiff contends that the parking lot was a public nuisance. Plaintiff further contends that an action in nuisance may be maintained for compensation for personal injuries against the party responsible for a public nuisance. Plaintiff thence concludes that her complaint stated a cause of action.

Chapter 99 of the Municipal Code of Chicago provides in relevant part:

“Every building or structure constructed or maintained in violation of the building provisions of this code, or which is in an unsanitary condition, or in an unsafe or dangerous condition, or which in any manner endangers the health or safety of any person or persons, is hereby declared to be a public nuisance.”
“It shall be the duty of the commissioner of buildings to serve notice, in writing, upon the owner, occupant, agent, or person in possession, or control of any lot, building, or premises in or upon which any nuisance may be found *** requiring him to abate the same in such manner as he shall prescribe, within a reasonable time.”
“Any person violating any of the provisions of this chapter shall be fined not less than five dollars and not more than two hundred dollars for each offense, except where otherwise specifically provided. A separate and distinct offense shall be held to have been committed each day any person continues to violate any of the provisions hereof.” (Chicago Municipal Code 1982, ch. 99, secs. 99-4, 99-1, 99-74.)

Chapter 99 does not expressly authorize a private cause of action for damages. We are aware that “when a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability even though the former remedy is not specifically mentioned therein.” (Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, 5, 359 N.E.2d 473; Heimgaertner v. Benjamin Electric Mfg. Co. (1955), 6 Ill. 2d 152, 155, 128 N.E.2d 691.) However, we are of the opinion that a cause of action should not here be implied. A private cause of action is not necessary to achieve the aim of the city ordinance. (See Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 392 N.E.2d 154.) The ordinance provides that a violator shall be fined $5 to $200 for each offense committed and that a separate and distinct offense shall be held to have been committed each day the violation continues. The fines can thus be substantial and in all probability will deter the commission of the offense.

Moreover, the law of Illinois is that a landowner has no duty to remove or take other precautions against the dangers inherent in natural accumulations of snow and ice. (Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 896, 433 N.E.2d 713; Hankla v. Burger Chef Systems, Inc. (1981), 93 Ill. App. 3d 909, 910, 418 N.E.2d 35; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 548, 400 N.E.2d 16.) Liability will be imposed only where the injury occurred as a result of snow and ice which is produced or accumulated by an artificial cause or in an unnatural way or by defendant’s own use of the area concerned and creation of the condition. (Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 897; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 548.) Were we to allow a private cause of action under a public nuisance theory, we would defeat the established law in Hlinois regarding liability for removal of snow and ice. We refuse to do so.

For the aforementioned reasons the order of the circuit court of Cook County dismissing plaintiff’s complaint is affirmed.

Affirmed.

RIZZI, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE STAMOS

text:
    BOLTON LINTON, Plaintiff-Appellant, v. SMITH & WESSON, a Division of Bangor Punta Corporation, Defendant-Appellee.
    First District (2nd Division)
    No. 83—2544
    Opinion filed September 18, 1984.

      Motherway & Glenn, of Chicago (Robert J. Drummond, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago, and John B. Glendon, of Greenwich, Connecticut (Anne G. Kimball, James D. Fiffer, and Carl R. Burnton, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff appeals from the dismissal of counts I and II of his second amended complaint seeking recovery from defendant, a handgun manufacturer, based upon its distribution of a gun which was used by a third party to injure plaintiff.

This action arose out of personal injuries suffered by plaintiff when he was shot in a Chicago tavern. Plaintiff’s original complaint named Smith & Wesson and the tavern owner as defendants. Recovery was sought against Smith & Wesson, the manufacturer of the firearm used to shoot plaintiff, on a theory of strict liability in tort. Plaintiff’s claim against the tavern was premised on the Illinois Dramshop Act. Upon motion of Smith & Wesson, the court dismissed the strict liability claim for failure to state a cause of action.

A first amended complaint followed, again seeking recovery against Smith & Wesson on a strict liability theory. The first amended complaint also named Charlene Eure as a defendant. Eure is the person who, while intoxicated, allegedly shot plaintiff. The court again dismissed the claim directed against Smith & Wesson as legally insufficient.

Plaintiff thereafter filed a second amended complaint. Four of the seven counts of this complaint are directed against Smith & Wesson. The three remaining counts are directed against the tavern and Eure. Count I alleges that Smith & Wesson is liable to plaintiff for the wilful and wanton distribution of the gun used to shoot plaintiff. Count II alleges that Smith & Wesson negligently distributed the firearm. Counts III and IV sought recovery from Smith & Wesson in strict liability.

All four counts directed against Smith & Wesson were stricken by the court for failure to state a cause of action. Plaintiff has not sought leave to amend these counts. Rather, he seeks review of the dismissal with respect to counts I and II only. The dismissal of counts III and IV is not challenged on appeal.

Both counts involved in this appeal charge Smith & Wesson with the duty to “prevent the sale of its handguns to persons who are likely to cause harm to the public.” The determinative issue before this court, therefore, is whether such a duty existed. (See Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96; Maramba v. Neuman (1967), 82 Ill. App. 2d 95, 98, 227 N.E.2d 80.) “The determination of the question of duty, whether the parties stood in such a relationship to one another that the law will impose upon one an obligation of reasonable conduct for the other's benefit, is an issue of law to be resolved by the court.” Walsh v. A. D. Conner, Inc. (1981), 99 Ill. App. 3d 427, 430, 425 N.E.2d 1153.

Plaintiff argues that defendant has a duty to use “reasonable means to prevent the sale of its handguns to persons who are likely to cause harm to the public.” The only Illinois authority cited by plaintiff in support of this contention is Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 117 N.E.2d 883. We find this case to be distinguishable from the case at bar, as it does not involve liability based upon the manufacture of products intended for distribution to the general public, but rather imposes liability based upon the sale of toy weapons to children, a class of persons known to be irresponsible in the use of such products. In Semeniuk, the Illinois appellate court found that a retailer had a duty to the plaintiff to use care in selling air rifles to persons whom the retailer knew would allow their use by young children. In that case, the defendant, a merchant, sold an air rifle to the father of a seven-year-old boy who, the defendant knew, lacked the judgment, discretion and experience to use such a product safely and who would in all probability discharge the gun in the city of Chicago and thereby endanger members of the public. Semeniuk dealt only with the liability of the retailer, and did not impose liability upon the manufacturer of the air rifle or upon a remote vendor. (See Pitts v. Basile (1966), 35 Ill. 2d 49, 54, 219 N.E.2d 472.) This case therefore sheds little light on the issue now before us.

Plaintiff also cites Moning v. Alfono (1977), 400 Mich. 425, 254 N.W.2d 759, in which the supreme court of Michigan held that a manufacturer, wholesaler and retailer of toy slingshots which were marketed directly to children owed a legal obligation of due care to bystanders affected by the use of the products. (400 Mich. 425, 432, 254 N.W.2d 759, 762.) However, Moning, a 3-2 decision of the Supreme Court of Michigan in which two justices did not participate, is of questionable precedential value in Illinois.

No Illinois decision has imposed a duty upon the manufacturer of a nondefective firearm to control the distribution of that product to the general public, such regulation having been undertaken by Congress, the Illinois General Assembly and several local legislative bodies. (See 18 U.S.C. sec. 921 et seq. (1976); Ill. Rev. Stat. 1981, ch. 38, par. 83—1 et seq.; and the Chicago Municipal Code 1982, ch. 110, sec. 11.1 et seq.) Plaintiff has made no allegations that defendant circumvented any of these regulations.

We find that the trial court correctly determined that defendant owed no duty to plaintiff based upon the allegations of counts I and II of his second amended complaint, and therefore that these counts were properly stricken as being substantially insufficient as a matter of law. Ill. Rev. Stat. 1981, ch. 110, par. 2—615.

The decision of the circuit court is affirmed.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE TIMMONS, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 83—1044
    Opinion filed September 18, 1984.

      James J. Doherty, Public Defender, of Chicago (Frank P. Madea, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and John L. Malevitis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant George Timmons, Jr. (Timmons), was charged with two counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1) and two counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A—1). Prior to trial in the circuit court of Cook County, the State nol-prossed the two counts of armed violence. At defendant’s request, the jury also received verdict forms for voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9—2). Thereupon, Timmons was found guilty of two counts of voluntary manslaughter. On March 30, 1983, Timmons was sentenced to two consecutive 25-year extended terms.

Timmons appeals, presenting the following issues for review: (1) whether the trial court erred in granting the State’s motion in limine to exclude the nonverbal statements of one of the victims; (2) whether the jury was properly instructed with regard to the use of defendant’s prior conviction; (3) whether the trial court erred in imposing extended and consecutive term sentences; and (4) whether the State’s use of peremptory challenges deprived defendant of a fair trial.

For the reasons hereinafter set forth, we affirm defendant’s convictions for voluntary manslaughter and modify the sentences imposed by the trial court.

At pretrial proceedings, the State filed a motion in limine to exclude from evidence nonverbal statements allegedly made by a victim, John Brooks. At the hearing on this motion, Terry Brooks, the victim’s brother, testified that he and his mother visited John in intensive care at St. Anne’s Hospital in Chicago on January 10, 1982, at approximately 9 p.m., some 19 hours after the shooting. During this visit, Terry asked his brother if his shooting was “accidental.” John responded by “noddpng] his head up and down indicating yes.” When Terry asked him if the shooting was “intentional,” John “shook his head no.” John was on a respirator, had tubing in his throat to assist him in breathing and appeared to be “drugged.” John went into a coma on the morning of January 11, and so remained until his death on January 16.

Dr. Reginaldo Picache, a surgeon, testified: On January 10, 1982, at approximately 4 a.m., he performed surgery on John Brooks at St. Anne’s Hospital. He observed that the patient’s carotid artery and jugular vein were severed beyond repair, and he “ligated” both of these “vessels” to prevent continual bleeding. There was also a hole in the trachea which rendered John Brooks unable to speak. It was Picache’s medical opinion that Brooks’ “mental faculties were impaired from the time of the shooting to the time of death.” Dr. Pi-cache at no time indicated to Brooks his physical condition because “[Brooks] was not alert enough to understand.” Following surgery, Dr. Picache monitored Brooks by communicating with nurses in attendance, and he based his opinion of John Brooks’ condition on the nurses’ “telephonic communications.” Brooks was examined by a neurosurgeon on January 11, who found Brooks to be “unresponsive” because of swelling of his brain.

Patricia King, a critical care nurse at St. Anne’s Hospital, testified that she “treated” John Brooks in the intensive care unit on January 10 and 11 following his surgery. Brooks, according to nurse King, was able to squeeze her hand with his right hand and to move his right leg, but his left side was paralyzed. Although King stated that Brooks responded to “certain commands by gesture,” “he had a tube down his throat” and “was unable to talk.” At some time on January 11, Brooks “became unresponsive to any kind of verbal, tactile, painful stimuli.”

Luretha Brooks, mother of John and Terry Brooks, testified that on January 10, at approximately 9:30 p.m., she and her son, Terry, visited John in the intensive care room at St. Anne’s Hospital. When Terry asked John if the shooting was accidental, he “nodded” his head yes; when Terry asked his brother if the shooting was intentional, “he shook his head no.” The parties then stipulated that Luretha’s testimony would be the same as that of her son Terry.

Defendant’s counsel argued that John Brooks’ nonverbal responses were dying declarations and therefore admissible as an exception to hearsay evidence.

The trial court granted the State’s motion in limine to exclude John Brooks’ nonverbal responses, finding that “John Brooks did make a nonverbal response, assertion to his brother ***”; that “there was a mortal wound inflicted on him”; and that “the nonverbal assertion does not fit within any of the recognized exceptions to the hearsay rule and is not admissible as a dying declaration ***” because the nonverbal responses made by Brooks were “conclusionary.”

At trial, Janeen Smith, a friend of Timmons, testified to the following: On January 9, at approximately 8:30 p.m., she arrived at the home of Desmona Timmons, defendant’s sister, located at 4749 West Adams, Chicago, where a surprise birthday party was being held for Timmons. Desmona and Etheral Green were already present. Later that evening, Timmons arrived with John Brooks, Barbara Watson and Diane Perry. At approximately 2 a.m. on January 10, Janeen heard Timmons and Victor Rainey “arguing.” She saw George Timmons (defendant’s father), John Brooks and Etheral Green “trying to stop George Jr. from going downstairs.” Defendant, Brooks and Green, however, went down the stairs. Several minutes later Janeen “heard a shot” and she ran down the stairs. Timmons was standing on the steps, approximately five or six feet “above” Green, holding a gun in his hand. Janeen heard Green tell Timmons “to calm down and don’t go upstairs after Victor.” Timmons told Green “to get out of the way.” Green then told Timmons, “If you want to shoot somebody so bad, Man, shoot me.” Timmons thereupon shot Green in the head. Janeen ran to the first floor apartment to get towels and attempted to revive Green, but “he was dead.” At this time, Diane Perry ran down the stairs to Janeen and said, “Oh, my God, [John Brooks has] been shot too.” Janeen saw John Brooks lying on the steps leading up to the second floor. “Everybody had been drinking” at the party and “everybody was a little high.”

Robert Doss, who also attended Timmons’ surprise party, testified to the following: On January 10, shortly before 2 a.m., he heard “Victor [Rainey] call Timmons a punk.” Despite the fact that “all the men were trying to stop him [Timmons] from leaving the apartment,” Timmons left. John Brooks and Green “went after him.” Desmona and Janeen also left the apartment. Doss “heard some screaming, some shooting and after that [Timmons] came up into the apartment,” holding a gun, and said “I have a couple of bullets left.” Timmons went into the “back” area of the apartment and shortly thereafter left the apartment.

Arthur Hajek, a Chicago police officer, testified: On January 10, at approximately 4:30 a.m., he was assigned to investigate a shooting at 4749 West Adams. Hajek searched inside the hallway for weapons, expended cartridge cases, expended bullets and bullet holes but found none. Hajek performed no search outside the building.

Dr. Uetil Choi, Cook County assistant medical examiner, testified: He performed autopsies on John Brooks and Etheral Green. Dr. Choi removed a bullet from Green’s body and stated that Green was shot from a distance of at least two feet. Dr. Choi did not retrieve a bullet from Brooks’ body.

Ralph Vucko, a Chicago police detective, testified: On January 10, at approximately 3:55 a.m., he was assigned “To investigate two people shot at 4749 West on Adams.” In his investigation, he apparently discovered no evidence except that he found blood “around the area of Etheral Green on the midlanding between the first and second floor.” On January 10, at about 7 a.m., when Timmons surrendered himself at the Fourth Area police station, Vucko placed him under arrest.

Timmons testified in his own behalf: He resided with John Brooks in the basement apartment of the building located at 4749 West Adams in Chicago. Victor Rainey and his mother lived in the apartment on the first floor; Timmons’ sister and father also lived in the building. On January 9, prior to the party, Timmons and John Brooks consumed several pints of gin and beer. At approximately 9 p.m., Timmons arrived at his surprise party, where he consumed more gin, “Canadian Mist,” and “a couple cans of beer.” Timmons went to the back room of the apartment where Victor Rainey and John Brooks were “having words” about money that Victor had given to Brooks. Shortly thereafter, Timmons went downstairs to his apartment and changed clothes. Timmons then went outside to the front yard of the building. Brooks was standing in the doorway. “A car proceeded to come by the front of the house” and Timmons heard a shot. He thought the shot came from the “dark colored car.” “After” he heard the shot, he “ducked” and himself fired a shot. He heard John Brooks say, “I’m hit,” and Timmons helped him into the hallway and “placed him by the first stairs going up the stairway.” Timmons ran up the stairs leading to the second floor, heard Green call him and “turned around.” At that moment, “the gun [Timmons] had went off.” He did not aim the gun. Timmons went down the stairs and left the apartment. He went to a service station and talked with the manager. Later that morning, Timmons surrendered himself at the Fourth Area police station. Timmons stated that his gun did not need to be “cocked” to fire.

Richard Hall, a biochemist, testified with regard to the effect of alcohol on the body. In Hall’s opinion, a person who drank as much alcohol as Timmons allegedly consumed on January 9 would be intoxicated but would be able to walk, to speak and to change clothes, although he would be “clumsy” and “slow.”

By stipulation, the State introduced into evidence Timmons’ 1974 attempted armed robbery conviction. The trial court instructed the jury “to accept this stipulation only for the purpose of assessing the credibility of the witness and for no other reason.”

Timmons was found guilty of two counts of voluntary manslaughter. Following a hearing, Timmons was sentenced to extended terms of 25 years on each conviction, the sentences to be served consecutively. Defendant filed a timely notice of appeal.

I

Defendant initially contends that the trial court erred in granting the State’s motion in limine, which prevented admission into evidence as a dying declaration John Brooks’ alleged nonverbal statement that Timmons “accidentally” shot him.

The trial court stated that to be admitted into evidence as a dying declaration “the rules of evidence require that the assertions [of a decedent] must be factual, competent and not conclusionary.” The court found that the nonverbal responses of John Brooks were “conclusionary” and thereupon denied the admission of these statements into evidence.

Dying declarations have been “broadly defined as extrajudicial statements of fact by the victim, concerning the cause and circumstances of a homicide.” (People v. Thomas (1977), 49 Ill. App. 3d 961, 970, 364 N.E.2d 641, 647.) Dying declarations are admissible as an exception to the rule against hearsay evidence, where it appears “that they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he has despaired of life and looks to death as inevitable and at hand.” (People v. Tilley (1950), 406 Ill. 398, 403, 94 N.E.2d 328, 331.) To determine the declarant’s consciousness of his approaching death, “recourse must be had to all facts and circumstances attending the party giving the dying declaration at the moment of its utterance. Within this context, the declarant must be sufficiently possessed of his mental faculties as to be able to have accurately perceived, recollected and communicated the circumstances surrounding his death. [Citation.] In making its preliminary determination, outside the presence of the jury, of the challenged statements’ admissibility, the trial court must be satisfied beyond a reasonable doubt that the declarant believed himself in extremis when the statements were made. [Citation.]” People v. Thomas (1977), 49 Ill. App. 3d 961, 364 N.E.2d 641.

Here, the trial court apparently failed to make the required threshold determination as to whether the deceased “believed himself in extremis when the statements were made.” We have searched the record and find no evidence that Brooks was aware that death was imminent at the time he made the responses in question. Dr. Picache did not advise Brooks of his physical condition because he believed “Brooks was not alert enough to understand.” Therefore, we hold, as did the court in People v. Thomas, that the evidence here “was insufficient to establish beyond a reasonable doubt that [decedent] considered himself in extremis at the time his statements were uttered.”

We find, however, that this error was harmless in light of the overwhelming evidence of defendant’s guilt. “The object of this court on review is not to determine whether the record is totally free of error, but whether any error occurred which operated to the prejudice of the appellant or unduly affected the outcome below.” (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 372, 366 N.E.2d 327, 347.) We have carefully reviewed the record, and it is our opinion that in this instance the court’s ruling neither prejudiced Timmons nor unduly affected the jury’s verdict.

II

Timmons contends that the trial court’s instruction limiting the jury’s use of defendant’s 1974 conviction of attempted armed robbery was prejudicial because its wording did not “conform” to Illinois Pattern Jury Instructions.

Upon Timmons’ stipulation that he had been convicted in 1974, the trial judge sua sponte instructed the jury:

“Ladies and Gentlemen of the jury, you are to accept this stipulation only for the purposes of assessing the credibility of the witness and for no other reason ***.”

Defendant did not object to this instruction nor tender to the trial court defendant’s own version to accord with Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.13 (2d ed. 1981), which provides:

“Evidence of a defendant’s previous conviction of an offense may be considered by you as it may affect his believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.”

On review, however, Timmons argues that IPI Criminal No. 3.13 instructs the jury that evidence of defendant’s prior conviction cannot be considered as evidence of present guilt and that the trial judge’s instruction here was “confusing and focused the jury’s attention only on the believability of the defendant.”

It has been well established that “the failure to object at trial to an asserted error in jury instructions waives the question.” (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E. 2d 1027, 1029.) “[I]f an accused wishes certain instructions to be given he must request the court to so act, since the trial judge is under no duty to give instructions upon its own motion.” (People v. Orr (1962), 24 Ill. 2d 100, 102, 180 N.E.2d 501, 502.) We conclude that defendant has waived this issue.

Moreover, even if we in fact reviewed this issue, we would find no error. Any non-IPI instruction given by the trial court is to be “simple, brief, impartial and free from argument.” (87 Ill. 2d R. 451(a).) Here, the trial judge tendered to the jury a brief and accurate statement of the law. In our opinion, no prejudice to defendant resulted from the alleged nonconformance of this instruction.

Ill

Defendant contends that the trial court abused its discretion in sentencing defendant to two 25-year extended terms and in ordering the sentences to be served consecutively. Defendant argues that the trial judge did not consider “factors in mitigation”; that “the jury specifically found defendant not guilty of murder”; and that “defendant did not commit voluntary manslaughter on the public at large.” Defendant maintains that these factors militate against the imposition of consecutive and extended-term sentences.

A

With regard to the extended-term sentences, section 5—5—3.2(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(b)) provides that an extended term may be imposed:

“(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Here, the trial court found that:

“These events and the conduct of the defendant and the conduct which the defendant made, in the Court’s opinion, the defendant made an unjustifiable action, in the Court’s opinion, grossly wicked reprehensible, odious, and heinous, and indicative of wanton cruelty separately and unrelated except as to place and persons, and in general within a short space of time the defendant with his pistol unjustifiably and unreasonably believing he would be killed shot John Brooks in the neck — in the throat outside of the apartment.
* * *
During part of this event there was testimony that a fear on the part of the persons, there, terror, which the Court does conclude that certainly some anxiousness on the part of Etheral Green, anxiety, implicit in his remarks if you shoot somebody— if you are going to shoot somebody, shoot me.
The scenario was such — the defendant’s part in it was such that the Court would find that his conduct was heinous behavior and indicative of wanton cruelty.”

Moreover, this was defendant’s second conviction for a Class 1 felony within 10 years. This factor alone will support imposition of an extended-term sentence under the statute.

In the instant case, therefore, the imposition of extended terms was in fact supported, and we conclude that the trial court did not abuse its discretion in here imposing such sentences.

B

With regard to consecutive sentences, section 5—8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(b)) provides:

“(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offenses and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

It has been generally held that “[ejonseeutive sentences should be imposed sparingly. [Citations.] If the trial judge improperly finds that a consecutive term is necessary to protect the public, a reviewing court may order that the sentence be served concurrently.” People v. Zadel (1979), 69 Ill. App. 3d 681, 683, 387 N.E.2d 1092, 1093.

In our review of this record we are not convinced that here consecutive sentences are mandated. Considering the totality of all pertinent facts, we accordingly modify the sentences to be served concurrently.

IV

Defendant also contends that he was denied a fair trial because the State used three of its peremptory challenges to exclude blacks from the jury. The record indicates the State used 11 peremptory challenges. Eight challenges were used to exclude white persons and three challenges were used to exclude blacks.

In Illinois, the use of peremptory challenges to exclude blacks from the jury does not warrant reversal unless there is a showing of a systematic exclusion by the State of blacks by peremptory challenges “in case after case.” People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.

Here, we must reject defendant’s contention. We are in agreement with the trial court which found that “there was no purposeful discrimination in selection of the members of the jury.” Defendant has not shown a “systematic exclusion” of blacks “in case after case.” We, therefore, conclude that defendant was not denied a fair trial by the State’s use of its peremptory challenges.

For the foregoing reasons, we affirm defendant’s convictions for voluntary manslaughter; we modify the sentences to be served concurrently.

Affirmed in part; modified in part.

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


author: JUSTICE BARRY

text:
    HOME SAVINGS AND LOAN ASSOCIATION OF JOLIET, Plaintiff, v. ROY E. SCHNEIDER et al., Defendants (Ernest L. Harrelson et al., Counterplaintiffs-Appellees, v. Richard H. Hataburda et al., Counterdefendants-Appellants).
    Third District
    No. 3—83—0522
    Opinion filed May 31, 1984.
    Rehearing denied October 19, 1984.

      James C. Murray, Jr., and Beth Byster Corvino, both of Katten, Muchin, Zavis, Pearl & Caller, of Chicago, and James E. Babcock, of Wright & Babcock, of Joliet, for appellants.
    Roman R. Okrei, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

The suit which is the subject of this appeal was initiated in the circuit court of Will County on December 1, 1981, by Home Savings and Loan Association, mortgagee of property at 725 Geneva Avenue, Romeoville. The financial institution’s foreclosure cause of action sought to enforce a due-on-sale provision in its 1972 mortgage agreement against mortgagors, Roy and Sue Schneider, and their successors, Richard and Patricia Hataburda. Also included as party defendants were Ernest and Peggy Harrelson as possessors of the premises. According to the verified complaint, the Hataburdas entered into an agreement in 1976 to assume the Schneiders’ liability on their mortgage loan. The Hataburdas then entered into a purchase-sale agreement with the Harrelsons for $47,500 on September 23, 1978, in violation of the due-on-sale terms of the note and mortgage agreement. The amount claimed due in the complaint was $18,170.42.

On December 28, 1981, the Harrelsons answered Home Savings and Loan’s complaint and filed a verified cross-complaint in four counts against the Hataburdas for rescission of their purchase contract and for restitution, alleging that they, the Harrelsons, had been induced to enter into the agreement by fraud and negligent misrepresentations of the Hataburdas. (The cross-complaint was later amended to include four additional counts against the Hataburdas.) The Harrelsons contemporaneously filed a motion for the appointment of a receiver to accept their monthly payments under the contract with the Hataburdas pending the outcome of the lawsuit. The Hataburdas then filed a forcible entry and detainer suit against the Harrelsons to recover possession of the real estate at issue. That suit was consolidated with Home Savings and Loan’s action and the Harrelsons’ cross-complaint on motion of the Harrelsons.

On March 17, 1982, the trial court ordered the Harrelsons to pay their monthly installment payments of $438.97 to Home Savings and Loan, and ordered Home Savings and Loan to apply toward the mortgage an amount representing the Hataburdas’ monthly obligation and to place the balance in an escrow account pending resolution of the lawsuit.

On August 27, 1982, on motion of Home Savings and Loan, the court dismissed the financial institution’s foreclosure complaint, finding that the plaintiff had accepted payment by the Hataburdas in satisfaction of indebtedness due on the mortgage. Finally, on May 2, 1983, the matter was set for trial on the Harrelsons’ cross-complaint against the Hataburdas for fraud and negligent misrepresentation and on the Hataburdas’ forcible entry and detainer action against the Harrelsons. Counsel for the Harrelsons moved to dismiss the four counts of their complaint which prayed for rescission of the contract to purchase. The motion was allowed and the trial proceeded on the remaining counts for restitution.

At the conclusion of the Harrelsons’ case in chief, counsel for the Hataburdas moved for a directed verdict, which was denied. Then, Hataburdas’ counsel moved for a dismissal of the forcible entry and detainer suit. After entertaining arguments of counsel and an offer of proof, the court granted the motion and informed the jury accordingly. The Hataburdas proceeded with their defense case, closing arguments of counsel were presented, the jury received instructions, and deliberations began at 2:55 p.m. on May 5,1983.

The record reflects that the jury returned its verdict in open court at 9:40 p.m., finding in favor of the Harrelsons on the fraud counts and awarding $32,000 in compensatory and $50,000 in punitive damages. The jurors were admonished, however, that their verdict was incomplete because no finding had been made with respect to the negligent misrepresentation counts. The jurors deliberated further, and at 10:25 p.m., they returned another verdict for the Harrelsons and awarded $15,000 compensatory damages for negligent misrepresentation.

In this appeal, the Hataburdas contend that the Harrelsons' cross-complaint against them failed to state a cause of action for fraud; that they failed to prove fraud by clear and convincing evidence; that they failed to state a cause of action for negligent misrepresentation; that the jury’s verdict is unsupportable; and that punitive damages were improperly awarded.

The evidence presented at trial, although disputed, tended to establish the following facts. Richard and Patricia Hataburda acquired an interest in the real estate at 725 Geneva Street, Romeoville, in 1976 when they assumed the mortgage obligation on the property that Mr. and Mrs. Roy Schneider had executed with Home Savings and Loan Association of Joliet. The mortgage agreement contained a due-on-sale clause requiring the mortgagors to obtain the mortgagee's written consent before transferring their interest in the property.

In July of 1978, Patricia Hataburda advertised the property for sale. Peggy Harrelson answered the ad and, pursuant to Patricia’s instructions, met Patricia at Bel Air Realty in Bolingbrook. According to Mrs. Harrelson, she was shown three homes and liked the one at 725 Geneva. Mrs. Harrelson took her husband, Ernest, a truck driver, to see the home, and the Harrelsons decided they were interested in purchasing it. The sale price of $47,500 was acceptable to the Harrelsons. Peggy made a $500 cash deposit and the closing was set for September 23, 1978, at the Hataburdas’ home. On that date, the Harrelsons were invited into Patricia’s “office” and handed a contract entitled “Articles of Agreement” for their signatures. Although the Harrelsons had previously made real estate purchases on contract without the guidance of legal counsel, Ernest suggested on reading the contract that perhaps they should have a lawyer. The Hataburdas assured them, however, that everything was legal, that both of them were “real estate people,” and that an attorney would not be necessary.

Ernest asked when the home would be paid off according to the terms of the contract, and he was told by Patricia that it would be in 30 years. Ernest and Peggy signed the contract and paid $2,000 for the balance of the down payment. They also paid for the first month’s installment under the contract.

In 1981, the Harrelsons hired a contractor to repair some damage done to the home. The insurer issued a check to the contractor with the Harrelsons’ and Home Savings’ names as payees as well. Home Savings refused to endorse the check and notified the Hataburdas and the Harrelsons that the due-on-sale clause in the mortgage agreement had been violated. The Harrelsons had no prior notice that the Hataburdas’ mortgage included a due-on-sale clause. It was then discovered that the contract for purchase between the Hataburdas and the Harrelsons, under which the Hataburdas were ostensibly paying off a $45,000 balance (with interest at 9sk% per year) at the rate of $359.97 per month, would never result in a transfer of title to the purchasers because the monthly payment did not even cover the amount of interest that would be due each month under the terms of the contract.

At trial it was revealed that the Hataburdas had quit-claimed their interest in the property to Paula Hataburda, Richard’s sister, in 1980 and recorded the transaction in January of 1983. It was also revealed that the Hataburdas had been dealing in real estate since 1974 and that several other contract sales, in which the Hataburdas purported to be sellers, had contained provisions similar to those in the instant case rendering a pay-off date impossible. Finally, evidence of income tax data provided by the Hataburdas to the Harrelsons for 1979 and 1980, indicating that part of the principal of the $45,000 balance originally owed on the property had been paid off each year, was admitted against the Hataburdas.

It is in light of the foregoing evidence of record that we review the issues presented on appeal. Initially, we find that the evidence was sufficient to prove clearly and convincingly that the parties’ contract was induced by actual fraud. To establish their cause of action, the Harrelsons had to prove that Patricia’s and Richard’s misrepresentations were untrue statements of material fact, made with knowledge of their falsity for the purpose of influencing the Harrelsons, who relied on those representations and acted upon them to their detriment. (Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1109, 408 N.E.2d 782, 785, quoting Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 757, 367 N.E.2d 1347, 1349.) The Hataburdas’ failure to disclose to the Harrelsons that a due-on-sale clause in Home Savings’ mortgage agreement was violated by the sale to the Harrelsons, and the Hataburdas’ affirmative statement that the property would be paid off in 30 years are both misrepresentations which were proved at trial to have been made with the required degree of scienter on the part of the Hataburdas, and were reasonably relied upon by the Harrelsons to their detriment. Further, a due-on-sale clause similar to the one contained in Home Savings’ mortgage was included by the Hataburdas in their contract with the Harrelsons. The jury’s initial verdict, finding the Hataburdas liable in fraud, is amply supported by direct evidence and circumstantial evidence giving rise to strong inferences that actual fraud, as opposed to mistake or mere negligence, was the motivating force behind the Hataburdas’ conduct in procuring the Harrelsons’ signatures and accepting regular monthly payments for property for which the title would never change hands according to the terms of the “purchase” agreement. Neither of the Harrelsons had completed high school. The Hataburdas held themselves out as knowledgeable real estate persons whose backgrounds were sufficient to obviate any need that the Harrelsons might otherwise have had for legal counsel in the real estate transaction. Mrs. Harrelson said that she liked and trusted Patricia during the parties’ dealings up to and including the signing of the contract. The Harrelsons were obviously unsuspecting, easy prey for the sophisticated Hataburdas. Although the Harrelsons’ testimony was not entirely consistent, it is apparent, even from the cold record before us, that they testified with honesty and candor. The Hataburdas’ testimony, especially that of Patricia, was, on the other hand, fraught with about-face contradictions, and thoroughly impeached. We have absolutely no doubt that the jury was correct in concluding that the Harrelsons had satisfied their burden of proving the Hataburdas’ fraud.

We consider next the issue of whether the jury’s determinations of damages may be sustained in this case.

The allegations of negligent misrepresentations in counts V and VI of the cross-complaint essentially mirrored the allegations of fraud contained in counts I and II except, of course, for the differing elements of scienter. By returning their initial verdict in favor of plaintiffs on the fraud counts, it is clear that the jury found that the contract was procured by fraud, rather than negligence, on the part of the Hataburdas. We have determined that this finding is amply supported by the evidence. We hold, however, that the trial court committed error in entering judgment on the jury verdicts favoring plaintiffs on the less-culpable negligence counts. While certainly the plaintiffs were properly permitted to present both theories of recovery to the jury for its consideration and while the favorable verdicts for plaintiffs in both theories are not inconsistent on these facts, to permit both judgments to stand would amount to double recovery. Accordingly, we vacate that part of the judgment awarding plaintiffs $15,000 in compensatory damages for negligent misrepresentation.

The measure of actual damages, where the purchase of property is induced by fraud, is the difference between the value of the property as it in fact existed and the value that it would have had had the seller’s representations been true. (Four “S” Alliance, Inc. v. American National Bank & Trust Co. (1982), 104 Ill. App. 3d 636, 432 N.E.2d 1213.) Under this formula, the defrauded buyers are to be awarded the benefit of their bargain. In addition to actual damages, consequential damages proximately resulting from the fraud are recoverable, and punitive damages may be awarded where the defrauding party’s conduct is found to be oppressive, gross or reprehensible.

It is apparent to us that the record sufficiently establishes that the Harrelsons suffered actual damages as a proximate result of the Hataburdas’ fraud. However, we cannot arrive at the figure awarded by the jury for compensatory damages without a great amount of speculation on our part. At trial, plaintiffs introduced expert testimony of Daniel Maher, C.P.A., to establish that a $45,000 loan financed over 30 years in monthly installments at 93k% interest would amount to $139,183.20 in total payments. This is the amount that the Harrelsons would have paid pursuant to the Hataburdas’ representation that the home would be paid off in 30 years. By contrast, Maher testified, $45,000 amortized at a 13% interest rate would have meant that the Harrelsons would pay $179,284.40 in 30 years to acquire a deed to the property. The difference in the total amounts paid over 30 years at the two rates was $40,021.20. According to Dennis Wilson, who was vice-president in charge of the loan department of Home Savings of Joliet in 1981 when the complaint involved in this suit was filed, the average interest rate for home loans at the time of trial was 121/2%. Another witness, however, Marty Madron, vice-president in charge of loans at the First Bank of Romeoville, testified that 30-year home loans were being offered at 131/4% rate of interest at the time of trial. Maher was unable to testify at trial what the total amount of payments would be for 30 years at 121/2% interest. The plaintiffs introduced evidence that they had paid $2,500 down on the contract by the time of closing in 1978 and had made 53 monthly payments under the contract at the rate of $438.97 ($359.97, plus taxes and insurance) per month thereafter. Finally, the Harrelsons testified that they had expended over $4,000 on repairs to the property. No evidence was introduced to establish that the Harrelsons had applied for a loan to pay the Hataburdas the balance owed on the property. And no evidence was introduced to establish thafthe value of the property in 1978 was worth anything more or less than $47,500, the purchase price shown on the parties’ contract. Patricia Hataburda, in cross-examination, testified that according to an amortization table produced at trial the monthly payment amount for a $45,000 loan over 30 years at 9%% interest would be $386.62 instead of $359.97 as indicated in the parties’ contract. This latter testimony has some relevance for a determination of actual damages. As we view the record the consequence of the fraudulently drafted contract forced the Harrelsons to engage counsel and defend lawsuits brought against them by Home Savings and the Hataburdas until those complaints were voluntarily dismissed. However, no basis for the amount of consequential damages, if any, allowed by the jurors by reason of the collateral suits can be found in this record.

The compensatory damages award for fraud must be fairly determinable by the amount which will give the Harrelsons the benefit of their bargain. They expected to purchase their home in 30 years on a contract requiring them to pay $359.97 per month on a $45,000 balance. What they received was a home that could not be paid off in 30 years unless they paid $386.62 per month on a $45,000 balance. Consequential damages which might have been incurred as a consequence of the fraud were not established with sufficient certainty to be capable of determination by this court.

Where compensatory damages cannot be determined from the record with a reasonable degree of certainty, a remand to the trial court is appropriate. In our opinion, the jury’s $32,000 compensatory damages award is too speculative to be sustained. The jury’s award of punitive damages is nonetheless sustainable. Particularly where, as here, actual damages are small in comparison to the outrageousness of the sellers’ conduct, then substantial punitive damages may be appropriate to deter similar conduct by this seller and others. We do not find the $50,000 punitive damages award unreasonable in this case. The conduct of the Hataburdas was shown to be sufficiently oppressive and outrageous under these circumstances to support a finding that substantial punitive damages were necessary to serve the ends of justice. Accordingly, we remand this cause for a new trial on the issue of compensatory damages on the fraud counts only.

Affirmed in part, reversed in part, and remanded.

HEIPLE and SCOTT, JJ., concur.


text:
    DONNA JEAN LANGFORD, Indiv. and as Adm’x of the Estate of Robert E. Langford, Jr., Deceased, et al., Plaintiffs-Appellants and Cross-Appellees, v. COOK COUNTY et al., Defendants (Advance Transportation Company, Defendant-Appellee and Cross-Appellant; Specialty Restaurant, Inc., Defendant and Third-Party Plaintiff; Henry Trimm et al., Third-Party Defendants).
    First District (2nd Division)
    No. 83—2109
    Opinion filed September 18, 1984.
    Rehearing denied October 25, 1984.
    Tom Leahy, of Chicago, for appellants.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman, Robert A. Seidel, and William A. Chittenden III, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff Donna Jean Langford and her minor children (Langford) brought an action in the circuit court of Cook County against defendant Advance Transportation Company (Advance) to recover damages for the death of Robert E. Langford, plaintiff’s husband, who was killed when his automobile was struck by an automobile driven by Sergio Cortez at the intersection of South Milwaukee Avenue and an asphalt-paved roadway leading to the 94th Aero Squadron Restaurant in Wheeling, Cook County.

This appeal is concerned only with counts III and VII of plaintiffs’ amended complaint which contain the allegations against Advance. Count III seeks damages for the wrongful death of plaintiffs’ decedent, alleging that Advance “owned a portion of the intersection” of the paved roadway leading from Milwaukee Avenue to the 94th Aero Squadron Restaurant; that Advance had “control and jurisdiction” over the aforesaid intersection; and that Advance was negligent in one or more of the following respects:

“a. Failed to adequately light said intersection.
b. Failed to warn motorists of the inadequate lighting.
c. Failed to design, construct and maintain said roadway so that motorists entering S. Milwaukee Road could have a reasonably clear view of traffic proceeding south on S. Milwaukee Avenue.
d. Designed, constructed and maintained an unreasonably hazardous intersection.
e. Failed to warn motorists proceeding south on S. Milwaukee Road of the aforesaid unreasonably hazardous intersection.
f. Failed to warn motorists proceeding east onto S. Milwaukee Road of the aforesaid unreasonably hazardous intersection.”

Count VII seeks damages for a “survival action,” under section 339 of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 339, now Ill. Rev. Stat. 1983, ch. 1101/2, par. 27—6), alleging the same facts as in count III.

Although Advance in its brief claimed that, “unknown to Advance, a portion of the driveway pavement encroaches upon its property,” Advance conceded that it, in fact, owned a small segment of land underlying the intersection. In an affidavit attached to Advance’s motion for summary judgment, Michael J. Mattis, a registered Illinois land surveyor, verified Advance’s ownership of “a small triangular area at the driveway’s intersection with Milwaukee Avenue.”

In response to interrogatories, the 94th Aero Squadron Restaurant acknowledged that the roadway in question was an easement granted to the 94th Aero Squadron by its landlord, George Priester, and that the 94th Aero Squadron has control over the roadway leading to its premises.

The trial court, relying on section 349 of the Restatement (Second) of Torts (1965), granted Advance’s motion for summary judgment. The trial court held that mere ownership of a small portion of land underlying the intersection did not, as contended by plaintiffs, impose upon Advance a duty to maintain the roadway.

The sole issue presented for review is whether Advance’s ownership of a portion of the roadway upon which plaintiffs’ decedent was killed imposes a duty upon Advance to exercise reasonable care in the maintenance of this roadway.

Advance’s argument for summary judgment is predicated on section 349 of the Restatement (Second) of Torts (1965). Advance maintains that under this section it is exempted from liability and has no duty for the maintenance of the roadway. Plaintiffs argue against summary judgment, contending that under section 367 of the Restatement, Advance has such a duty.

Section 349 of the Restatement sets forth the duty of a landowner whose property is crossed by “a public highway or private right of way.” This section states:

“Sec. 349. Dangerous Conditions in Public Highway or Private Right of Way
A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.”

Although research has failed to disclose any Illinois cases specifically brought under section 349, principles similar to those enunciated in this section have been adapted by Illinois courts to situations where the plaintiff is a licensee.

A licensee, as distinguished from an invitee, was defined in Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 87, 343 N.E.2d 261, 264, as follows:

“An invitee is a person who goes upon the premises of another by an express or implied invitation to transact business in which he and the owner have a mutual interest or to promote some real or fancied material, financial, or economic interest of the owner. [Citation.] A licensee is a person who goes upon the premises of another with the express or implied consent of the owner, to satisfy his own purposes rather than for the mutual benefit of himself and the owner or a purpose connected with the business in which the owner is engaged or permits to be carried on upon the premises.” (Emphasis added.)

In the instant case, although decedent appears to have been an invitee of the 94th Aero Squadron Restaurant, his use of the roadway had no connection with Advance. Therefore, the decedent was, at most, a licensee of Advance.

In Carroll v. Lily Cache Builders, Inc. (1979), 74 Ill. App. 3d 264, 266, 392 N.E.2d 986, 988, the court held that,

“In cases involving premises liability in Illinois, a plaintiffs legal status at the time of injury is customarily a crucial factor because an owner of property owes to an invitee the duty to exercise reasonable care for [the invitee’s] safety while the only duty owed to a licensee is a duty to refrain from wilful and wanton misconduct.”

Thus, a landowner may be liable for failure to exercise reasonable care for an invitee’s safety, but not in the case of a licensee.

In Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22, 31, 411 N.E.2d 102, 107, the plaintiff, while driving on a private road owned and maintained by his employer, a coal mine company, was injured when his vehicle collided with a train operated by the defendant on a track which crossed the coal mine company’s private road. The private road led from a public highway to the coal mine. The court found that plaintiff,

“was not there at defendant’s invitation, express or implied. At best, plaintiff had a mere license to cross defendant’s right-of-way. Mere naked license to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident.”

Although at oral argument before this court plaintiffs advised that the exact location of the accident in question has not yet been determined, their complaint averred that the accident occurred at the intersection of a public highway (South Milwaukee Avenue) and a private roadway providing access to and from the 94th Aero Squadron Restaurant. The restaurant is not on property owned by Advance, nor does Advance have any interest or involvement in the restaurant or its operation. The only factor connecting Advance to the road in question is its ownership of a small segment of land underlying the restaurant’s roadway as it intersects South Milwaukee Avenue where the accident allegedly occurred. At most, decedent merely had a license to use the road to enter and leave the restaurant.

Despite this, plaintiffs contend that Advance was negligent in the design, construction and maintenance of the intersection, and that such negligence was a proximate cause of the decedent’s death. We conclude that the application of section 349 of the Restatement exempts Advance from any legal duty to exercise reasonable care in the maintenance of this roadway.

Plaintiffs argue, however, that section 367 of the Restatement (Second) of Torts (1965) imposes upon Advance a duty to exercise reasonable care in the maintenance of the roadway. This section provides:

“Sec. 367. Dangerous Conditions on Land Appearing to be a Highway A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.”

Plaintiffs cite Carroll in support of their argument that section 367 of the Restatement (Second) of Torts (1965) is applicable to Advance. In Carroll, however, the court found that plaintiff was an invitee, not a mere licensee. There, plaintiff owned a home in a cul-de-sac subdivision built by defendant. The court held that there existed an implied invitation to residents of the cul-de-sac and to the public to enter upon the private way, and that defendant was obligated to exercise reasonable care in its maintenance.

Section 367 of the Restatement applies to “[a] possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway.” (Emphasis added.) Restatement (Second) of Torts sec. 367 (1965).

In the instant case, the restaurant acknowledged that it, not Advance, maintained and controlled the private roadway. Advance, on the other hand, did not hold out the roadway as a public highway, had no control of the roadway and asserted no responsibility for its maintenance. These conditions would prevail even if, as plaintiffs’ counsel contended at oral argument, travelers could reasonably believe this to be a public highway providing access to and from the restaurant.

Based on the facts before us, we conclude that section 367 of the Restatement is inapplicable to Advance and does not impose upon Advance any duty to exercise reasonable care in the maintenance of this roadway. In our opinion, the trial court did not err in granting summary judgment to defendant.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

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