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Long v. City of New Boston

OPINION FILED JUNE 18, 1982.

CHESTER M. LONG ET AL., APPELLEES AND APPELLANTS,

v.

THE CITY OF NEW BOSTON ET AL., APPELLANTS AND APPELLEES.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Mercer County, the Hon. David J. Mason, Judge, presiding. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 1, 1982.

On November 30, 1977, Chester Long was among a group of civic volunteers assisting in stringing Christmas lights over the main street of New Boston, Illinois. The Christmas decorations were a project of the city of New Boston (the city) and the New Boston American Legion Post No. 48, which had jointly purchased the lights in 1972. In the course of attaching a string of lights to a utility pole, Long was atop a ladder which was leaning against the pole, and which it is alleged no one was holding. The ladder moved, Long lost his balance, fell, and was seriously injured.

Mr. and Mrs. Long sued the city, the American Legion, and Clair Riley, the latter individually and in his capacity as mayor of New Boston. Mr. Long sought recovery for his injuries, and Mrs. Long for loss of consortium. The amended complaint was in 10 counts. Counts I through IV were directed against the city and the American Legion and were premised on liability under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Counts V through X charged all three defendants with negligence.

Defendants moved to dismiss the amended complaint, contending that the Structural Work Act was inapplicable to Long or to the activity in which he had been engaged. As to the negligence counts, defendants contended that they had breached no duty to Long, since he was a volunteer, and they owed him only the duty to refrain from wilful and wanton misconduct. The circuit court of Mercer County granted the defendants' motions and dismissed the complaint on June 30, 1980.

On appeal by the plaintiffs, the appellate court affirmed the judgment of dismissal of the negligence counts. The court held that on the face of the complaint Long was guilty of contributory negligence as a matter of law, and that he was therefore precluded from recovering on a negligence theory. However, the appellate court reversed the circuit court's dismissal of the Structural Work Act counts. 95 Ill. App.3d 430.

The city petitioned this court for leave to appeal the judgment with respect to the Structural Work Act counts, and plaintiffs petitioned for leave to appeal the appellate court's judgment with respect to the negligence counts. We granted both petitions and consolidated the appeals.

We first consider whether the negligence counts of the complaint were correctly dismissed.

In its opinion, filed April 30, 1981, the appellate court affirmed the circuit court's dismissal of the negligence counts on the ground that the complaint revealed on its face that Long was contributorily negligent as a matter of law, and that his contributory negligence was a complete bar to his negligence action. The record shows that neither party raised the issue of contributory negligence or of comparative negligence in the circuit court or at the initial hearing before the appellate court. Plaintiffs contended in their petition for rehearing in the appellate court, and contend here, that because the appellate court rendered its decision after this court's decision in Alvis v. Ribar was filed (April 17, 1981), the doctrine of comparative negligence announced in that decision is applicable to this cause, rather than the doctrine of contributory negligence applied by the appellate court.

The opinion of this court in Alvis v. Ribar, filed April 17, 1981, specifically stated that the rule announced therein should apply only "to the parties before us on appeal; (1) to all cases commenced after this decision becomes final; (2) to all cases already commenced in which trial has not yet begun; and (3) to all cases on appeal in which the applicability of the comparative negligence rule was raised and properly preserved for the purpose of appeal." (Alvis v. Ribar, slip op. at 20 (April 17, 1981).) The instant case was commenced in October of 1978; and, as we have already noted, the applicability of the comparative negligence rule was not raised in the circuit court or until the petition for rehearing in the appellate court. Plaintiffs contend, however, that this case falls into the second category of cases to which the rule of Alvis was stated to be applicable, because although it was commenced before Alvis was decided, no trial has yet begun. We think this contention must fail. The circuit court's judgment dismissing plaintiffs' complaint was a determination of the merits of plaintiffs' claims with respect to the legal issues it presented. For the purpose of deciding whether a case is one to which the Alvis rule is applicable, a trial means a judicial determination of the merits of either the legal or the factual issues between the parties. (People v. Vitale (1936), 364 Ill. 589, 592.) A dismissal for failure to state a cause of action is such a determination.

We note, moreover, that in the revised opinion issued after rehearing, this court modified the above-quoted portion of Alvis v. Ribar to read:

"We hold that this opinion shall be applied to the parties before us on appeal and to all cases in which trial commences on or after June 8, 1981, the date on which the mandate in this case shall issue. This opinion shall not be applicable to any case in which trial commenced before that date — except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial." (Alvis v. Ribar (1981), 85 Ill.2d 1, 28.)

Though decisions of this court are final when the opinion is filed (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill.2d 291, 304-05), a later modification of a filed opinion supersedes and vacates the earlier opinion. Consequently, the above-quoted language from the modified opinion in Alvis v. Ribar states the criterion for when the doctrine of comparative negligence shall be applicable. The instant case obviously does not meet the test.

Having determined that the disposition of this case is governed by the doctrine of contributory negligence rather than that of comparative negligence, we return to consideration of the primary issue: whether the appellate court correctly affirmed the circuit court's dismissal of the negligence counts of the complaint. As previously noted, the appellate court held that the dismissal was proper because it found ...


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