Judicial Rulings

Illinois Supreme Court

X-ray treatment: a service, not a product
THE ILLINOIS Supreme Court ruled December 1, in two sets of consolidated cases, that X-ray radiation is not a product per se and that hospitals administering such treatment are not subject to product liability laws. Under product liability laws, the consumer must prove the product defective at the time of sale, and therefore potentially dangerous, in order to collect damages.

All the complaints alleged that the patients developed cancer as adults in the 1970's as a result of overdoses of X-ray treatment as children in the late 1940's and early 1950's. In most cases the patients claimed thyroid cancer developed from X-ray treatments for tonsillitis or other throat ailments.

One set of cases, consolidated as Jean Greenberg et at., v. Michael Reese Hospital, involved six complaints; the other, Richard Dubin et al., v. Michael Reese Hospital and Medical Center, involved three.

In both Greenberg and Dubin the patient's main argument was one of strict liability in tort, while the hospital argued that "... the imposition of strict liability upon those who manufacture, sett and distribute consumer goods . . . does not justify extension of the doctrine to those who render professional services, particularly medical services."

The high court agreed with the hospital on the grounds that it was the dosage of the radiation, not the radiation itself, that the patients alleged caused the cancer.

In delivering the high court's opinion, Chief Justice Joseph H. Goldenhersh said, ". . .the plaintiff's emphasis is not on the X-radiation but rather on the results of treatment. ..." Since the complaint was not that the X-ray machine itself was defective, but that the treatment was inappropriate, "... we must conclude that the plaintiffs are concerned with the conduct of defendant rather than the nature of a particular product. ..."

In the opinion, Goldenhersh said that one of the underlying principles of the product liability law is the public policy of protecting health and life. But he also said that subjecting some potentially valuable products or services to strict liability might force them off the market altogether.

Three-year term for $1.55 burglary; Hugo should write a book
A JUDGE is required to sentence an individual according to the state statute, regardless of how he perceives the severity of the crime, the Illinois Supreme Court ruled January 20.

In The People ex. rel. Bernard Carey v. Vincent Bentivenga, Justice Thomas J. Moran, in speaking for the high court, said that Bentivenga, a judge for the Cook County Circuit Court, could not give William Siedlecki probation after he was found guilty of burglary, a Class 2 felony, because this was Siedlecki's second conviction for a Class 2 felony in 10 years. (Ill. Rev. Stat. 1979, ch. 38, sec. 1005-5-3 (c) (2) (F)). Bentivenga had given Siedlecki two years probation with the first five months to be served in Cook County jail for stealing a $1.55 can of oil from an auto parts store. The statute calls for a minimum of three years imprisonment.

Siedlecki also claimed that the sentence was unconstitutional because of its severity. Moran, however, rejected this claim stating, "the crux of this decision is not the magnitude of a particular offense . . . but rather is the failure of the recidivist to change his pattern of nonconforming behavior. We, therefore, do not agree with [Siedlecki's] view that a sentence of three years 'shocks the moral sense of the community.'"

Sheriffs' real estate fees unconstitutional
IT IS unconstitutional for sheriffs to collect fees levied for performing court-ordered mortgages and foreclosures, the Illinois Supreme Court ruled February 3 in a case involving the Cook County sheriff.

The ruling may require the Cook County Sheriff's Department to pay back as much as $2 million in real estate fees charged since the Illinois Constitution took effect in 1971. In addition, it could set a precedent for future cases that could arise in other Illinois counties which also operated under the same law that was declared unconstitutional.

In question in the class action suit, Harry DeBruyn v. Richard J. Elrod, was a section of the Civil Practice Act that sets the number of fees that sheriffs can collect as commissions on the court-ordered sale of real and personal property. (Ill. Rev. Stat. 1977, ch. 53, sec. 71).

However, the 1970 Constitution states that fees collected by an officer of local government can not be based on "funds disbursed or collected" (Art. VII, Sec. 9 (a)). Elrod contended that the fees collected did not violate the Constitution because Article VII did not apply to nontax funds. In speaking for the high court, however, Justice Joseph Goldenhersh said, "No distinction is made between tax and nontax funds. We cannot add such a distinction to the plain language before us. . . ."

Goldenhersh, in upholding the ruling of the Cook County Circuit Court, also said that persons who paid such a fee should be reimbursed, but added that refunds should be extended to 1970. The circuit court had said only those who paid the fees since March 23, 1979, when the suit was filed, were entitled to refunds. Persons entitled to a refund, according to the high court, are those who paid the fee after 1970 who had not been reimbursed by repurchasing property and "who suffered the burden or incidence of the illegal fee."

'Clock' does not run out on prosecution
TO SIMPLY file a motion for a speedy trial with the clerk of the court is not sufficient to bring that motion to the attention of the prosecution, the Illinois Supreme Court ruled January 20. In People v. Johnny T. Jones, the court said if the prosecution is not properly notified then charges cannot be dismissed if the trial date exceeds the 160-day limit.

While admitting that a person had the right to a speedy trial by law (Ill. Rev. Stat. 1979, ch. 38, sec. 103-5), Justice Daniel P. Ward noted "where the person is free on bail his statutory right comes into play only after he has invoked it by his affirmative act of demanding trial. ... we consider that the term 'demand' itself implies that the defendant's stated desire to be tried within 160 days must be conveyed to those persons who are in a position to fulfill that desire."

Ward further said, "... failure to notify the prosecutor, rather than accelerating the date of the trial, is more likely to have the opposite effect. Indeed, a failure to notify the State, unless it is inadvertent, casts doubt upon the sincerity of the demand or shows a design to circumvent the prosecutor."

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It is also not reasonable to expect the prosecution to periodically check the court docket for such motions; Ward said, "In districts having a heavy criminal docket, such as Cook County, the burden thus imposed would impede the administration of justice."

The high court's decision reversed the action of the Champaign County Circuit and 4th District Appellate courts.

Tenant's rights in single-family homes
TENANTS of single-family dwellings have the same right as tenants of multi-family dwellings to expect the dwelling to be fit to live in, the Illinois Supreme Court said in a January 20 decision.

The case, Pole Realty Company v. Willie Sorrells, involved a woman who was evicted from the house she rented from Pole Realty for alleged nonpayment of rent and not properly heating the premises. However, Sorrells alleged that the company had for over two years been "at various times in various degrees, in substantial violation of the Municipal Code of the City of Chicago" and had therefore breached the "implied warranty of habitability between landlord and tenant." Sorrells claimed that she had to hire an exterminator and that window, door and roof defects caused heat loss and subsequent increases in her heating bills.

In overturning the finding of the Cook County Circuit Court which implied warranty of habitability did not apply to rented, single-family dwellings, Justice Daniel P. Ward, speaking for the high court, said, "A tenant will legitimately have the same expectations that a single-family dwelling will be fit to live in as he would have in the case of a structure with multiple dwelling units." The court was not persuaded by Pole's argument that Sorrells' use of implied warranty of habitability was simply a device to get out of rent payment. Ward said, "Clearly a tenant's liability for rent continues as long as the tenant remains in possession of the leased premises."

Legality of strip searches
CIRCUMSTANCES of some arrests may justify the use of a strip search, the Illinois Supreme Court ruled February 3, despite the fact that strip searches are "a serious invasion of one's rights." The high court also said that police are not required to orally notify persons arrested on a misdemeanor charge of the right to post bail immediately. In the case, People v. V. William Seymour, Seymour was arrested on a concealed weapon charge, which is a misdemeanor. During a subsequent strip search at the police station, a small amount of cocaine was found on Seymour. Both the Cook County Circuit and 1st District Appellate Courts said the search was illegal and the drug could not be used as evidence against Seymour.

However, Justice Howard C. Ryan, in speaking for the high court noted, "Although [the concealed weapons charge is] a misdemeanor, it is not a minor offense in the same sense that certain traffic offenses can be said to be minor offenses. . . . The potential for danger inherent in the custodial arrest and the holding of the defendant in our case made the strip search reasonable."

Ryan cautioned, however, that the court was not permitting "the intensive intrusion of a strip search into one's privacy in all custodial arrests. In fact we here acknowledge that a strip search may be entirely unreasonable and a violation of constitutional rights ... in certain situations. . . . The arrest in this case was not one of those situations."

The high court also said that the General Assembly "apparently felt" that printed information regarding the right to post bail for misdemeanors was adequate and a person need not be informed of those rights orally.

Jurisdiction in child custody: Stay in your own state, your home state
THE COURT in which the original child-custody decree was entered is not the only court with jurisdiction to modify that decree, the Illinois Supreme Court ruled January 20.

In the case, Jan Siegel v. Arnold Siegel, the mother had moved with the couple's children from Illinois to California, where they had lived for four years prior to the case in question. In 1978 Mrs. Siegel filed in the superior court of California, Los Angeles County, for modification of the child visitation rights of the father. Claiming exclusive jurisdiction, however the Cook County Circuit Court found her in contempt for her actions and provided that child-support payments by the father cease retroactively to the date when he had filed his contempt motion. The 1st District Appellate Court affirmed that the circuit court had jurisdiction but reversed the termination of child support payments and called for a new hearing on the contempt charge.

In giving the opinion of the high court,

Justice Robert C. Underwood said that "... Illinois courts have never viewed 'continuing jurisdiction' as limitless." In pointing out the "home state" requirement of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, sec. 601 (a)), he said that Illinois was not the home state of the children "in any ordinary sense of the words. . . . The evidence concerning their present home life, health, education, and personal relationships was available [in California] rather than in Illinois."

Noting that it would be inconvenient and costly for the father to contest visitation, support and custody questions in California rather than in Illinois, the court said: "It is, however, an unpleasant fact that, in a highly mobile society with a high incidence of marital instability, problems such as this are not infrequent."

When appreciation ends with divorce: 'Marital' and 'nonmarital' property
THE APPRECIATED value of nonmarital property is not considered joint property and, thus, is not subject to division upon divorce, the Illinois Supreme Court ruled January 20. In addition, the court held in a similar case that the value of such property should be taken into consideration when determining the amount and duration of maintenance to be paid.

The first case, In re Marriage of Myra Z. Komnick and Loren J. Komnick, Mrs. Komnick contended that the appreciated value of a tract of farmland owned by her husband's family should be considered community property. While acknowledging that in some circumstances a spouse might be entitled to share the appreciated value, the high court reversed the decision of the 4th District Appellate Court by noting that the appreciation on the land "was substantially attributable to external economic factors and not to any capital improvements made upon the land. There is no contention that the [wife] contributed to the appreciation in value."

In a similar case, Irene Bentley v. George Bentley, the high court said that even though the appreciated value of nonmarital property could not be considered part of the marital property, it should be considered when determining the amount and duration of support payments.□

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