Judicial Rulings

Public officials and conflict of interest

Apparently a case-by-case approach determines whether public officials are affected by conflict of interest provisions of the Corrupt Practices act (see Illinois Revised Statutes 1987, ch. 102, sec. 3(a)). The Illinois Supreme Court spoke on the matter on December 20.

The commissioners of the Joliet Park District control the Joliet airport. They voted to make certain improvements during the brief tenure of one commissioner who also ran an air service business at the airport. In one case he voted favorably in a 3-2 decision. Citizens of the district brought suit, charging him with conflict of interest.

Sec. 3(a) says that no public official "may be in any manner interested, either directly or indirectly, ... in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote." After considering the facts the court said, "[W]e do not consider that the statute was intended to reach situations such as the present, in which the public officer is not himself financially interested, . . . and in which the only benefit flowing to the office from such action is no different from the benefits enjoyed by the public at large."

The court had rejected a similar argument in an earlier case (see Brown v Kirk (1976), 64 Ill. 2d 144) concerning membership by a tenant on a housing authority but said, "The functions performed by housing authorities and airports are sufficiently different, however, that we are not prepared to conclude that the same result must control in each instance." It also observed, "Public service imposes on participants a number of duties, not all of which are defined or limited by statute." Justice Ben Miller wrote the opinion in Croissant v Joliet Park District (Docket No. 69417).

Potty in the wrong place

In a December 20 ruling the Illinois Supreme Court clarified the liability of owners for protection against clear and obvious dangers on their property.

In this case a worker, leaving a portable toilet on a construction site, looked up to a balcony overhead from which workmen had previously been pitching debris. Thus distracted, he stepped into a rut left by heavy equipment, stumbled and injured his back. He sued the general contractor. The jury agreed with him but found that his comparative negligence accounted for 40 percent of his injuries.

Illinois' rules concerning torts exempt an owner from liability for injuries resulting from clear and obvious dangers. They make an exception when the owner knows of the danger and also can anticipate that someone invited onto his property might be injured even though the danger is obvious. This could occur if a distraction might cause the invitee to forget the danger or fail to discover its obviousness.

The court said, "Plaintiff could not look both places; up, to check for the possibility of flying construction materials; and down, to protect himself from tripping in a rut." It went on, "If defendant. . . had taken some precaution, the jury could have found that the precaution fulfilled defendant's duty even though it did not prevent plaintiffs injury." It might have located the toilet away from the buildings, removed the ruts in front of it or posted a notice of the danger.

The court rejected the suggestion in an amicus brief by the Illinois Trial Lawyers Association that it abolish the obvious-danger rule as incompatabile with Illinois' adoption of comparative negligence. It also said, "Defendant's fear our decision will require possessors of land to insure the safety of their invitees is exaggerated."

Justice Horace L. Calvo wrote the opinion in Deibert v Bauer Brothers Construction Company (Docket No. 69400).

A manual may be a contract

If employers issue a manual to employees, they must be reasonably precise in its language because it may have contractual force under a decision by the Illinois Supreme Court on December 20.

A security guard for Jewel Food Stores was 20 minutes late for work but failed to show this on his time card. He had filled out the card in advance since the store provided no other place to keep a record when it gave him his rather complicated work schedule. He claimed that he simply forgot to change the card on a day he missed his bus.

The manual issued to employees required that time cards accurately show time actually worked. Another portion of the manual provided that, after a 90-day probationary period, employees could only be fired for "just cause" and listed "dishonesty or other misconduct" among examples. The court found this language ambiguous in the case of falsified time cards alleged to have resulted from a mistake rather than dishonesty. It said, "We agree with plaintiff that defendant may not unilaterally define an ambiguous term in a contract to mean whatever defendant says it means." It rejected summary judgment in favor of Jewel and ruled that the facts would have to be decided by a jury since "reasonable minds could differ as to whether plaintiff's actions were misconduct constituting just cause for termination."

Justice Miller, joined by Justice Thomas J. Moran, dissented from the opinion of Justice Calvo in Mitchell v Jewel Food Stores (Docket No. 69539).

The bone marrow decision

On December 20 the Illinois Supreme Court explained its September 28 order that 3 1/2-year-old twins not be required to undergo blood testing to determine whether they could serve as bone marrow donors for a half brother suffering from leukemia.

The boy's father had attempted a substitute judgment argument based on recent right-to-die decisions (see In re estate of Longeway (1989), 133 Ill. 2d 33 and In re estate of Greenspan (1990), 137 Ill. 2d 1). According to this line of reasoning, a guardian's judgment that the twins would consent if they were competent to do so could be substituted for that of the children. The court said, "A guardian attempting to prove what a 3 1/2-year-old child would or would not do in a given set of circumstances at a given time in the distant future would have to rely on speculation and conjecture."

In considering the appropriateness of a guardian's permission for a minor to serve as donor the court reviewed a large number of decisions in other jurisdictions. It ruled, "We hold that a parent or guardian may give consent on behalf of a minor daughter or son for the child to donate bone marrow to a sibling, only when to do so would be in the minor's best interest." This might occur, for example, when there is a great emotional attachment between siblings, which was not the case here. Further, for such young children the procedure would require the emotional support of the major caregiver, which was obviously absent here since the mother opposed the procedure. The court also declined to order the preliminary blood tests since acting as donors would not be in the twins' best interests.

Justice Calvo wrote the 43-page opinion in Curran v Bosze (Docket No. 70501).

F. Mark Siebert

26/March 199I/Illinois Issues