author: PRESIDING JUSTICE McCULLOUGH

text:
    THOMAS WANTROBA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kentucky Fried Chicken, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 92—2692WC
    Opinion filed June 18, 1993.

      Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon and Lawrence G. Gordon, of counsel), for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (James W. Stevenson, Jr., of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by claimant Thomas Wantroba from an order of the circuit court of Cook County confirming the decision of the Illinois Industrial Commission (Commission). The respondent employer in this case is Kentucky Fried Chicken. The arbitrator awarded claimant $210 per week for 16 weeks’ temporary total disability (TTD) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b)), and $189 for 15 weeks’ permanent partial disability (PPD) to the extent of 3% of the person as a whole. The Commission increased the TTD award to 16½ weeks, and increased the PPD to $189 per week for 40 weeks’ PPD to the extent of 8% of the person as a whole (111. Rev. Stat. 1989, ch. 48, par. 138.8(dX2)), and $21,001.90 for necessary medical expenses (111. Rev. Stat. 1989, ch. 48, par. 138.8(a)).

On appeal, claimant asks this court to consider whether the Commission’s refusal to allow claimant’s medical expert to testify was error and whether the Commission’s decision was against the manifest weight of the evidence for the following reasons: (1) the decision failed to include $8,016 of medical expenses claimed to have resulted from the accident; (2) TTD should have been awarded for 16 3/7 weeks; and (3) PPD should have been found to amount to 15% of the person as a whole. Although the decision of the Commission will be modified as to the award of TTD, the remainder of the circuit court’s decision will be affirmed.

On November 16, 1985, while employed as an assistant manager for respondent, claimant was taking receipts to a bank and his car was involved in a collision with a truck. Claimant was treated for a severe whiplash-type of injury, laceration of the soft tissue of the cervical spine, contusion of the right shoulder, and post-traumatic low-back pain secondary to disc damage and injury to the nerve roots in that area.

Initially, we determine whether the Commission’s refusal to allow claimant’s medical expert to testify was error. On October 12, 1989, claimant filed his petition for review of the arbitrator’s decision with the Commission. However, the hearing at which claimant attempted to introduce Dr. John Skuza’s testimony was not conducted until July 17, 1990. At the time claimant filed the petition for review with the Commission, section 19(e) of the Workers’ Compensation Act (Act) provided as follows concerning hearings by the Commission:

“Additional evidence may be adduced where such evidence (1) relates to the condition of the employee since the time of the arbitration hearing, (2) relates to matters that occurred or conditions that developed after the arbitration hearing, or (3) was, for good cause, not introduced at the arbitration hearing.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(e).)

Section 19(e) has now been amended to provide that no additional evidence will be allowed to be introduced before the Commission on review of an arbitrator's decision. (See Ill. Rev. Stat. 1989, ch. 48, par. 138.19(e) (amended by Pub. Act 86 — 998, §1, eff. Dec. 18, 1989 (1989 Ill. Laws 6749)).) However, the Commission, by rule, has applied the amendment only to proceedings in which the first hearing of record before the arbitrator commenced after December 18, 1989. (See 50 Ill. Adm. Code §7040.40(b) (1991) (amended at 14 Ill. Reg. 13173, eff. Aug. 1, 1990).) The Commission rule, in effect at the time of the Commission hearing at which claimant tried to introduce the evidence, limited additional evidence to be presented to the Commission in conformance with the three conditions set forth in the statute which was in effect prior to December 18, 1989. 50 Ill. Adm. Code §7040.40(b) (1985).

The testimony by Skuza did not relate to the condition of the claimant since arbitration or to a matter that occurred or a condition that developed after the arbitration hearing. Skuza’s testimony related to the second hospitalization of claimant from June 30 to July 4, 1986, regarding a neurogenic bladder condition, which the arbitrator had found not to be causally related to the accident. The only category of section 19(e) under which this evidence would be admitted, therefore, would necessitate that claimant demonstrate good cause for not presenting that evidence at the arbitration hearing. However, this court has stated that the provisions of section 19(e) with regard to admitting additional evidence before the Commission are merely guidelines, directing the Commission to situations in which it could properly exercise its discretion, and the parties need not establish the precise circumstances described in section 19(e) guidelines for the evidence to be admissible in the discretion of the Commission. Vesco Ventilation & Equipment Sales v. Industrial Comm’n (1988), 168 Ill. App. 3d 959, 963, 523 N.E.2d 111, 114.

Unlike the case at bar, Vesco Ventilation concerned the propriety of the Commission admitting evidence. In Werries v. Industrial Comm’n (1986), 114 Ill. 2d 43, 48, 499 N.E.2d 459, 461, the Illinois Supreme Court considered the Commission’s refusal to admit evidence, as here, and noted that the determination of whether additional evidence should be heard rests within the Commission’s sound discretion. In upholding the refusal to admit the evidence, the Illinois Supreme Court stated in Werries:

“We would also point out that the result reached today is consistent with the Industrial Commission’s position that ‘an Arbitrator must have all available evidence before him at the time of hearing in order to render a proper decision.’ (Dohe v. City of Chicago, Department of Public Works, Bureau of Construction (1982), Ill. Indus. Com. No. 82 IIC 203.) In numerous published decisions, the Commission has denied litigants the opportunity to present additional evidence on review, reasoning that the ‘failure to make reasonable efforts to present all available evidence to the Arbitrator deprive[s] him of the opportunity to review all the evidence together before reaching a decision, and only serve[s] to hamper the efficient administration of the Workers’ Compensation System, to the potential detriment of the parties in all other cases.’ (Feliciano v. Sidney Wanzer & Sons, Inc. (1982), Ill. Indus. Com, No. 82 IIC 727; see also Edmones v. Kluwozon Retreat Center (1985), Ill. Indus. Com. No. 85 IIC 29; Corirossi v. Northern Illinois Gas Co. (1985), Ill. Indus. Com. No. 85 IIC 125; Stoutemire v. Stewart Warner Corp. (1984), Ill. Indus. Com. No. 84 IIC 311; Smith v. Schaumburg Fire Department (1983), Ill. Indus. Com. No. 83 IIC 267; Breece v. Crown Steel Sales, Inc. (1982), Ill. Indus. Com. No. 82 IIC 445.) The claimant’s counsel in the present case assumed a significant risk by withholding evidence that was readily available and that could have been presented at the time of arbitration. We therefore hold that it was within the commissioner’s discretion to deny the claimant’s request to present this additional evidence on review.” Werries, 114 Ill. 2d at 50-51, 499 N.E.2d at 462.

In this case, the first hearing was conducted by the arbitrator on February 9, 1988. At the end of claimant’s testimony on February 11, 1988, the arbitrator asked claimant’s attorney if he had any exhibits and was informed that the exhibits would be presented “following deposition.” The arbitrator ruled that respondent would be allowed to present witnesses, and inquired of claimant as to how much time was needed for deposition. Claimant’s attorney stated he hoped to schedule two depositions within 60 days. The arbitrator set April 11, 1988, to close proofs. The stipulation sheet was amended to provide that, from the time claimant returned to work after the accident until the date of his termination, claimant missed five weeks of work instead of four weeks.

The next hearing was conducted on April 11, 1988. After respondent presented witnesses, the parties tendered exhibits. Among the exhibits tendered were medical reports from claimant’s treating physician, Dr. Augustyn Stec. Respondent objected to the medical reports being offered when claimant had requested a 60-day continuance for deposition which was not taken. Respondent specifically complained that it was given no opportunity to respond to these documents which were being admitted into evidence. Counsel for claimant and the arbitrator did not recall any definite scheduling of depositions or an indication that depositions would be taken. The arbitrator reserved his ruling on this objection.

On March 9, 1989, a hearing was conducted to close proofs. The first exhibit was the evidence deposition of Stec. In addition, the evidence deposition of Dr. David Shenker, an examining physician, was placed into evidence by respondent. There was no indication anywhere in the record that Skuza was unavailable on March 9, 1989, to testify, that claimant wanted to call him, or why he could not have been deposed earlier.

On review before the Commission, claimant attempted to have Skuza testify at a hearing before Commissioner Richard Gilgas on July 17, 1990. Respondent objected to the consideration of this additional testimony since claimant never presented Skuza as a witness before the arbitrator, did not depose him even though the arbitration proceeding was continued for depositions, and did not indicate at the last hearing before the arbitrator that he wanted to call Skuza as a witness but could not because Skuza was unavailable to testify as claimant’s attorney represented to the Commissioner. Respondent complained that at the time the proofs were closed before the arbitrator, claimant was satisfied that the information regarding what Skuza did for claimant was introduced through Stec. Claimant’s attorney conceded that was true, but argued that since a substantial amount of uncompensated bills were involved, it would be unfair to claimant not to allow Skuza to testify. The Commissioner sustained the objection to the additional evidence, but allowed Skuza to testify as an offer of proof. When Skuza testified in his offer of proof, he did not testify he was not available on the date of the last hearing before the arbitrator or for an evidence deposition prior thereto.

Under the facts of this case, claimant had ample opportunity to take Skuza’s deposition or to seek a continuance in order to take a deposition or to produce the doctor to testify. Based on Werries, the refusal to admit the evidence in the case at bar was not an abuse of discretion.

Next, we consider whether the Commission’s decision was against the manifest weight of the evidence for the following reasons: (1) the decision failed to include $8,016 of medical expenses claimed to have resulted from the accident; (2) TTD should have been awarded for 16% weeks; and (3) PPD should have been found to amount to 15% of the person as a whole. Initially, it must be noted that, at oral argument, respondent conceded claimant should have been awarded 16 3/7 weeks’ TTD. As a result, we modify the Commission’s decision so as to award claimant TTD for 16 3/7 weeks instead of 16 1/7 weeks.

Claimant argues that he was entitled to an additional $8,016 in medical expenses. Although claimant’s motion was allowed to amend his brief to correct the amount of medical expenses sought on appeal, claimant’s brief does not contain a specific argument concerning the medical bills and, except to the extent that he has argued there is a causal relationship between the neurogenic bladder condition and the accident, he has waived any arguments concerning the medical expenses.

Claimant argues he deserves an award of PPD to the extent of 15% of the person as a whole instead of 8%. He primarily argues that there was proved to have been a causal relationship between the accident and his neurogenic bladder condition. He contends Stec’s opinion should have been accepted because Stec consulted a urologist, Skuza, while Shenker, respondent’s expert, was not a urologist.

In March 1986, claimant began treatment for problems he was experiencing with regard to urinating and defecating. After examinations by Stec and Skuza, claimant was rehospitalized on June 30, 1986. According to Stec’s testimony, Skuza found a neurogenic bladder, flaccid type. That meant the muscles responsible for urination were weak. It was Stec’s impression, at that time, that claimant’s bladder difficulties were probably resulting “from lumbosacral nerve root injuries with faulty innervation after injury of the bladder.” The bladder condition could have resulted from the type of injuries claimant sustained in the November 1985 automobile accident. Stec postulated that, during the accident, claimant had trauma to the spine which resulted in traction on the nerve roots, especially with increased mobility due to the congenital spondylolysis and spondylolisthesis. Stec opined this “could cause the stretch injury, traction injury of the nerve roots in the lumbar region.”

Shenker testified that a contusion of the cauda equina, multiple lumbosacral nerve roots running in the dorsal sac below the spinal cord, is a very serious injury and there would be an immediate problem, not something that was delayed. There was no history of sacrosensory loss and no evidence of dramatic changes in bladder or bowel function or a disc change or impairment of nerve root function. There are a number of different causes for this type of problem. Shenker did not believe, based on the findings at both admissions and the time that had elapsed between them, that there was any evidence that indicated that the neurogenic bladder was related to the accident in November 1985.

The Commission adopted the arbitrator’s findings that the November 16, 1985, accident aggravated claimant’s preexisting spondylolisthesis, but did not cause the neurogenic bladder problem. Although Dr. Stec postulated that the impact from the trauma to the spine resulted in traction on the nerve roots causing claimant’s bladder condition, there was no evidence claimant sustained any contusion or blow directly to the low back during the accident. Dr. Shenker’s testimony that there was nothing to indicate claimant’s neurologic complaints were in any way connected to the accident was adopted by the arbitrator and confirmed by the Commission.

Those findings are not contrary to the manifest weight of the evidence. With regard to the medical expenses, the Commission’s finding that there was no causal relationship between the neurogenic bladder condition and the accident justifies the denial of the remaining medical bills which claimant now seeks.

If the Commission’s decision is supported by the evidence, a reviewing court will not substitute its judgment for that of the Commission merely because other reasonable inferences might have been drawn from the evidence. International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 65, 442 N.E.2d 908, 911.

Pursuant to section 19(f)(2) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(f)(2)), that portion of the Commission’s award providing for TTD is modified, by agreement of the parties, to be for 16 3/7 weeks instead of 16 3/7 weeks. To that limited extent, the order of the circuit court of Cook County is modified. In all other respects, the order of the circuit court of Cook County confirming the order of the Commission is affirmed.

Affirmed as modified.

RAKOWSKI, WOODWARD, SLATER, and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEVESTER GARNER, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—2278
    Opinion filed June 21, 1993.

      Rita A. Fry, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Christopher Daddino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On August 25, 1989, the body of William Winston was found stabbed to death in the kitchen of his house at 2846 West Taylor Street in Chicago. Acting on a tip, police arrested defendant, Clevester Garner, as he was driving the victim’s missing automobile. At the conclusion of the ensuing trial, a jury convicted defendant of murder and armed robbery, and the State sought the death penalty. Defendant waived his right to a jury for the subsequent sentence hearing, and the circuit court ultimately found him eligible for the death penalty. However, noting several mitigating factors, the court declined to impose the sentence of death and ordered defendant imprisoned for the rest of his life without the possibility of parole. Defendant also received a 60-year term for the armed robbery, with the sentences to run concurrently. This timely appeal followed.

We affirm.

Police discovered Winston’s body on August 25, 1989. No money was found either on the victim or on the premises. The right pocket of Winston’s trousers, however, had been turned “inside out.” An autopsy revealed that Winston had been stabbed 27 times, primarily in the chest, back, and scalp, and had been dead for about two days.

The State’s principal witness was defendant’s sister, Delores Garner. At trial, Delores stated that she had met Winston through her friend, Ella Langford, with whom Delores lived at the time. Delores swore that she spent the night of August 23, 1989, with Lucius Smith and did not return to Langford’s house until 1 p.m. the next day. Delores maintained that she knew nothing about Winston’s death.

Delores, however, admitted that, on August 26, 1989, she told detectives investigating Winston’s death that she and Winston had been dating for several months prior to his death and that Winston often gave her money in return for sex. Delores admitted that she further told detectives that she went to Winston’s house with defendant and a woman named “Brenda” on August 23, 1989 at 7 p.m. Brenda performed a “sex show” for which she received some money from Winston. Winston put the remainder of his money in his pants pocket. Brenda then left. Winston asked Delores for sex, but she refused. Delores told police that, at that time, defendant “got up into” Winston’s face and said, “I thought you were going to help me get on my feet.” Winston and defendant argued and went into the kitchen. Delores saw defendant “come up with” a knife and stab Winston in the chest several times. Delores became frightened and fled.

Delores also told detectives that she returned to Winston’s home two days later with two friends. Delores climbed through a front window, which she had unlatched on the night of the murder. The house was “disturbed,” and Delores took some change and ran away.

Delores also admitted that she met Assistant State’s Attorney Michelle Katz at the police station on August 27, 1989, and informed Katz that Winston had told her that he would help defendant by giving him money. Delores told Katz that she related Winston’s offer to defendant and that defendant accompanied her and Brenda to Winston’s home in order to get some money from Winston. Defendant and Winston fought at the house because defendant wanted money and because Winston had called Ella Langford a “bitch.” During her testimony, Delores identified a signed summary of her conversation with Katz, which was later introduced into evidence. Delores further admitted testifying to the same facts before a grand jury on August 28, 1989.

During cross-examination, Delores confessed that she smokes marijuana and takes heroin. In December 1989, she was hospitalized for opiate withdrawal syndrome. Delores denied ever having sex with Winston. She maintained that Winston gave her money when she asked for it. Delores stated that she originally told detectives that she knew nothing about Winston’s death, but they elbowed her, slapped her, and yelled at her. When she finally gave a statement, she was treated better and given food. Delores was kept in police custody until she testified before the grand jury and was threatened that if she did not testify to the truth she would be charged with murder.

On redirect examination, Delores conceded that she never told the assistant State’s Attorney about the mistreatment she claimed to have suffered at the hands of the police. Delores stated that she loved her brother and would say anything to help him. When asked by defense counsel if she would say anything to save herself, Delores replied that she had “no reason” to save herself.

Mary Jamison testified that she, Barbara Thomas, and Delores met on August 25, 1989, in order to celebrate Mary’s birthday. The three women went to a liquor store where Delores made a telephone call. When she returned, Delores stated that “her friend” had told her to “come up and pick up $40.” The group then walked to Winston’s house on Taylor Street. Delores told them that the “guy” was supposed to give her $40. When they reached the front porch, Delores neither knocked on the door nor rang the doorbell, but, instead, climbed through a window. At that time, Jamison and Thomas left the premises. As they started to leave, Delores ran up behind them with change “falling from her clothes.” When Jamison asked Delores why she was running, Delores replied, “when you do the devil’s work, this is what will happen to you.” The group returned to Jamison’s apartment, where they stayed all night. Delores eventually spent the night at Jamison’s mother’s apartment, next door to Jamison’s apartment. Neither defendant nor defendant’s brother, Marvin Williams, was at Jamison’s apartment on August 26, 1989.

Marvin Williams testified that, on August 25, 1989, he met defendant while Williams was going to pick up his paycheck. Defendant, who was standing next to a white car, asked Williams if he wanted a lift. When Williams asked where defendant had gotten the car, defendant replied, “don’t worry about that, that's my friend’s uncle’s car.” Defendant took Williams to get the check and later dropped him off at a friend’s home. Williams identified a photograph of the car in which defendant rode as belonging to Winston.

On August 26, 1989, Williams was at Jamison’s mother’s apartment when he was told that his sister was in jail for killing a man. Williams went into the hallway, where he saw defendant, and asked him what was going on. Defendant told Williams that Delores “was supposed to have stabbed this guy.” She “couldn’t finish so he [defendant] finished it.” Marvin denied that he was using “PCP” on that date.

Ella Langford testified that she had known Winston for 12 years and that Delores lived at Langford’s home at the time of the murder. Winston and Delores were seeing each other, and Winston sometimes gave Delores money because “they were going together.” On August 23, 1989, Delores left the house at 8:30 p.m. and did not return until 11:30 the next morning. Lucius Smith repeatedly stopped by the Langford house on the night of the 23rd, looking for Delores. On August 25, 1989, Langford learned that Winston had been stabbed. Following a conversation with Marvin Williams, Langford called police and told them that defendant was in a car “by the projects.”

Langford stated that Delores has a reputation as a liar and a violent person in the community. Three weeks prior to the murder, Delores had attempted to stab Langford's son. Marvin Williams also had a reputation as a liar.

On August 26, 1989, Detective James Capesius received a call that Winston’s car was spotted at 13th Street and Talman Avenue. During his surveillance of the car, Capesius observed defendant walk to the car, get in, and drive away. Capesius followed and eventually pulled defendant over. Defendant possessed the keys to the car, which was identified as belonging to Winston.

Following closing arguments, the jury returned guilty verdicts as indicated above. The circuit court denied defendant’s post-trial motion and subsequently entered the sentence as previously detailed.

Defendant initially contends that Delores was an accomplice witness and that the circuit court committed reversible error by refusing to give the jury the following “accomplice witness” instruction:.

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.17).

A defendant is entitled to the accomplice-witness instruction if there is probable cause to believe the witness was guilty as a principal or as an accessory on the theory of accountability. (People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234, cert. denied (1991), 502 U.S. 829, 116 L. Ed. 2d 189, 112 S. Ct. 233; People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E .2d 31; People v. Robinson (1974), 59 Ill. 2d 184, 319 N.E .2d 772.) An accomplice is not one who merely “ ‘has guilty knowledge or *** who was even an admitted participant in a related but distinct offense.’ ” (People v. Robinson, 59 Ill. 2d at 191, quoting People v. Hrdlicka (1931), 344 Ill. 211, 222, 176 N.E. 308.) An accomplice is one who takes some part, performs some act or owes some duty to the person in danger that makes it incumbent on him or her to prevent the commission of the crime. (People v. Robinson, 59 Ill. 2d at 191.) The accomplice-witness instruction should be given to a jury if the totality of the evidence and the reasonable inferences that can be drawn from it establish probable cause to believe, not merely that the person was present and failed to disapprove of the crime, but that he or she participated in the planning or commission of the crime. (People v. Henderson, 142 Ill. 2d at 315.) If this test is met, the defendant is entitled to the instruction notwithstanding the witness’ denial of involvement. People v. Cobb, 97 Ill. 2d at 476; People v. Howard (1991), 209 Ill. App. 3d 159, 568 N.E.2d 56, appeal denied (1991), 141 Ill. 2d 551, 580 N.E .2d 125.

We need not determine whether Delores was an accomplice so as to warrant the giving of the instruction because we are of the opinion that any error which may have occurred from the failure to give the instruction, was harmless. Our courts have considered such an error harmless where the general instructions, taken as a whole, correctly and fully instruct the jury. People v. Parks (1976), 65 Ill. 2d 132, 138, 357 N.E.2d 487; People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894. See also People v. Howard, 209 Ill. App. 3d at 185.

During her testimony, Delores admitted to prior inconsistent statements under oath and to the use of narcotics. Defense counsel sharply cross-examined her as to her motives in testifying, including the possibility of being charged in the present case. Although defendant correctly notes that the jury was not specifically instructed that Delores’ credibility was subject to suspicion due to her role as an accomplice, the jury was instructed as to its duty to evaluate the believability of witnesses generally:

“You are the sole judges of the believability of the witnesses and of he [sic] weight to be given to the testimony of each of them. In considering the testimony of any witness you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have and the reasonableness of his testimony considered in the light of all the evidence in the case.”

This instruction, though general, has been held to be sufficient in instructing the jury as to an accomplice’s credibility in the absence of the more particularly worded accomplice-witness instruction. (See People v. Dowd, 101 Ill. App. 3d at 845.) Our conclusion is further strengthened by the fact that the jury also received instructions pertaining to witness believability with regard to drug usage and prior inconsistent statements. Specifically, the jury was instructed that

“[t]he believability of a witness may be challenged by evidence that on some former occasion he or she made a statement that was not consistent with his or her testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given to the testimony you heard from the witness in this courtroom.
* * *
You have before you evidence that Delores Garner and Marvin Williams were users of narcotics. It is for you to determine whether any witness is addicted to narcotic drugs. If you find from your consideration of all the evidence that a witness is addicted to narcotics, you must subject his or her testimony to full scrutiny and act upon it with great caution.”

Both of these instructions related to Delores, and both signalled to the jury that the weight to be given Delores’ testimony called for careful scrutiny and caution. Viewing defendant’s trial as a whole, we cannot say that the circuit court’s refusal to give the instruction deprived the jury of intrinsic direction in its evaluation of witness credibility.

Defendant next alleges that he was denied a fair trial as a result of improper jury instructions regarding his statement to Marvin Williams. The instruction, IPI Criminal 2d No. 3.06-3.07, concerns statements made by defendant:

“You have before you evidence that the defendant made a statement relating to the offense charged in the indictment. It is for you to determine [whether the defendant made the statement, and if so,] what weight should be given to the statement. In determining the weight to be given to a statement, you should consider all the circumstances under which it was made.” (IPI Criminal 2d No. 3.06-3.07.)

The instruction given to the jury in the present case omitted the bracketed phrase. The committee notes following the instruction state that the phrase directing the jury to determine whether defendant made the statement should be deleted only when the defendant admits to making the material statement attributed to him. IPI Criminal 2d No. 3.06-3.07, Committee Note.

Defendant cites People v. Cook (1965), 33 Ill. 2d 363, 211 N.E.2d 374, in support of his argument for reversal because of the failure to tender the omitted phrase. However, that case is factually distinguishable from the facts of the present case. In People v. Cook, the defendant testified at trial and denied taking part in the robbery at issue. Furthermore, the defendant denied admitting his guilt to the police and stated that he refused to sign the written statement in which he confessed to his participation in the crime. (People v. Cook, 33 Ill. 2d at 367-68.) Here, defendant did not take the stand at trial to specifically deny making the statement to his brother, nor was there any other evidence presented to the jury which raised the question of whether he made the statement. Thus, the main distinction between defendant’s situation and that in People v. Cook was that the jury here was not aware of the possibility that defendant denied malting the statement ascribed to him. At trial, defendant neither admitted nor denied anything. Accordingly, the facts of the present case are more similar to those in People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399, and People v. Fleming (1981), 103 Ill. App. 3d 194, 431 N.E.2d 16, where the reviewing courts held that the failure to include the bracketed language did not warrant reversal where defendant presented no evidence that defendant denied making the statement. To allow otherwise would confuse the jury by making it decide an issue improperly before it. (People v. Lee, 151 Ill. App. 3d at 530; People v. Fleming, 103 Ill. App. 3d at 198.) Moreover, as noted above, the jury here was instructed on weighing the testimony in general and witness credibility. (See People v. Lee, 151 Ill. App. 3d at 530.) Accordingly, we are satisfied that, given the lack of evidence presented to the jury which would indicate that defendant denied making the statement, the instruction was sufficient without the deleted phrase.

Defendant next contends that certain remarks made by the prosecutor in closing argument operated to deny him a fair trial. Defendant specifically points to the prosecutor’s remarks concerning Delores and the reason why she was not charged in this case.

This issue has been waived due to defendant’s failure to make a contemporaneous objection at trial and his failure to include the claim in his post-trial motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Center (1990), 198 Ill. App. 3d 1025, 556 N.E.2d 724.) Moreover, the waiver cannot be excused under the plain error exception because neither prong of that exception (see 134 Ill. 2d R 615(a)) is satisfied in this case.

Were we to reach the merits of defendant’s argument, the complained-of comments, even if improper, are not grounds for setting aside the conviction because it cannot be said that they constituted a material factor in the determination reached by the jury. See People v. Dowd, 101 Ill. App. 3d at 847.

Finally, defendant argues that his armed robbery conviction must be reversed because the State presented insufficient evidence to sustain the charge.

A conviction of armed robbery requires proof that the accused committed a robbery while carrying, or armed with, a dangerous weapon. (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a).) The offense of robbery is committed when force or the threat of force is used in the taking of property from the person or the presence of another. (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1(a).) That the taking was by use or threat of force is proven where the fear of the victim was of such a nature so as to induce a reasonable person to part with his property for the sake of his person. (People v. Thomas (1989), 189 Ill. App. 3d 365, 545 N.E.2d 289.) Therefore, it is the utilization of force or intimidation in the taking which is the material element of the offense. (People v. Downey (1987), 162 Ill. App. 3d 322, 515 N.E.2d 362, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249.) Whether or not such force or threats of force were used is a question of fact for the jury to decide, and its decision will not be disturbed on appeal unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of guilt. People v. Thomas, 189 Ill. App. 3d at 369.

Defendant contends that the prosecution failed to establish that the property was taken by the use of force or the threat of force. Relying on People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121, defendant states that his use of force was not employed for the purpose of causing Winston to relinquish his property.

The defendant in People v. Tiller was convicted of murder on an accountability theory and of armed robbery for taking the murder victim’s vehicle. The defendant in that case left the scene before the murder was committed by a codefendant, but later returned to take the victim’s vehicle, which was parked nearby. The supreme court reversed the defendant’s armed robbery conviction because there was no connection between the force exerted against the victim and the eventual taking of the vehicle. (People v. Tiller, 94 Ill. 2d at 316.) The taking of the vehicle in People v. Tiller was apparently an afterthought to the commission of the murder. In the present case, the evidence shows that defendant went to Winston’s house with the express purpose of getting some money from Winston. Once there, the two men began to argue over money, ending ultimately with defendant picking up a knife and stabbing Winston with it. Delores’ testimony established that, while alive, Winston carried cash in his trouser pocket. This pocket was found turned “inside out” and empty by police. Under these circumstances, the jury could properly conclude that defendant’s use of force and removal of the property were essentially a related series of acts. This conduct establishes the necessary concurrence of events to constitute armed robbery. See People v. Williams (1987), 118 Ill. 2d 407, 515 N.E.2d 1230.

In view of the foregoing, defendant’s convictions must be affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE GIANNIS

text:
    THEODORE CHABRAJA, Plaintiff-Appellant, v. RICHARD J. MARTWICK et al., Defendants-Appellees (The County of Cook et al., Nominal Defendants-Appellees).
    First District (6th Division)
    No. 1 — 92—0078
    Opinion filed June 25, 1993.

      Krislov & Associates, Ltd. (Clinton A. Krislov and Jonathan Nachsin, of counsel), and Fumagalli & Tecson, Ltd. (Daniel J. Fumagalli, of counsel), both of Chicago, for appellant.
    Mayer, Brown & Platt, of Chicago (Tyrone C. Fahner, Herbert L. Zarov, and Anne K. Lewis, of counsel), for appellees.
   JUSTICE GIANNIS

delivered the opinion of the court:

In this taxpayer derivative suit Theodore Chabraja, plaintiff-appellant (plaintiff), appeals a circuit court order dismissing all claims against defendant-appellee, Amalgamated Trust and Savings Bank (Bank), pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615). The circuit court determined that plaintiff’s pleadings were insufficient to state a cause of action against "the Bank under various theories related to the Public Funds Deposit Act (the Deposit Act or Act) (Ill. Rev. Stat. 1989, ch. 102, par. 34 et seq.). Pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the circuit court expressly found that there was no reason to delay appeal of the circuit court’s order. The sole issue for our consideration, therefore, is whether any of the three counts against the Bank asserted in plaintiff’s complaint state a cause of action.

When “public funds” are not “needed for immediate disbursement,” the Deposit Act requires the Cook County school superintendent, as a “custodian of public funds,” to invest such funds “within 2 working days at prevailing rates or better.” (Ill. Rev. Stat. 1989, ch. 102, par. 34.) Each count of plaintiff’s five-count complaint relates to this statutory obligation. Counts I and II are against the Cook County school superintendent (Superintendent). Count I seeks to impose liability upon the Superintendent, derivatively on behalf of Cook County, for maintaining a non-interest-bearing account in violation of the Deposit Act. Count II seeks to impose liability under a breach of fiduciary duty theory in connection with the Superintendent’s maintenance of such an account. Counts I and II are not at issue in this appeal.

Counts III, IV and V are brought by plaintiff against the Bank alone. Count III alleges that the Bank violated the Deposit Act by maintaining a non-interest-bearing account on behalf of the Superintendent. Count IV alleges participation by the Bank in the Superintendent’s breach of a fiduciary duty to Cook County stemming from the Bank’s maintenance of the non-interest-bearing account. Count V alleges that the Bank was unjustly enriched to the extent it failed to pay interest on the disputed account. Plaintiff sought to compel the Superintendent and the Bank to account for lost interest and sought an order compelling the Superintendent to comply in the future with the provisions of the Act.

The circuit court granted the Bank’s motion to dismiss counts III, IV and V on grounds that these claims failed to state a cause of action. The court determined that the Bank owed neither statutory nor fiduciary duties to plaintiff or to Cook County. Specifically, count III was dismissed because the circuit court believed that the Deposit Act imposed a statutory duty upon the Superintendent only, and not upon those depository institutions in which the Superintendent chose to deposit public funds. Count IV was dismissed because the circuit court determined no fiduciary duties existed between the Bank and the Superintendent and because plaintiff failed to allege that the Bank induced the Superintendent to act improperly. Count V was dismissed when the circuit court determined that “unjust enrichment” was not an independent cause of action in Illinois.

The central issue presented is whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (See, e.g., Burdine v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504.) The Code of Civil Procedure provides that pleadings are to be liberally construed to achieve substantial justice between the parties. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 603(c).) An action should not be dismissed on the pleadings for failure to state a cause of action unless it clearly appears that no set of facts could be proved which would entitle the plaintiff to relief. (DiBenedetto v. Flora Township (1991), 219 Ill. App. 3d 1091.) A motion to dismiss a complaint for failure to state a cause of action admits all facts well pleaded together with all inferences which could be drawn from the facts. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320.

Each of the three counts at issue involves section 1 of the Deposit Act, which states:

“Any treasurer or other custodian of public funds may deposit such funds in a savings and loan association or State or national bank in this State. When such deposits become collected funds and are not needed for immediate disbursement, they shall be invested within 2 working days at prevailing rates or better.” Ill. Rev. Stat. 1989, ch. 102, par. 34.

Because depository institutions such as the Bank are not “treasurers” or “custodians of public funds” under the Act, count III fails to present a legally sufficient cause of action. The provisions of the Act itself make a clear distinction between two specific types of entities: “savings and loan association^] or State or national bank[s]” and “treasurer[s] or other custodian[s] of public funds.” While count I of plaintiff’s complaint alleges that the Superintendent is a custodian of public funds, the same allegation cannot be made against the Bank in count III. Therefore, count III is legally insufficient.

With regard to count IV, plaintiff’s “participation” claim, plaintiff argues that the Superintendent is a public official charged as a fiduciary with respect to monies collected in the performance of his duties. (County of Cook v. Barrett (1975), 36 Ill. App. 3d 623, 628.) Plaintiff argues that section 1 of the Deposit Act serves to expand the scope of the Superintendent’s fiduciary obligations by requiring that public funds subject to the Act accumulate interest. As the supreme court itself has stated, “This legislation represents another step in the process of eliminating the practice of placing public funds in non-interest-bearing accounts, a formerly existing and troubling practice.” (Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 204-05.) The Deposit Act thus implemented an “explicit legislative intent that public funds should be deposited in income-producing fashion.” O’Connor, 85 Ill. 2d at 206.

Count IV, however, seeks not to hold the Superintendent liable for breaching a fiduciary duty, but rather, the Bank for “participating” in a breach of trust by the Superintendent. As recognized in People ex rel. Daley v. Warren Motors, Inc. (1986), 114 Ill. 2d 305, 318-19, “[a] constructive trust may be imposed upon benefits obtained by a third person through that person’s knowledge of or involvement in a public official’s breach of a fiduciary duty.” (See also Conant v. Karris (1987), 165 Ill. App. 3d 783, 790-91 (“[a] third party who participates in a breach of a fiduciary’s duty of loyalty, or knowingly accepts any benefit from such a breach, becomes directly liable to the aggrieved party”); Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 454 (“[a] constructive trust may be imposed upon benefits obtained by a third person through his knowledge of or involvement in a public official’s breach of a fiduciary duty,” citing Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555).) The Bank does not deny the general proposition that liability may be premised upon a defendant’s “participation” in a fiduciary’s breach of trust. The Bank notes, however, that the participation theory of recovery has been broken into two distinct elements: (1) an act or omission which furthers or completes the breach of trust by the trustee; and (2) knowledge at the time that the transaction amounted to a breach of trust, or the legal equivalent of such knowledge. G. Bogert, Trusts & Trustees §901, at 258-59 (2d ed. 1982) (hereinafter cited as Bogert).

The Bank argues that those cases that have held a defendant liable under a participation theory of liability have all involved defendants who have actively participated in the breach, either by paying a bribe, colluding, or misusing confidential information. For example, in People ex rel. Daley v. Warren Motors, Inc. (1986), 114 Ill. 2d 305, the defendant was alleged to have participated by bribing another to reduce property taxes. In Conant v. Karris (1987), 165 Ill. App. 3d 783, the defendant participated by misusing information he knew to be confidential to enable him to purchase a parcel of property. In Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 564, “defendants intentionally and deliberately induced [the] breach of fiduciary duty by means of bribery.” And in Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 455, the third party was “charged with inducing and participating in a scheme whereby he caused certain village officials to breach their fiduciary duty to the public.” Because we do not believe the mere act of accepting a deposit can amount to an “act or omission which furthers or completes the breach of trust by the trustee” (see Bogert, at 258-59), we reject plaintiff’s claim that the Bank has somehow “participated” in the Superintendent’s alleged breach.

With regard to count V, plaintiff’s unjust enrichment claim, plaintiff argues that he is entitled to the imposition of a constructive trust against the Bank. However, some form of wrongful or unconscionable conduct is a prerequisite to the imposition of a constructive trust (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 293), and plaintiff has pointed to no such conduct by the Bank here.

Finally, we note that the appellate court, in McKay v. Kusper (1993), 252 Ill. App. 3d 450, 462-63, recently decided identical questions raised by plaintiff in a lawsuit also involving the Bank. The McKay court affirmed the dismissal of each of the counts which correspond to the counts now at issue. We agree with the conclusions reached by the court in McKay.

Affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


author: PRESIDING JUSTICE TULLY

text:
    MICHAEL L. MITCHELL et al., Plaintiffs-Appellants, v. JOHN SKUBIAK et al., Defendants-Appellees (Home Inspection Consultants of Greater Chicago, Inc., Defendant).
    First District (3rd Division)
    No. 1 — 89—3514
    Opinion filed June 30, 1993.

      Brackett, Poulsom, Bretscher & Wirth, of Chicago (Robert C. Brackett and Ralph L. Brill, of counsel), for appellants.
    Charysh & Schroeder and Michael W. Rathsack, both of Chicago, for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This cause arises out of the purchase of a residential home in Oak Park, Illinois, by plaintiffs, Michael and Renee Mitchell, from defendants, John and Luba Skubiak. Subsequent to purchase, plaintiffs discovered various defects and damage to the property which were not obvious or were concealed during plaintiffs’ inspection of the property. The same defects were also not discovered by a third-party professional inspection firm, employed by plaintiffs to inspect the property prior to closing. Plaintiffs filed a complaint alleging fraudulent misrepresentation, concealment and nondisclosure by the defendant sellers as well as negligence by the inspection company. The trial court dismissed plaintiffs’ complaint against the defendant sellers, finding as a matter of law that plaintiffs could not have reasonably relied upon the representations or actions of the sellers, since plaintiffs employed their own expert home inspector. Plaintiffs appeal from the dismissal of their complaint.

On May 9, 1987, plaintiffs and defendants signed a contract for the purchase of defendants’ residence in Oak Park. An addendum to the contract allowed plaintiffs four days to retain an expert to inspect the residence for defects. Plaintiffs were given the option, based upon the inspector’s report, to either rescind the contract or negotiate for a reduction in price. Plaintiffs then engaged defendant Home Inspection Consultants of Greater Chicago, Inc. (Home Inspection Consultants), to perform the inspection. Following examination of the premises, Home Inspection Consultants sent a written report to plaintiffs, listing various defects which were discovered, and on the basis of this report, the parties mutually agreed to adjust the purchase price.

Pursuant to the contract of sale, plaintiffs were permitted a final walk-through inspection of the property, prior to closing. This final inspection took place on May 20, 1987, although the closing did not occur until July 15, 1987.

During the walk-through inspection, plaintiffs discovered new cracks in the walls and ceiling of the master bedroom. Defendants represented to plaintiffs that these were due to the differences in humidity between the attic and the bedroom and further stated that the cracks were not due to any other cause. While inspecting the garage, defendants stated that “from time to time a little rain water collected on the roof of the garage and would require sweeping the water off.” While inspecting the porch, plaintiffs did not notice any structural defects to the door or area leading under the porch, although they subsequently discovered that a damaged doorway area had been covered with carpeting.

Count I of plaintiffs’ complaint alleges that defendants knew that the roof of the main residence contained serious structural defects affecting value; that defendants affirmatively misrepresented the roof’s condition and the reason for the cracks in the master bedroom; that such statements were made with the intention of inducing plaintiffs’ reliance thereon; and that plaintiffs justifiably relied upon the representations of defendants, resulting in substantial damage to plaintiffs.

Count II of the complaint alleges essentially the same elements of misrepresentation found in count I, except the facts concerned the representation that the garage roof had to be swept from time to time after a rainfall. According to the complaint, this statement was a “half-truth,” creating an impression that the garage roof was not defective and misrepresenting the roof’s true condition.

Count III alleges that defendant knew of serious structural defects in the front porch and the doorway leading to the area beneath the front porch; that as a result of these defects, water was allowed to accumulate in the basement after each rain; that prior to any inspection by either plaintiffs or Home Inspection Consultants, the Skubiaks concealed the alleged defects by permanently gluing carpeting in place and placing furniture and other objects in front of the damaged doorway; that these acts of concealment amounted to affirmative misrepresentations that the porch was in good condition; and that the acts were done with the intent of inducing reliance by plaintiffs and Home Inspection Consultants on the outward appearance of the porch and to discourage further investigation.

Count IV of the complaint alleges that defendants knew of the various defects described in the other counts; knew that such defects were not easily discoverable upon inspection; knew that plaintiffs and their inspector would be misled by the nondisclosure of such defects; knew that these defects would be material to plaintiffs’ decision in purchasing their home; and that defendants possessed an affirmative duty as vendors of real estate to disclose the existence of these defects to the plaintiffs as purchasers. Furthermore, plaintiffs allege that they reasonably relied on the silence of defendants in purchasing their home and as a result of this reliance they incurred damages.

After hearing arguments on defendants’ motion to dismiss, the trial court concluded the following:

“Gentlemen, I conclude here there was not reasonable reliance. There may have been reliance, but it was not reasonable when you had an inspector, your clients had an inspector to go out and inspect the property. You have an action against the inspector. That is why I asked you if you were charging collusion between the owners and the inspector.
* * *
That failing, you have an independent inspector to go out, then there was no — it was not reasonable for your clients to rely on the sellers. And in fact they didn’t rely on them because they got their own inspector to go out.
* * *
I will grant the motion.”

The trial court dismissed plaintiffs’ complaint, finding as a matter of law: (1) plaintiffs did not actually rely upon the acts or omissions of defendants because they hired a third-party inspection company, upon whose opinion they relied; and (2) even if plaintiffs could show actual reliance on the sellers’ representations, such reliance was unreasonable because they hired a professional inspector.

On appeal, plaintiffs contend: (1) by actively concealing defects from the buyers as well as the home inspector, defendants can be held liable for fraud; (2) examination by an independent home inspector does not, as a matter of law, preclude buyers from relying upon the representations of sellers; and (3) plaintiffs’ action against the home inspector does not defeat a claim against the vendors of the property, even if the pleadings are inconsistent.

On appeal, the appropriate standard for considering a motion to dismiss is de novo. That is, this court must examine the complaint and consider, in light of all factual and legal circumstances, whether or not there exists any set of facts, if proven, which would support a cause of action under the laws of Illinois. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) All sufficiently pled facts must be accepted as true, and any reasonable inferences to be drawn must be construed in a light most favorable to the plaintiff. (Towne v. Cole (1985), 133 Ill. App. 3d 380, 478 N.E.2d 895.) A complaint should only be dismissed where there appears absolutely no set of facts which would permit recovery. Neuman v. City of Chicago (1982), 110 Ill. App. 3d 907, 443 N.E.2d 626.

We initially consider whether plaintiffs’ complaint sufficiently states a cause of action for fraudulent misrepresentation and fraudulent nondisclosure in the purchase and sale of a residential home.

The requisite elements of a common law fraud cause of action are: (1) a false statement of material fact, intentionally made; (2) the party to whom the statement was made had a right to rely on it; (3) the statement was made for the purpose of inducing reliance thereon; and (4) the reliance by the person to whom the statement was made led to his injury. (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324.) While silence in a business transaction does not generally amount to fraud, mere silence is quite different from concealment. Silence accompanied by deceptive conduct or suppression of material facts results in active concealment and it then becomes the duty of a person to speak. Under such circumstances, if a party to a contract of sale fails to disclose the whole truth, having the requisite intent to deceive, this amounts to fraud, equivalent to an affirmative falsehood. Russow v. Bobola (1972), 2 Ill. App. 3d 837, 277 N.E.2d 769.

While, traditionally, sellers of real estate were not liable for undisclosed defects under the doctrine of caveat emptor, the modern trend among courts is to impose a duty upon the sellers for failure to disclose defects which could not be discovered upon a reasonable and diligent inspection. (See Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154; Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409; Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133.) However, a seller’s silence in not disclosing defects, standing alone, does not give rise to a cause of action for misrepresentation. Silence must be combined with active concealment. (Dee v. Peters (1992), 227 Ill. App. 3d 1030, 591 N.E.2d 115.) Moreover, liability will not be imposed where the buyer was aware of the defects prior to purchase or could have discovered them through diligent inspection. Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 557 N.E.2d 383.

Turning to the facts in this case, during their final walk-through inspection, plaintiffs observed cracks in the master bedroom. Count I of the complaint alleges that defendants “explained away new cracks within the ceiling plaster of one bedroom as a condition due to the natural variances in the temperature and humidity between the attic and the bedroom, thus concealing the defects and discouraging further investigation by the plaintiffs.” The complaint further alleges that defendants knew of structural defects in the roof of the main residence, including “cracked, broken and insufficiently repaired rafters resulting in a condition of chronic leakage of rain water into two upstairs bedrooms within the residence.” Plaintiffs further allege that defendants knew of the defects and the faulty repair work and knew that they were not apparent or readily discoverable upon inspection.

Count II alleges essentially the same cause of action for misrepresentation, except the allegations concern defects in the roof of the garage. During the walk-through inspection, defendant, John Skubiak, stated that from time to time, rain water would collect on the roof and would require sweeping.

Considering the facts and surrounding circumstances contained in count I, we find that plaintiffs have presented facts which, if proven, could sufficiently support a finding of fraud. It is alleged that faulty repair work on the roof caused large amounts of water to leak into two of the upstairs bedrooms. It is further alleged that defendants knew of this faulty repair work and not only did they fail to disclose it, but they actively misled plaintiffs, by explaining a crack in the upstairs bedroom to be caused by temperature and humidity variances. There were no apparent water marks or wet areas which would have indicated a defective roof as the source of the cracks. Upon plaintiffs’ inquiring about the source of the crack, a duty to speak arose on behalf of the defendants. Their failure to speak, or rather to disclose the entire truth of the matter, sufficiently states a cause of action for fraudulent misrepresentation.

Whether or not defendants’ actions were intentional and whether or not plaintiffs’ reliance was reasonable are questions of fact to be properly decided by the trier of fact. In determining whether reliance was reasonable, all of the facts available to the buyer, as well as those he could have discovered with ordinary prudence, must be taken into account. (Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 453 N.E.2d 932.) We cannot find, as a matter of law, that plaintiffs’ belief in and reliance upon the representation that the cracked ceiling was caused by temperature variances was unreasonable.

Count II, however, presents a different set of facts. Plaintiffs were informed that water collects on the roof of the garage and that it has to be swept off. Plaintiffs claim that defendants had a duty to inform them that this water, if not swept off, would cause damage to the inside walls of the garage. This presents an easier case of shifting the duty of inspection to the buyer. Defendants fully disclosed the water problem and the fact that “it had to be swept off.” A little old-fashioned common sense on the part of the purchasers would have led them to the conclusion that if they did not sweep the water off the garage roof, it would probably drain into the garage, since obviously the water was collecting due to a faulty or nonexistent drainage system. Under these facts, we conclude that count II was properly dismissed for failing to state a cause of action.

Count III alleges that the front porch of the residence contained serious structural defects which were knowingly concealed by defendants, such.that the plaintiffs and the home inspector would not discover their true condition. Allegedly, defendants covered the porch and steps with indoor-outdoor carpeting, permanently affixed with glue, and further concealed a damaged door and doorway leading to the basement underneath the porch by placing furniture and other items in front of the door and doorway during inspections by plaintiffs and Home Inspection Consultants.

In the seminal case of Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133, the defendant sellers misrepresented to the buyers that there had never been a basement flooding problem in their home. They later admitted that they had concealed the flooding problem by removing damaged basement floor tiles and covering the area with a large rug. The owners also covered water-damaged walls in a bedroom with vinyl wall-covering. The court found that the sellers’ silence accompanied by such acts of concealment were sufficient to support a finding of fraud. Citing Russow v. Bobola (1972), 2 Ill. App. 3d 837, 277 N.E.2d 769.

Again, count III alleges actions by defendants, which, if proven, amount to an active concealment of defects. Plaintiffs must still prove, as in any action for fraud, scienter or intent to defraud by the defendants. Moreover, there must be sufficient evidence that defendants knew about the alleged defects and knew that plaintiffs would not discover them upon reasonable inspection. Plaintiffs must also prove that the undisclosed information was material to their decision in purchasing or negotiating the price of the home.

Count IV encompasses all of the factual allegations contained in the prior three counts, but states a cause of action for fraudulent nondisclosure as opposed to misrepresentation. As heretofore discussed, the allegations contained in counts I and III of the complaint sufficiently created a situation in which the defendant home owners owed plaintiffs a duty to disclose the true nature of the cracked ceiling in the bedroom and the porch door and doorway which had been concealed with carpeting. However, regarding the garage roof, plaintiffs have not stated a cause of action for concealment, as they were informed by defendants of the drainage problem and did not further investigate. A prospective home buyer may not shut his eyes to the obvious and then charge that he has been deceived, particularly where there was ample opportunity to further investigate and ascertain the true condition of the garage roof. (See, e.g., Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 577 N.E.2d 383; Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052; Carter v. Mueller (1983), 120 Ill. App. 3d 314, 457 N.E.2d 1335.) Therefore, count IV sufficiently states a cause of action for nondisclosure as to the roof of the main residence and the porch area. However, the factual allegations regarding the garage roof must be stricken.

We next consider whether the hiring of an independent professional home inspector precludes plaintiffs’ cause of action as a matter of law. Defendants argue that any condition or defect which should have been discovered upon diligent inspection by Home Inspection Consultants was imputed to the buyers. It is further contended that a buyer cannot circumvent his or her duty to examine a house by employing a third-party professional home inspector.

We agree. While purchasers are free to seek expert advice as to the quality of a prospective home, they cannot subrogate their common law duty to inspect the premises to a third party and then later claim they had no knowledge of a defect which could have been discovered with reasonable diligence. In the same way, sellers are not relieved of their duty to disclose hidden or concealed defects simply because the buyer has interposed a third party to conduct the inspection. A duty to speak or disclose defects to a professional inspector arises under the same conditions- as when a home is inspected by the buyer personally. We need not address whether or not this duty runs directly to the buyer,or exists only as between the seller and the inspector company, since in this case,, the alleged misrepresentation and concealment were practiced against the third-party inspector as w:ell as the plaintiff buyers.

In an. analogous case, the seller misrepresented the true nature of a basement flooding problem in the presence of both the buyer and the home inspector. Because the home inspector did not attempt to explain the basement’s evidence of flooding but, instead, allowed the seller to explain water marks in the basement, the trial court upheld a cause of action in fraud as against the seller. Connor v. Merrill Lynch Realty, Inc. (1991), 220 Ill. App. 3d 522, 581 N.E.2d 196,

Turning to the instant case, plaintiffs’ inspector knew about the drainage problem on the garage roof and informed them of this. As previously set forth, plaintiffs were also informed of the problem by the sellers personally. Therefore, plaintiffs would have no cause of action based upon the defective garage roof, even if they had not hired a professional inspector.

Home Inspection Consultants did inspect the rafters in the attic, but failed tó note their condition in its written report. Plaintiffs allege in their complaint that the attic rafters had been repaired but that the repair work was faulty and that defendant sellers were aware of this since there had been water draining into the upstairs bedrooms. During plaintiffs’ walk-through inspection, defendants explained away a crack in the master bedroom as due to temperature variances. The complaint further alleges that defendants stated or implied that there was no other cause for the crack. While plaintiffs may have a viable claim against defendant Home Inspection Consultants, this does not exonerate the sellers, who allegedly made a misrepresentation about the cracked ceiling directly to plaintiffs. Arguably, plaintiffs were relying upon the written report of the inspector as well as the statements of the sellers in concluding that the roof was not defective. Under this set of facts, there is sufficient evidence to support a cause of action against the defendant sellers, notwithstanding the employment of a third-party home inspector.

Likewise, the active concealment of the porch door and doorway may have prevented plaintiffs from discovering the damage beneath. While the defendant inspectors may have acted negligently in failing to discover the defective porch, the concealment was also practiced upon plaintiffs, who justifiably relied upon defendants’ silence during the walk-through inspection. This is not a case where a rug could have been simply moved or picked up in order to inspect beneath. Rather, defendants permanently affixed the carpeting with glue, requiring it to be pryed from the area. Again, the employment of the home inspector in this instance did not serve to intervene in the alleged act of concealment as between the sellers and buyers in this case.

In this case, sufficient facts have been alleged to support the notion that the plaintiff buyers relied upon the representations of both the sellers and the home inspector. Whether plaintiffs’ reliance upon either party was material to their purchase decision and to what extent reliance was placed upon the sellers versus the home inspector are issues to be resolved by the trier of fact. As the late Dean Prosser wrote:

“Each of two or more liars may play a significant part in leading [the plaintiff] to his final conclusion; and the mere fact that he has made inquiries, or obtained additional information from other sources, does not necessarily mean that he had disregarded what the defendant told him. An independent investigation which fails to discover the truth, may not be enough to preclude reliance upon the defendant’s statement. Thus inspection of property by a purchaser will not always prevent his reliance upon an assurance against latent defects. The question becomes one of fact, as to whether substantial weight was given to the [defendant’s] representation, and it usually is for the jury.” W. Prosser, Torts, §108 at 715 (4th ed. 1971).

Finally, we consider whether inconsistent allegations against each of two defendants preclude a cause of action against the Skubiaks in this case. It is well settled in Illinois that inconsistent pleadings are permitted against the same party in separate counts. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613.) Clearly, in this case, the existence of inconsistent allegations against two different defendants in separate counts does not require the dismissal of the complaint.

In summation, we affirm the trial court’s dismissal of count II of the complaint and reverse the dismissal of counts I, III and IV. However, the allegations in count IV regarding latent defects in the garage roof and drainage system must be stricken.

Affirmed in part; reversed in part and remanded with instructions.

CERDA and GREIMAN, JJ., concur.


author: JUSTICE GREIMAN PRESIDING JUSTICE TULLY,

text:
    SANDRA HENSTEIN, as Special Adm’r of the Estate of Joshua Henstein, a Minor, Deceased, Plaintiff-Appellant, v. JAMES BUSCHBACH, Defendant-Appellee. — BEN O. HENSTEIN, Indiv. and as Independent Adm’r of the Estate of Joshua A. Henstein, a Minor, Deceased, et al., Plaintiffs-Appellants, v. FIRST NATIONAL BANK OF EVERGREEN PARK, as Trustee, et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 1 — 91—2495, 1 — 92—0647 cons.
    Opinion filed June 30, 1993.
    Rehearing denied August 31, 1993.

      TULLY, P.J., concurring in part and dissenting in part.
    Donald J. Nolan, of Chicago (Joseph T. McGuire and Joan R. Stohl, of counsel), for appellants.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, Mary A. Sliwinski, Lloyd E. Williams, Jr., and Thomas H. Neuckranz, of counsel), for appellees.
   JUSTICE GREIMAN

delivered the opinion of the court:

This consolidated appeal stems from an incident where a two-year-old minor, Joshua Henstein, sustained fatal injuries from a fall out of a third-floor apartment window. The circuit court dismissed the complaints filed in separate actions and these dismissal orders are now challenged on appeal.

We affirm the orders dismissing both complaints, finding that the Illinois Supreme Court decision in Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449, is dispositive of the issues of landlord liability raised in these cases.

Plaintiff, Sandra Henstein, and her minor son, Joshua Henstein, were tenants of a third-floor apartment in a building owned or controlled by defendant, James Buschbach. On October 29, 1989, Joshua Henstein fell through a window which contained a mismatched screen insert and died from the injuries sustained in the fall.

On June 25, 1990, Sandra Henstein filed a complaint against Buschbach, alleging common law negligence based on Buschbach’s promise to install “suitable aluminum screens” in the "window frames and the negligent installation of a screen insert that was not adequately fastened to the frame. The complaint consists of a count each for wrongful death, a survival action for negligence, and for family expenses incurred from ambulance, funeral and burial obligations.

On August 20, 1990, Buschbach filed a section 2 — 615 motion to dismiss for failure to state a cause of action (Ill. Rev. .Stat. 1989, ch. 110, par. 2 — 615) and asserted that under Illinois law, landlords have no common law duty to furnish childproof window screens.

On October 4, 1990, the supreme court issued its opinion in Lamkin, which held that a landlord has no common law duty to provide window screens sufficient to support the weight of a child who leans against them. Lamkin, 138 Ill. 2d at 518-22.

On June 28, 1991, the circuit court granted Buschbach’s motion and dismissed the complaint with prejudice. Sandra Henstein then filed a motion to vacate the dismissal order and for leave to amend her complaint. In her proposed amended complaint, Sandra Henstein alleged:

“4. That prior to said date [October 29, 1989], Plaintiff entered into an agreement with Defendant, whereby Plaintiff promised to rent the apartment for another year in exchange for Defendant’s promise to install screens properly mated with the existing triple track aluminum frame window system so that her children would be afforded whatever protection from falling out of the window such properly mated and fastened screens would provide them.”

On July 18, 1991, the circuit court denied Sandra Henstein’s motion to vacate the dismissal order and for leave to amend her complaint and she filed a timely notice of appeal of these two orders on July 26, 1991.

While the appeal was pending, a second lawsuit was filed on October 29, 1991, by the parents of Joshua Henstein, i.e., plaintiffs Ben O. Henstein, individually and as independent administrator of the estate of Joshua Henstein, and Sandra Henstein, against defendant First National Bank of Evergreen Park (Bank), as a land trustee and legal owner óf the apartment building; defendants James and Joan Buschbach as the primary beneficiaries of the land trust and the beneficial owners of the apartment building; and defendants Juan Lopez and Keith Fox as. the duly authorized agents of the other named defendants. Keith Fox was never served and is not a party to this appeal.

The second complaint was based on the same event as the first lawsuit: the fatal injuries sustained by Joshua Henstein by reason of defendant’s negligence in the alleged negligent installation of a window screen. The second complaint consists of six counts: count I for voluntary assumption of duty; count II for covenant to repair; count III for unreasonably dangerous condition; and the remaining three counts "for burial and medical expenses pursuant to the family expense statute.

The Bank filed a motion to dismiss under section 2 — -619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(9)) asserting that it was merely a trustee of a land trust and had no right to control the" property in question in any manner.

Defendants James' Buschbach, Joan Buschbach, and Juan Lopez filed a motion to dismiss under section 2 — 619(a)(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4)) asserting that the causes of action pled in the second lawsuit were barred by a prior judgment, i.e., the order entered on June 28, 1991, which dismissed with prejudice the complaint filed by Sandra Henstein in the first lawsuit for failure to state a cause of action.

On January 10, 1992, in granting the two motions to dismiss at a hearing, the circuit court reasoned that the issue considered in the first case was the same issue raised in the second case and the dismissal affects causes of action asserted or ones that might have been asserted.

Ben and Sandra Henstein then filed an appeal of the two orders entered on January 10, 1992, granting the Bank’s motion to dismiss and granting the remaining defendants’ motion to dismiss.

The appeals taken from the dismissal of the first and second lawsuits were consolidated by this court.

The parties agree that the Lamkin decision controls the issue presented in the first lawsuit except that plaintiffs argue that the stated . exception set forth in Lamkin applies here.

In Lamkin, two minors suffered injuries from falling out of two different apartment windows located on the second floor of the defendant’s apartment building. Negligence actions were brought on behalf of the two injured minors. The trial court denied the defendants’ motions for summary judgment, and interlocutory appeals were granted in each case pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The appellate court affirmed the trial court’s denial of the motions for summary judgment as well as a motion to dismiss. (Lamkin v. Towner (1989), 190 Ill. App. 3d 631, 546 N.E.2d 1020.) The supreme court reversed the judgments of the appellate and circuit courts. Lamkin, 138 Ill. 2d 510, 563 N.E.2d 449.

In Lamkin, the supreme court expressly addressed the following certified question:

“Whether, as a matter of law, *** a landlord is under any common-law duty to install and maintain screens in the windows of the apartments he rents to his tenants, sufficiently strong to support the weight of a tenant’s child leaning against such window screen and prevent the child from falling out that window ***.” Lamkin, 138 Ill. 2d at 516-17.

The Lamkin court examined the principles of landlord-tenant law and concluded “that the landlord relinquished all control of the leased premises in executing the leases for [the plaintiffs’] tenancies and, with it, any potential common law liability for [the plaintiffs’] injuries.” Lamkin, 138 Ill. 2d at 519.

The Lamkin court further recognized that its decision conformed “with a series of Illinois appellate opinions holding that, as a matter of law, there is no duty on the part of a landlord to maintain in any window of an apartment he leases to tenants a screen sufficiently strong to support the weight of a tenant’s minor child leaning against the screen.” (Lamkin, 138 Ill. 2d at 519-20 (and cases cited therein).) Moreover, the majority of authority in other jurisdictions has similarly found no such duty to exist. Lamkin, 138 Ill. 2d at 520-21.

The narrow exception to this general rule applies where the landlord expressly assumes such a duty and contracts to provide restraints on windows sufficient to protect a child from falling. (Lamkin, 138 Ill. 2d at 519, 522.) In accordance with this exception, the Missouri Supreme Court did conclude that a landlord was liable for injuries sustained by a child after falling through a window screen where the landlord had expressly entered into an independent covenant to provide screens “to protect her little ones against falling out.” (Shaw v. Butterworth (1931), 327 Mo. 622, 630, 38 S.W.2d 57, 61.) Since no such duty had been undertaken in Lamkin, no liability could be imposed. Lamkin, 138 Ill. 2d at 521-22.

Plaintiffs’ reliance on Shaw is misplaced since the undertaking of the landlord there, similar to the undertaking alleged in paragraph 4 of the tendered amended complaint or, for that matter, counts I and II of the second action, does not rise to an exception to the Lamkin doctrine.

Appellate decisions approved in Lamkin make it clear that window screens are not expected to afford children any protection from falling and do not serve as a restraint in that regard. Lamkin concludes that the landlord has no duty to repair allegedly defective window screens or otherwise make them “safe against the possibility of *** children falling out of the window” (Laster v. Chicago Housing Authority (1982), 104 Ill. App. 3d 540, 543, 432 N.E.2d 1185); that the landlord will not be liable even if the screen was insecure, defective and likely to fall out when slight pressure was exerted (Gasquoine v. Bornstein (1956), 10 Ill. App. 2d 423, 135 N.E.2d 121); and that the landlord has no duty to maintain a screen sufficient to support the weight of a minor even if the minor’s parents notified the landlords and their agent that the screen was loose, defective and dangerous and did not fit the window properly (Crawford v. Orner & Shayne, Inc. (1947), 331 Ill. App. 568, 73 N.E.2d 615).

Had the alleged agreement been to provide bars or other restraints fit for the purpose intended to restrain children, we would have viewed this in a different light.

Assuming as we must for the purpose of a section 2 — 615 motion that the parties had entered into an agreement relating to screens upon which their lease was conditioned, even under plaintiffs’ theory of the case, that agreement would not impose liability upon the landlord since there is no allegation that the defendant undertook to provide the apartment with childproof screens or sufficient safeguards against the child falling from a window and nothing in the alleged agreement would contemplate the introduction of such a restraining device.

The trial court based its dismissal of the second complaint on the doctrine of res judicata, finding that the same parties, same issues, and same case were involved in the first lawsuit. We agree.

The doctrine of res judicata precludes the filing of a second action that arises out of the same controversy as the first action. (Downen v. Country Mutual Insurance Co. (1989), 181 Ill. App. 3d 716, 719, 537 N.E.2d 445.) Under this preclusion doctrine, a final judgment on the merits by a court of competent jurisdiction is conclusive on the rights of the parties and their privies and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. (Knodle v. Jeffrey (1989), 189 Ill. App. 3d 877, 885, 545 N.E.2d 1017.) The purpose of res judicata is to promote judicial economy by requiring parties to litigate, in one case, all rights arising out of the same set of operative facts and also prevents the unjust burden that would result if a party could be forced to relitigate what is essentially the same case. Knodle, 189 Ill. App. 3d at 885; see also Singer v. Brookman (1991), 217 Ill. App. 3d 870, 578 N.E.2d 1; Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 454 N.E.2d 684.

Accordingly, under the facts of the present case, we affirm the trial courts’ orders dismissing the complaints filed in both lawsuits.

Judgments affirmed.

CERDA, J., concurs.

PRESIDING JUSTICE TULLY,

concurring in part and dissenting in part:

I concur with the majority regarding the issue of the trial court’s application of the doctrine of res judicata to plaintiff’s second lawsuit. However, I must respectfully dissent from the majority’s conclusions with respect to the propriety of the trial court’s denial of plaintiff’s motion to vacate the dismissal order and for leave to amend her complaint.

As the majority correctly notes, the appellate court’s decisions (and I would add common sense) make it clear that ordinary window screens cannot reasonably be expected to protect children from the danger of falling out of a window. Where the majority and I part company is in what I believe is its narrow reading of the sufficiency of plaintiff’s proposed amended complaint. The majority looks to the language in paragraph 4 of the tendered amended complaint and concludes that, as it does not specifically allege that defendant promised to install a childproof screen, it fails to state a cause of action under the voluntary assumption of duty exception in Larrikin. I believe such a reading to be too rigid.

Section 2 — -603(c) of the Code of Civil Procedure places an obligation upon Illinois courts to “liberally construe[] [pleadings] with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 603(c).) I believe it to be a fair inference when reading paragraph 4 to find that its allegation that defendant failed to “install screens properly mated with the existing triple track aluminum frame window system so that [plaintiff’s] children would be afforded *** protection from falling out of the window” implies the use of a screen capable of providing the needed protection. Screens made of stainless steel and other materials are readily available for this purpose. Thus, I believe the proposed amended complaint properly stated a cause of action under the Lamkin exception.

Recently, the Illinois Supreme Court in Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211, clarified what criteria a reviewing court must employ in determining whether a trial court has committed an abuse of its broad discretion in denying a litigant leave to amend pleadings. In that opinion, our supreme court adopted the four factors established by the appellate court in Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, and summarized them as follows:

“(1) whether the proposed amendment would cure the defective pleading; .(2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; -and (4) whether previous opportunities could be identified.” (Loyola Academy, 146 Ill. 2d at 273.)

I believe that an application of Loyola Academy-Kupianen’s four factors leads to the conclusion that the trial court erred in this regard.

As the proffered amended complaint properly states a cause of action, it follows that the first factor of the Loyola Academy-Kupianen test has been met. Furthermore, I cannot perceive any prejudice or surprise that defendant would suffer as a result of allowing plaintiff to proceed on the proposed amended complaint. Nor do I believe at this early pretrial stage of the litigation that timeliness is a concern in this case or that there was a more opportune time for amendment given the timing of the Lamkin opinion in relation to the trial proceedings. Therefore, the trial court abused its discretion in refusing to allow plaintiff leave to amend her complaint. Loyola Academy, 146 Ill. 2d 263, 586 N.E.2d 1211; Kupianen, 107 Ill. App. 3d 373, 437 N.E.2d 774.

Consequently, I would reverse the circuit court of Cook County’s order denying plaintiff’s motion to vacate the dismissal order and for leave to amend her complaint and remand this cause for further proceedings consistent with this view.