author: PRESIDING JUSTICE BILANDIC

text:
    MARVIN HUGHES, Plaintiff-Appellant, v. TAYLOR ELECTRIC COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0155
    Opinion filed May 23, 1989.

      Thomas D. Fazioli, of Paul B. Episcope, Ltd., of Chicago, for appellant.
    Ian M. Sherman and William J. Barath, both of Rooks, Pitts & Poust, of Chicago, for appellee Shea-Kiewit.
    Donald J. O’Brien, Jr., and Michael W. Rathsack, both of Chicago, for appellee Taylor Electric Company.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

This matter arises out of an injury suffered by plaintiff, Marvin Hughes, in connection with the construction of the Deep Tunnell project. The general contractor for the project was Shea-Kiewit, a joint venture, and Shasta Electric, Inc., and Taylor Electric Co., the electrical subcontractors.

On the date of the injury, plaintiff, an electrician, was instructed to proceed to the end of the tunnel and hook up an electrical cable to the main distributor panel. The tunnel was miles long. A boring machine had dug out the tunnel while pulling behind it several trailing cars. The machine was now ready to begin its retreat backwards during which time a cement-pouring machine would pour concrete to shore the tunnel. The electrical cable which plaintiff was instructed to hook up would provide electricity to the cement-pumping machine.

The first trailing car behind the boring machine held the electrical distribution panel. The panel, contained in a metal cabinet, held the main electrical switch as well as the individual switches. According to plaintiff, the top switch was approximately six feet, five inches from the floor of the trailing car. Plaintiff stands approximately six feet tall.

Plaintiff stated in his deposition that the switch he needed to work on was the top switch, and thus, over his head. He stated that he should have had a ladder to raise himself to the proper elevation. Although Shasta supplied some ladders for electricians’ use, they were frequently unavailable. Plaintiff’s search for a ladder was unsuccessful. He proceeded to the distribution panel, opened the metal cabinet, and removed the insulation. Five live switches were exposed. He turned the power off on the top switch. Plaintiff began to loosen the Allen screws which held the electric cables in place using an Allen wrench of approximately five to six inches in length. As he forced the wrench with his left hand, the wrench slipped and touched the live switch located immediately below. Plaintiff’s right hand was on the metal cabinet. Thus, he received an electrical shock as the current traveled from the switch to the metal cabinet via his arms and shoulders. Plaintiff dropped his weight to the floor to free himself from the current.

Plaintiff’s action against defendants alleges negligent conduct and violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) in failing to provide proper support. Defendants filed a motion for summary judgment alleging that failure to provide a ladder was not a proximate cause of the injury sustained and, additionally, that plaintiff’s activity is not covered under the Structural Work Act. The trial court granted the motion for summary judgment as to count I, dealing with the Structural Work Act (the Act).

The Act is designed to protect work activities of a hazardous nature and to lessen the extent of any danger. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127, 302 N.E.2d 64.) Even though the Act was not promulgated to protect every person in every situation, the Illinois courts have mandated that the Act should be liberally construed to carry out its legislative purpose. (Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 751, 460 N.E.2d 28, aff’d (1984), 104 Ill. 2d 444, 459, 473 N.E.2d 946.) The Act provides in pertinent part:

“Any owner, contractor, sub-contractor *** having charge of the erection, construction *** of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof ***.” (Ill. Rev. Stat. 1985, ch. 48, par. 69.)

The Act further provides:

“That all scaffolds, *** ladders, supports *** erected or constructed by any person, firm or corporation *** for the use in the erection *** of any *** structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb to any person *** employed or engaged thereon ***.” Ill. Rev. Stat. 1985, ch. 48, par. 60.

I

Defendants assert that plaintiff was not working on a “structure” at the time of the injury. They assert that he was “merely connecting an electrical cable to a movable electrical distribution panel connected to a large tunnel-boring machine.” We disagree.

The term “structure” as used in the Act is subject to flexibility. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946.) We are not compelled to decide this case upon whether the movable trailing car was itself a “structure.” (See Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 290 N.E.2d 219; Keyser v. Metropolitan Sanitary District (1987), 165 Ill. App. 3d 696, 520 N.E.2d 678, appeal denied (1988), 121 Ill. 2d 571.) Plaintiff was injured while working on the construction of a tunnel within that tunnel. It is undisputed that excavation of a tunnel is the construction of a structure within the meaning of the Act. (165 Ill. App. 3d at 698.) Thus, we find that the Deep Tunnel where plaintiff was injured was a structure as used in the Act.

II

In order to establish a Structural Work Act claim, the plaintiff must also show that he or she was engaged in a structural activity. (St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 522, 439 N.E.2d 12.) In determining whether one is involved in a covered activity within the structure, courts attempt to ascertain whether the actions of the plaintiff were connected with and significantly furthered one of the activities enumerated in the Act. (Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 751, 460 N.E.2d 28, aff’d (1984), 104 Ill. 2d 444, 473 N.E.2d 946.) Defendants assert that plaintiff was not involved in a structural activity at the time of the occurrence, but “simply performing electrical work on the machine.”

In the instant case, plaintiff was hooking up a cement pump to an electrical distribution panel. This was for the purpose of supplying power to the cement pumper, which would be used by co-workers to pump cement into the tunnel’s support system. It was an essential activity to completion of the tunnel. Clearly, plaintiff’s actions were connected with and significantly furthered the construction of the Deep Tunnel. Therefore, we find that plaintiff was involved in a “covered activity.”

Ill

Plaintiff must also prove that defendants’ violation was a proximate cause of his injury to state a cause of action under the Act. (Fisher v. Crippen (1986), 144 Ill. App. 3d 239, 493 N.E.2d 1204.) It is a well-established rule in Illinois that questions of proximate cause are questions of fact for the jury. Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84,117 N.E.2d 74.

Defendants assert, however, that the absence of the ladder was not a proximate cause of the injury suffered by plaintiff. They assert that plaintiff presented no evidence to show that the movement of the wrench had anything to do with the support or lack of support. This assertion is misplaced.

The following discourse occurred at plaintiff’s deposition:

“Q. Okay. Mr. Hughes, *** in your own mind can you tell us what you feel the causes of your accident were?
A. The height of the circuit breaker is one factor. The inability to use muscular force correctly due to not being at a correct work height, and slipping as a result of these factors.
Q. You mean slipping with the Allen wrench?
A. Yes.
* * *
Q. What do you feel should have been done to remedy the situation with the height of the circuit breaker?
A. I should have had the correct type of a ladder to stand on to work at the correct elevation.”

As previously stated, a question of fact as to proximate cause is for the jury to decide. Plaintiff’s testimony clearly established a material issue of fact as to whether the lack of support contributed to his injury. Thus, we will not usurp the jury’s function by withdrawing this question.

In light of the foregoing, we find that plaintiff was engaged in an extrahazardous structural activity within a “structure” under the Structural Work Act. Further, we find that a genuine issue of material fact exists as to proximate cause which is for a jury to decide.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN JUSTICE RIZZI,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE A. WHALEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2617
    Opinion filed May 24, 1989.
    RIZZI, J., specially concurring.
    Randolph N. Stone, Public Defender, of Chicago (Alvin A. Stokes and James Reddy, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley and Cecil A. Partee, State’s Attorneys, of Chicago (Inge Fryklund and Marilyn F. Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Lawrence A. Whaley, was convicted of aggravated criminal sexual assault, home invasion and residential burglary after a jury trial in the circuit court of Cook County. The trial court sentenced defendant to 12 years’ imprisonment. He appeals.

At trial, complainant testified that she was watching television in her apartment on December 21, 1986, when there was a knock at her door. When she unlocked the door, defendant, her next door neighbor’s boyfriend, asked if he could borrow a cup of flour. At the time, defendant was wearing a gray shirt and pants, work boots and a rawhide coat. After complainant gave defendant the flour, she locked the door behind him. Complainant noticed that defendant smelled of body and liquor odors. She also noticed that when defendant left, he walked in the direction opposite his girlfriend’s apartment. When complainant turned off the lights to watch defendant, she observed him watching her. Eventually, complainant heard defendant knock on the door of his girlfriend’s apartment and say, “Yes, it’s me.”

Complainant then turned the lights back on and resumed watching television. Later, there was a second knock at her door. When complainant opened the door, defendant returned her cup, thanked her and left. Approximately five minutes later, there was a third knock on complainant’s door. She turned the light on and answered the door. When complainant opened the door, defendant, who was wearing the same clothes as before with the addition of a brown ski mask, put his left hand over complainant’s mouth and his right hand behind her head. Complainant noticed that defendant had flour on his pants and the same body and liquor odors she had noticed before. Defendant then pushed complainant into her living room and knocked her to the floor. At that time, complainant noticed that defendant had a knife in his hand. Defendant told complainant, “Don’t worry, I’m not going to kill you. All I want you to do is suck me.”

Defendant then pulled complainant up from the floor by her hair into her kitchen and locked the door. Complainant slid down on the floor in a corner, and defendant dropped his pants and said, “All I want you to do is suck me.” After complainant pleaded for her life, defendant pulled his pants up and took complainant into the bedroom, where he lay on the bed with complainant at his side. Defendant then pulled complainant down and forced her to perform fellatio upon him for approximately 15 minutes. During this time, complainant was able to see defendant’s eyes and mouth through the mask. Also during this time, defendant laid the knife down and put his hands behind his head. Complainant then grabbed the knife and stabbed defendant in the abdominal area.

After she stabbed defendant, complainant ran for the door but defendant grabbed her from behind and started choking her. Defendant then told complainant, “I’m not going to stab you. Why did you have to stab me? I told you I wasn’t going to kill you. Now I have to kill you.” Defendant then stopped choking complainant, and she pleaded for her life and asked defendant to leave her apartment. Defendant asked for the knife and a towel, complainant told him again to leave, and defendant said he would not leave until he got the towel. After complainant gave defendant a towel, he put it on his pants and wiped up the blood. He also told complainant to get the knife. When defendant told complainant to wipe up the blood, she told him that she would do so and asked defendant to leave her house. Defendant responded that he would wipe up the blood because if he did not, he would be arrested and would have to kill complainant. Complainant poured Sparkle on the floor after defendant asked her if she had any Spic & Span. Defendant then wiped up the blood and told complainant to get the knife because he did not want to leave any evidence behind.

Complainant retrieved the knife from the bedroom and noted that the blade, which was about two inches long, was bent at a 90-degree angle. Defendant told complainant that he would not leave until he received $20 for stitches and the knife from complainant. Complainant took $20 from her purse and placed the money on her stove. Defendant then grabbed the money. When defendant stepped out of complainant’s front door, she threw the knife onto the driveway next to her apartment, per his instructions. After watching defendant pick the knife up, complainant called her brother and the police. When the police arrived, she told them she had been raped by her next door neighbor’s boyfriend.

Upon responding to complainant’s call, the police found a pile of flour approximately 13 feet from complainant’s door. They also found dry stains on complainant’s kitchen floor of a reddish brown color that appeared to have been wiped or smeared with a liquid. Finally, complainant picked defendant’s photo out of a photo array on the night of the offense and identified him out of a lineup after he turned himself into the police on December 22.

Opinion

On appeal, defendant contends that the lack of evidence of stab wounds on his person the day after the offense and of any blood samples linking him to the crime raised a reasonable doubt of guilt.

The day after the offense, Dr. Harry C. Swanstrom examined defendant at the request of the police for any evidence of stab wounds or cuts. The doctor examined defendant’s extremities, hands, chest, trunk, and groin area. The doctor found a few superficial abrasions on defendant’s hands which were already healing and which, in his opinion, could not have been inflicted less than 24 hours before the examination. Dr. Swanstrom found no other evidence of stab wounds or cuts to defendant nor did defendant appear to have lost a substantial amount of blood. On cross-examination, Dr. Swanstrom admitted that the type of cuts on defendant’s hands, which the prosecutor characterized as “paper cuts,” tended to bleed profusely for a short time and heal quickly. The doctor also admitted that he did not examine defendant’s inner thigh behind the scrotum and that he could have had a cut beneath his pubic hair. Finally, Dr. Swanstrom admitted that he had no way of knowing to what extent a particular wound would bleed without seeing it at the time of injury.

We do not agree that the doctor’s testimony alone or coupled with the failure to introduce blood samples, from the scene of the crime, raised a reasonable doubt of guilt. Complainant positively identified defendant as her attacker. She had ample opportunity to observe defendant before the attack. Despite the fact that he wore a ski mask, complainant had ample opportunity to observe her attacker during and after the attack and, thus, to identify defendant as her attacker. As defendant concedes, the testimony of a single witness who had ample opportunity to observe is sufficient to support a conviction. (People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866.) Moreover, the determination of guilt or innocence, i.e., the determination whether the State has proven guilt beyond a reasonable doubt, is, in the first instance, for the jury, and its determination will be disturbed only if an examination of the evidence- leaves a serious and well-founded doubt of guilt. See People v. Sledge (1962), 25 Ill. 2d 403, 407,185 N.E.2d 262.

Complainant positively identified defendant after having ample opportunity to observe him before, during and after the attack. There were other circumstances corroborating defendant’s guilt as the perpetrator in this case which we will not recount here. As such, the doctor’s failure to find stab wounds or cuts on defendant’s body, especially in view of his admission that he did not examine the area beneath the scrotum or pubic hair, does not leave us with an abiding doubt of defendant’s guilt. Finally, we will not substitute our judgment for the jury’s by concluding that blood samples from the victim’s apartment connecting defendant to the crime were necessary to convict him of the offenses at issue.

Defendant also contends that he established a prima facie case of discrimination in the State’s use of peremptory challenges to exclude two black venirepersons from the jury and that the trial court erred in not requiring the State to articulate race-neutral reasons for its actions. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) The State asserts that defendant waived the issue by, inter alia, failing to adequately object at trial.

Under Batson, to establish a prima facie case of a discriminatory use of peremptory challenges by the State, a defendant must show that he is a member of a cognizable racial group and that the State used peremptory challenges to remove members of his race from the jury panel. The defendant must show that these facts and any other relevant circumstances raise an inference of discrimination in the use of peremptory challenges. Where a defendant makes a prima facie showing, the State must provide a neutral explanation for its use of peremptory challenges. (Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1722-23.) Moreover, the initial determination whether a prima facie case of discrimination is established is for the trial court, it being in a superior position to a court of review to make that determination. People v. Evans (1988), 125 Ill. 2d 50, 66-67, 530 N.E.2d 1360.

Two things are abundantly clear from the colloquies between the trial court, defense counsel and the prosecutor during the voir dire after the State exercised peremptory challenges against venirepersons Irving and Ray, which we set out in an appendix hereto. First, contrary to the State’s waiver argument, defendant adequately objected to the exercise of peremptory challenges against Irving and Ray. In this regard, we do not believe that defense counsel is required to use any particular or pro forma language to bring a Batson claim to a trial court’s attention. The fact that the trial court is made aware of the claim, not the manner in which the claim is made, is dispositive. Any other result would exalt form over substance. Secondly, as the Appellate Court, Second District, recently held in remanding a case for a full Batson hearing:

“It is clear from the record that the trial court was not entirely familiar with Batson and did not proceed in a manner consistent with the dictates of that case. The court did not first decide whether the facts established, prima facie, purposeful discrimination. *** Consequently, the record *** is insufficient to provide us with an adequate basis to review the Batson issue. Furthermore, because the trial court was unfamiliar with the standards set forth in Batson, it did not properly inject its own observations and judicial experience into the determination of whether the assistant State’s Attorney used the peremptory challenge *** in a discriminatory fashion.” People v. Jones (1988), 177 Ill. App. 3d 663, 667, 532 N.E.2d 543.

Therefore, like the Jones court, we remand this case with directions that defendant be allowed to present evidence pursuant to Bat-son that the State engaged in purposeful racial discrimination in exercising its peremptory challenges against venirepersons Irving and Ray. In that hearing, the court must expressly determine whether defendant has made a prima facie showing of purposeful discrimination. If he does, the trial court must then determine whether any explanations offered by the State are racially neutral. If the court determines that they are, the judgment and sentence against defendant are affirmed. If not, the judgment and sentence are vacated and a new trial is ordered. See People v. McNeal (1987), 160 Ill. App. 3d 796, 806, 513 N.E.2d 897.

Finally, we reject the State’s contention that defendant waived the Batson issue by also failing to raise it in his written post-trial motion. The State cites People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988),_U.S._, 102 L. Ed. 2d 263, 109 S. Ct. 274, and People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, in support of its waiver argument.

In Enoch, the supreme court reaffirmed the rules that “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial” and that the failure to specify grounds for a new trial in a written motion therefor constitutes waiver of the issue on review in the absence of plain error. (Emphasis in original.) People v. Enoch (1988), 122 Ill. 2d 176, 186, 187, 522 N.E.2d 1124, cert. denied (1988), _U.S__, 102 L. Ed. 2d 263,109 S. Ct. 274.

In Evans, the supreme court held that the defendant had waived any right to assert error in the exclusion of a black venireperson from the jury, stating:

“Batson requires that the defendant make a timely objection to the prosecutor’s peremptory challenge. [Citation.] The peremptory challenge of Mary Patton was never objected to by the defense, either at trial or in post-trial motions. We do not believe that an objection occurring after the jury is sworn can be deemed timely. Therefore, as the defense has objected to the challenge against Mary Patton for the first time on appeal, that particular objection has been waived.” People v. Evans (1988), 125 Ill. 2d 50, 61-62, 530 N.E.2d 1360.

We cannot agree with the State that, even in light of Enoch, Evans must be construed as requiring a defendant to raise a Batson claim both before the jury is sworn and in a written post-trial motion to preserve it for appeal.

In so concluding, we note that, unlike defendant here, the Evans defendant objected neither at trial nor in his post-trial motion to the State’s peremptory challenges. We also note the supreme court’s recognition in Evans that Batson requires only a “timely objection” to the State’s use of peremptory challenges. Finally, we note the court’s observation in Evans that “[w]e do not believe that an objection occurring after the jury is sworn can be deemed timely.” (Emphasis added.) Evans, 125 Ill. 2d at 61-62.

In view of the facts of Evans and the language of the supreme court therein, we believe that it can reasonably be construed as requiring only a timely objection during the voir dire to preserve a Bat-son claim for appeal. We have already found that defendant adequately brought the Batson issue to the trial court’s attention. We now hold that, having done so during the voir dire, he made the timely objection required by Batson and Evans. Manifestly, defendant preserved the issue for appeal.

Finally, a word or two about the special concurrence of our colleague, Justice Rizzi. Preliminarily, we nowhere conclude or reason in this opinion that “the issue of the State excluding blacks from the jury solely because of their race is waived simply because no objection is made during the voir dire.” (See 184 Ill. App. 3d at 471.) More importantly, while we would like to agree with Justice Rizzi that this court’s opinion in People v. Andrews (1988), 172 Ill. App. 3d 394, 526 N.E.2d 628, appeal allowed (1988), 123 Ill. 2d 560, controls the disposition of defendant’s Batson claim, we do not see how we, as a subordinate court of review, may ignore our supreme court’s holding in Evans that Batson requires a defendant to make a timely objection to the State’s use of peremptory challenges. We recognize that Andrews is, at this point in time, still good law. However, we believe that Evans casts sufficient doubt upon Andrews that it is best to avoid any infirmity in the instant judgment of this court by relying on that case. The facts of this case reveal a principled manner in which we .may do so, i.e., the sufficiency of defendant’s objection to the State’s use of its peremptory challenges.

For all of the foregoing reasons, the cause is remanded to the trial court with instructions.

Remanded with instructions.

WHITE, J., concurs.

APPENDIX

(Mr. Rodney Irving)

“MR. O’TOOLE [Defense Counsel]: Judge, I would ask pursuant to [Batson] that the State decided to knock off Mr. Irving who is a black male individual.
MR. McGARR [Assistant State’s Attorney]: Judge, it’s my understanding that [Batson] addresses a systematic and recognizable exclusion of a cognizable race, the same as the defendant’s cognizable race. I have exercised two preemptory [sic] challenges from a panel of four. For the record one was a white male and one was a black male. I don’t see where Mr. O’Toole has even approached a prima facie case of systematic and deliberate exclusion. Judge, I think that it is completely premature for Mr. O’Toole to even raise a [Batson] issue at this moment because nowhere has the State even approached a systematic and deliberate exclusion. There is an exclusion of one white and one black. That is inconsistent with a [Batson] argument at this point. For the record, Judge, I have excused one white. If there is systematic exclusion it is against whites as much as blacks.
THE COURT: This is a very serious issue that the Courts are confronted with now and it should not come down to a situation where every time a black is challenged that the issue is raised, and yet if I were a defense counsel I daresay I would raise the question. I think you have to.
MR. McGARR: But, your Honor, do you find a prima facie case?
THE COURT: No one had read it more than I have.
MR. McGARR: That’s correct, Judge, and I have read [Batson] and I have studied some memorandum that has been written by the appellate division of our office and, Judge, one excusal does not make a systematic exclusion.
THE COURT: No, I think for the record, when a black is excluded there should be sidebar and I think the State should give some reasons in the event that the question should arise. Two, three years from now and there is no record of it. We have to start right at the beginning in order to make a record. You have to start right from the first person on. I have the issue presented before me now from the Appellate Court. It was sent back for a hearing. They have to pass upon it this week. Thank goodness there was a complete record in the jury selection where there were reasons that were given, I believe, and I think to protect everything, if you have a reason, I think you should give it. I mean, that’s outside the presence of the jury.
MR. McGARR: Judge, are you requiring me to state—
THE COURT: I’m not requiring. I just think if you could, I think it would be helpful to some Judge in the future, in the event there’s a judgment pending and it goes up and comes back. If you want to, you can. You don’t have to.
MR. McGARR: Judge, I’m not trying to disregard. I just think it’s up. to them to raise the objection because I have excused one black. I have thrown off more white jurors then [sic] I have black, of record.
MR. O’TOOLE: Judge, if Mr. McGarr wants to make a prima facie case, I would just say that Mr. Irving, who happened to be a black male who was a computer supervisor. He has been employed nine years. We didn’t even get a chance to see the card. We haven’t seen the card yet, but he has been employed nine years as a supervisor, as you stated at a big Chicago bank. He subscribes to Field and Stream magazine. Mr. Irving stated he would be a fair juror. He stated that he had no religious convictions that would prevent him from finding the defendant guilty. I see nothing in the record that would make Mr. Irving any different than any of the other jurors that we have accepted so far. Judge, for the record he has also been a victim of an armed robbery.
MR. McGARR: For the record, we asked him on the record if being a victim of an armed robbery and the person not being caught would in any way influence him. We also asked the question, if nobody was caught, would you want to even the score and convict Mr. Whaley?
THE COURT: Well, you have been put on the record.
MR. McGARR: Judge, for the record, and I want to go back on the record — For the record, there is one excusal, one preemptory [sic] excusal by the State of a cognizable racial group that the defendant belongs to. I’d like the record to reflect that the victim is a female black in this case.
MR. O’TOOLE: Judge, I would just like to state that the defendant in this occurrence, again, I found, you know, that there is no reason why that person is being excluded. * * *
A VOICE: I have to attend a funeral tomorrow.
THE COURT: You are excused. Get your ticket. Sir, did you come in late?
A VOICE: Yes, I had to go to the washroom.
THE COURT: You weren’t present when the jury was sworn.
* * *
THE COURT: The defendant’s name is Lawrence Whaley. Do you know either the State’s Attorney or defense lawyers?
A VOICE: No.
MR. McGARR: I would ask for another sidebar. * * *
MR. McGARR: Judge, for the record, we are now at a sidebar outside the presence of the jury. Your Honor, the reason I asked for a sidebar is I want to make the record replete with the fact that on my pre-trial excusal of one white as well as one black man an objection was raised by Mr. O’Toole that I considered premature and with all due respect to your Honor, Judge, I think you should have summarily denied it.
Secondly, Judge, the panel, the two prospective jurors that I have accepted of the panel, of which I excused two, which I accepted two of them, one was a black man who now has indicated to you because of family obligations he cannot serve as a juror in this case. I would like the record to reflect that is someone whom I accepted.
MR. O’TOOLE: Judge, I would object. He did not accept him yet, Judge. He has not accepted that panel.
MR. McGARR: I tendered it. I tendered that panel to you, and there is — one of the jurors I was going to keep on that panel is a black man whom the Court has just excused for cause.
MR. O’TOOLE: Judge, I would like the record to reflect that what [Mr. McGarr] might have been thinking has no place on the record because that panel was not tendered to me yet. That panel has not been accepted yet and in order for a panel to be accepted, it has to be accepted by myself and Mr. McGarr.
THE COURT: The only point involved was that the man had to go to a funeral. I wrote in my notes he was a black juror. That’s all we need. Step out here, please.”

(Ms. Janice Ray)

“MR. O’TOOLE: Your Honor, I would like the record to reflect that Janice Ray has four children, she is a black female and she has been employed for the last ten years and she was excluded by the State and I do not believe her qualifications to serve as a juror were any different than any of the other people in the panel.
THE COURT: Does the State hear that?
MR. McGARR: Yes, Judge.
THE COURT: I don’t think that the Supreme Court ruling of the United States even implied that there shall be no exclusion of any person who is black. Now, the case didn’t hold that.
MR. O’TOOLE: Judge, I understand that. I am just trying to show for the record, your Honor, her answers to the questions that were posed to her — she said that she could be a fair juror. She stated she had no problem with the State proving their case beyond a reasonable doubt, a finding of a guilty verdict. She stated that she would have no problem in keeping an open mind as far as the defendant, Mr. Whaley, not testifying. And, your Honor she stated that she is the mother of four children. Two boys. She might have three children.
THE COURT: She’s got three children, 21, 22, and 23. How old is your defendant?
MR. O’TOOLE: Mr. Whaley is 29 years old. Nothing that she stated, your Honor, I felt would discredit her as a juror.
THE COURT: Suppose a lawyer had a hunch. Maybe because she has young boys out of work she might be sympathetic. There might be all kinds of reasons. I don’t think the fact that they make a preemptory [sic] challenge creates a Batson versus Kentucky in every instance.
MR. McGARR: Judge, for the record, there has been no finding by this Court that the prosecution has deliberately excluded black people from this jury and since there has been no finding it is not incumbent upon me to give any articulable reasons under the Batson decision. It’s his burden to establish the prima facie case of that exclusion. He has failed to do so.
THE COURT: Everybody’s remarks, including the Court’s has [sic] been entered for the record.”

JUSTICE RIZZI,

specially concurring:

I concur in the result reached by the majority, but I disagree with the conclusion and reasoning of the majority that the issue of the State excluding blacks from the jury solely because of their race is waived simply because no objection is made during the voir dire. I believe that the Batson waiver issue in this case should be decided on the same basis that it was decided in People v. Andrews, which is presently pending before the Illinois Supreme Court (People v. Andrews (1988), 172 Ill. App. 3d 394, 526 N.E.2d 628, appeal allowed (1988), 123 Ill. 2d 560).

In Andrews we stated:

“A criminal trial is more than merely a means of meting justice. The trial is also an avenue for fulfilling the notion deeply rooted in the common law that justice must satisfy the appearance of justice. For a civilization founded upon principles of ordered liberty to continue to survive with its principles intact, its members must share the conviction that they are governed equitably. That necessity underlies the Equal Protection Clause upon which Batson v. Kentucky is based. See Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 594, 65 L. Ed. 2d 973, 1001, 100 S. Ct. 2814, 2837 (Brennan, J., concurring).
Plainly, the appearance of justice is not fulfilled if the trial court acquiesces in, condones or fails to preclude attempts by the prosecuting attorney to exclude blacks from the jury solely because they are black. The trial court cannot sit idly by in such instances and become an accomplice to racial discrimination in the courtroom. Rather, it must insure that justice prevails and that the appearance of justice is demonstrated in the trial that is taking place before those in attendance. Moreover, those citizens who are selected as jurors in a criminal case are expected to judge the defendant solely on the basis of his acts and not on the basis of his race. The selected jurors can hardly be expected to accomplish this task if they see that they, themselves, were selected by the State not on the basis of their individual qualities, but as members of a particular race.
Thus, in order to maintain the appearance of justice and the integrity of our judicial process, and in order to keep itself from being an accomplice to racial discrimination, the trial court sua sponte must promptly and in no uncertain terms stop any racial discrimination committed in its presence. This is required whether or not the defendant makes a timely objection. We therefore find the State’s waiver argument untenable. We see no difference in considering the issue in this case than we would in considering any other plain error violation of constitutional dimension.” 172 Ill. App. 3d at 402-03, 526 N.E.2d at 634.

The underpinning of the Andrews holding is the recognition that while it is the prosecutor or the attorney for the defendant who exercises peremptory challenges, it is the trial judge, acting in a judicial capacity, who actually excuses the prospective jurors. (Cf. Edmonson v. Leesville Concrete Co. (5th Cir. 1988), 860 F.2d 1308, reh’g granted January 23, 1989, (holding that race-based peremptory chailenges are now banned from Federal civil cases).) Since the trial judge is so intimately involved in the process of excluding prospective jurors when peremptory challenges are exercised, it is judicially irresponsible for a judge not to stop any racial discrimination which is attempted through the use of peremptory challenges. (See generally People v. Payne (1982), 106 Ill. App. 3d. 1034, 1038-40, rev’d (1983), 99 Ill. 2d 135, 457 N.E.2d 1202 (for a discussion of the role of the court itself when racial discrimination occurs in the courtroom).) Irresponsible judicial conduct in the trial of cases must be halted in no uncertain terms, not overlooked or condoned by resort to waiver arguments. Thus, I believe that if there was racial discrimination used in the selection of the jury in this case, the error of the trial judge in not sua sponte stopping the racial discrimination should be reviewed whether or not the defendant objected during the voir dire or raised the error in his post-trial motion.

Accordingly, I do not agree with the conclusion and reasoning of the majority that the issue of the State excluding blacks from the jury solely because of their race is waived simply because no objection is made during the voir dire. The majority’s conclusion and reasoning that the issue must be brought “to the trial court’s attention” (184 Ill. App. 3d at 465) to preserve the error for review is skewed because it must be presumed that the trial judge is paying attention to what is going on in his courtroom, and it is his duty to sua sponte stop racial discrimination committed in his presence.

ADDENDUM

After my specially concurring opinion was circulated to my colleagues, the majority opinion was redrafted to respond to my specially concurring opinion. In its response, the majority states: “Preliminarily, we nowhere conclude or reason in this opinion that ‘the issue of the State excluding blacks from the jury solely because of their race is waived simply because no objection is made during the voir dire.’ ” (184 Ill. App. 3d at 465.) I disagree with the majority’s interpretation of its own opinion. In my judgment, the majority opinion plainly stands and will be cited for the proposition that the issue of the State excluding blacks from the jury solely because of their race is waived if no objection is made during the voir dire. The statements to support its conclusion leaves no room for doubt. The majority states: “We also note the supreme court’s recognition in Evans that Batson requires only a ‘timely objection’ to the State’s use of peremptory challenges. Finally, we note the court’s observation in Evans that ‘[w]e do not believe that an objection occurring af ter the jury is sworn can be deemed timely.’ (Emphasis added.) [(Evans, 125 Ill. 2d at 61-62.)] In view of the facts of Evans and the language of the supreme court therein, we believe that it can reasonably be construed as requiring only a timely objection during the voir dire to preserve a Batson claim for appeal.” (184 Ill. App. 3d at 465.) Thus, what the majority says in response to my special concurring opinion is irreconcilable with what the majority says in the text of its opinion.

In addition, the majority states: “More importantly, while we would like to agree with Justice Rizzi that this court’s opinion in People v. Andrews (1988), 172 Ill. App. 3d 394, 526 N.E.2d 628, appeal allowed (1988), 123 Ill. 2d 560, controls the disposition of defendant’s Batson claim, we do not see how we, as a subordinate court of review, may ignore our supreme court’s holding in Evans that Batson requires a defendant to make a timely objection to the State’s use of peremptory challenges.” (184 Ill. App. 3d at 465.) I believe that by relying upon and attempting to distinguish Evans in alternative breaths, the majority belies credibility. Moreover, contrary to what the majority says, if the majority would like to agree that this court’s opinion in Andrews controls the disposition of defendant’s Batson claim, it can and should do so.

I do not believe that either Evans or Enoch addressed or even tangentially discussed the conclusion or ratio decidendi in Andrews, to wit: “Thus, in order to maintain the appearance of justice and the integrity of our judicial process, and in order to keep itself from being an accomplice to racial discrimination, the trial court sua sponte must promptly and in no uncertain terms stop any racial discrimination committed in its presence. This is required whether or not the defendant makes a timely objection.” (Andrews, 172 Ill. App. 3d at 402-03, 526 N.E.2d at 634.) For this reason, I do not find either Evans or Enoch applicable.

The difference that I have with the majority in this case presents a very important question to our trial judges. If the majority is correct, in effect, a trial judge may sit back and watch racial discrimination occur in his presence without committing error so long as no objection is raised by the parties; on review the inaction of the trial judge will be condoned by resorting to the doctrine of waiver because no objection was made. In my opinion, such a result is a clear example of compounded egregiousness. Moreover, I believe that the question of the role of the trial court itself when it reasonably appears that peremptory challenges are being used to effect racial discrimination must be faced candidly and squarely by reviewing courts. Up until now, except for what is stated in Andrews and the appellate court opinion in Payne, the silence by reviewing courts in Illinois has been deafening.

I believe that in our type of government there are certain acts to which a trial judge can never be a participant in any way whatsoever. I do not pretend to be able to delineate all of those acts. However, I do know without reservation that one of those acts is racial discrimination in the courtroom. I also believe that when a trial judge allows the exclusion of people from participating as jurors solely because of their race, the trial judge’s complicity in the acts resulting in exclusion of the potential jurors makes him an accomplice to racial discrimination in the courtroom. Thus, the trial judge’s error transcends any consideration of waiver by any party. It follows that the doctrine of waiver has no place when the alleged error relates to whether potential jurors were excluded from jury service solely because of their race.

In my opinion, for the reasons stated herein, a trial judge has an affirmative duty in any kind of case to sua sponte stop any racial discrimination committed in his courtroom. The parties to the suit can neither accede to nor waive such a transgression. In the present case, if there was racial discrimination used in the selection of the jury, the trial judge had an affirmative duty to sua sponte stop the racial discrimination, and if he did not, the trial judge’s error should be noticed and reviewed whether or not the defendant objected during the voir dire. To even consider the doctrine of waiver under such circumstances erodes the legal as well as the moral value of our righteous outrage when instances of racial discrimination occur in our courtrooms.

Accordingly, I agree with the result reached by the majority but only on the basis stated herein.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK BURGOS, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 86—2710
    Opinion filed May 26, 1989.

      Michael J. Pelletier and Marie Carlson, both of State Appellate Defender’s Office, and Winston & Strawn, both of Chicago (Julie A. Bauer, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Frank Burgos, was convicted of the murder of Alfreda Campbell and was sentenced to a natural life prison term. Defendant appeals, contending that the trial court erred in admitting evidence of a prior assault committed by defendant; that the trial court erred in admitting a statement of the murder victim as an excited utterance; that he was denied a fair trial by the prosecutor’s misstatement during closing argument; and that the State failed to prove him guilty of murder beyond a reasonable doubt.

Dr. Stanley Porter testified that on November 12, 1980, at approximately 2:40 a.m., he was awakened by screams and shouts coming from the eighth-floor hallway of the apartment building where he was living. Dr. Porter went to his door and looked out of the peephole. He saw nobody, but heard heavy breathing and saw blood on the peephole. He asked who was out in the hall, but received no response. Dr. Porter opened the door and saw a young black woman with multiple stab wounds lying in front of his apartment door. The woman later was identified as Campbell.

Dr. Porter noticed bloodstains on the floor and saw a knife next to Campbell. Dr. Porter’s wife brought him a towel which he used to cover the woman’s naked body. He stayed with Campbell until the police arrived about 10 minutes later. During that time, the woman was moaning and groaning. He did not have any conversation with her.

Officer Michael Rodgers testified that at approximately 2:40 a.m., he and his partner received a radio assignment of a woman calling for help on the eighth floor of a Lincoln Park apartment building. When Rodgers arrived at that location, he observed Campbell lying on the carpet in front of and facing apartment 809. Campbell was bleeding from stab wounds in her abdomen and chest. The door to apartment 809 was open and Dr. Porter, whom Rodgers knew, was assisting the woman. Rodgers asked the woman what had happened and where she came from, but he could not understand her responses. He then asked her who stabbed her, and she replied, “Frank.”

While Rodgers was attending to Campbell, he heard a door open and close. He turned around and observed a man coming out of an apartment down the hall, from the direction of apartment 814. Rodgers described the man as Hispanic, approximately 5 feet 6 inches tall, weighing 140 to 150 pounds, and wearing glasses. Rodgers identified the man as defendant. Dr. Porter also testified that he saw a man walking down the hall in a wavering fashion. Dr. Porter identified that man as defendant.

Campbell was taken by squadrol to a hospital. After she was removed, Rodgers noticed a knife which had been under her body. He then followed a trail of blood on the walls and the carpeting of the hallway, from apartment 809 to apartment 814. Inside the apartment, Rodgers found large amounts of blood throughout the bedroom and on the walls. (It is undisputed that defendant resided in apartment 814.)

Sergeant Thomas Stevens testified that he was assigned to investigate the Campbell stabbing. He went to the hospital, but was unable to interview Campbell. Stevens proceeded to the apartment building, where he observed a large pool of blood outside apartment 809 and on either side of the door. He followed the trail of blood, which led to apartment 814. Inside the apartment, Stevens observed blood on the living room carpet, on the bedroom floor and walls, and on the bed. He also observed a metal top of a hammer on the bed and a wooden hammer handle next to the bed. Additionally, there was a pair of women’s blue jeans on a hanger, a brown striped blouse, a beige bra and white panties in the area of the bed. On the floor near the bathroom door was a blood-spattered white and gray checked shirt.

On that morning, Stevens contacted Campbell’s mother. The following day, a woman identifying herself as Campbell’s sister contacted Stevens. After talking to this woman, Stevens sent a Leeds message to the New York police department and initiated a stop order for defendant, indicating that he was wanted for an offense. (Defendant was apprehended in New York and was extradited to Illinois on June 5,1984.)

Officer Michael McGuire testified that he was assigned to process the crime scene. McGuire photographed the interior of the apartment as well as the hallway where Campbell was found. He took the knife which was in the hallway as well as various items of clothing from apartment 814. He also took a hammer head and handle from the bedroom of that apartment. Latent prints were lifted from a package of cigarettes, a bottle of vodka and the television set. The latent print from the television set was that of defendant, and the latent print from the package of cigarettes was that of Campbell.

Dr. Robert Kirschner testified that he performed an autopsy on Campbell. He observed a blunt trauma wound on the deceased’s right cheek which was consistent with a blow by a hammer. Dr. Kirschner opined that Campbell’s death was caused by multiple stab wounds to the chest and abdominal area.

Joyce Ross, Campbell’s sister, testified that she last saw her sister on November 11, 1980, at their mother’s home. Defendant was with Campbell, and the two left together in a taxi cab. Ross stated that she had seen Campbell with defendant on one previous occasion.

Prior to trial, defendant made a motion in limine seeking to prevent a State’s witness, Rosetta Bishop, from testifying as to defendant’s assault upon her on December 3, 1979. The court denied defendant’s motion, finding that the testimony would be allowed for the purpose of showing identity and modus operandi, as the prosecution had sufficiently demonstrated a similarity between the prior assault and the Campbell stabbing. Defendant additionally sought to bar Rodgers from testifying that Campbell said “Frank” when Rodgers asked “Who stabbed you?” The trial court also denied this motion.

Defendant initially contends that the trial court erred in denying his motion in limine. We first will address the propriety of the trial court’s decision to permit Bishop to testify.

The substance of Bishop’s testimony is as follows: In 1979, Bishop was living with defendant in his apartment. On December 3, 1979, at approximately 1:30 a.m., she was awakened by pain in her face and head. Defendant was hitting her with something. Bishop ran into the living room, and she saw that defendant had a hammer in his hand. She tried to persuade defendant to stop, but he kept cursing and coming at her with the hammer. Defendant then obtained a butcher knife from the kitchen. He held the knife in his left hand and the hammer in his right hand. Bishop picked up a kitchen chair and hit defendant on the head, knocking him down on all fours. He still was holding the knife and hammer. Bishop threw the chair at defendant and ran naked out of the apartment. A squad car picked her up and took her to the hospital where she remained for three weeks. She had surgery to remove her eye and at trial wore a patch, which she removed to show her injury to the jury. Bishop did not file charges against defendant for this incident.

Generally, evidence of crimes not charged in the indictment is inadmissible. (People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667.) Evidence of other crimes, however, is admissible if the evidence tends to show motive, intent, identity, absence of mistake, or modus operandi. (People v. Kokoraleis (1987), 154 Ill. App. 3d 519, 507 N.E.2d 146.) The term modus operandi refers to a pattern of criminal behavior so distinct that separate crimes can be recognized as the work of the same person. Nonetheless, it is not necessary that the crimes be identical to permit the other crime to be admitted into evidence to prove modus operandi. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) A trial court’s decision on the issue of modus operandi will be overturned only where an abuse of discretion occurs. People v. Martin (1979), 80 Ill. App. 3d 281, 399 N.E.2d 265.

We believe that the trial court properly admitted the evidence of defendant’s attack on Bishop. The crimes against Bishop and against Campbell were sufficiently similar as to mark them as the work of defendant. Specifically, the similarities are as follows: both women were black and were in their mid-twenties; both women knew defendant prior to the attack; both women were naked when the attacks occurred; both attacks occurred in the bed of defendant’s bedroom; both attacks occurred in the early morning hours; and both attacks involved the use of a hammer and a knife. Bishop was hit in the head by a hammer while defendant held a knife in his other hand. Campbell died from multiple stab wounds and received an injury to her head which was consistent with a blow from a hammer. We do not believe that the trial court abused its discretion in concluding that these similarities sufficiently demonstrated that both incidents likely were the acts of defendant.

Defendant notes that the two incidents occurred nearly one year apart. Nonetheless, in our judgment, the assault on Bishop was not too remote in time to permit the circumstances surrounding it to serve as evidence here. See Porter v. Carter (1968), 38 Ill. 2d 496, 232 N.E.2d 692 (evidence of an offense occurring seven years after the offense currently being prosecuted admitted to establish identity and common design); People v. Hanei (1980), 81 Ill. App. 3d 690, 403 N.E.2d 16 (evidence of an offense occurring five years prior to the offense currently being prosecuted admitted to establish modus operandi).

Moreover, we do not believe that any prejudice which may have resulted from Bishop’s testimony outweighs its probative value. Defendant notes that Bishop described a brutal attack on herself, identified defendant as her assailant, and then stated that no charges had ever been filed on the incident, permitting the jury to conclude that defendant had committed a violent assault on Bishop and that he had not been punished for that assault. Defendant also points to the fact that Bishop was allowed to raise her eye patch to show the jury that her eye had been removed as a result of the attack.

Initially we observe that defendant failed to object at trial to Bishop’s display of her injury to the jury. Accordingly, defendant has waived objection to that display for purposes of this appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The balance of Bishop’s testimony demonstrated the strong similarities between defendant’s attack on her and the attack on Campbell, and we believe that any prejudice engendered by the testimony was cured by a limiting instruction to the jury. (See People v. Anderson (1982), 108 Ill. App. 3d 563, 439 N.E.2d 65.) Thus, we conclude that the trial court properly denied defendant’s motion in limine requesting that Bishop not be permitted to testify.

We also conclude that the trial court properly denied defendant’s motion in limine requesting that Rodgers not be permitted to testify as to Campbell’s response to his question “Who stabbed you?” We find that the statement was properly admitted as a spontaneous declaration exception to the hearsay rule.

For testimony to qualify as a spontaneous declaration, three elements must be present: an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; absence of time to fabricate; and the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) The spontaneity of a statement is to be judged from the totality of the circumstances surrounding the event. (People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.) Among the circumstances to be considered is the declarant’s mental state at the time of the statement (People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634), and the fact that the statement was made in response to a question about “who did this” does not necessarily destroy its spontaneity. People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146; People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.

We believe that here the trial court correctly concluded that the requirements for the spontaneous declaration exception to the hearsay rule had been met. It is clear that the occurrence was sufficiently startling to produce a spontaneous and unreflecting statement. Campbell was brutally attacked and suffered serious injuries to her head and abdomen which ultimately resulted in her death. She fled the apartment where the attack occurred and was found down the hall, bleeding profusely. For the next 10 to 15 minutes, she lay moaning and groaning. In light of these circumstances, we find that her statement to Rodgers was spontaneous and unreflecting.

Moreover, we do not believe that the time between the stabbing and her statement afforded her time to fabricate. Rather, we find that the events were sufficiently startling as to produce an unreflecting statement. (People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146.) Finally, the statement related to the occurrence. Thus, we find that the trial court properly admitted Campbell’s statement under the spontaneous declaration exception to the hearsay rule.

Defendant next contends that the prosecutor’s misstatement during closing argument denied him a fair trial. The prosecutor stated, “The office asked Alfreda, who stabbed you? You did hear from Alfreda. She told you Frank did it, Frank Burgos.” Defense counsel objected, noting that the evidence was that Campbell said, “Frank.” The court overruled the objection, stating that it was argument.

Generally, assumptions and statements of fact not based on evidence in the case may not be argued to the jury, and may be deemed prejudicial to the accused. (People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) Nonetheless, an argument based on facts appearing in proof or on legitimate inferences from those facts is proper. (People v. Johnson (1984), 122 Ill. App. 3d 532, 461 N.E.2d 585.) Moreover, the character and scope of argument to the jury is left largely to the trial court. The trial court is in a better position than a reviewing court to determine the prejudicial effect of a remark made during argument, and its ruling should be upheld unless the court clearly has abused its discretion. People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.

We believe that the prosecutor’s comment was a legitimate inference from the facts and circumstances proved during trial. Defendant’s apartment was covered with blood and a trail of blood led from that apartment to where Campbell was found. Campbell’s fingerprints were on a cigarette package found in defendant’s apartment, and her sister last had seen Campbell with defendant the evening prior to the murder. Moreover, both Rodgers and Dr. Porter identified defendant as the man they observed coming down the hall as they attended to Campbell. In light of these facts, the prosecutor’s comment was permissible argument and amounted to a legitimate inference from the evidence presented at trial.

Defendant finally contends that he was not proved guilty of murder beyond a reasonable doubt. He maintains that the circumstantial evidence presented by the State was insufficient to exclude every reasonable hypothesis of evidence and to establish beyond a reasonable doubt that defendant committed the crime.

In order to prove defendant guilty of murder, the State must show that defendant, without lawful justification, intentionally or knowingly killed Campbell, or committed an act which created a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a).) Whether a defendant has been proved guilty beyond a reasonable doubt is a matter for the trier of fact and its decision will not be disturbed on review unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Martin (1979), 80 Ill. App. 3d 281, 399 N.E.2d 265.) A conviction for murder, of course, may be based on circumstantial evidence. And it is sufficient if all the evidence taken as a whole satisfies the trier of fact of defendant’s guilt beyond a reasonable doubt. People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801.

In the present case, we cannot say the jury’s conclusion that defendant was guilty beyond a reasonable doubt is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. Campbell was seen with defendant the night before her murder, and she was found with multiple stab wounds down the hall from defendant’s apartment. A trail of blood led from where she was found to defendant’s apartment and a large amount of blood was found in defendant’s apartment along with a bloodstained hammer. An autopsy revealed that although Campbell died of multiple stab wounds, she had received a blow to her right cheek which was consistent with a blow from a hammer. When asked who stabbed her, Campbell replied, “Frank.” Her fingerprints were found in defendant’s apartment. Two witnesses identified defendant as the man who walked down the hallway in a wavering fashion as they attended Campbell. Defendant fled the scene and was located years later in New York. (See People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358 (court may view a defendant’s flight as consciousness of guilt).) Finally, Bishop, defendant’s former girlfriend, testified that defendant had attacked her in a similar manner 11 months prior to the attack on Campbell.

The totality of this evidence was sufficient to permit the jury to conclude that defendant was guilty beyond a reasonable doubt of Campbell’s murder. We will not disturb that determination.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE PINCHAM

text:
    NEAL CAAUWE, Petitioner-Appellant, v. POLICE PENSION BOARD OF THE VILLAGE OF MIDLOTHIAN, Respondent-Appellee.
    First District (5th Division)
    No. 1—86—3103
    Opinion filed May 26, 1989.
    — Rehearing denied June 16, 1989.

      Stanley H. Jakala, of Berwyn, for appellant.
    John B. Murphey, of Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

Petitioner, Neal Caauwe, petitioned the trial court to reverse the decision of the defendant, Police Pension Board of the Village of Midlothian (Pension Board), which denied his application for a policeman’s disability pension under the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 101 et seq.). The trial court affirmed the Pension Board’s decision. Petitioner appeals. The facts are as follows.

Petitioner filed an application for a policeman’s disability pension with the Pension Board of the Village of Midlothian. The Pension Board held an evidentiary hearing. The evidence established that petitioner had been employed nine years with the Midlothian police department. According to petitioner’s testimony, he first injured his back on June 1, 1977, during an altercation with a prisoner, when the prisoner tossed him against the wall of a jail cell. Petitioner missed no work as result of this incident. Two weeks later, on June 15, 1977, petitioner again injured his back while preparing to cut the grass in the yard of his residence. Petitioner twisted his back and could not move. Four days later, on June 19, 1977, petitioner went to South Chicago Hospital for emergency treatment. The following day, on June 20, 1977, petitioner was admitted to Michael Reese Hospital, where he was hospitalized until June 28, 1977. About four months later, on October 24, 1977, petitioner was again hospitalized and underwent a laminectomy. On December 29, 1977, petitioner returned to work. The record does not reveal when petitioner first stopped working because of his back injury.

Pursuant to the provisions of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 101 et seq.) governing disability pensions, petitioner applied for a policeman’s disability pension. Petitioner was examined by three physicians, Drs. James Bianchin, Albert Bosch, and Anthony Brown, selected by the Pension Board to determine the existence and extent of petitioner’s disability. Dr. Bianchin’s findings, presented to the Pension Board in the form of a report, concluded that petitioner “is capable of performing a sedentary-type job but he cannot function in the formal capacity of a police officer. *** I do not believe that the above named officer is completely disabled in the sense that he is not capable of employment.” Dr. Bosch’s finding, also presented to the Pension Board in the form of a report, concluded that petitioner would benefit from reduced physical activities that require bending and lifting and that petitioner remained a high risk spine patient. Dr. Brown’s findings, which were the most extensive, concluded that petitioner demonstrated “some symptomatology; however, he appears to have functioned quite well at his present activity level and *** does not appear to be a candidate for retirement. Statistically, it would be anticipated that improvement would occur with weight reduction and a home exercise program.” All of the foregoing medical evidence was presented in the form of uncertified, unsworn, unverified written medical reports of the respective doctors. At the conclusion of the evidentiary hearing, the Pension Board found from a review of the doctors’ reports that “these three doctors do not all certify Detective Caauwe’s disability” and denied petitioner’s application for a disability pension.

Petitioner sought administrative review by the trial court of the Pension Board’s decision under the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.). After considering the record of the proceedings before the Pension Board, the trial court affirmed the Pension Board’s denial of petitioner’s application for a disability pension. The trial court found that the Pension Board’s finding that the three doctors did not certify petitioner’s disability was not against the manifest weight of evidence. The trial court concluded that petitioner could do “all kinds of things that policemen can do that don’t involve the difficult street *** work and therefore the Pension Board’s findings that the evidence heard *** was insufficient to justify disability award is not against the manifest weight of the evidence.”

On appeal, petitioner contends that because the doctors failed to certify petitioner’s disability, or lack of disability, in their medical reports, there was insufficient evidence before the Pension Board on which to predicate any finding of disability or a lack thereof. Petitioner also asserts that certification by the doctors that petitioner was not disabled was mandatory under section 3 — 115 of the Pension Code and that because the doctors’ reports lacked certification of petitioner’s disability, the cause should be remanded to the Pension Board for such certification by the doctors of their doctors’ report. We agree.

A former prerequisite for obtaining a policeman’s disability pension was embodied in section 3 — 115 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108½, par. 3 — 115) which stated:

“A disability pension shall not be paid unless there shall be filed with the Board, certificates of the policeman’s disability, subscribed and sworn to by *** 3 practicing physicians in the municipality. The board may require other evidence of disability.” (Emphasis added.)

In Hodges v. Board of Trustees (1979), 73 Ill. App. 3d 978, 392 N.E.2d 417, plaintiff petitioned the trial court for review of an administrative decision of the defendant, board of trustees of Granite City police pension fund, which denied his application for a policeman’s disability pension. The trial court found that plaintiff’s disability arose out of his employment, reversed the board of trustees’ decision and awarded plaintiff a service-connected disability pension, 65% of his monthly salary. The board of trustees appealed and on appeal argued that the trial court’s order reversing its decision and awarding plaintiff a disability pension was error in view of the conflicting medical evidence of plaintiff’s disability and, also, because plaintiff refused to undergo another physical examination requested by the board of trustees. This court vacated the board of trustees’ decision and the trial court’s order and remanded the case to the board of trustees to take additional evidence.

Under Hodges, either plaintiff or the board of trustees could have produced certificates of plaintiff’s disability of “3 practicing physicians” for the pension board to determine the existence of a disability. Once the three certificates were submitted, the pension board was empowered to admit and weigh additional evidence relative to either granting or denying the disability pension request.

The January 1985 amendment of section 3 — 115 provides that a disability pension shall not be paid by the Pension Board unless “3 practicing physicians selected by the board” issue their subscribed and sworn to certificates of the applicant’s disability. To obtain a policeman’s disability pension, section 3 — 115 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 3 — 115), as amended in January 1985, provides:

“A disability pension shall not be paid unless there is filed with the board certificates of the police officer’s disability, subscribed and sworn to by *** 3 practicing physicians selected by the board. The board may require Other evidence of disability.” (Emphasis added.)

The foregoing language of the Pension Code is clear. Section 3 — 115 of the Pension Code mandates the Pension Board to select “3 practicing physicians” and requires them to furnish the Pension Board with subscribed and sworn to certificates of the applicant’s disability. The Pension Board, in the case at bar, did not require the “3 physicians selected by the board” to furnish certificates of the applicant’s disability and the three physicians did not submit such certificates. Therefore, the trial court’s order affirming the Pension Board’s denial of petitioner’s pension disability is reversed and the cause is remanded to the Pension Board for it to receive certifications of the three doctors of petitioner’s disability or lack thereof.

Reversed and remanded with directions.

LORENZ and COCCIA, JJ., concur.


author: JUSTICE LORENZ

text:
    DONALD ANDREWS, Plaintiff-Appellant, v. NORTHWESTERN MEMORIAL HOSPITAL, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—1695
    Opinion filed May 26, 1989.

      John J. Lowrey and Mary Jo Smerz, both of Law Offices of John J. Lowrey, P.C., of Chicago, for appellant.
    Arnstein, Gluck, Lehr & Milligan, of Chicago (Miles J. Zaremski, Arthur L. Klein, and Janis M. Gibbs, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Donald Andrews, appeals from the entry of summary judgment in favor of defendant, Northwestern Memorial Hospital, on his amended complaint for corporate negligence. We address the issue of whether plaintiff presented sufficient evidence that defendant deviated from the applicable standard of care to overcome summary judgment. We reverse and remand.

On November 16, 1984, plaintiff filed an amended three-count complaint against defendant and Dr. Edir Siqueira, who is not involved in this appeal, alleging negligence for injuries which resulted from two operations performed at the hospital on December 6, 1976, and January 10, 1977. Siqueira, a neurosurgeon, performed both surgeries, a left suboccipital craniectomy and section of the left ninth cranial nerve and a right suboccipital craniectomy and section of the right cranial nerve.

In count II of plaintiff’s amended complaint, at issue on appeal, plaintiff alleged that defendant, “through its duly authorized agents and employees,” was negligent when it: (1) performed the surgeries on plaintiff when they were not warranted; (2) failed to prescribe a more conservative treatment; (3) negligently performed the second surgery on plaintiff when it interfered with the blood supply to the other cranial nerves and/or severed the other cranial nerves; (4) failed to adequately evaluate plaintiff’s condition and his need for both surgeries; (5) failed to require examination, treatment, and consultation by competent medical experts and specialists; and (6) failed to supervise the competence of the physicians in the neurosurgical department of the hospital.

Defendant filed its answer to the amended complaint denying that plaintiff was under the care of its employees or agents, denying that its agents or employees performed the surgeries, and denying the negligence allegations.

In Siqueira’s answers to interrogatories, he listed the names of nine persons who had made a claim or filed a lawsuit against him alleging medical malpractice or professional negligence. He also stated that defendant had denied him professional privileges. During the course of litigation Siqueira entered into a settlement agreement with plaintiff.

At a pretrial conference on March 4, 1985, an order was entered limiting plaintiff and defendant to one testifying expert each at trial and barring any expert not previously disclosed from testifying at trial. Prior to the pretrial conference, plaintiff had disclosed that his expert was Dr. Peter Rocovich, who was deposed on January 26, 1984.

On February 3, 1987, defendant filed a motion for summary judgment on count II of plaintiff’s amended complaint, arguing that plaintiff had not produced any expert testimony establishing that defendant deviated from the standard of care for hospitals. The only expert plaintiff had disclosed was Rocovich, and defendant relied on the following excerpt from Rocovich’s deposition testimony in support of its motion:

“Q. Are you aware that Northwestern Memorial Hospital is a defendant in this case?
A. Well, I — yes.
Q. *** [I]n the course of your review of the records and the deposition of Doctor Siqueira, *** you have formed an opinion that with the exception of Doctor Siqueira that there was no deviation from the standard of care with regard to Northwestern Community [sic] Hospital or any of its agents or employees?
A. I can’t think of anything at this time.”

Defendant did not support its motion with an affidavit but merely relied on Rocovich’s deposition testimony.

Plaintiff submitted the affidavit of Nathan W. Helman, as an expert in hospital administration, as evidence that defendant deviated from the standard of care. Helman’s resume established he was a certified public accountant with extensive experience in hospital administration. He stated in his affidavit that he had previously testified as an expert in hospital administration. His opinion for plaintiff’s case was based on his review of the following documents: (1) the standards of the Joint Commission on Accreditation of Hospitals (JCAH), which sets minimum standards for hospitals in the Chicago area; (2) the defendant’s bylaws; (3) the defendant’s bylaws for its medical staff; and (4) the State of Illinois regulations for hospital licenses. In violation of Supreme Court Rule 191(a), none of the documents Helman relied on were attached to the affidavit. 107 Ill. 2d R. 191(a).

In Helman’s opinion, defendant’s bylaws deviated from JCAH standards in the following manner: medical clinical privileges in both the corporate bylaws and the medical staff bylaws were not delineated; medical staff appointments were made to the doctor’s 68th birthday, where the JCAH requires reappointment every one to two years; and there was no provision for summary suspension of a doctor’s clinical privileges when his competence is questioned by the chairperson of a department or division. Additionally, defendant approved the appointment of Dr. Anthony Raimondi as chairperson of the neurosurgery division of both defendant’s hospital and Children’s Memorial Hospital. Helman stated the dual appointment made it “impractical” for Raimondi to properly evaluate defendant’s doctors, specifically Siqueira, and prevented a fair evaluation of his work.

Helman stated that the chairperson of the department of surgery deviated from JCAH standards when he did not “insist” that the medical clinical privileges of the neurosurgeons on staff be reviewed periodically and failed to base review of the neurosurgeons on observations, records, and peer review.

Helman also stated that the chairperson of the division of neurosurgery deviated from JCAH standards when he did not establish a system to review the quality of patient care given by neurosurgeons with the rank of attending staff physician and did not regularly and properly review the medical clinical privileges of those neurosurgeons, including Siqueira.

In Helman’s opinion, these deviations from the standard of care “jeopardized and adversely affected the safety and well-being of [plaintiff].” In his affidavit Helman cites to specific sections of defendant’s. bylaws that he claims are in violation of the JCAH standards; however, he does not cite to specific sections of JCAH standards that were violated.

Defendant moved to strike the affidavit for failure to comply with Supreme Court Rule 191(a), arguing it did not state with particularity the facts upon which the claim is based, the documents relied on to form Helman’s opinion were not attached, and the affidavit contained conclusions, not facts admissible in evidence.

At the hearing on the motion for summary judgment, plaintiff attempted to name Helman as his expert for the action against defendant. The court held that as a matter of law Helman, an “accountant/ administrator,” could not give expert testimony which would prove defendant was liable under the pleadings. The court stated that in addition to Helman, a medical expert was necessary to establish defendant was negligent. As the court stated, “He is not enough to carry your burden of having an expert state that the hospital was negligent as stated in [the] complaint.” Plaintiff’s attorney stated she intended to name a medical expert who, at that time, was reviewing the medical records. Defendant noted that an order was entered limiting plaintiff to only one expert, Rocovich. Plaintiff argued Rocovich was only offered as an expert against Dr. Siqueira. Plaintiff’s request for a continuance was denied.

The court granted summary judgment in defendant’s favor. In the same order, the court granted defendant’s motion to strike Helman’s affidavit; however, the motion to strike was not addressed at the hearing and the court did not make a specific finding as to the reason the affidavit was stricken. Plaintiff filed a timely notice of appeal.

Opinion

In reviewing the entry of summary judgment, our function is to determine whether the pleadings, depositions, and affidavits reveal a genuine issue of material fact. (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1005(c); Warren v. Coca-Cola Bottling Co. (1988), 166 Ill. App. 3d 566, 519 N.E.2d 1197.) The evidence must be viewed strictly against the movant and liberally in favor of the opponent. (Eberle v. Brenner (1985) , 131 Ill. App. 3d 394, 475 N.E.2d 639.) Summary judgment is to be encouraged as an aid in the expeditious disposition of a lawsuit but it is a drastic means of disposing of litigation. (Purtill v. Hess (1986) , 111 Ill. 2d 229, 489 N.E.2d 867.) The movant must affirmatively show a clear right to summary judgment which is free from doubt. (La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 498 N.E.2d 697.) Although an opponent to a motion for summary judgment need not prove a prima facie case of negligence to overcome a defendant’s motion for summary judgment (Beals v. Huffman (1986), 146 Ill. App. 3d 30, 496 N.E.2d 281), he is required to present some factual basis that would arguably entitle him to judgment in his favor. Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 529 N.E.2d 40.

On appeal, plaintiff argues the trial court improperly granted summary judgment because expert testimony is not necessary to establish corporate negligence, defendant did not adequately support its motion for summary judgment, and Helman’s affidavit established a question of fact precluding summary judgment. Defendant responds that medical expert testimony is required to establish corporate negligence and Helman’s affidavit is insufficient to raise a question of fact.

In opposition to defendant’s motion for summary judgment, plaintiff relied on the affidavit of Helman as an expert in hospital administration. Although the trial judge entered an order granting defendant’s motion to strike the affidavit, the judge did not state his reasoning on the record. We must review whether striking plaintiff’s affidavit was proper.

The affidavit itself presents several problems. First, an order was entered at a pretrial conference which limited both plaintiff and defendant to one testifying expert and barred any previously undisclosed expert from testifying at trial. At the time the order was entered, plaintiff had disclosed his expert was Rocovich. Under the order, Helman would be barred from testifying at trial.

Supreme Court Rule 218 allows the trial court to enter an order at a pretrial conference limiting the number of expert witnesses at trial and also provides that “[t]he order controls the subsequent course of the action unless modified.” (107 Ill. 2d R. 218.) At the hearing on the motion, plaintiff requested a continuance to name a medical expert and apparently to obtain relief from the order but the trial court denied the request. The granting of a continuance is a discretionary matter for the trial court (Dawson v. St. Francis Hospital (1988), 174 Ill. App. 3d 351, 528 N.E.2d 362); however, in this case we believe the trial court abused its discretion. At the hearing on the motion, plaintiff presented Helman’s affidavit, which was some evidence that defendant deviated from the standard of care. Defendant presented only inconclusive evidence as to whether it deviated from the standard of care. Accordingly, plaintiff should have been allowed the opportunity to modify the order which limited him to one expert to enable him to name Helman as an expert. It was improper for the trial court to grant defendant’s motion to strike the affidavit solely on the basis of the order.

Second, Helman relied on several documents to form his opinion but they were not attached to the affidavit as required under Supreme Court Rule 191(a). In his reply brief, plaintiff claims the documents were produced when the motion was argued, but the report of proceedings does not reflect that plaintiff tendered a copy of defendant’s bylaws or JCAH standards. Nevertheless, the failure to attach the documents is a technical violation of Supreme Court Rule 191(a) which should be disregarded when it appears the affiant would be a competent witness at trial. (Beals v. Huffman (1986), 146 Ill. App. 3d 30, 496 N.E.2d 281.) At the hearing on the motion, the trial court initially stated, “[Helman] is not an expert insofar as this action is concerned,” but then later stated, “I agree with you that he could testify as to certain things *** [Helman] would be a stepping stone, a building block, no question about it. I’m sure he can testify.” Apparently, the trial court believed Helman would be a competent witness at trial, and from our review of Helman’s affidavit, we agree. The affidavit should not have been stricken for failure to attach documents because it appears Helman is competent to testify.

Third, Helman did not refer to specific sections of the JCAH standards that defendant violated. However, Helman did state the specific nature of the standards violated. For example, JCAH required periodic reappointment every one to two years and provisions for summary suspension. Although Helman did not refer to exact sections of the JCAH standards, he did state specific circumstances of defendant’s conduct that violated JCAH standards.

The trial court, therefore, improperly granted defendant’s motion to strike Helman’s affidavit. Finding that the affidavit was improperly stricken, we address the question of whether the trial court properly granted defendant summary judgment.

Defendant’s motion was supported only by the deposition testimony of Rocovich, who stated when asked whether defendant deviated from the standard of care, “I can’t think of anything at this time.” Plaintiff contends Rocovich’s deposition testimony is not properly before this court because it is unsigned; however, this argument is waived because plaintiff did not raise this objection in the trial court as required under Supreme Court Rule 211(d) (107 Ill. 2d R. 211(d)). (Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 468 N.E.2d 477.) Defendant characterized Rocovieh’s testimony as establishing that defendant did not deviate from the standard of care. However, Rocovich’s testimony is merely inconclusive on this point, supporting neither plaintiff’s nor defendant’s position. Defendant then did not present evidence supporting its motion for summary judgment.

On appeal, defendant argues that plaintiff cannot establish an action for corporate negligence without medical expert testimony on the issues of the hospital’s standard of care and causation.

A hospital owes a duty to its patients to exercise reasonable care in light of apparent risk. (Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 303 N.E.2d 392.) A hospital has an independent duty to its patients to review and supervise treatment. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) A plaintiff must prove that a hospital failed to comply with the proper standard of care and that the failure resulted in injury. Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 490 N.E.2d 181.

On the issue of what evidence is required to prove the standard of care, our supreme court has noted:

“[Wjhile various medical judgments are necessarily a daily part of hospital administration, they do not constitute the entirety of a hospital’s function, as is the case with single medical practitioners. Thus, we deem it appropriate to the diversity inherent in hospital administration that a broad range of evidence be available to establish the applicable standard of care.” (Green-berg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 293, 415 N.E.2d 390, 395-96.)

Generally, expert testimony is required unless defendant’s conduct is so grossly negligent or the treatment is so common that a lay person could readily appraise it. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.) In addition to expert testimony on the applicable standard of care, State licensing regulations, the hospital’s bylaws, and accreditation standards and regulations are admissible but they do not conclusively determine the standard of care. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.

In opposition to the motion, plaintiff presented Helman’s affidavit as an expert in hospital administration. Defendant did not file a counteraffidavit, and therefore, the facts contained in the affidavit are admitted and must be taken as true. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.

Helman’s affidavit established that defendant’s bylaws did not conform to JCAH standards in several ways. Medical privileges were not delineated, medical staff appointments were made to the doctor’s 68th birthday, and there was no provision for summary suspension of a doctor’s clinical privileges. Also, defendant did not establish a system to review the neurosurgeons, including Siqueira. Helman stated these deviations “jeopardized and adversely affected” plaintiff’s safety.

We believe Helman properly established the applicable standard of care for a hospital. In Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 415 N.E.2d 390, plaintiffs sued a hospital for negligence for radiation treatment and the hospital moved for summary judgment. The hospital relied on the deposition of its expert, who was a medical doctor, and plaintiff relied on the affidavit of a person who was an expert in the field of radiation therapy but who was not a medical doctor. The Illinois Supreme Court found the affidavit of plaintiff’s expert was admissible in determining the standard of care on a motion for summary judgment even though he was not a medical doctor. Similarly in this case, although Helman is not a medical doctor, his affidavit exhibits an expertise in hospital administration and his testimony supports plaintiff’s allegations that defendant failed to supervise Siqueira and failed to require a consultation.

Defendant on appeal also argues Helman cannot testify on the issue of causation in a corporate negligence case because he is not a medical doctor. Defendant admits there is no Illinois authority exactly on point to support its position. On the issue of causation, plaintiff alleged in his complaint that defendant’s failure to supervise Siqueira and failure to require a consultation resulted in his injury. Plaintiff also presented Helman’s affidavit, which stated that defendant’s failure to supervise and review Siqueira was a deviation from the applicable standard of care which “jeopardized and adversely affected” plaintiff’s safety. Additionally, plaintiff requested a continuance to present an affidavit of a medical doctor and the trial court abused its discretion when it denied the request. In light of the fact that defendant presented no evidence on the issue of causation, plaintiff’s pleadings and Helman’s affidavit were sufficient to establish a genuine issue of material fact as to whether defendant’s actions proximately caused plaintiff’s injuries. For purposes of summary judgment, Helman’s affidavit, which was not contradicted by other evidence, was sufficient evidence to overcome defendant’s motion for summary judgment.

For the foregoing reasons, the trial court improperly granted defendant’s motion for summary judgment.

Reversed and remanded.

MURRAY, P.J., and PINCHAM, J., concur.