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    RONALD DANKO, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE CITY OF HARVEY PENSION BOARD et al., Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—2009
    Opinion filed December 28, 1992.

      Buikema, Hiskes, Dillner, O’Donnell & Marovich, Ltd., of South Holland (Timothy C. Lapp, of counsel), for appellant.
    Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago (Charles G. Haskins, Jr., of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

After being injured while on duty as a police officer for the City of Harvey, plaintiff Ronald Danko’s request for a disability retirement pension was denied by the City of Harvey police pension board (the Board) for the reason that there existed an established “light duty” position he could physically perform. On judicial review of the Board’s decision (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 102), the circuit court reversed on the grounds that the Board was prejudiced and that the “light duty” job offered to Danko was a “hoax” created “specifically to disadvantage this plaintiff’s entitlement to a pension.” The Board appealed to this court arguing that (1) the trial court erred in reversing the Board’s decision because board member Nick Graves’ statements did not evidence bias or prejudice toward plaintiff, and (2) the Board’s decision denying a disability pension to plaintiff was not against the manifest weight of the evidence. We affirm the circuit court’s decision reversing the Board and awarding plaintiff a disability pension.

Plaintiff became a police officer for the City of Harvey on September 13, 1975. The various job titles and positions plaintiff held included patrol officer, detective, police counselor, administrative assistant, watch supervisor, watch commander, director of community affairs, commander of the service bureau and acting patrol commander. The requirements of these jobs included walking for as many as one or more hours, driving a car for eight hours at a time, directing traffic, supervising and being physically involved in violent confrontations or disputes on the street, carrying injured persons or pushing disabled vehicles.

On May 21, 1987, after the morning roll call, plaintiff slipped and fell and hurt his back while walking through the station corridor on his way to his police car. He sought immediate medical attention at Ingalls Memorial Hospital and went off work. Subsequently, on June 10, 1987, plaintiff underwent a laminectomy. After the surgery, plaintiff underwent physical therapy two or three times per week and returned to work on or about September 10, 1987.

Due to his injury, he was assigned to light station duty which involved sitting at a desk. His supervising officer was Nick Graves, who later became chief of police and a commissioner on the pension board. After one-half hour of work, plaintiff was suspended by the then chief of police, Barry Hughes. The Civil Service Commission conducted hearings in regard to plaintiff’s suspension and, on June 7, 1988, discharged plaintiff on the grounds that he (1) struck his wife at a restaurant in Lynwood, Illinois, and (2) submitted false injured on duty report forms for August 22, 1987, through August 31, 1987. On November 28, 1989, on judicial review of plaintiff’s discharge, the circuit court reversed and ordered plaintiff reinstated to his job as a Harvey police officer. The trial court concluded that the appropriate sanction was suspension without pay and without benefits for the period from September 9,1987, through November 28,1989.

One week later, on December 5, 1989, plaintiff returned to work. He had a meeting with Nick Graves, who was then chief of police, and Inspector Linkus. Plaintiff told Chief Graves he could not return to full duty because of his back problems. Chief Graves then asked plaintiff if he could do light duty work. Plaintiff responded that he could do some light duty work as long as he had the freedom to sit when he needed to sit, to stand when he needed to stand, and to lie down when he needed to lie down. Chief Graves then assigned him to an eight-hour-per-day shift wherein he was to stay in his apartment and fill out hourly reports of his activities. This at-home shift was to last “[ujntil this pension thing is over.” Approximately three weeks after being given this duty as “officer in charge of guarding [his] apartment,” Chief Graves suspended plaintiff pending termination allegedly for getting into another altercation with his now ex-wife.

Plaintiff finally received his pension hearing in 1990. Plaintiff had first applied for a disability pension on October 9, 1987, one month after his first suspension. He had to submit two more requests for a hearing on his disability pension, the last on May 16, 1988, before a hearing was scheduled. The hearing was held over four days: January 26, 1990, April 6, 1990, April 26, 1990, and May 17, 1990. The Board was made up of five people: (1) Robert Cochran, who was a retired police officer and chairman of the board on the January 26 and April 6 hearing dates; (2) Chief of Police Nick Graves, who was chairman of the pension board on the April 26 and May 17 hearing dates; (3) Christopher Barton, who was deputy chief of operations for the City of Harvey police department; (4) Marsha Bond, who was the city clerk of Harvey; and (5) Marian Beck, who was the service bureau administrator working under Deputy Chief of Police Green.

Plaintiff made several motions at the start of the hearing to have Chairman Cochran and Chief Graves recuse themselves from the pension hearing on the grounds that they were biased against plaintiff and unable to give him a fair and impartial hearing. In support of the motions, plaintiff testified to several conversations he had had with Cochran and Graves sometime prior to the hearing. Plaintiff first testified to several conversations he had with Chairman Cochran. According to plaintiff, after requesting a hearing and getting no response from the Board, he twice contacted Chairman Cochran personally and asked him about his hearing. Chairman Cochran responded by telling him he would not get a pension hearing because the chief had a light duty job for him. Plaintiff also testified to several conversations he had with Chief Graves at a restaurant sometime in 1988. He testified that Graves told him that “the City’s [sic] got a lot more money than you do and they [sic] are going to run you dry, and there is no way they [sic] are going to settle or give you a thing.” Additionally, Chief Graves was the person who suspended plaintiff at the end of 1989. Understandably, plaintiff’s attorney wanted to subpoena him and ask him questions regarding any possible bias. The motions to have Cochran and Graves recuse themselves were denied, and plaintiff was also denied the ability to call and question Chief Graves in his case in chief.

During the hearing, Commissioner Beck asked plaintiff why he was suspended pending termination the second time in December 1989. Plaintiff stated that Chief Graves had ordered Inspector Linkus to go speak with plaintiff’s wife in order to “find out some way that they could *** fire me again.” Chief Graves then exploded in indignation, claiming that plaintiff’s statement was “an outrageous lie.” Plaintiff’s counsel then renewed his motion to have Chief Graves recuse himself because he was obviously upset and predisposed to finding against plaintiff. Chief Graves admitted he was upset, because “[w]hen someone lies personally to me, I get upset.” Graves stated that he could indicate when plaintiff “is lying when he is lying about me because personally I know he is lying about me.” The motion was denied and plaintiff had to be satisfied with Graves’ assurances that he would give plaintiff the “fairest treatment” and that the fact that he had suspended plaintiff for conduct unbecoming a police officer had no bearing on the case.

Later in the record in a clearly hostile exchange, Chairman Graves asserted that if plaintiff had not gotten suspended he would possibly still be working light duty and that if “the Chief feels that you could do [light duty] and would be accepting you back to do that, it’s well and it’s right for you to do that.” Again, as he did several times throughout the hearing, plaintiff’s counsel renewed his motion to have Chief Graves recuse himself and to allow him to question the chief regarding any possible bias he may have against plaintiff. Specifically, counsel wanted to inquire into the chief’s alleged statements to plaintiff that the City would “run him dry” and not give him a pension as well as the fact that the chief most recently suspended plaintiff and pressed for his termination.

At the hearing, plaintiff testified that he cannot sit for more than 20 minutes to an hour at most. He must then stand. He cannot stand, however, for more than 15 to 20 minutes. He experiences a great deal of pain and then his muscles become numb and collapse and his body will give way and fall if he fails to find something on which to hold. He cannot sit still for extended periods in a car either. Several times a day, when the pain is extremely bad, plaintiff must lie down for 15 to 20 minutes to straighten his back out.

The consensus of all medical opinions was that plaintiff is permanently injured and cannot go back to full duty as a police officer. He has a degenerative back disorder which may require further surgery in the future. Two of the physicians, Edward J. Winter, M.D., and David J. Smith, M.D., gave their unqualified opinions that plaintiff could not perform any type of police work, including the “light duty” functions. Both doctors took into account plaintiff’s need to frequently change positions and take rest periods. Three physicians, John F. Shea, M.D., Mark Lorenz, M.D., and Michael R. Zindrick, M.D., were unable to give their opinions on whether plaintiff could perform the “light duty” work on the grounds that the job description of light duties provided them with inadequate information. Specifically, they stated that in order to give their opinions on whether plaintiff could perform the light duties, they needed to know the amount, length, and duration of any sitting, squatting, lifting, or standing involved. Two doctors, Arthur E. Ostergard, M.D., and Leon Malchinski, M.D., gave their opinions that plaintiff could perform the “light duty” work. Their opinions, however, did not take into account plaintiff’s need to constantly change his position. Finally, after the above medical opinions were given, plaintiff submitted to a “Functional Capacities Assessment” at the Paulson Rehabilitation Center at Willowbrook. The ultimate assessment report noted that although the specific physical demands of “light duty” were not apparent from the job description, plaintiff performed best when able to alternate between sitting, standing and walking.

Plaintiff testified that he could not perform the light duty work listed in the document “Police Officer Assigned To Station Duties.” He stated that although he could perform many of the jobs for short periods, there is nothing to indicate that he could take frequent breaks as he needed and for as long as he needed. Additionally, he testified that this light duty job description of “Police Officer Assigned To Station Duties” never existed prior to 1988 and was created just for him. He stated that injured officers have been assigned to temporary light duty, but never to permanent light duty positions. In response to an inquiry from Commissioner Bond, plaintiff explained that the types of functions listed on the document titled “Police Officer Assigned To Station Duties” are done full time by people hired to do that type of work. He stated, “the history of the police department has records and — clerks to handle records. They have dispatchers to dispatch. They have dog warrants to catch dogs. They have filing clerks to file.” He testified that the department has never before assigned a police officer to assist in these duties on a permanent basis. In response to questioning by Chief Graves, plaintiff stated that the types of injuries officers assigned to light duty had were broken arms or legs or sprained muscles and they were on light duty only until they recovered. He testified that officers with injuries that never got better were pensioned off.

Officer Fuller was subpoenaed to testify by plaintiff. Fuller wrote the document identified as “Police Officer Assigned To Station Duties” in early April 1988 at the direction of then Chief of Police Hughes. Hughes had indicated to Fuller that such a job description was needed and that plaintiff would be assigned to such duties. Fuller testified that in preparing the document he drew from his own experience on light duty and he also combined the job descriptions of records clerk and radio dispatcher. Fuller stated that assigning injured officers to light duty was common, but that there had never before been a light duty job description actually reduced to writing. In response to an inquiry by Commissioner Barton, Fuller testified that officers were assigned to light duty for “pretty much an indefinite period of time based on when the doctor said they could go back to full duty.”

Inspector Linkus testified for the purpose of explaining the light duty job description titled “Police Officer Assigned To Station Duties.” Linkus was the inspector of professional standards. He asserted that light duty had been given to injured officers since at least 1970. He stated that the present light duty policy is expressed by the document identified as “Police Officer Assigned To Station Duties.” He testified that injured officers are placed on light duty when their doctors say they cannot perform full duty. These officers remain on light duty until eventually released by their doctors. Mr. Dillner, the attorney for the Board, then asked Linkus whether an officer would be permanently assigned to light duty if he were never released by his doctor. Linkus responded, “that’s right.” Linkus then asserted that the department makes special accommodations for persons on light duty and that in every case they will tailor the job to meet the needs of the specific individual. He testified that this is not “something new” only created for plaintiff and that his physical needs would not restrict him in his ability to do light duty. Additionally, Linkus mentioned that the department had purchased a cot in 1980 for a female matron and that the plaintiff could use it to lie down if he needed. On cross-examination, Linkus admitted that presently there were no officers assigned to light duty and that, in his 20 years on the police force, no one had ever been assigned permanently to light duty.

Some illustrative examples of the work for a police officer assigned to station duties include among other things (1) receiving telephone calls, (2) dispatching police personnel and equipment by radio, (3) monitoring calls for fire fighting and ambulance equipment, (4) maintaining various logs and records, (5) receiving complaints, (6) typing, filing, and assembling records and reports, (7) classifying received criminal complaints and reports, and (8) reviewing and processing warrants.

Plaintiff also introduced evidence concerning several former officers who were receiving disability pensions. Officer Dan Blecken suffered a knee injury and, at the time of the hearing, was driving a gravel truck. Officer Coleman McCarthy, at the time of the hearing, was an investigator for the Cook County State’s Attorney and receiving a disability pension. Additionally, Officers Bob McGinnis and Randy Lipisenere were pensioned off after developing heart troubles.

At the close of the evidence, plaintiff requested a line of duty disability pension pursuant to section 3 — 114.1 of the Pension Code (Code) (Ill. Rev. Stat. 1989, ch. 108½ par. 3 — 114.1). In the alternative, plaintiff requested a not on duty pension pursuant to section 3— 114.2 (Ill. Rev. Stat. 1989, ch. 108½, par. 3 — 114.2). The Board found that plaintiff was injured while on duty as a police officer for the City of Harvey. The Board denied plaintiff’s request for a disability retirement pension, however, because there existed an “established light duty position” as specified in the police department’s job description “Police Officer Assigned To Station Duties” which plaintiff could perform. On judicial review, the circuit court reversed the administrative decision to deny plaintiff a disability pension, reasoning both that the Board was prejudiced against plaintiff and that the permanent light duty job description was established solely to deprive plaintiff of his pension.

The trial judge’s first conclusion was that plaintiff was denied a fair hearing because the pension board hearing officers were biased and prejudiced against plaintiff. Specifically, the trial judge determined that Chief Graves’ comments to plaintiff prior to the hearing that the City of Harvey was going “to run you dry, and there is no way they are going to settle or give you anything” were clearly reflective of bias and that he had “in some measure adjudicated [sic] the facts as well as the law of the case in advance of hearing it.” The trial judge added that the prejudice of one board member necessarily taints the action of the entire board.

On appeal to this court, the Board argues that Chief Graves’ statements did not evidence any personal bias on his part toward plaintiff. The Board asserts that the statements were made in the context of a meeting between “friends” and that Graves was only advising plaintiff as to the obstacles he should reasonably expect to encounter. Additionally, the Board asserts that Graves was not even one of its members at the time he made those statements.

The function of the circuit court on judicial review of an administrative determination is not to reweigh the evidence, but merely to determine if the conclusion is against the manifest weight of the evidence. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73, 498 N.E.2d 1148, 1153.) However, this deferential standard is not controlling where the Board is prejudiced or biased against the claimant and incapable of giving him a fair hearing. (Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 39, 360 N.E.2d 536, 541.) In order to establish the bias or prejudice of an administrative decision maker, a claimant must show more than the mere possibility of bias or that the decision maker is familiar with the facts of the case. (Collura, 113 Ill. 2d at 370, 498 N.E.2d at 1152; Grissom v. Board of Education of Buckley-Loda Community School District No. 8 (1979), 75 Ill. 2d 314, 320, 388 N.E.2d 398, 400; Batka v. Board of Trustees of the Village of Orland Park Police Pension Fund (1989), 186 Ill. App. 3d 715, 721, 542 N.E.2d 835, 838-39; Carrao, 46 Ill. App. 3d at 39, 360 N.E.2d at 541.) The claimant must demonstrate that the decision maker is not “ ‘capable of judging a particular controversy [fairly] on the basis of its own circumstances.’ ” (Grissom, 75 Ill. 2d at 320, 388 N.E.2d at 400, quoting Hortonville Joint School District No. 1 v. Hortonville Education As sociation (1976), 426 U.S. 482, 493, 49 L. Ed. 2d 1, 9, 96 S. Ct. 2308, 2314; accord Carrao, 46 Ill. App. 3d at 39, 360 N.E.2d at 541.) Although there is a presumption that administrative decision makers are “men of conscience and intellectual discipline” who are able to objectively and fairly judge each particular case on its own facts and set aside their own personal views (Grissom, 75 Ill. 2d at 320, 388 N.E.2d at 400), a claimant may show bias or prejudice “if a disinterested observer might conclude that the administrative body, or its members, had in some measure adjudged the facts as well as the law of the case in advance of hearing it.” (A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, 89, 528 N.E.2d 390, 394.) Additionally, if one decision maker on an administrative body is not completely disinterested, his participation “ ‘infects the action of the whole body and makes it voidable.’ ” (Board of Education of Niles Township High School District No. 219 v. Regional Board of School Trustees (1984), 127 Ill. App. 3d 210, 213, 468 N.E.2d 1247, 1249-50, quoting City of Naperville v. Wehrle (1930), 340 Ill. 579, 581, 173 N.E. 165, 166.) “Interest” does not necessarily mean a pecuniary interest, “[i]t need only be an interest which can be viewed as having a potentially debilitating effect on the impartiality of the decision maker.” International Harvester Co. v. Bowling (1979), 72 Ill. App. 3d 910, 914, 391 N.E.2d 168, 171.

In the instant case, a disinterested observer would conclude that Chief Graves had prejudged plaintiff’s claim. Initially, we agree with the Board that Chief Graves’ prehearing statements to plaintiff that the City would “run him dry” are insufficient to establish bias or prejudice against plaintiff. The statements were made more than a year before the hearings, before the chief was on the Board, and in the context of a meeting between “friends.” However, in view of these statements by Chief Graves along with other actions and statements made by him before and during the hearing, it becomes clear that Graves was unable to judge plaintiff’s case fairly and objectively.

It was Chief Graves who, in December 1989, less than one month before plaintiff’s pension hearing, suspended plaintiff and pressed for his termination for conduct unbecoming a police officer. Additionally, the Board refused to allow plaintiff to question or cross-examine the chief on any possible bias or even the reason why he suspended plaintiff. In fact, every motion or objection of plaintiff’s counsel appears to have been overruled, including the motions to have Cochran and Graves recused, to question Graves on his alleged bias, as well as to question Inspector Linkus and Officer Rizzi on any prejudice either may have harbored against plaintiff.

Most importantly, however, are several statements made by Chief Graves during the hearing. First, Chief Graves called plaintiff a “liar” after plaintiff responded to Commissioner Beck’s inquiry into why he was suspended the second time in December 1989. Plaintiff stated that the chief had sent Inspector Linkus to speak with plaintiff’s wife in order to “find out some way that they could *** fire me again.” The chief admitted he became very upset at plaintiff’s answer and called plaintiff’s statement “an outrageous lie.” Second, during clearly hostile questioning of plaintiff by Chief Graves, Graves asserted that if plaintiff had not gotten suspended he would possibly still be working light duty. Third, during this same exchange, Chief Graves stated his belief that if “the Chief feels that you could do [light duty] and would be accepting you back to do that, it’s well and it’s right for you to do that.” Clearly, these statements and actions would indicate to a disinterested observer that Chief Graves had “in some measure adjudged the facts as well as the law of the case in advance of hearing it.”

The Board argues, however, that this case is analogous to Grissom v. Board of Education of Buckley-Loda Community School District No. 8 (1979), 75 Ill. 2d 314, 388 N.E.2d 398. In Grissom, after an administrative hearing, the board of education voted to dismiss the plaintiff, Richard Grissom. The board chairman admitted to making a statement that he had never stopped trying to get rid of Grissom. (Grissom, 75 Ill. 2d at 321, 388 N.E.2d at 400.) The Grissom court found the board member’s statement to be “thoughtless and indiscreet, but hardly so substantial as to evidence a vendetta or prejudice” sufficient to set aside the board’s decision. (Grissom, 75 Ill. 2d at 321, 388 N.E.2d at 400.) The Board, in the instant case, asserts that, like in Grissom, Chief Graves’ statements that the city would “run him dry” may have been “thoughtless and indiscreet” but they were not sufficient to show bias. Grissom is distinguishable.

First, as stated above, it is not solely these statements by Chief Graves which convince us that an objective observer would conclude the chief was biased. We agree with the Board that under Grissom the chief’s statements that the city would not give plaintiff his pension were insufficient to establish Chief Graves’ prejudice. However, unlike in Grissom, Chief Graves made several statements during the hearing which evidence his bias. In Grissom, nothing was done during the hearing which demonstrated bias or unfairness. During the hearing in the instant case, however, Chief Graves stated, in effect, that he believed that if plaintiff had not gotten himself suspended he would still be working light duty. He also asserted that if the chief of police says he has a light duty position for an injured officer, that injured officer should unquestioningly accept it.

In addition, in Grissom the allegedly biased board member was not intricately involved in the plaintiff’s situation. In this case, however, Chief Graves was a “prominent player” in the events unfolding before the Board. Plaintiff testified to the substance of several conversations he had with Chief Graves prior to the hearing. Additionally, in September 1987, Graves was plaintiff’s supervisor when he was suspended after one-half hour of work. Moreover, Graves assigned plaintiff to light duty when he came back to work in December 1989. Graves then suspended plaintiff pending termination in late December 1989. Graves also called plaintiff a “liar” during the hearing and plaintiff was not permitted to question him as to any possible bias he may have against him. Since plaintiff’s credibility was in issue, to an extent so was Graves’. Yet, Graves was the chairman of the board which was determining his own credibility.

Chief Graves was not simply “familiar with the facts of the case,” and plaintiff has clearly shown more than the mere possibility of bias. Graves’ involvement as a supervisor to plaintiff along with his statements before and during the hearing demonstrate that he was not able to judge the controversy fairly on the basis of its own circumstances. Additionally, due to his influence on the Board as elected chairman, his participation “infected” the action of the entire board.

Notwithstanding our conclusion that the Board was biased against plaintiff, we also hold that the Board’s decision to deny plaintiff a disability pension because there was an established light duty position was against the manifest weight of the evidence. In reversing the administrative decision to deny plaintiff a disability pension, the circuit court determined that the light duty position offered to plaintiff was a “hoax” created “specifically to disadvantage this plaintiff’s entitlement to a pension.” The court noted that no police officer had ever been assigned permanently to light duty and that this position was created after the ongoing dispute between plaintiff and the city had begun and the city had determined to get rid of him. The court reasoned that plaintiff can indeed do much of the work described in the light duty job description, but “he can only do these things in very short spurts” and then must change his position in order to alleviate his pain. The court concluded that the light duty job description does not accommodate plaintiff’s type of injury which requires that he be permitted to change his position at frequent, unscheduled intervals. Therefore, the circuit court held that plaintiff was totally incapacitated.

On appeal, the Board asserts that the record supports the conclusion that plaintiff could perform the assignments outlined in the established light duty job description. The Board brings to our attention that both Fuller and Linkus testified that the department has a longstanding policy of placing injured officers on light duty. The Board also maintains that Linkus’ testimony supports the conclusion that an assignment to light duty could be permanent if an injured officer was never authorized by his doctor to go back to full duty. It also points out that the physicians were in disagreement as to whether plaintiff could perform the light duty functions and it was free to accept the medical testimony which stated plaintiff could do light duty assignments. The Board states that “it is clear that plaintiff is able to perform the duties outlined in the light duty job description, provided that he is allowed to change positions at frequent intervals.” Since Inspector Linkus testified that special arrangements could be made to accommodate plaintiff’s physical limitations, the Board argues that its decision that there existed an established light duty position which plaintiff could perform was not against the manifest weight of the evidence.

The Administrative Review Law requires a trial court to hold the findings and conclusions of an administrative agency on questions of fact to be prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3-110; Batka, 186 Ill. App. 3d at 722, 542 N.E.2d at 839.) The function of the circuit court on judicial review of an administrative determination is not to reweigh the evidence, but merely to determine if the conclusion is against the manifest weight of the evidence. (Collura, 113 Ill. 2d at 372-73, 498 N.E.2d at 1153.) In order for an administrative determination to be against the manifest weight of the evidence, the court must conclude that “all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous and that the opposite conclusion is clearly evident.” (Batka, 186 Ill. App. 3d at 722, 542 N.E.2d at 839-40, citing Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 209, 485 N.E.2d 871, 874.) The trial judge may not reverse merely because he would have reached the opposite conclusion. (Hahn, 138 Ill. App. 3d at 209, 485 N.E.2d at 874.) It is the Board’s duty to weigh the evidence and “there need only be some competent evidence in the record to support its findings.” Hahn, 138 Ill. App. 3d at 209, 485 N.E.2d at 874.

Section 3 — 114.1 of the Code provides the requirements for a police officer to receive a “line of duty” disability pension. It provides in pertinent part:

“If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3 — 114.1.)

The second district in Thurow v. Police Pension Board (1989), 180 Ill. App. 3d 683, 690-91, 536 N.E.2d 155, 160, recently interpreted this provision for a police “line of duty” pension to mean that in order to receive a disability pension a police officer must be unable to perform police service. In other words, under this statute, a police officer is not entitled to a disability pension if there is an available and existing full-time light duty position within the police service which he can perform. See Thurow, 180 Ill. App. 3d at 691, 536 N.E.2d at 160.

The record in this case supports the following factual conclusions: (1) that the plaintiff injured his back while on duty as a police officer for the City of Harvey; (2) that the plaintiff’s injury is permanent and prohibits him from performing the full duties of a police officer; (3) that the plaintiff's injury requires him to frequently change his position in order to relieve the pain; (4) that injured officers are commonly assigned to light duty until allowed to return to full duty by their doctors; (5) that any permanently injured officers are routinely “pensioned off”; (6) that plaintiff first applied for a disability pension on October 9, 1987; (7) that the light duty job description of “Police Officer Assigned To Station Duties” was first put in writing in April 1988, with plaintiff in mind for the position; (8) that two of seven physicians who examined plaintiff stated he could do the light duty job assignments described in the document referred to as “Police Officers Assigned to Station Duties”; (9) that the light duty job description does not include the physical requirements of the work (i.e., the amount, length, or duration of any sitting, squatting, lifting, or standing); and (10) that no officer has ever been assigned to permanent light duty. Based upon a review of the evidence and the uncontroverted facts in the record, we hold that it is clearly evident that plaintiff is permanently disabled and that the decision of the Board was against the manifest weight of the evidence.

Plaintiff concedes he can do the light duty work as long as he can change his assignment whenever he physically requires a change of position. His main complaint is that the job description does not in-elude the physical parameters of each assignment. However, Inspector Linkus testified that the department will make special accommodations for injured officers assigned to light duty and will “tailor” the job to meet the physical needs of the individual. Therefore, if there is an established light duty position and, as Inspector Linkus’ testimony would indicate, the police department is willing to “jump through hoops” to accommodate plaintiff and make it possible for him to fulfill the requirements of that position, we cannot say that the Board’s decision that plaintiff is capable of performing the work was against the manifest weight of the evidence. Although we may consider the department’s attitude in this matter extremely juvenile in light of the fact that plaintiff’s physical condition renders him unable to do any kind of meaningful work and would probably render him extremely nonproductive in any capacity in the police department, our review is limited to the question of whether there is an established light duty position which plaintiff is capable of performing.

On the other hand, although Inspector Linkus may say the department will make special accommodations for plaintiff’s disability, there is no real evidence that it can. A blanket statement that the department has always tailored light duty to fit the injured officer and will “tailor” the position to fit plaintiff is insufficient absent evidence that it can be done. In fact, it is hard to think of any job which would lend itself to the type of injury from which plaintiff suffers. Additionally, a review of the opinions of the two Board physicians who determined that plaintiff could perform the light duty work makes it clear that, in coming to their conclusions, they did not consider plaintiff’s need to frequently change his position. As such, they did not consider all relevant factors necessary to make a judgment as to whether plaintiff could physically perform the light duty assignments in light of his need to constantly change his physical position.

Ultimately, however, we hold that there is no established full-time light duty position in the City of Harvey police department and, if there is such a position, it was created solely for the purpose of depriving plaintiff of his pension. The Board asserts, however, that Inspector Linkus’ testimony supports the conclusion that an assignment to light duty could be permanent if an injured officer was never authorized by his physician to return to full duty. During the hearing, Linkus testified that injured officers are placed on light duty until their physicians release them. In response to a question from the Board’s attorney as to whether an officer would be permanently assigned to light duty if never released back to full duty by his physician, Linkus responded “that’s right.” This affirmative response by Inspector Linkus to a leading question by the Board’s attorney is hardly sufficient to nullify all the evidence to the contrary and to establish that a full-time light duty position exists. Other than this statement by Linkus, the record is devoid of any such evidence. In fact, the evidence in the record is clearly to the contrary.

As the trial judge noted, the light duty position of “Police Officer Assigned To Station Duties” was created soon after plaintiff first requested a hearing on his pension. The job description combines the duties of records clerk and radio dispatcher. Both these positions are full-time positions which are held by civilians, not by police officers. Additionally, no injured officer has ever been permanently assigned to light duty. Moreover, permanently injured officers, such as plaintiff, are pensioned off. It is clear that in the City of Harvey police department light duty is a temporary, though often indefinite assignment, which officers with relatively minor injuries are assigned to until they recover.

The Board analogizes to Peterson v. Board of Trustees of the Firemen’s Pension Fund (1973), 54 Ill. 2d 260, 262, 296 N.E.2d 721, 722, in which a fireman was permanently injured in the line of duty and, as a result, unable to return to his previous duties as a firefighter. The pension board denied his application for a disability pension, however, because there existed in the fire service “necessary duties within the fire-prevention bureau of the fire department which can be performed by a person of the physical and mental capacities of [claimant].” (Peterson, 54 Ill. 2d at 262, 296 N.E.2d at 722-23.) The difference between Peterson and the instant case is clear. In Peterson, the position available to the claimant was a necessary, established and existing full-time position in the fire department which, even with his disability, he was able to fully perform in accord with the established requirements of the position. In this case, although it is common to assign injured officers to temporary light duty work assisting the records clerk and the radio dispatcher, there has never existed in the City of Harvey a full-time light duty position.

The facts of this case force us to ask the obvious question, “If this plaintiff is not fully disabled from performing any kind of work, then who would be?” As the trial judge succinctly stated:

“[T]his applicant must be able to change his position with great regtdarity. He must be able to sit when he wants to sit; he must be able to stand when he wants to stand. He must be able to lie down to alleviate spasms and discomfort. He must be able to do those things not on the command or wish of someone else, but at his own motivation. If that is not total incapacity for any kind of job, then I don’t know what total incapacity would be.”

Several illustrative examples of the work for a police officer assigned to station duties include among others receiving telephone calls, dispatching police personnel by radio, monitoring calls for fire fighting and ambulance equipment, and typing, filing and assembling records and reports. These are important positions and we do not intend to belittle them, but almost anyone would be able to physically do the majority of the jobs listed in the job description “Police Officers Assigned To Station Duties.” If a police officer is injured in the line of duty and, as a result loses the use of both his legs, will the City of Harvey police pension board refuse to give him a “line of duty” disability pension if he requests one because he is still able to fulfill the duties of an officer assigned to station duties and permanently assist the records clerk and the radio dispatcher, receive telephone calls, dispatch police personnel or type? This is absolutely ludicrous, yet absolutely conceivable under the Board’s apparent standards. Additionally, there is evidence in the record that several officers on pension are not nearly as disabled as plaintiff. Officer Blecken hurt his knee and is now driving a truck while getting a pension. Officer McCarthy is receiving a pension yet is still physically able to work as an investigator for the State’s Attorney. It is hard to believe that neither of these injured officers could do “permanent” light duty.

Therefore, for the abovestated reasons, we conclude that the Board’s decision to deny plaintiff a disability pension because there existed an established light duty position he could perform was not only the result of bias, but also was against the manifest weight of the evidence. As such, we affirm the circuit court’s decision.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    JAMES CARNEY, Plaintiff-Appellant, v. SHERMAN SMITH et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 91—1494
    Opinion filed December 29, 1992.
    Tyrrell, Etchingham & Associates, of Chicago (Thomas J. Tyrrell, James P. Etchingham, and Joseph E. Tighe, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo and Christine L. Olson, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff James Carney (Carney) was injured when his car was struck from behind by an 18-wheel tractor-trailer. Carney sued defendants Sherman Smith (Smith), the driver of the truck, and the Maxwell Company, Smith’s employer, to recover damages for his injuries. A jury returned a verdict in favor of Carney, finding that he suffered $153,000 in damages, but reduced the award to $76,500 because it assessed Carney’s comparative fault at 50%. On appeal, Carney seeks a new trial, alleging that (1) the circuit court improperly allowed covert surveillance videotapes to be played before the jury, and (2) the jury’s verdict was against the manifest weight of the evidence.

At trial, Smith testified that he was a leased truck operator for the Maxwell Company, and that he had been driving trucks for 33 years. On June 26, 1987, he was travelling south in the right lane of Interstate 294 (1-294), in an 18-wheel tractor-trailer. He had unloaded his truck in Milwaukee and was on his way to Cincinnati to pick up a new shipment. His truck weighed 30,000 pounds when it was empty, and could haul up to 78,000 pounds of cargo. Approximately one-quarter of a mile north of Willow Road, he noticed a black limousine and a red Ford Escort pass him on the left and merge into the right lane. Since traffic was heavy, he was travelling only 25 to 30 miles per hour. As he approached the Willow Road exit, he slowed the truck to 15 to 20 miles per hour.

Approximately 100 feet before the exit, Smith noticed Carney’s 1977 Oldsmobile Cutlass cross from the left lane and attempt to merge into the right lane behind the limousine and the Escort. Traffic stopped in front of the limousine, causing all three cars to stop. The rear of Carney’s car was angled to the left jutting out of the lane. Smith slowed to 5 to 10 miles per hour when he saw Carney’s brake lights.

Five to ten seconds after Carney entered the right lane, Smith’s left front bumper collided with the right rear of Carney’s car. Smith was travelling about five miles per hour at the time of impact. After the collision, Smith apologized to Carney and told him that the truck was empty. At trial, Smith explained that an empty truck slides easier than a full one, and that the new asphalt surface on the roadway caused it to feel “greasy.” He also explained that he paid a fine for failing to reduce speed to avoid a collision, but only because he could not afford to miss a day of work and return to Chicago in order to challenge the ticket.

Peter Balgemann testified that he was the driver of the Ford Escort. On June 26, 1987, he was driving south on 1-294 in the right lane, though he could not recall how long he had been driving in that lane. When traffic suddenly stopped, he hit the rear of a limousine directly in front of him. After he and the other driver determined that neither car was damaged, the limousine left the scene, but before he could move his car, his car was “bumped” from behind by Carney’s car. Neither car suffered any damage.

Carney testified that on Friday, June 26, 1987, at approximately 2 p.m., he was travelling southbound in the right lane of 1-294 on his way to work at Allstate corporate headquarters in Northbrook. Because he intended to exit at Willow Road, he remained in the right lane for the three miles after the Deerfield Toll Plaza. He had entered the right lane at the toll plaza because he did not have exact change for the toll and therefore had to use the manual toll booths on the right side of the plaza.

Approximately two miles before the Willow Road exit, Carney noticed a Ford Escort in front of him. Just north of the exit, he noticed the Escort’s brake lights and assumed that the car was slowing down due to the heavy traffic. The Escort came to a stop, however, and in an attempt to avoid a collision, Carney “slammed” on his brakes. The rear of his car swerved to the left and the front came into contact with the back of the Escort.

After the impact, Carney and Balgemann, the driver of the Escort, both exited their vehicles and inspected them for damage. Upon ascertaining that there was no damage to either car, they returned to their cars and Balgemann drove away. Before Carney could begin driving again, however, his car was struck from behind by Smith’s truck. Carney heard a “tremendous bang” and was thrown back against his seat. He hit his head on the headrest and the force of the impact caused the seat to collapse under him. He felt a sharp pain in his neck and then lost consciousness. When he regained consciousness, he was very disoriented and did not understand where he was or what had happened. He then noticed Smith standing outside his car. Smith apologized to him and told him that he had tried to stop, but because the truck was empty, it was “skipping” on the road.

Immediately after the accident, Carney went to work, but he felt groggy and disoriented. He had a stiff, sore neck and pain in his lower back. Over the next few days, he began to feel better, and the back pain became reasonably moderate so that it was not causing him any difficulty. He was able to work three days the following week, but on Thursday he had to leave work because he could no longer stand the back pain.

Approximately one month after the accident, Carney had a CAT scan performed, which revealed that he had a herniated disc. In September 1987, he received an epidural steroid injection, which relieved the pain for about six months. Every three to six weeks for the following year, he experienced periods of back spasms and lower back pain which lasted two to three days. In October 1988, he had an MRI performed which confirmed the disc herniation. In August 1989, he received another steroid injection, but it provided no relief.

In February 1990, Carney saw Dr. Rene Pecson, a neurosurgeon. He told Pecson that he suffered from severe back pain on his left side which radiated to his left leg, and caused back spasms and numbness in both legs. Pecson diagnosed his problem and suggested a laminectomy to repair the herniated disc. The surgery was performed in April 1990.

As a result of the surgery, the spasms stopped and about two months later, Carney was able to return to work, part time. Although the symptoms disappeared from his left side, by September 1990, he began to experience spasms and numbness on his right side. Pecson advised him to undergo pain management therapy at the Marionjoy Rehabilitation Center in Wheaton. Pecson also told him that if he did not respond to the therapy within a few months, surgery on his right side might be necessary. On December 12, 1990, he went to Marionjoy and began receiving physical therapy three times a week.

Carney testified that he experienced periods of severe pain every four to six weeks that lasted anywhere from a few hours to as long as a day. He stated that he was unable to do any strenuous physical activity, but in between the periods of severe pain he was able to “function fairly normally.” He explained that he was able to “do the day-to-day things that are necessary *** to get by in life.” He stated that “getting cleaned up in the morning, dressing, doing daily household chores, [and] working on [his] car are not a problem.”

Ronald Chandler testified that he had known Carney for more than 12 years, and that before the accident, they would often go hiking, skiing, bicycling, and walking. They no longer engaged in those activities except for walking, but since the accident Carney could walk only one mile when he previously could walk 12. Chandler also stated that when Carney came to his house, he sat on the floor because “[h]e stiffens up if he sits in a chair.”

Barbara Chandler testified that she had known Carney for approximately 10 years and that, before the accident, he and her husband, Ronald Chandler, often engaged in physical activities. She stated that since the accident, Carney “always seems uncomfortable” and that he was more quiet and edgy than before.

Edith Booras testified for Carney that she had worked with him for about nine years and that, prior to the accident, he was an energetic person who was always running around. She stated that since the accident he always appeared to be in pain and dragged his foot when he walked.

Thomas Swiontek, Carney’s former supervisor, testified that he never observed anything after the accident that restricted Carney’s ability to perform his duties. Linda Acevedo, Carney’s current supervisor, testified that she noticed him moving stiffly before the surgery and that he walked a little slower.

Dr. Rene Pecson testified for Carney that he performed the laminectomy and that, by November 1990, Carney was progressing well. At that time, Carney complained of back spasms and numbness of the right thigh, and Pecson recommended that he go to the Marionjoy Rehabilitation Center. Pecson warned Carney that surgery might be necessary if he did not respond to conservative treatment. Pecson testified that while surgery on Carney’s right side may be necessary in the future, he could not say whether the pain and spasms will be permanent.

Dr. Norman Aliga, a doctor at Marionjoy, testified for defendants that he examined Carney in December 1990, and recommended physical therapy three times a week in order to treat Carney’s lower back pain. Aliga explained that Carney suffered from a bulging disc, rather than a severe herniation. He stated that Carney had normal muscle strength on his upper and lower extremities, except for the muscle that extends to his right knee. Aliga also stated that Carney experienced pain when he tried to raise his right leg straight up, and that he had a tight muscle on his right side. Aliga concluded that Carney would experience a “sufficient level of discomfort,” but that the condition was not permanent and that he did not anticipate surgery in the foreseeable future.

Dr. John Gleason, an orthopedic surgeon, testified for defendants that he examined Carney in July 1990, and found him favoring his right side with a slight pitch to the right, something seen in about 5% of cases after surgery. Gleason noted that although Carney had some difficulty bending forward, his lateral movement was normal. He stated that the results of the lower back tests were normal, and that there was no spasm or tenderness on either side. Gleason stated that in his opinion, Carney would not require any further surgery, but it remained a possibility.

Michele Johnson testified for defendants that she was a private investigator, employed by In-Photo Surveillance, Inc., and that in December 1990, she was assigned to place Carney under surveillance. Three tapes were made after several hours of surveillance, but they were limited in content because of the need to remain undercover. In all the time she spent on surveillance, she never observed Carney taking part in any form of physical exercise or visiting a health club. Two tapes were shown to the jury during her testimony, and she explained the circumstances surrounding each.

The first tape was taken on December 14 and 15, 1990, and was 38 minutes long. That tape showed Carney entering and exiting a two-seat sports car on several occasions and lifting grocery bags from a cart and placing them in the trunk of the car. Most of the tape showed Carney helping an unidentified person repair the front bumper of a car. Carney was shown crouching down in order to tie a chain around a tree and then attaching the chain to the bumper. Carney then entered the car and placed it in reverse many times in order to pull the bumper off the car. Carney was also shown lifting and carrying the bumper. The second tape was taken on December 30, 1990, and was eight minutes long. It showed Carney walking through snow and using a broom to brush snow off a car.

In rebuttal, Carney called Johnson and showed the third videotape, which was taken on October 28, 1990 and was two minutes long. It showed Carney walking, getting into his car, driving, and pumping gas into his car. Johnson stated that the third tape was taken by another In-Photo employee and not by her. Carney also called Timothy Kizorek, a vice-president of In-Photo. Kizorek acknowledged that his firm began its surveillance of Carney in July 1989, and that the total cost incurred by defendants to conduct the surveillance was approximately $10,000.

As previously indicated, the jury found that Carney had suffered $153,000 in damages, but determined that he was 50% at fault and reduced the award accordingly, for a total judgment of $76,500. Carney’s post-trial motion was denied by the circuit court. This appeal followed.

Carney first contends that the circuit court abused its discretion when it admitted the videotapes. He asserts that the tapes were not relevant because rather than address a matter in controversy, they merely “confirmed [his] contention that, between spasms of pain, he is able to conduct normal day to day activities.” Moreover, Carney argues that any probative value of the tapes was outweighed by their prejudicial effect. He contends that the fact that the tapes were taken covertly left the jury with the “distinct and unavoidable impression that *** [he] had been caught in a lie.” Defendants respond that the tapes were relevant because they showed Carney’s physical condition and the extent of his incapacitation and were therefore properly admitted. We agree with defendants.

It is well established in Illinois that films and videotapes, when properly authenticated and relevant, are admissible as demonstrative evidence. (Cisarik v. Palos Community Hospital (1989), 193 Ill. App. 3d 41, 44, 549 N.E.2d 840, 841, aff’d in part & rev’d in part (1991), 144 Ill. 2d 339, 579 N.E.2d 873.) A film will be considered relevant as long as its probative value is not substantially outweighed by the danger of unfair prejudice (Georgacopoulos v. University of Chicago Hospitals & Clinics (1987), 152 Ill. App. 3d 596, 599, 504 N.E.2d 830, 832); its admission into evidence is within the sound discretion of the circuit court. (Missouri Portland Cement Co. v. United Cement, Lime, Gypsum & Allied Workers International Union, Division of Boilermakers, AFL-CIO, Local No. 438 (1986), 145 Ill. App. 3d 1023, 1027, 496 N.E.2d 489, 491.) Furthermore, the law is well settled that films demonstrating the extent of the injuries are admissible, and the fact that a film was made covertly rather than openly is immaterial. (See Cisarik v. Palos Community Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873.) Such considerations relate to the weight of the evidence, rather than to its admissibility.

This court has twice held that surveillance films may be used to expose a malingering plaintiff. (See Mathias v. Baltimore & Ohio R.R. Co. (1968), 93 Ill. App. 2d 258, 236 N.E.2d 331; McGoorty v. Benhart (1940), 305 Ill. App. 458, 27 N.E.2d 289.) In Mathias, the appellate court held that the circuit court erred when it refused to allow an in-court presentation of motion pictures which demonstrated the plaintiff’s physical capabilities. (Mathias, 93 Ill. App. 2d at 263-64, 236 N.E.2d at 335.) The plaintiff claimed to be incapable of using moving equipment as a result of being struck on the head by a ladder, but conflicting testimony as to his capacity to work was presented at trial. (Mathias, 93 Ill. App. 2d at 264, 236 N.E.2d at 334-35.) The appellate court reversed the circuit court’s ruling and remanded the case for a new trial because it believed that in light of the conflicting testimony, a film showing the plaintiff working around his house, including riding a lawn mower, was relevant to the issues in the case. Mathias, 93 Ill. App. 2d at 263-64, 236 N.E.2d at 334-35.

Similarly, in McGoorty v. Benhart, the court held that surveillance films of the plaintiff were admissible to show that his injuries were not as severe as he claimed. (McGoorty, 305 Ill. App. at 469, 27 N.E.2d at 294.) In that case, the plaintiff testified that after a car accident he was unable to exercise without wearing a neck brace. Also, his doctor testified that he walked stiffly and could not bend down past his knees. (McGoorty, 305 Ill. App. at 466-67, 27 N.E.2d at 293-94.) The defendant offered a movie, however, which showed the plaintiff playing golf, tossing a basketball, throwing baseballs, rowing a boat, and swimming, all without wearing his brace. (McGoorty, 305 Ill. App. at 466, 27 N.E.2d at 293.) The court held that the films were properly admitted because they impeached the doctor’s testimony and tended to show that the plaintiff was not as badly injured as he claimed. McGoorty, 305 Ill. App. at 467, 27 N.E.2d at 294.

While we recognize that the videotapes in the instant case are not as clearly impeaching as the films in Mathias and McGoorty, we consider them to be probative because they tend to disprove matters that were in controversy. Carney is correct in asserting that the tapes corroborate both his testimony and the medical testimony that he is able to perform ordinary tasks without difficulty during the periods between the painful attacks. Nevertheless, he presented other evidence that raised the inference that his limitations were much more severe. The testimony by the Chandlers and Edith Booras implied that Carney was always in pain and could barely sit still without suffering. In contrast to their testimony, the videotapes showed Carney moving effortlessly while getting in and out of his car, carrying numerous objects, and performing various tasks. Although none of the activities depicted in the tapes required vigorous exertion, they were sufficient to rebut the inference that he was constantly in pain. Thus, the tapes had probative value concerning the issue of the extent of Carney’s injuries.

Moreover, we fail to see the prejudice that Carney allegedly suffered from the admission of the tapes. As he has admitted, many parts of the tapes were consistent with his theory of the case. In fact, he showed one of the tapes to the jury himself. While we do not agree with defendants that Carney waived any error by doing so, we cannot conclude that the prejudicial effect of the tapes outweighed their probative value. Therefore, we find no abuse of discretion in the circuit court’s admission of the videotapes into evidence.

Carney also contends that he is entitled to a new trial because the jury’s verdict was against the manifest weight of the evidence. He argues that the only evidence supporting the jury’s allocation of fault was Smith’s statement that Carney made a sudden lane change in front of him, testimony that he portrays as implausible and not credible. He further asserts that the damage award would have been much higher if not for the covert videotape evidence, because neither Gleason nor Aliga contradicted Pecson’s testimony that he may need surgery in the future. Defendants respond that the verdict was not against the manifest weight of the evidence because the record contains facts that the jury could properly rely upon to determine that Carney entered the right lane just before the accident, rather than three miles earlier as he claimed.

In determining whether a jury verdict should be set aside, a reviewing court must decide whether the verdict was against the manifest weight of the evidence. (Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 521, 581 N.E.2d 162, 169.) A verdict is considered to be against the manifest weight of the evidence only if an opposite conclusion is clearly evident or if the jury’s verdict is palpably erroneous. Reid v. Sledge (1992), 224 Ill. App. 3d 817, 820, 587 N.E.2d 1156, 1159.

In the instant case, we do not believe that an opposite conclusion is clearly evident or that the jury’s determination of fault was palpably erroneous. We first note that the jury properly could have found that Carney’s contributory negligence was evidenced by the simple fact that he collided with the car in front of him. Although, as our summary of the testimony at trial shows, there was conflicting evidence between the parties as to how the collision occurred and the periods of time that separated the various collisions, these are fact questions uniquely within the province of the jury to determine.

A jury’s verdict will not be set aside merely because a different conclusion could have been reached from conflicting testimony. (Hamrock v. Henry (1991), 222 Ill. App. 3d 487, 492, 584 N.E.2d 204, 208-09, appeal denied (1992), 144 Ill. 2d 633, 591 N.E.2d 22.) It is the function of the jury to weigh the evidence and determine whether or not certain conduct is negligent. (Johnson v. Colley (1986), 111 Ill. 2d 468, 475, 490 N.E.2d 685, 688, cert. denied (1986), 479 U.S. 830, 93 L. Ed. 2d 60, 107 S. Ct. 113.) Because an appellate court will not substitute its judgment for the fact finder’s (Gibson v. State Farm Mutual Automobile Insurance Co. (1984), 125 Ill. App. 3d 142, 150, 465 N.E.2d 689, 692), there is no basis for reversal here.

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

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.


author: JUSTICE TULLY

text:
    MARGARET GROVE, Plaintiff-Appellee, v. THE CITY OF PARK RIDGE, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—0853
    Opinion filed December 30, 1992.

      Knight, Hoppe, Fanning & Knight, Ltd., of Park Ridge (Joette S. Doran and Sarah Hansen Sotos, of counsel), for appellant.
    James Paul Costello, Ltd., of Des Plaines (Thomas M. O’Connell, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

Plaintiff, Margaret Grove, filed this negligence action in the circuit court of Cook County against defendant, the City of Park Ridge (City), for injuries she sustained in an accident that occurred after stepping into a pothole on a public roadway maintained by the City. The City moved for summary judgment pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) which the trial court denied. It is from the trial court’s order denying summary judgment that the City brings this interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). On appeal, the City contends that the trial court erred in denying its motion for summary judgment as it owed no duty to maintain a non-crosswalk area of a street for pedestrian purposes. We disagree.

Plaintiff testified to the following: On October 7, 1988, she was a passenger in her and her husband’s automobile, which was driven by her husband. Plaintiff’s husband parked the vehicle in a stall in front of the Parson’s clothing store on Prospect Avenue in Park Ridge, Illinois. Prospect Avenue runs north and south. The parked vehicle faced eastward or towards the front of Parson’s. The car was legally parked within a designated parking stall sectioned off by lines painted on the street. After the car was parked, plaintiff and her husband walked to the nearby Pickwick Restaurant, where they stayed for approximately one hour. The Pickwick Restaurant is located about fives stores north of Parson’s. When plaintiff left the restaurant she walked south on Prospect Avenue’s sidewalk towards the vehicle. Plaintiff stepped off the curb into the street with first her right foot and then her left foot. Unfortunately, plaintiff’s left foot landed in a pothole, thus twisting her left ankle and causing her to fall and sustain injuries. The pothole, which abutted the curb, was located in a designated parking stall marked off by lines on the street.

It is settled law that a plaintiff, in a cause of action based on negligence, must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from a breach of that duty. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96.) Whether a duty exists is a question of law to be determined by a court (McLane v. Russell (1989), 131 Ill. 2d 509, 514, 546 N.E.2d 499), and thus a motion for summary judgment properly addresses the issue of duty. Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 431, 495 N.E.2d 1259.

The General Assembly set forth a municipality’s general property-related duty in section 3 — 102(a) of the Hlinois Local Governmental and Governmental Employees Tort Immunity Act (section 3— 102(a)), which provides, in pertinent part:

“[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used[.]” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102.)

Accordingly, it has been held that municipalities have a duty to reasonably maintain their roadways for vehicular traffic and to reasonably maintain their crosswalks for pedestrians. Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 753, 571 N.E.2d 822.

However, until recently, it has been unclear what, if any, duty was owed to a pedestrian who was injured in a street outside a crosswalk. Following oral argument of this case, the Illinois Supreme Court has given its approval to the holding of Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, when, in dicta, it stated:

“A person exiting from his car is an intended user of the space around his car, as our appellate court has noted. (Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293.) The use of parking lanes mandates that individuals have access to the street for the ingress to and egress from the car.” (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 425, 592 N.E.2d 1098.)

Accordingly, we find Di Domenico to be controlling of the case sub judice. We believe Di Domenico imposes, pursuant to section 3 — 102(a), a duty upon local public entities to exercise ordinary care in maintaining in a reasonably safe condition those areas of public roadways around legally parked vehicles. Under our interpretation of Di Domenico, this duty extends only to those pedestrians walking to or from the curb area, going to or from a legally parked vehicle. Moreover, this duty extends only to pedestrians walking to or from the curb area alongside the legally parked vehicle, not to pedestrians crossing the roadway to get to or from the vehicle.

Thus, given that, as the City quite candidly noted in its brief, Di Domenico is “a case with facts virtually identical to those herein,” we conclude that plaintiff has stated a cause of action and that the trial court properly denied the City’s motion for summary judgment.

For the reasons set forth above, we affirm the trial court’s order denying summary judgment and remand this case for further proceedings.

Affirmed and remanded.

RIZZI and CERDA, JJ., concur.


author: JUSTICE RIZZI

text:
    DEBORAH COLEMAN, as Personal Representative of the Estate of Kenneth F. Coleman, Jr., Deceased, et al., Plaintiffs-Appellants, v. M.E. CHARLESWORTH, Indiv. and as Representative of Those Underwriters Signatory to Cover Note HR 802040, Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 90—2162
    Opinion filed December 30, 1992.

      Carponelli & Krug, of Chicago (Stephen P. Carponelli and James V. Noonan, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (C. Kevin McCabe and Hugh C. Griffin, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Deborah Coleman, as personal representative of the estate of Kenneth F. Coleman, Jr., deceased, Sandra K. Ritter, as administrator of the estate of Terry C. Ritter, deceased, Lily Ann Baker, as administrator of the estate of Brian Baker, deceased, Harry R. Evans, Wendy Keating, as administrator of the estate of William Keating, deceased, Windy City Balloon Port, Ltd. (Windy City), and Dean Stellas, brought this declaratory judgment action in the circuit court seeking a declaration as to whether a policy of insurance exists between Windy City and defendant M.E. Charlesworth, individually and as representative of those underwriters signatory to cover note HR 802040, and whether the injuries sustained by plaintiffs in the balloon accident that occurred on August 15, 1981, are within the coverage of that insurance policy. The trial court granted defendant’s motion for summary judgment, ruling that plaintiffs have no rights against defendant because the injuries sustained by plaintiffs in the balloon accident do not fall within the coverage provisions of the insurance policy issued to Windy City by defendant. Plaintiffs’ motion for summary judgment was denied.

On appeal, plaintiffs contend that (1) the plain and unambiguous terms of the cover note of the insurance policy issued to Windy City extend coverage for the injuries sustained by plaintiffs in the balloon accident; (2) the trial court erred when it ruled that there is no coverage under the premises provisions of the insurance policy issued to Windy City for the injuries they sustained in the balloon accident; (3) the trial court erred when it ruled that there is no coverage under the products liability provisions of the insurance policy issued to Windy City for the injuries they sustained in the balloon accident; and (4) the insurance policy issued to Windy City was in effect on the date of the balloon accident due to defendant’s failure to provide direct notice of his intention not to renew the policy as required by section 143.17 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755.17). We affirm.

Windy City operated a public balloon launching facility which offered commercial sightseeing flights to the public for a specified charge using hot air and helium balloons owned by third parties. Windy City also provided refueling and repair facilities for hot air and helium balloons when needed. On May 12, 1978, Windy City purchased an insurance policy from Urbine-Sides Insurance Agency (Urbine-Sides) providing aviation premises and products liability coverage, subject to certain exclusions, for bodily injury and property damage arising from operations at Windy City for a period of one year. Substantially identical renewal one-year policies were issued by Urbine-Sides effective May 12,1979, and May 12, 1980.

On August 15, 1981, a hot air balloon piloted by James Bickett departed from a launching site at Windy City carrying five passengers. Shortly after departure, the balloon struck power lines owned and operated by Commonwealth Edison near Barrington Hills, Illinois, and crashed to the ground, killing Bickett and passengers Kenneth E Coleman, Jr., Terry C. Ritter, Brian Baker and William Keating. Passenger Harry Evans survived, but sustained severe burns and injuries. In April 1985, plaintiffs filed a wrongful death action in the circuit court of Lake County against Windy City and several other defendants, including the manufacturer of the balloon and certain of its component parts. Defendant, however, refused to appear, defend or extend insurance coverage on behalf of Windy City for the loss. On June 3, 1988, the circuit court of Lake County entered an uncontested judgment in favor of plaintiffs and against Windy City in the amount of $4.4 million based on a finding of negligence on the part of Windy City.

On March 2, 1988, plaintiffs brought this declaratory judgment action in the circuit court of Cook County seeking a declaration as to whether a policy of insurance exists between Windy City and defendant, and whether the injuries sustained by plaintiffs in the balloon accident are within the coverage of this insurance policy. The parties filed cross-motions for summary judgment. On October 6, 1989, the trial court granted in part defendant’s motion for summary judgment, ruling that there is no coverage under the premises provisions of the insurance policy issued to Windy City for the injuries sustained by plaintiffs in the balloon accident. The trial court, however, withheld any ruling with respect to coverage under the products liability provisions of the policy. On June 21, 1990, the trial court granted defendant’s motion for summary judgment in toto, ruling that the products liability provisions of the insurance policy issued to Windy City also do not provide coverage for the injuries sustained by plaintiffs in the balloon accident. Plaintiffs’ motion for summary judgment was denied. This appeal followed.

Plaintiffs first argue that the plain and unambiguous terms of the cover note of the insurance policy issued to Windy City extend coverage for the injuries sustained by plaintiffs in the balloon accident. We disagree. The cover note of an insurance policy, equivalent to the binder issued by domestic insurers, does not contain the definitive provisions or formalities of an insurance policy. Rather, the determinative terms and conditions of an insurance policy are set forth in the policy itself. We, therefore, conclude that the trial court correctly based its rulings in the present case on the terms and conditions of the insurance policy rather than the provisions of the cover note.

Plaintiffs next argue that the trial court erred when it ruled that there is no coverage under the premises provisions of the insurance policy issued to Windy City for the injuries they sustained in the balloon accident. The insurance policy issued to Windy City contains the following provisions within the premises coverage section of the policy:

“THIS SECTION IS SUBJECT TO THE FOLLOWING EXCLUSIONS: ***
2. Bodily injury or property damage caused by * * *
(b) any Ships, Vessels, Craft, or Aircraft owned, chartered, used or operated by or on account of the assured (Windy City).”

We hold that this exclusion precludes coverage under the premises provisions of the policy here because the hot air balloon that caused plaintiffs’ injuries was an aircraft being used and operated by Windy City through its agent Bickett, the pilot of the ill-fated balloon flight, acting within his authority to carry on the business of the enterprise.

A joint venture is an association of two or more persons to carry on a single enterprise for profit. (Minyo v. Minyo (1991), 220 Ill. App. 3d 746, 751, 581 N.E.2d 170, 173.) A joint venture may be implied or established by proof of surrounding facts and circumstances, including whether the parties have the intent to carry on an enterprise for profit, whether the parties have a joint interest in the enterprise as reflected by the contribution of property, finances, effort, skill or knowledge by each party of the venture, whether there is a joint exercise of control over the enterprise, and whether the parties share in the profits of the enterprise. (Herst v. Chark (1991), 219 Ill. App. 3d 690, 694, 579 N.E.2d 990, 992; Fitchie v. Yurko (1991), 212 Ill. App. 3d 216, 227, 570 N.E.2d 892, 900.) In the present case, Windy City sold tickets for its balloon rides for $100 to $150 per person per ride. The pilot of the balloon would receive $60 to $70 directly from Windy City for each ticket sold and would not receive money or any other consideration unless the pilot took a member of the public for a paid ride. While it is true that Windy City did not exercise any control over balloons after they departed from the balloon launch, Dean Stellas, the president of Windy City, stated in his affidavit that Windy City would cancel any balloon flight if the weather conditions were unsafe. From the record, it is plain that Windy City and Bickett were engaged in a joint venture carrying on the usual course of its business when the balloon Bickett was piloting struck the power lines and crashed to the ground, causing the injuries alleged by plaintiffs in the underlying complaint.

A joint venture is governed by partnership principles, and each joint venturer is considered an agent of the joint venture for the purpose of carrying on its usual course of business. (Ill. Rev. Stat. 1981, ch. 106½, par. 9(1); In re Johnson (1989), 133 Ill. 2d 516, 526, 552 N.E.2d 703, 707-08; Bachewicz v. American National Bank & Trust Co. (1986), 111 Ill. 2d 444, 448, 490 N.E.2d 680, 682.) Because Bickett was carrying on the usual course of business of the joint venture when the balloon he was piloting crashed, we find that the hot air balloon here was an aircraft being used and operated by Windy City, by and through its agent, Bickett, when it caused the injuries alleged by plaintiffs in the underlying complaint. (See 14 C.F.R. §1.1 (1981); Aetna Insurance Co. v. Apollo Sleep Products, Inc. (1982), 164 Ga. App. 404, 296 S.E.2d 781.) We, therefore, conclude that coverage for plaintiffs injuries here is precluded under the premises provisions of the insurance policy issued to Windy City by exclusion 2(b) of the policy.

Plaintiffs next argue that the trial court erred when it ruled that there is no coverage under the products liability provisions of the insurance policy issued to Windy City for the injuries they sustained in the balloon accident. Section 3 of the policy provides coverage for:

“Bodily injury or property damage arising out of the possession, use, consumption, or handling of any goods or products manufactured, constructed, altered, repaired, serviced, treated, sold, supplied, or distributed by the Assured or his employees after such goods or products have ceased to be in the possession or under the control of the Assured.”

We hold that there is no coverage for plaintiffs’ injuries under the products liability provisions of the policy because a balloon sightseeing ride is not a good or product, but rather is a service provided. Moreover, even if we were to conclude that a balloon ride is a good or product, there was never a cessation of possession or control of the balloon by Windy City necessary to satisfy the products liability coverage provisions of the policy. Until the moment the balloon crashed, it was under the exclusive control of Bickett, an agent of Windy City by virtue of his status as a joint venturer with Windy City. Accordingly, coverage under the products liability provisions of the insurance policy does not extend to the injuries sustained by plaintiffs in the balloon accident.

In sum, Windy City purchased aviation premises coverage to protect it against claims arising from bodily injury and property damage occurring at the location of its business operations, including customer slip and falls and other injuries arising directly from a customer’s use of its premises. Windy City also purchased products liability coverage to protect it against claims arising from goods and products it produced or sold after they left its control or otherwise entered the stream of commerce. Windy City, however, did not purchase aircraft operators’ insurance or any other insurance that would provide coverage for liabilities arising from the use of an aircraft. Accordingly, we hold that all claims raised in plaintiffs’ underlying action were outside the scope of coverage of the insurance policy issued to Windy City. Having determined that there is no coverage under the policy, it is therefore unnecessary to address plaintiffs’ other contentions.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.