text:
    STEVEN PEREZ, Plaintiff-Appellee, v. JOSEPH HARTMANN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3222
    Opinion filed August 30, 1989.

      Brinton, Bollinger & Ruberry, of Chicago (Mark Wolfe and Kimberly A. Baker, of counsel), for appellant.
    Mullen, Minella & Chase, of Chicago (John C. Mullen and Cynthia L. Chase, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Steven Perez, sued defendant, Dr. Joseph Hartmann, for medical malpractice in connection with defendant’s treatment of plaintiff at Good Samaritan Hospital (Good Samaritan) in 1982. A jury trial resulted in a verdict for plaintiff in the amount of $40,000. Defendant appeals from the judgment for plaintiff.

Plaintiff was taken to Good Samaritan on August 7, 1982, with complaints of shortness of breath, headache, nausea, dizziness and chest pain. After being examined in the emergency room, plaintiff was admitted to the telemetry unit for monitoring of his heartbeat for any abnormalities. Shortly thereafter, a nurse at the nursing station outside plaintiff’s room noticed that the monitor connected to plaintiff exhibited a flat line, indicating a condition known as asystole or, more commonly, cardiac arrest. The nurse went into plaintiff’s room, examined him for a pulse, found none and, with another nurse, began cardiopulmonary resuscitation (CPR). At this time a Code Blue condition was instituted. Defendant, who was then making his rounds, reported to plaintiff’s room in response to the Code Blue. Defendant found plaintiff being attended to by several nurses. Upon examining plaintiff, defendant detected no pulse or breathing and believed that plaintiff had experienced an episode of sudden death. As defendant assisted in administering cardiac massage to plaintiff, he was informed by one of the nurses that she had seen a long period of asystole prior to the Code Blue which prompted her to administer CPR.

However, due to the trial court’s grant of plaintiff’s motion in limine, defendant was precluded from testifying that the nurse also handed him a strip of paper produced by the nursing station monitor (EKG strip) indicating the asystolic episode. Plaintiff’s motion was grounded upon defendant’s alleged failure to produce the EKG strip despite the fact that plaintiff had sought it for over four years. The trial court’s order prohibited any reference to the strip but allowed the nurses to testify as to what they had seen on the monitor.

The efforts of the nurses and defendant revived plaintiff. Thereafter, he was hooked up to a second portable monitor in his room. Shortly thereafter, defendant claimed, but plaintiff denied, plaintiff experienced a second period of total asystole producing a flat line on the portable monitor. Thereupon, defendant administered a precordial thump, i.e., one fist to the chest, and cardiac massage. Plaintiff once again regained consciousness. Plaintiff was then transferred to the intensive care unit, where defendant took a history and performed a physical examination. Although plaintiff related a history of chest pain, dizziness, light-headedness and shortness of breath, defendant was unable to detect any patent abnormality. Defendant determined that the two episodes of asystole which he claimed plaintiff had experienced warranted the implantation of a temporary pacemaker.

After its implantation, defendant was able to rule out heart attack as the cause of plaintiff’s asystolic episodes. After a period of time during which the temporary pacemaker functioned properly and additional tests were conducted upon plaintiff, defendant discussed the possibility of a permanent pacemaker with plaintiff. Ultimately, a permanent pacemaker was implanted by a cardiovascular surgeon at Good Samaritan. Defendant testified that plaintiff had no complaints after the operation except for local discomfort at the location of implantation. However, plaintiff testified that, after the operation, he started getting headaches and chest pains and did not feel well.

After his discharge on September 13, 1979, plaintiff returned to the hospital with complaints of headaches, chest pain, dizziness and faintness. Plaintiff also complained that he could feel his pacemaker fire. After testing, defendant found no correlation between plaintiff's complaints that he could feel the pacemaker fire and its actual firing. Nor did defendant find any abnormalities in the pacemaker. After a neurological examination, plaintiff was diagnosed as suffering from migraine headaches and mild anxiety neurosis. Plaintiff left the hospital against the advice of hospital personnel. He returned on September 23 and had his blood pressure checked and an electrocardiagram, or EKG, taken. On September 29, plaintiff sought treatment at the University of Illinois Hospital (U. of I.) for chest pains and headaches. During plaintiff’s treatment at U. of I., his pacemaker was removed.

Opinion

Defendant first contends the trial court abused its discretion in sanctioning his failure to produce the EKG strip made on August 7, 1979, by barring any reference to it at trial, although the defense produced it one month before trial.

Defendant asserts that, like the plaintiff’s counsel in Department of Transportation v. Mainline Center, Inc. (1976), 38 Ill. App. 3d 538, 347 N.E.2d 837, his counsel also took over the case from another attorney and did not know that his client had not complied with a discovery order. Defendant also notes that, similar to the defendant’s counsel’s failure in that case to inform plaintiff’s new counsel during several pretrial meetings of any failure to comply with discovery, plaintiff’s counsel here failed to notify defendant’s new counsel of any extant discovery disputes although the latter asked to be advised of any discovery matters upon coming into the case.

Contrary to defendant’s arguments, we find Mainline Center, a condemnation case, distinguishable. Therein, the exclusion of all of the plaintiff’s appraisal witnesses for failure to comply with a discovery order “substantially precluded plaintiff from introducing any pertinent evidence on the main issue under consideration, leaving the jury with only defendant’s version as to the extent of damages.” (Emphasis added.) (Mainline Center, 38 Ill. App. 3d at 540.) Here, in contrast, defendant was not precluded from introducing any evidence on one of the main issues here, i.e., whether plaintiff had experienced a second asystolic episode. As such, the jury in this case, unlike that in Mainline Center, did not have before it only the plaintiff’s claim that he had not suffered a second episode of asystole.

Moreover, in Mainline Center, because the file received by the plaintiff’s new counsel contained neither a copy of the discovery order nor any reference to it, he first learned of the order when the defendant presented its motion to exclude witnesses. In contrast, it is undisputed that the file in this case contained a letter, dated December 17, 1982, from plaintiff’s former counsel to defendant’s former counsel requesting a copy of the “missing medical records referenced,” viz., the EKG strip, at the deposition of plaintiff’s expert, Dr. Gerard Parent. The file also contained a trial court order, dated July 30, 1984, that defendant “produce the original medical record showing a 6 second period of asystole of the plaintiff.” Finally, the file contained motions by plaintiff to bar evidence and for a rule to show cause, noticed for November 20, 1985. The motion to bar evidence alleged defendant’s noncompliance with the July 30, 1984, order and specifically referred to “medical records and telemetry monitoring strips.” Similarly, the motion for rule alleged Good Samaritan’s noncompliance with a subpoena issued December 11,1984.

Thus, unlike the file in Mainline Center, the file in this case sufficiently put defendant’s new counsel on notice that there was a possibility, if not a probability, of an extant problem with discovery, notwithstanding plaintiff’s counsel’s failure to inform him of that fact. If defendant’s counsel did not know of the problem until after he produced the EKG strip to plaintiff a month before trial, he should have.

Defendant notes that sanctions are appropriate when an uncooperative party demonstrates a deliberate, contumacious or unwarranted disregard of a court’s authority (Mainline Center, 38 Ill. App. 3d 538, 347 N.E.2d 837) and asserts that that is not the case here. We disagree.

Specifically, defendant’s testimony in his offer of proof supports a conclusion that the failure to produce the strip was deliberate, contumacious and unwarranted. In his offer of proof, defendant denied that his former counsel had or had seen the EKG strip prior to Dr. Parent’s deposition, conducted in 1982. This was contrary to the impression made by defense counsel when he revealed the existence of the strip at the deposition. However, defendant did state that, sometime thereafter, he asked the director of medical records at Good Samaritan to copy the EKG strip and send it to him and that he forwarded the strip, apparently, to his former counsel.

Defendant’s testimony thus belies his assertion that his former counsel could not and did not obtain the EKG strip although he attempted to satisfy plaintiff’s request for it. As defendant admitted that his former counsel had the strip, and as this had to be by 1986, at the latest, when his new counsel took the case over, he could not avoid the consequences, either intentionally or otherwise, of a failure to forward a copy of the strip to plaintiff by obtaining new counsel.

Uhwat v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 295, 465 N.E.2d 964, also fails to compel a finding of an abuse of discretion here. In Uhwat, the defendant asserted that the trial court erred in admitting copies of tax returns which it had requested from the plaintiff. It first argued that plaintiff had not produced certain accounting records which defendant required for cross-examination relating to the tax returns. In disagreeing, the appellate court noted, significantly, that the case cited by the defendant in support “does not require trial courts to find violations and impose sanctions but merely reaffirms the trial court’s discretion to do so.” (Uhwat, 125 Ill. App. 3d at 304.) The court then held it within the trial court’s discretion to believe testimony that the accounting records had been searched for but not found. Similarly here, it was within the trial court’s discretion to accept the reasons given by plaintiff for barring the EKG strip rather than defendant’s representations regarding the efforts to comply with plaintiff’s counsel’s request for plaintiff’s medical records. The trial court was not required to accept the latter over the former.

The Uhwat defendant also argued that the returns should not have been admitted because they were not produced, as requested, at the opening of trial. In disagreeing, the appellate court noted that the returns were produced on the first day of trial and that the defendant had an opportunity to examine them before cross-examining plaintiff’s accountant, since he did not testify until the next day.

This aspect of Uhwat likewise does not require a finding of abuse of discretion in this case. In contrast to Uhwat, plaintiff here had sought his medical records, including the EKG strip, well before the advent of trial. A 1982 request by his then counsel for the records was unsuccessful. So was a 1984 trial court order requiring defendant to produce the records. So too, apparently, were the motions to bar evidence and for rule to show cause. As plaintiff sought the EKG strip well before the start of the trial in this cause, as opposed to requesting its production at “the opening of trial,” the trial court did not abuse its discretion in finding that defendant’s production of the EKG strip one month before trial justified excluding it at trial.

In regard to the prejudice caused plaintiff by defendant’s belated production of the strip, we note the representation in plaintiff’s counsel’s 1982 letter that, in view of the new development, defendant would have to be redeposed. We also note that Dr. Parent did not have access to the strip in preparing his discovery deposition testimony inasmuch as defendant’s counsel revealed the existence of the strip at his deposition. In contrast, it is undisputed that defendant’s expert had access to the strip in preparing both his deposition and trial testimony. Finally, we cannot agree with defendant that his production of the EKG strip one month before trial gave Dr. Parent sufficient time to analyze and prepare to testify at trial concerning the strip. Plaintiff’s counsel informed the trial court that Dr. Parent was unavailable when she received the strip from defense counsel and that she did not know what his “reaction” to the strip would be.

In contrast, any prejudice caused defendant by exclusion of the strip was minor. The strip evidenced the first episode of asystole plaintiff suffered before defendant responded to the Code Blue. Both parties agreed, and their experts testified, that plaintiff suffered at least one such episode. They disagreed, however, whether plaintiff suffered a second episode of asystole in defendant’s presence and of which defendant sought to introduce no EKG strip. Because the first episode was undisputed, exclusion of the strip evidencing that episode would not, as defendant asserts, have justified the jury in doubting his testimony regarding that episode, and concomitantly, the second episode as well. Finally, while defendant argues that the strip was the most crucial piece of evidence because it provided the basis for all of his subsequent treatment of plaintiff, his testimony on that fact varied at trial. In addition to testifying to that effect, defendant also testified that his decisions to recommend temporary and permanent pacemakers were based on plaintiff’s having two episodes of asystole. If those decisions by defendant were based on both episodes, we cannot see how, as defendant now asserts, the EKG strip of the first episode was the most crucial piece of evidence. As such and because defendant did not and does not explain what it was about the EKG strip that made it so crucial, any prejudice to him- from its exclusion did not require denying plaintiff’s motion.

In sum, there was sufficient evidence of surprise to plaintiff’s counsel, prejudice to plaintiff, diligence of plaintiff’s counsel, timely objection and a lack of good faith on the part of defendant or his former or present counsel to warrant exclusion of the EKG strip. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 415, 476 N.E.2d 1232.

Defendant next contends that it was reversible error for plaintiff’s counsel to refer to the EKG strip at trial in violation of the in limine order.

At trial, plaintiff’s counsel asked Dr. Parent if he knew whether plaintiff was hooked up to the telemetry unit, at the nurse’s station after the Code Blue was called. Defense counsel objected but withdrew the objection after a sidebar. Thereafter, Dr. Parent answered that he assumed that plaintiff was connected to the nurse’s station monitor. Plaintiff’s counsel then asked Dr. Parent whether he had seen anything in plaintiff’s medical records which documented the monitor strip or the second episode of asystole. Dr. Parent testified that he had not. Defense counsel objected neither to the question nor the answer. Defendant therefore waived any error therein for purposes of appeal. Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 408 N.E.2d 970; Bell v. City of Joliet (1980), 83 Ill. App. 3d 103, 403 N.E.2d 740.

In cross-examining a defense witness, Nurse Elizabeth Nosek, who was at the nurse’s station of the telemetry unit on August 7, 1979, before the Code Blue was called, plaintiff’s counsel asked her whether the monitor there “was programmed so that a strip would be printed out.” Defendant’s objection to this question was sustained. In ruling upon defendant’s post-trial motion for new trial based on this error, the trial court found that, while counsel’s conduct was a partial violation of the in limine order, it was not “a knowing violation.”

Plaintiff’s counsel’s improper cross-examination of Nosek was harmless error. Initially, we note that, as plaintiff’s counsel argued in support of her question to Nosek, defense counsel had asked Dr. Parent whether the monitor at the nurse’s station would not produce a readout unless the button was pushed to make the readout a permanent record and whether, if everyone was at the Code Blue, there would be anyone at the nurse’s station to hit the button to document the strip. That plaintiff’s counsel violated the order in limine in attempting to respond to defendant’s similarly improper questioning of Dr. Parent is a factor in finding it harmless. (See In re Estate of Loesch (1985), 134 Ill. App. 3d 766, 771, 481 N.E.2d 32.) Moreover, after sustaining defendant’s objection to counsel’s question, the trial court instructed the jury to disregard any references to any monitor strip. That instruction normally suffices to prevent or cure any prejudice to the objecting party. (See Tomaszewski v. Godbole (1988), 174 Ill. App. 3d 629, 529 N.E.2d 260.) Finally, there was not a great likelihood of prejudice from this violation of the order in limine. Tomaszewski, 174 Ill. App. 3d 629, 529 N.E.2d 260.

Defendant next contends that an instruction that plaintiff claimed that defendant interpreted medical workup tests improperly was reversible error where there was no evidence to support that allegation of negligence in plaintiff’s compliant.

As defendant notes, it is error to give an instruction not based on evidence produced at trial. (Vincent v. Wesolowski (1967), 87 Ill. App. 2d 477, 232 N.E.2d 120.) However, we find that there was sufficient evidence at trial to permit instructing the jury on this aspect of plaintiff’s cause of action. We construe this aspect of plaintiff’s cause of action as alleging that defendant was negligent in recommending a permanent pacemaker, since the tests conducted upon plaintiff did not support that recommendation.

Dr. Parent testified as follows on direct examination. After August 7, 1979, plaintiff underwent a cardiac catheterization which showed that he had “normal heart muscle and normal coronary arteries.” He also underwent an ergonovine study to detect coronary spasm, i.e., a temporary closing of the arteries, which turned out normal. In his opinion, to a reasonable degree of medical certainty, in light of plaintiff’s normal test results, the temporary pacemaker should have been set at a very slow rate of operation and a determination made whether plaintiff’s heart rhythm paused, necessitating a permanent pacemaker. Asked whether anything in the record suggested that plaintiff would have a slow heart rate or irregular heart rhythm in the future, he responded that, while he saw no significant abnormalities, they were not allowed to present themselves because the temporary pacemaker was not set at a slow enough rate of operation. There was no evidence in the record that plaintiff had an A-V block or problem in the conduction of his coronary arteries. To a reasonable degree of medical certainty, Dr. Parent did not agree with defendant’s diagnosis that plaintiff had sick sinus syndrome because he did not see, i.e., find, data for that diagnosis.

On cross-examination, Dr. Parent testified as follows. He disagreed that defendant could not have predicted whether plaintiff would suffer episodes of asystole in the future no matter how many tests he could have done. He also did not believe that it was reasonable for defendant to have recommended a permanent pacemaker assuming the occurrence of two asystolic episodes and the performance of the tests which defendant had performed on plaintiff.

The evidence deposition of Dr. Richard Balsamo, who treated plaintiff at U. of I. in September 1979, where he had the permanent pacemaker removed, was read to the jury after Dr. Parent’s testimony. At his deposition, Dr. Balsamo testified as follows. His discharge summary of plaintiff’s treatment reflected that, after an electrophysiological study was performed at the U. of I., it was determined that plaintiff’s “SA node function was normal.” The SA node is the part of the heart “normally responsible” for the heart’s pacemaker function, i.e., the part from which the heart’s normal electrical impulse is generated. A U. of I. progress note dated October 9, 1979, relating to plaintiff’s treatment reflected that plaintiff’s chart from Good Samaritan had been reviewed by U. of I. personnel. The note further stated, “ ‘Diagnosis of acute pericarditis, nor sick sinus syndrome not well supported by limited workup.’ ” Lastly, the note stated, “ ‘The consensus is we find no compelling reason to have [or leave] permanent pacemaker in.’ ”

On direct examination, defendant testified as follows. He was able to rule out a heart attack as the cause of plaintiff’s condition by measuring his enzymes and finding that his heart muscle was not damaged. Defendant also ordered a chest X ray and “blood work” to make sure that plaintiff had no electrolyte abnormalities. These tests were negative. Defendant also performed a cardiac catheterization to determine whether plaintiff had blocked coronary arteries or congenital defects in the heart. These tests yielded normal results. An ergonovine test to detect coronary spasms which cause chest pain and arrhythmia was normal. Defendant recommended a permanent pacemaker because of the two episodes of asystole and because none of the three natural pacemakers in the human heart, the sinus node, the A-V node or the cells in the ventricle, worked in plaintiff’s heart. On cross-examination, defendant testified that he based his recommendation and his diagnosis of sick sinus syndrome on the two episodes of asystole. On redirect examination, defendant admitted that the results of the tests performed on plaintiff were “significant negatives” in his decision to recommend a permanent pacemaker.

In direct examination, defendant’s expert, Dr. Rolf Gunnar, was asked whether defendant reached a diagnosis of plaintiff’s problem after the tests performed on plaintiff. He testified that defendant’s diagnosis fell under the umbrella of sick sinus syndrome, in which the sinus node, the heart’s basic pacemaker, did not function properly. In addition, plaintiff’s subsidiary pacemakers did not work either. On cross-examination, Dr. Gunnar described sick sinus syndrome as “partly a diagnosis of exclusion,” i.e., “[y]ou exclude other things, and you then end up with that as a definition.”

Notwithstanding the absence of specific testimony that defendant failed to properly interpret medical workup tests, the foregoing testimony was sufficient to support the instruction of which defendant complains. Specifically, the testimony of plaintiff’s expert and treating physicians supported a conclusion that, had defendant properly interpreted the results of the tests performed on plaintiff which showed that plaintiff’s heart functions were normal, he would not have reached a diagnosis of sick sinus syndrome and recommended implantation of a permanent pacemaker. In this regard, we note that, while defendant and his expert testified that all three of plaintiff’s natural pacemaker systems were defective, they seemed to base that conclusion equally on the negative results of the tests performed on plaintiff and the two episodes of asystole which defendant claimed plaintiff suffered. As such, the extent to which the latter supported defendant’s diagnosis and recommendation depended upon whether the jury accepted his claim that plaintiff suffered two episodes of asystole. If the jury made a factual finding that only one episode occurred, as it could have given the conflicting evidence, it could then have found that defendant’s diagnosis and recommendation were negligent, in view of the negative test results. There was no error in the instruction given.

Defendant next contends it was reversible error to allow certain exhibits to go to the jury over his objections.

A trial court has broad discretion to decide whether exhibits may be taken into the jury room. Its decision will not be reversed absent an abuse of that discretion. Smith v. Victory Memorial Hospital (1988), 167 Ill. App. 3d 618, 521 N.E.2d 210.

Defendant now asserts that he was prejudiced by the fact that these exhibits contained references to the barred EKG strip. However, he did not make that argument to the trial court. Therefore, we find that he has waived any error on this ground in the admission of the complained-of exhibits. Defendant also argues, as he did below, that, by allowing these exhibits to go to the jury, the trial court allowed it to give undue consideration to them rather than evaluating all the evidence at trial. However, given defendant’s failures to include the exhibits in the record on appeal, or to describe their contents sufficiently to allow the court to properly evaluate them or to cite any authority in support of his assertion, his argument is mere contention, which we need not address. See Fultz v. Peart (1986), 144 Ill. App. 3d 364, 380, 494 N.E.2d 212 (and cases cited therein).

Defendant next contends that it was reversible error to allow Dr. Balsamo to testify to notations in the U. of I. records which he did not make. We agree that allowing such testimony by a nonexpert witness is normally error. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266.) However, defendant waived the error by failing to object either during Dr. Balsamo’s evidence deposition or when it was read into evidence at trial. To question the admissibility of testimony a party must object in apt time to obtain a ruling by the trial court to avoid a waiver of the objection. (Wanland v. Beavers (1985), 130 Ill. App. 3d 731, 474 N.E.2d 1327.) In this regard, the record does not bear out defendant’s assertion that he objected to Dr. Balsa-mo’s testimony at trial outside the presence of the jury.

In support of that assertion, defendant cites to page 1 of the supplemental record on appeal, which contains a transcript of that portion of the trial at which Dr. Balsamo’s deposition was read into evidence. The relevant portion of that page states, “Proceedings were had and reported but are not transcribed here.” Examination of the main record on appeal reveals that prior to the reading of Dr. Balsa-mo’s deposition before the jury, the court and counsel discussed whether the exhibits which plaintiff used at the deposition would be allowed into evidence. They also discussed the deletion of certain unimportant portions of the transcript. The record does not contain any objection to Dr. Balsamo’s testimony on the ground asserted on appeal. As such, defendant did waive it.

Defendant lastly contends that it was reversible error to bar the nurses who assisted in plaintiff’s care on August 7, 1979, from testifying to their opinion whether plaintiff died during the Code Blue.

While the nurses were not permitted to so testify, defendant did testify that plaintiff had experienced an episode of sudden death on August 7, 1979. His expert, Dr. Gunnar, also testified that plaintiff had died at that time. Given the differences in medical training, education, knowledge and expertise revealed at trial between defendant and Dr. Gunnar on the one hand and the registered nurses called on his behalf on the other, we do not believe the trial court erred in barring the latter from giving their opinions whether plaintiff had died while at Good Samaritan, especially in view of defendant’s failure to cite any contrary authority.

Moreover, any error in that ruling was not so prejudicial to defendant as to require a new trial. Error in the exclusion or admission of evidence is not reversible error where there has been no prejudice, where the trial result was not materially affected (Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 523 N.E.2d 621) or where the testimony is cumulative (Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 501 N.E.2d 376). The jury apparently decided that the admitted testimony that plaintiff had died did not warrant a verdict for defendant. As the nurses’ testimony would have been cumulative thereto, defendant was not prejudiced by its exclusion.

For all of the foregoing reasons, the judgment for plaintiff and the denial of defendant’s post-trial motion are affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    ERNESTINA ENRIQUEZ, as Special Adm’r of the Estate of Antonio Enriquez, and on her own behalf and as Mother and Next Friend of Antonio Enriquez, Jr., et al., Minors, et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—2680
    Opinion filed August 25, 1989.
    Rehearing denied October 3, 1989.

      Johnson, Cusack & Bell, Ltd., of Chicago (Paul J. Wisner and Steven I. Rapaport, of counsel), for appellants.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Thomas J. Dombai, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiffs filed a wrongful death action against the City of Chicago (City) for the death of Antonio Enriquez, who died as a result of an automobile accident on a bridge owned and operated by the City. Plaintiffs alleged that the City was negligent in allowing the bridge to become icy and that Enriquez was killed as a proximate result of the city’s negligence. The circuit court of Cook County granted summary judgment for the City and denied plaintiffs’ countermotion for summary judgment, finding that the City was immune from liability for the icy condition of the bridge. (See Ill. Rev. Stat. 1987, ch. 85, par. 3 — 105.) Plaintiffs now appeal that decision. We affirm.

On November 20, 1981, at approximately 11 p.m., Antonio Enriquez was traveling west on 106th Street in Chicago. A car driven by Javier Bermea was traveling east on the same street. As both vehicles were crossing a bridge located at 3228 East 106th Street, Bermea’s vehicle slid on ice which had accumulated on the bridge. Bermea’s car slid into the lane of oncoming traffic and collided with Enriquez’s car. Enriquez died as a result of this accident.

Thereafter, Ernestina Enriquez, as special administrator of the estate of Antonio Enriquez, and on her own behalf and as a mother and next friend of Antonio Enriquez, Jr., Carlos Enriquez, Alberto Enriquez and Guadalupe Enriquez, minors, and Maria Del Carmen Enriquez (plaintiffs), filed a six-count wrongful death action against Javier Bermea, Eleazar Bermea (Javier’s father), and the City of Chicago. Counts V and VI were directed against the City and are the only counts involved in this appeal.

Count V of plaintiffs’ complaint was brought on behalf of the estate of Antonio Enriquez, and count VI was brought on behalf of the decedent’s next of kin. In those counts, plaintiffs alleged: that the City had control and possession of the bridge where the accident occurred; the City negligently allowed the bridge to become covered with an unnatural accumulation of ice and snow; the City knew or should have known in the exercise of ordinary care that the bridge was in a dangerous condition due to the ice; the City failed to close the bridge to traffic even though the bridge was in a dangerous condition; and the City failed to warn motorists of the bridge’s dangerous condition. Plaintiffs then alleged that Enriquez was killed as a proximate result of the City’s negligence.

In its answer, the City admitted that it owned and controlled the bridge where Enriquez was killed and that it had a duty to maintain the bridge in a reasonably safe condition. The City denied, however, that it was negligent or that any act or omission on its part was the proximate cause of Enriquez’s death. The City, in its answers to plaintiff’s interrogatories, said that it employed two bridge tenders at the bridge in question at all times. The City also said that there were no signs posted on 106th Street, near the bridge, warning that the bridge was slippery and icy.

Several depositions were also taken in connection with this case. Officer William Bratek, a Chicago police officer who was assigned to the “Major Accident Investigation” section of the department on November 20, 1981, was among those who gave a deposition. Bratek testified that he was called to the scene of the accident between Enriquez and Bermea and saw two vehicles on the east side of the bridge. Bratek said that 106th Street was dry and clear at that time, but that there was a “minor layer of ice” on the street approaching the bridge from the west.

John Aquino, a meteorologist and vice-president of the operational forecast group at Murray and Trettel, Inc., also gave a deposition and provided an affidavit in this case. Aquino related in his sworn testimony that temperatures were above freezing during the daytime on November 20, 1981, and that any snow that fell during the daytime would have melted when it landed on the bridge. Aquino also said that after the sun set that day, around 4:30 p.m., the temperatures dropped below freezing. Aquino stated that the temperature of the bridge would then have dropped to the freezing point, due to the air circulation around the bridge, as well as the fact that the bridge was constructed of metal and concrete. Once the bridge reached the freezing point, he said, any snow that fell on the bridge would not melt, but instead would begin to accumulate as a “slush.” Aquino estimated that the slush would freeze within an hour as the temperature continued to drop, and that any subsequent snow that fell would collect on top of the frozen slush. However, Aquino said, in the areas adjacent to the bridge, including the roads, the snow that fell would continue to melt and evaporate because the temperature of the ground would drop at a much slower rate than the temperature of the bridge. Aquino explained that this was the reason bridges often froze while the roads remained clear and dry.

In addition to the foregoing, the “Rules and Regulations for Bridge Tenders” and the “Rules and Regulations for Guidance of Bridge Tenders” (hereinafter both will be referred to as rules and regulations) were submitted to the court without objection. The rules and regulations instructed bridge tenders that, “[s]now and ice must be removed from bridge sidewalks and not be allowed to accumulate. The chemical component supplied at all bridges must be used when warranted by conditions.” In addition, the specific rules and regulations pertaining to snow and ice removal instructed bridge tenders:

“Whenever snow falls, clear the sidewalks, and then the roadways frequently, so that it will not accumulate sufficiently to interfere with operation of the bridge. Start from the center and clean all the way towards the roadway gates. Be careful and avoid danger of injury from street traffic.
If it snows hard do not wait for the snow to cease, but proceed at once as outlined above. Clean thoroughly to prevent an accumulation of slush from freezing hard and becoming dangerous (particularly on roadways). Sweep snow from rack pinions. Also clean snow and ice off river pedestals. Keep snow clear from center break in roadway joints so as to reduce probability of freezing together of the leaves which might hinder opening of the bridge.
When sidewalks (especially approach sidewalks) or roadways, or both, are covered with ice or sleet, sprinkle well with ashes or cinders. NEVER USE SALT on the bridge or approach since such use will result in some of the salt getting into the machinery, with harmful results.”

The City filed four separate motions for summary judgment (its original motion and three amended motions), plaintiffs responded to each motion and, in addition, filed counter motions for summary judgment. In each of its motions for summary judgment, the City contended that it was not liable to the plaintiff based on section 3 — 105 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3— 105). Section 3 — 105 provides that a local public entity or public employee is not liable for injuries which result from the effect of weather conditions, including the natural accumulation of ice and snow. In their countermotions, the plaintiffs argued that the accumulation of ice and snow on the bridge where Enriquez was killed could not be considered a natural accumulation because the accumulation occurred only on the bridge, while the surrounding roads remained clear and dry. The plaintiffs further claimed that, even if the accumulation of ice and snow was natural, the City was not relieved of liability here inasmuch as the City had bridge tenders on duty at the time of the accident, and these bridge tenders failed to fulfill their duty to clear the ice off the bridge or to warn motorists of the danger.

A hearing on the City’s third amended motion for summary judgment was held on July 27, 1988. The court, as noted previously, granted summary judgment for the City and denied plaintiffs’ countermotion for summary judgment.

On appeal, the plaintiffs initially contend that the trial court erroneously granted summary judgment for the City because it incorrectly found the City was immune from liability under section 3 — 105 of the Tort Immunity Act. Plaintiffs assert that the accumulation of ice and snow on the bridge where the accident occurred was not a natural accumulation as contemplated by the Act, because the roads throughout the City and around the bridge were clear and dry and it was only the bridge which retained snow.

On the other hand, the City argues that the trial court properly granted summary judgment in its favor because, it asserts, the accumulation of snow and ice on the bridge was a natural accumulation. Furthermore, the City notes that plaintiffs failed to offer any evidence of a structural defect in the bridge or of a condition of the bridge that would cause an unnatural accumulation.

In deciding whether to grant summary judgment, a trial court must construe all pleadings, depositions, admissions and affidavits on file strictly against the moving party and liberally in favor of the opponent. (Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 432, 533 N.E.2d 486, 491.) The court will then grant summary judgment in favor of the movant if it determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Dodd, 178 Ill. App. 3d at 431, 533 N.E.2d at 491.) A plaintiff is not required to prove a prima facie case in order to withstand a motion for summary judgment; however, the plaintiff must present some facts to support his or her claim. Dodd, 178 Ill. App. 3d at 432, 533 N.E.2d at 491.

Here, the trial court found that the plaintiffs failed to present any facts to support their claim that the accumulation of ice and snow on the bridge was unnatural. Consequently, the trial court found that section 3 — 105 of the Tort Immunity Act was applicable and held that the City was not liable. The pertinent portion of the Tort Immunity Act provides:

“Neither a local public entity nor a public employee is liable for an injury caused by the effect of weather conditions as such on the use of streets, highways, alleys, sidewalks or other public ways, or places, or the ways adjoining any of the foregoing ***. For the purpose of this section, the effect of weather conditions as such includes but is not limited to the effect of wind, rain, flood, hail, ice or snow but does not include physical damage to or deterioration of streets, highways, alleys, sidewalks, or other public ways ***.” (Ill. Rev. Stat 1987, ch. 85, par. 3— 105(a).)

When enacted, this section of the Act codified the preexisting common law rule of nonliability and also extended that rule to counties. Lansing v. County of McLean (1978), 69 Ill. 2d 562, 572, 372 N.E.2d 822, 827. See also Strappelli v. City of Chicago (1989), 371 Ill. 72, 20 N.E .2d 43; Graham v. City of Chicago (1931), 346 Ill. 638, 178 N.E. 911.

We agree with the trial court that the plaintiffs failed to provide any evidence that the accumulation here was unnatural. In the cases where a court has found a municipality liable for an unnatural accumulation of ice and snow, the evidence showed that the accumulation was due to a defect in the road or sidewalk or some other unusual circumstance. See, e.g., Graham, 346 Ill. 638, 178 N.E. 911 (city liable for allowing water to overflow from ice rink onto sidewalk and for not removing ice after it had remained for at least 13 days); Jones v. City of Rock Island (1968), 101 Ill. App. 2d 174, 242 N.E.2d 302 (broken and uneven curb created unnatural accumulation of ice).

Here, the only evidence concerning the accumulation of ice and snow on the bridge was Aquino’s testimony that snow fell throughout the day on November 20, 1981, and that the ice and snow would have accumulated on the bridge before it accumulated on the streets because the temperature of the bridge was at or below freezing, and the temperature of the roads around the bridge was above freezing. Plaintiffs did not allege any unusual circumstances or defect on the bridge which would have created an unnatural accumulation of ice and snow. Therefore, we find that the trial court properly held that there was no genuine issue of material fact.

Plaintiffs next contend, however, that even if the accumulation of ice and snow on the bridge was natural, the Tort Immunity Act nonetheless does not apply because the ice and snow here were hidden dangers. The plaintiffs assert that a hidden danger is an exception to the rule of nonliability for the natural accumulation of snow and ice. Thus, the plaintiffs continue, since the ice and snow here were hidden dangers, the City had a duty to warn motorists of this danger. Plaintiffs rely on Sommese v. Mating Brothers, Inc. (1966), 36 Ill. 2d 263, 222 N.E.2d 468, and Fanning v. Lemay (1966), 78 Ill. App. 2d 166, 222 N.E.2d 815, rev’d on other grounds (1967), 38 Ill. 2d 209, 230 N.E.2d 182, to support their claim that the icy condition of the bridge here was a hidden danger.

The cases cited by the plaintiffs are not applicable to the circumstances here. In those cases, the courts held that a store owner who generally has no duty to remove snow or water which is tracked into his building from outside can be liable where the plaintiff specifically alleges that the material used in constructing the floor was especially slippery when wet. In such a situation, those courts ruled, it was a question for the jury to decide if the owners knew or should have known of this dangerous propensity, and, if the owners did, they would be liable for failing to warn the plaintiff of the condition. (See Sommese, 36 Ill. 2d 263, 222 N.E.2d 468 (terrazzo floor); Fanning, 78 Ill. App. 2d 166, 222 N.E.2d 815 (asphalt tile floor).) Plaintiffs argue that the surface of the bridge here was especially slippery when wet and icy and, accordingly, the exception to the general rule applies here, too, as it did the Sommese and Fanning cases.

In response, the City denies that the Sommese and Fanning decisions are analogous to this case. The City asserts that there was nothing unusual or unnatural about the surface of the bridge and the plaintiffs failed to present any evidence that the materials used in constructing the bridge or the design of the bridge created a greater likelihood that ice would form on the bridge. Thus, the City says that the trial court properly granted summary judgment in its favor.

We find the Sommese and Fanning decisions readily distinguishable from this case. In those cases, as noted, there was evidence that the floors were especially slippery when wet because of the materials used in constructing the floors. Here, as the City contends, the plaintiffs never alleged or offered any evidence showing that the materials used in constructing the bridge rendered the bridge especially slippery when wet or icy, or that there was anything else unusual about this bridge. Hence, there was no genuine issue of material fact present here and the City was entitled to judgment as a matter of law. See Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 175, 488 N.E.2d 679, 681-82 (even assuming jury could infer that plaintiff slipped on floor which was wet from tracked-in water, absent allegation that floor material was especially slippery and dangerous, defendant not liable as a matter of law).

Plaintiffs also attempt to analogize this case to the “hidden danger” found in the case of Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806, 431 N.E.2d 1218. There, this court held that the Hanover Park Park District was liable for the wrongful death of a seven-year-old child who drowned when he fell into a creek that had been completely covered by a layer of ice and snow. The ice and snow made it impossible to discover the location of the creek. Plaintiffs contend that the Pasierb case shows that a land owner may be held liable for the “hazardous conditions caused by the natural effects of the weather.” We find the situation in the Pasierb case radically different from that presented here. In Pasierb, we held the park district liable on the basis of a duty to warn because it knew that children frequented the area and the creek which was completely concealed by the ice and snow was not the type of risk that children of tender years are generally expected to recognize. (Pasierb, 103 Ill. App. 3d at 808-09, 431 N.E.2d at 1220.) The Pasierb court also stated that the case involved a “specific hidden danger on the land,” viz., a ditch filled with water which was hidden by ice and snow, as opposed to a natural accumulation of snow. (Pasierb, 103 Ill. App. 3d at 810, 431 N.E.2d at 1221.) Here, the only hidden danger alleged by plaintiffs was the natural accumulation of ice and snow itself, and this is not a hidden danger.

Plaintiffs also claim that the City had a duty to warn of the icy condition of the bridge. Plaintiffs assert that the bridge tenders had at least constructive knowledge that the bridge was hazardous, should have known that this hazardous condition would be dangerous to motorists, and consequently, had a duty to warn motorists of that condition. The City denies that it had any such duty to warn here.

If a municipality has no duty to remove accumulated snow and ice, it, therefore, also has no duty to warn that it has not done so. (Lansing, 69 Ill. 2d at 573-74, 372 N.E.2d at 827.) Since we have found that the City was not liable for the accumulation of ice and snow on the bridge here, we must also find that the City had no duty to warn motorists of the accumulation. (See also Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1009, 365 N.E.2d 80, 87 (“duty to warn coexists with the corresponding liability for the hazards of the condition if no warning is given”).) Hence, we reject the plaintiffs’ contention that the City had a duty to warn.

Alternatively, plaintiffs contend that even if the accumulation of ice and snow on the bridge was a natural accumulation for which the City is generally not liable, the City nonetheless incurred liability here because it voluntarily assumed the duty of tending the bridge. Plaintiffs assert that the trial court misconstrued the scope of the City’s voluntary undertaking and, thus, erroneously granted summary judgment in favor of the city.

Specifically, plaintiffs allege that the City voluntarily assumed the duty to maintain the bridge in a reasonably safe condition when it hired bridge tenders, and required them, as part of their job, to keep snow and ice from accumulating on the bridge. Plaintiffs argue that the trial court was in error when it held that the City could not be held liable because the bridge tenders never attempted to remove the ice and snow. Plaintiffs contend that the City undertook a duty to do so under its own rules and regulations for bridge tenders, and the failure to do so under the circumstances here was negligence.

In response, the City admits that it does have a duty to keep the bridge in a reasonably safe condition, but asserts that its duty to keep its bridge in a reasonably safe condition does not include the duty to clear the natural accumulation of ice and snow from the bridge. Furthermore, the City argues that its employment of bridge tenders did not create a duty or an undertaking to. clear the bridge inasmuch as the City had no contractual or statutory obligation to remove snow and ice, and its bridge tenders never attempted to remove the snow and ice on November 20, 1981. Finally, the City maintains that its rules and regulations for bridge tenders did not create a duty on the part of the City to remove snow and ice, but were merely part of the bridge tenders’ manual for operating the bridge.

As noted above, in order to withstand a motion for summary judgment, a plaintiff must present some facts to support his or her claim. (Dodd, 178 Ill. App. 3d at 432, 533 N.E.2d at 491.) The plaintiffs here failed to present sufficient facts to show that the City had voluntarily assumed the duty to clear the snow and ice from the bridge. The mere fact that the City employed bridge tenders did not create any duty to remove snow and ice from the bridge. We believe this case is similar to Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80. There, this court held that a landlord had no duty to clear a sidewalk of snow and ice on the day that the plaintiff was injured there even though the landlord had previously examined and cleaned the sidewalk each day for 15 years. As the court stated there, and, which is also relevant to this case:

“The instant case involves nonfeasance, a complete omission or failure to perform, rather than misfeasance, a negligent performance. Here the issue is not defendants’ manner of performance in clearing the ice from the sidewalk but whether they had any duty to perform the cleaning on the day of the incident. *** Plaintiff failed to establish a contractual duty, either express or implied.” Chisolm, 47 Ill. App. 3d at 1006, 365 N.E.2d at 85-86.

Here, too, the issue was whether the City had a duty to clear the bridge on the day of the accident. We agree with the City that its duty to keep the bridge in a reasonably safe condition did not include the duty to clear the bridge of the natural accumulation of snow and ice, absent any statutory or contractual obligation imposed for the benefit of the plaintiff. Furthermore, since there was no duty to remove a natural accumulation here, nor any affirmative attempts by the bridge tenders to clear the snow and ice, there could be no liability on the City for not doing so. The accumulation on the bridge here was natural and the City had no duty to specifically remove it; hence, the City was not liable to the plaintiff under the provisions of section 3 — 105 of the Tort Immunity Act.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and La PORTA, JJ., concur.


author: JUSTICE REINHARD JUSTICE McLAREN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIZABETH M. KENNEDY, Defendant-Appellant.
    Second District
    No. 2 — 88—0935
    Opinion filed September 12, 1989.
    Modified on denial of rehearing September 26, 1989.

      McLAREN, J., dissenting.
    Michael T. Norris, of Law Offices of Michael T. Norris, of Rolling Meadows, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere (William T. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Elizabeth M. Kennedy, pleaded guilty in the circuit court of Boone County to the felony offense of driving while her driver’s license was revoked, having previously been convicted of this same offense (Ill. Rev. Stat. 1987, ch. 951/2, pars. 6 — 303(a), (d)), and was sentenced to a 21/2-year term of probation with the condition, among others, that she serve 18 months’ of periodic imprisonment without eligibility for credit for the time served on periodic imprisonment.

On appeal, defendant raises two sentencing issues: (1) whether the 18-month periodic imprisonment condition was excessive, and (2) whether the circuit court improperly denied her good-time credit on the periodic-imprisonment portion of the sentence.

Subsequent to her plea of guilty, a sentencing hearing was held during which several witnesses testified and a presentence report was submitted to the court. The presentence report states that defendant was the driver of an automobile involved in an accident where two persons in the other automobile were injured. Defendant appeared to have been drinking alcohol, open beer cans were recovered from her vehicle, and she had a .20 blood-alcohol test reading. Her driver’s license had been revoked for a previous driving while under the influence of alcohol (DUI) conviction. She has a prior history of numerous convictions of various traffic offenses, including DUI convictions, and for driving while her license was revoked and suspended. Several witnesses, including family members, testified in defendant’s behalf. Essentially, their testimony was that defendant was an alcoholic, that subsequent to the accident here defendant had undergone extensive inpatient and outpatient treatment for her alcohol problem, and that she was successfully recovering from her alcohol addiction.

Before addressing the merits of defendant’s arguments on appeal, we note that defendant did not file a motion to reconsider her sentence. We must determine, in light of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, and our previous decision in People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386, whether the failure to file a motion to reconsider the sentence either deprives this court of jurisdiction or waives the sentencing issues for review.

In People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, our supreme court distinguished between cases where defendants who had pleaded guilty sought to challenge their guilty pleas on appeal but had-not filed a motion to withdraw their pleas in the trial court from cases where defendants had pleaded guilty and did not challenge their guilty pleas but only appealed the trial court’s denial of their motion to reconsider their sentences. In the former cases, the court held that the filing of a motion to withdraw the plea in the trial court in conformance with Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) was a condition precedent to an appeal requiring dismissal of the appeal in the absence of such a motion. (Wilk, 124 Ill. 2d at 107, 529 N.E.2d at 222; see also People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46.) Rule 604(d) is, therefore, jurisdictional. (People v. Partee (1988), 125 Ill. 2d 24, 33, 530 N.E.2d 460.) On the other hand, defendants only appealing the trial court’s denial of their motion to reconsider their sentences are not required to file a motion to withdraw their guilty pleas under Rule 604(d). (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.) The court further disavowed the prior holding in People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254, as inconsistent with its opinion, wherein the filing of a Rule 604(d) motion was held to be a condition precedent to an appeal of a sentence only. Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.

Thus, where, as here, defendants only appeal the sentence imposed, the jurisdictional step of filing a Rule 604(d) motion is not required. “No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional” (107 Ill. 2d R. 606(a)), except where the rules specifically so provide, as in the case of an appeal of a guilty plea under Rule 604(d). (Partee, 125 Ill. 2d at 33, 530 N.E.2d at 464.) As no appeals rule of our supreme court specifically requires any step other than the filing of a notice of appeal to perfect an appeal raising a sentencing issue after a plea of guilty, the failure to file a motion to reconsider the sentence is not a jurisdictional step.

We next consider, however, whether a motion to reconsider the sentence following a guilty plea and sentence, although not jurisdictional, is necessary to preserve the issue for review such that the failure to do so constitutes a waiver of the issue. No supreme court rule requires such a motion. Neither Rule 604(d) nor Rule 605(b) mentions a motion to reconsider the sentence, and the clear purpose of Rule 604(d) is to ascertain contentions of error in the entry of the plea of guilty which could be readily corrected in the trial court, if called to the attention of the trial court, and to make a record of such allegations of error. (Wilk, 124 Ill. 2d at 104, 529 N.E.2d at 222.) Nor is there a statutory requirement that a motion to reconsider the sentence be filed, as is the case in a trial where there has been a guilty finding or verdict and a post-trial motion is required to preserve trial errors. (See Ill. Rev. Stat. 1987, ch. 38, par. 116 — 1(b); People v. Enoch (1988), 122 Ill. 2d 176, 185-89, 522 N.E.2d 1124.) A motion to reduce a sentence of imprisonment is permitted by statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(c)), but is inapplicable to the situation here.

In Wilk, the defendants who sought to have their sentences reviewed on appeal did file motions to reconsider the sentences in the trial court. (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.) Nevertheless, while the supreme court in Wilk distinguished that fact from the other cases before it where the guilty plea only was challenged, we do not read Wilk as establishing a rule of procedure requiring a motion to reconsider the sentence be filed in the trial court in cases where there has been a plea of guilty. The reviewing court will have the record of the sentencing hearing before it, and there is no necessity for a motion to reconsider a sentence. Indeed, there is no requirement for a motion to reconsider the sentence imposed after a guilty finding, and we see no reason to differentiate between that situation and one where a sentence is imposed after a guilty plea, absent an express direction by rule, statute, or supreme court decision.

We recognize that certain claims of error on appeal concerning the sentencing hearing have been found to be waived if not objected to because they could have been corrected if brought to the attention of the trial court. (See, e.g., People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855 (failure to request a statement of the trial court’s reasons for the sentence imposed); People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9 (failure to object to sufficiency of presentence report).) Nonetheless, where the sentence only is challenged as excessive, we find no case law or other authority to support the proposition that there is a waiver of that issue if there is no motion to reconsider the sentence. The trial court has heard any evidence and arguments by counsel or a defendant at the sentencing hearing, and the reviewing court has a record to review the appropriateness of the sentence. Accordingly, the sentencing issues raised on appeal in the instant case are not waived.

We recognize that our opinion is at odds with a portion of the holding of this court in People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386. In Favelli, the court erroneously concluded that Rule 604(d) required “any defendant who has entered a guilty plea to file a motion to reconsider his sentence as a prerequisite to an appeal of the sentence.” (Favelli, 176 Ill. App. 3d at 623, 531 N.E.2d at 389.) As previously discussed, Wilk holds that defendants who are not appealing their guilty pleas need not file a Rule 604(d) motion. (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.) It is not necessary to file a Rule 604(d) motion to withdraw the guilty plea if the defendant is not appealing the guilty plea but is solely appealing the propriety of the sentence. People v. Houck (1989), 185 Ill. App. 3d 585, 541 N.E.2d 813.

Turning to the merits of the sentencing issues raised on appeal, we first examine defendant’s contention that the 18-month periodic imprisonment sentence is excessive because evidence in mitigation of sentence demonstrates that she has “made a substantial effort to reform herself and to correct the alcohol related condition which affected her behavior prior to her plea of guilty.” From a careful review of the record we conclude that the circuit court thoughtfully reviewed both aggravating and mitigating factors and properly imposed a sentence within its discretion.

The court tailored the periodic-imprisonment portion of the sentence so that defendant could continue to work and also to receive the alcohol treatment and counseling that she needs while also punishing her for the offense. Although the court placed great weight on defendant’s potential for rehabilitation, it is apparent from the record that the court was concerned with the seriousness of the offense and defendant’s prior record, which includes numerous prior convictions of DUI, driving while her license was revoked, and driving while her license was suspended. Thus, we find no abuse of sentencing discretion. See People v. O’Neal (1988), 125 Ill. 2d 291, 297-98, 531 N.E.2d 366.

Defendant next contends that good-time credit on her periodic-imprisonment condition of probation is mandated by statute, citing the County Jail Good Behavior Allowance Act (Ill. Rev. Stat. 1987, ch. 75, par. 32), and requests we vacate that part of the sentencing order denying her such credit. However, the statute expressly states that “[t]he good behavior allowance provided for in this Section shall not apply to individuals sentenced for a felony to probation or conditional discharge where a condition of such probation or conditional discharge is that the individual serve a sentence of periodic imprisonment.” (Ill. Rev. Stat. 1987, ch. 75, par. 32; see also Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 7—1(d).) We find no merit in defendant’s contention and admonish defendant to thoroughly read a statute before citing a fragment of it to this court.

For the reasons stated above, the judgment of the circuit court of Boone County is affirmed.

Affirmed.

NASH, J., concurs.

JUSTICE McLAREN,

dissenting:

I respectfully dissent.

This is an appeal from a sentence imposed upon a plea of guilty wherein the claimed defect was an excessive sentence of periodic imprisonment. No post-trial motion of any kind was filed by the defendant. The majority cites People v. Wilk (1988), 124 Ill. 2d 93, as standing for the proposition that since defendant is not seeking to withdraw her plea of guilty she need not file a “Rule 604(d) motion.” The majority has not seen fit to quote from that opinion. I shall.

The Wilk majority opinion consists of 12 pages. On the last page of the majority opinion, the court said: “Because defendants Brown and Erickson were not appealing their guilty pleas, it was not neces-

sary for them to file a Rule 604(d) motion.” (Wilk, 124 Ill. 2d at 110.) That sentence is the only source from which this majority can reasonably conclude that we have jurisdiction to consider this appeal. It appears to me, and apparently also to the unanimous panel in People v. Favelli (1988), 176 Ill. App. 3d 618, that, when objecting to the sentence only, Wilk requires the filing of a motion to reconsider before the appellate court’s jurisdiction is invoked. I base my conclusion upon an interpretation of the entire opinion of the Wilk case, especially pages 99, 109 and 110, and Supreme Court Rule 604(d), which reads in part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to *** vacate the judgment. The motion shall be in writing and shall state the grounds therefor.” (Emphasis added.) (107 Ill. 2d R. 604(d).)

(Wilk, 124 Ill. 2d at 99, 109, 110.) Rule 604(d) requires the filing of a motion to vacate a judgment and/or a plea of guilty prior to appealing. “The final judgment in a criminal case is the sentence.” (People v. Partee (1988), 125 Ill. 2d 24, 32.) Therefore, a literal reading of Rule 604(d) would require a motion to be filed when objecting to a sentence imposed upon a plea of guilty.

The court in Wilk stated:

“Turning to the cases of Brown and Erickson, we note that the defendants did not challenge their guilty pleas, but instead appealed the trial court’s denial of their motion to reconsider their sentences. We distinguish these cases from those of Wilk and Wright in that the defendants here made their motions to reconsider the sentence prior [emphasis in original] to filing the notice of appeal. The trial court had the opportunity to reconsider the appropriateness of the sentence imposed and to correct errors made, if any. Consequently, [emphasis added] the appellate court can exercise its proper function of reviewing the trial court’s rulings on these motions. Because defendants Brown and Erickson were not appealing their guilty pleas, it was not necessary for them to file a Rule 604(d) motion. Accordingly, we reverse the appellate court’s decisions as to Brown and Erickson and remand these two cases to the appellate court for review of the sentences imposed.” (Wilk, 124 Ill. 2d at 109-10.)

The court states its rationale in these six sentences. However, the court had previously set forth the context wherein it held that it was not necessary to file a Rule 604(d) motion as follows:

“Each defendant has raised the issue that the appellate court erred in dismissing his appeal. Although these defendants individually raise issues peculiar to the facts of their own cases, they all claim that their attorneys’ failure to comply with Rule 604(d) amounts to ineffective assistance of counsel. They claim the appellate court should have granted their requests for remand to the trial court, to afford them the opportunity to comply with Rule 604(d), rather than dismiss their appeals.” (Wilk, 124 Ill. 2d at 99-100.)

Such a request by the defendants was consistent with the ruling in People v. Stacey (1977), 68 Ill. 2d 261. Stacey required the defendant to move to withdraw his guilty plea even though he only sought reconsideration of the sentence. Justice Goldenhersh, dissenting in Stacey, concluded:

“A much more intelligent interpretation of the rule, and one more likely to achieve its purpose, would be to construe Rule 604(d) to permit the filing of a motion to vacate the sentence without requiring that the defendant seek leave to withdraw the plea of guilty.” 68 Ill. 2d at 268 (Goldenhersh, J., dissenting).

The supreme court in its last sentence in Wilk declared: “To the extent that Stacey is inconsistent with this opinion, the holding in that case is disavowed.” (Wilk, 124 Ill. 2d at 110.) The supreme court determined that the defendants, Brown and Erickson, had previously filed a motion to reconsider the sentence “prior” to filing a notice of appeal. Therefore, there was no need to remand the causes back to the trial court for the withdrawal of a plea of guilty when it was not sought originally, nor in the appeal. I believe the supreme court adopted Justice Goldenhersh’s suggested interpretation contained in Stacey. Neither Stacey nor Wilk is inconsistent or contradictory as regards the necessity to file a motion to reconsider the sentence prior to appellate jurisdiction arising.

People v. Houck (1989), 185 Ill. App. 3d 585, 541 N.E.2d 813, cited by this majority, stands for the proposition that one need not move to withdraw a guilty plea if one is only contesting the sentence. It does not say that a motion to reconsider the defendant’s sentence is not required prior to appeal. The opinion is silent as to whether a motion to reconsider or vacate the judgment was made at the trial court level. There is mention that Rule 605(b) was the basis of giving the appellate court jurisdiction. However, Rule 605(b)(6) provides in part that “any issue or claim of error not raised in the motion to vacate the judgment *** shall be deemed waived.” (107 Ill. 2d. R. 605(b)(6).) Both Rules 604(d) and 605(b) require a motion to vacate the judgment if any issue or claim of error is to be considered by the appellate court. I believe the supreme court meant exactly that when it italicized the word “prior” in its opinion in Wilk with reference to re-considerations of sentences. Wilk and Houck stand for the proposition that one must file a motion to vacate the judgment but need not move to withdraw the plea of guilty unless such relief was intentionally sought by the defendant.

Due to the confusion resulting under Rule 604(d) concerning appellate jurisdiction when a defendant seeks to contest only the sentence imposed as evidenced by the conflict between this majority’s opinion and Favelli, it would be beneficial for the supreme court to clarify its holding in Wilk by either an opinion in an appropriate case or by an amendment to Rules 604(d), 605(b), or any other rule deemed appropriate by the supreme court.

In conclusion, I have determined that this court lacks jurisdiction to rule on the merits of the appeal and, accordingly, would dismiss this appeal.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant and Cross-Appellee, v. ROBIN A. ENGLAND, Defendant-Appellee and Cross-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFREDO S. GARCIA, Defendant-Appellant.
    Second District
    Nos. 2 — 88—0821, 2 — 88—0852 cons.
    Opinion filed August 25, 1989.
    Rehearing denied October 12, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Donald J. Ramsell, of Ramsell & Associates, of Schaumburg, for appellant Alfredo Garcia.
    Donald J. Ramsell, of Ramsell & Associates, of Schaumburg, for appellee Robin A. England.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Alfredo S. Garcia, appeals from the directed finding in favor of the State in a summary suspension hearing in the circuit court of Du Page County (No. 88 — 0852). In a separate case, the State appeals from the order of the circuit court of Du Page County granting the petition of defendant, Robin A. England, for rescission of summary suspension (No. 88 — 0821).

Both cases have been consolidated on appeal and raise the issue of whether the use of a testing solution prepared by an Illinois State police trooper comports with the Illinois Department of Public Health (Department) regulations requiring the use of a certified controlled reference sample in testing and certifying a breath analysis instrument.

In No. 88 — 0852, defendant Garcia filed a petition for rescission of summary suspension. At the summary suspension hearing, Dietmar Grohlich, Ph.D., supervisor of the Department’s toxicology section, testified regarding the Department’s procedures for preparing the simulator or test solution used by the Department to test breath analysis instruments. According to Grohlich, simulator solution is an aqueous alcohol solution consisting of alcohol and water with a .10% concentration of alcohol. The solution is prepared in the Department’s laboratory by chemists and then tested 4 to 10 times on a precalibrated breath analysis instrument as well as on a gas chromatograph, if one is available. Subsequent to the testing and prior to releasing the simulator solution, the gas chromatograph and breath analysis equipment are checked, and Grohlich certifies the accuracy of the simulator solution. The Illinois State Police is the only law enforcement agency to create its own" simulator solution to certify a breath analysis instrument.

Trooper Dennis Erickson of the Illinois State Police, who certified the accuracy of the breath analysis instrument used to test defendant Garcia, testified to the procedures he followed in preparing the simulator solution used in certifying the instrument. He is designated as an inspector by the Department to certify, repair, and maintain breath testing instruments of the Illinois State Police. Trooper Erickson stated that he followed the instructions provided by the manufacturer of the breath analysis instrument for making simulator solution. He first made what is known as stock solution which is prepared by measuring 77 milliliters of 200-proof ethanol (ethyl alcohol) with 923 milliliters of distilled water. This is done by using a graduated pipette for measuring. Although Trooper Erickson’s testimony is not altogether clear, he apparently stored the stock solution in his refrigerator and later in a locked cabinet in his basement.

To prepare the simulator solution, he mixed, using a burette, 10 milliliters of the stock solution with 490 milliliters of distilled water. Neither the stock solution nor the simulator solution was tested for accuracy on any testing instrument prior to his using the simulator solution to test the breath analysis instrument used in this case. Once he completes his testing of breath analysis instruments on a particular day, he disposes of the simulator solution. The printouts of the test results produced by the breath analysis instrument indicate that on May 4, 1988, the test results were two .10% readings and one .09% result and the results for the June 2, 1988, test were two .09% results and one .10% result. According to Trooper Erickson, if the instrument is functioning properly, it should read .10% plus or minus .01% when tested.

The trial court granted the State’s motion for a directed finding and ruled that the defendant had not presented any evidence that there was anything improper in Trooper Erickson’s testing procedure which would raise a prima facie case.

In No. 88 — 0821, defendant England filed a petition for rescission of summary suspension, and the following facts were adduced at the hearing thereon. The breath analysis instrument used to test defendant England was certified on April 4, 1988, and again on May 4, 1988, both times by Trooper Erickson. Trooper Erickson testified that he prepared the simulator solution used to test the instrument on April 4, 1988, in his home and per the instructions provided by the Illinois State Police. Erickson admitted that if the solution was not properly made, it would affect the certification of the breath analysis instrument. Erickson also stated that he did not test the simulator solution on any independent testing device nor was it certified by anyone. Erickson indicated that the simulator solution was .10%, and the readings obtained as a result of his testing on April 4, 1988, were both-.09%. The readings on May 4, 1988, were .10% for two readings and .09% for another.

Erickson prepared the April 4, 1988, simulator solution from the same batch of stock solution that he used to prepare the May 4, 1988, simulator solution. That simulator solution was not submitted to a chemist or laboratory for analysis. Both batches of simulator solution were disposed of after being used on the dates of April 4 and May 4, 1988.

Erickson further stated that he had always followed the manufacturer’s instructions for making the simulator solution and for storing the stock solution. Additionally, he stated that he was issued the necessary equipment for preparing the solutions and was trained in its use. He testified to the procedures he followed in making the solutions. He further testified that the ratios used in preparing the solutions are recommended by the manufacturers of the breath analysis and testing instruments and also comport with the Department’s standards.

In this case, the trial court found that the testing was not done in accordance with the standards promulgated by the Department of Public Health and the breath analysis results were inadmissible. The statutory summary suspension was rescinded.

We will first address the propriety of the trial court’s directed finding in favor of the State in defendant Garcia’s case. Summary suspension rescission hearings are civil proceedings in which the person who is seeking rescission of the summary suspension bears the burden of proof. (People v. Orth (1988), 124 Ill. 2d 326, 337-38, 530 N.E.2d 210.) The motorist must first make a prima facie showing for rescission that the test results are unreliable, which will shift the burden to the State. (Orth, 124 Ill. 2d at 337, 530 N.E.2d at 215.) Also, a person seeking rescission of summary suspension may raise the issue of noncompliance with Department administrative regulations at a rescission hearing. (People v. Hamilton (1987), 118 Ill. 2d 153, 160, 514 N.E.2d 965.) The trial judge’s finding as to the prima facie case will not be overturned on appeal unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.

Defendant Garcia’s argument below and on appeal is that the State failed to comply with the Department’s regulations because Trooper Erickson did not use a “certified control reference sample” as required by the regulations. In construing regulations promulgated by an administrative agency, the same rules used in the construction of statutes apply. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58, 387 N.E.2d 320; Hoffman v. Board of Fire & Police Commissioners (1988), 175 Ill. App. 3d 219, 224, 529 N.E 2d 790.) In construing a regulation, like a statute, the language should be given its plain and ordinary meaning. (Hoffman, 175 Ill. App. 3d at 224-25, 529 N.E.2d at 794.) When the language of a statute is clear and unambiguous, courts will not read exceptions, conditions, or limitations into the statute (People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014) and will not consider other aids. County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076.

Section 510.100 of the Department’s regulations states in pertinent part:

“(a) An instrument must be accurate within plus or minus 0.01% W/V to be certified. To determine accuracy of instruments, an inspector shall perform two (2) analyses on a certified controlled reference sample at least once a month at intervals not to exceed 45 days. The inspector shall record test results of his certification in the instrument log book. The original certification test results will be retained by the inspector.” (Emphasis added.) (77 Ill. Adm. Code §510.100 (1986).)

Section 510.20 defines “certified controlled reference sample” as:

“[A] suitable reference of known ethyl alcohol concentration.” (77 Ill. Adm. Code §510.20 (1985).)

We note at this point that defendant does not challenge the fact that if Trooper Erickson did follow the instructions, then the resulting simulator solution would be correct. Rather, defendant argues that Trooper Erickson’s failure to have the simulator solution tested independently to certify the alcohol concentration therein resulted in an ethyl alcohol solution of unknown concentration.

We note initially that neither defendant nor the State cites any Illinois case, nor do we find any, interpreting this section of the regulations or applying it under these circumstances. The plain language of the definition in section 510.20 of the Department’s regulations, however, requires a “suitable reference of known ethyl alcohol concentration.” It does not require that the simulator solution be prepared by the Department, as defendant argues. Thus, for the defendant to establish a prima facie showing of unreliability in this context, he would have to offer some evidence that Trooper Erickson did not use a suitable reference of known ethyl alcohol concentration.

The evidence established that Trooper Erickson followed the manufacturer’s instructions supplied with the equipment for preparing the simulator solution and that following the instructions would result in an ethyl alcohol concentration of .10%. As such, the evidence establishes that Trooper Erickson did use a suitable reference of known ethyl alcohol concentration. More importantly, defendant only offered evidence that Trooper Erickson did not prepare the solution in a laboratory, nor did he conduct any independent analysis of the solution once he had prepared it. This evidence alone, however, is insufficient to create a prima facie showing that Trooper Erickson did not use a suitable reference of known ethyl alcohol concentration. Dietmar Grohlich, the Department’s supervisor of its toxicology section, testified to the testing procedures of the Department only and did not indicate that Trooper Erickson’s method of testing was inaccurate in any way.

While it may very well be that the Department engages in a more scientific approach as to its methodology in preparing and testing its simulator solution, the issue in this case is whether Trooper Erickson’s methodology was sufficient to satisfy the regulation requirement that accuracy of an instrument be tested at a specific time on a certified controlled reference sample. Absent some evidence that Trooper Erickson failed to properly comply with the manufacturer’s instructions, that compliance with the instructions would not result in a .10% simulator solution, or other evidence that Erickson’s method was inaccurate, defendant failed to establish a prima facie showing that the trooper did not use a suitable reference of a known ethyl alcohol concentration, and the trial court’s ruling in that regard was not against the manifest weight of the evidence.

Our analysis is equally applicable to the case involving defendant England. Defendant only showed that Trooper Erickson failed to prepare the simulator solution in a laboratory and that he did not conduct an independent analysis of the alcohol concentration after preparing it. The other evidence was that he followed the recommended instructions for preparing the solution and that such procedure would result in a known ethyl alcohol concentration of .10%. Thus, the evidence was insufficient to establish that he failed to use a certified controlled reference sample as those terms are defined in the Department’s regulations. As such, the trial court’s rescission of England’s summary suspension was against the manifest weight of the evidence.

We therefore reverse the judgment of the circuit court of Du Page County rescinding the summary suspension in defendant England’s case and affirm the entry of a directed finding in defendant Garcia’s case.

No. 88 — 0821—Reversed.

No. 88 — 0852—Affirmed.

DUNN and LINDBERG, JJ., concur.