author:
JUSTICE GOLDENHERSH
      JUSTICE HARRISON,

text:
    VIVIAN VAUGHN, Adm’x of the Estate of George Vaughn, Deceased, Plaintiff-Appellee, v. GRANITE CITY STEEL DIVISION OF NATIONAL STEEL CORPORATION, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0517
    Opinion filed May 8, 1991.
    Rehearing denied August 22,1991.

      HARRISON, J., dissenting.
    Churchill & McDonnell, of Belleville (Joseph B. McDonnell, of counsel), for appellant.
    George J. Moran, Sr., John Long, and Harry J. Sterling, all of Troy, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Vivian Vaughn, as administratrix of the estate of George Vaughn, deceased, brought an action in the circuit court of Madison County to recover damages from defendant, Granite City Steel Division of National Steel Corporation, under the Wrongful Death Act (the Act) (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq). Following a jury trial, a verdict was returned in favor of plaintiff in the amount of $415,000. The circuit court entered judgment on that verdict and denied defendant’s post-trial motion. Defendant now appeals. We affirm.

The evidence presented to the jury established that the decedent, George Vaughn, was employed by defendant as a hod carrier. Shortly before midnight on May 5, 1981, the decedent’s body was found lying next to his automobile in a parking lot provided by defendant for the use of its employees. The lot was one of several owned and maintained by defendant at its steel mill in Granite City. This particular lot was commonly referred to as the Nash Street lot.

Investigation revealed that the decedent had died of gunshot wounds shortly before his body was discovered. One wound was found in his head and another in his abdomen. Gunpowder burns were present around the abdominal wound, indicating that the shot had been fired at close range, and a discharged round was found near the scene. The decedent’s glasses and hat were lying near his body. A paper sack was found between his legs. The sack had a hole in it and bore powder burns. In addition, handguns and ammunition were recovered from the decedent’s automobile, and $71.21 in cash and a silver wristwatch were found on his body. There were no witnesses to the incident, no suspects were ever arrested, and one of the decedent’s friends and co-workers testified that he knew of no one who would have had any reason to kill the decedent.

There is no dispute that the gunshot wounds which killed the decedent were not self-inflicted. The decedent was, almost certainly, the victim of a homicide which took place as he was about to report for work. The evidence established that the decedent was the first and only person ever to have been shot on defendant’s parking lot. No acts of personal violence of any kind had taken place there before. There were previously reported incidents of crimes against property.

Plaintiff submitted to the court defendant’s index of the incident reports compiled by defendant’s plant protection department concerning incidents which had occurred on defendant’s parking lots. Plaintiff also submitted to the court 20 of the incident reports, concerning incidents on the Nash Street parking lot, which were summarized in the index. All these reports concerned incidents that had occurred on the Nash Street parking lot within two years prior to the death of the decedent, as required by an earlier in limine ruling by the court which limited previous incidents to those involving theft, vandalism, and acts against persons on the Nash Street lot. The 20 reports concerned the following criminal incidents on the Nash Street parking lot: a stolen vehicle on October 10, 1979; a stolen vehicle on January 10, 1980; a stolen vehicle on January 11, 1980; an attempted theft of a vehicle on July 30, 1979; and a series of burglaries and attempted burglaries from automobiles parked on the Nash Street parking lot, the last of which occurred on April 21, 1981, two weeks before plaintiff’s decedent was shot. In another incident, which occurred on September 12, 1979, defendant’s security guard, Russell Wineburner, confronted, and drew his gun on, two men who were on the Nash Street parking lot, one of whom was carrying a large pry bar.

In his cross-examination of defendant’s security expert witness, David Smith, plaintiff’s attorney suggested measures that defendant had not taken, but could have taken, to minimize the risk of a criminal attack upon an employee on the Nash Street parking lot, such as erecting fences around the lot to control access to the lot, placing a guard in an elevated station to survey the lot, placing the guard on the lot at the time of shift changes, and lighting the lot well. Plaintiff’s attorney then inquired of defendant’s security expert witness whether defendant could have done those things and thereby have minimized the risk of harm to plaintiff’s decedent. The witness replied, “I believe so, yes.”

As indicated at the outset of this opinion, plaintiff sought to impose liability on defendant for the decedent’s death pursuant to the Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.). The essential elements of recovery under that statute include a duty of defendant toward the decedent, a breach of that duty, and pecuniary damages resulting therefrom to persons designated by the Act. Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, 65, 509 N.E.2d 692, 695.

A threshold problem with plaintiff’s cause of action concerned the first of these elements, the existence of a duty. Despite the paucity of evidence surrounding the circumstances of the decedent’s death, and despite the fact that not all homicide is unlawful (see Ill. Rev. Stat. 1983, ch. 38, par. 7 — 1 et seq.), plaintiff theorized that the fatal assault on the decedent was criminal in nature. Plaintiff argued that a duty existed here because (1) there was a special relation between defendant and the decedent, that of employer and employee, and (2) the allegedly criminal conduct which took the decedent’s life was reasonably foreseeable in light of the various property-related crimes which had previously taken place on defendant’s parking lots.

In her complaint and in her arguments to the jury, plaintiff also asserted that defendant had a duty to protect the decedent against the criminal conduct of third persons because of a voluntary contractual undertaking by defendant. In support of this claim, plaintiff cited a written agreement between defendant and the United Steelworkers of America on behalf of Local Union 4063, which represented the steel mill’s security guard force. That agreement provided, in part, that “[t]he Union recognizes that it is the responsibility of the Plant Guard to guard and protect the employees and their property while on plant property.”

Plaintiff further cited the standard operating procedures of defendant’s “plant protection department,” which stated that the objectives of the employees of that department were, among other things:

“To maintain the peace and protect all employees and their property while they are on the Company’s premises.
To deny access to all persons not specifically authorized or properly invited.
To provide a readily available trained and responsive force to function in emergencies.”

Plaintiff’s theory was that, to perform the duty it had undertaken by virtue of these documents, defendant was obligated to use reasonable care to anticipate and to protect the decedent from criminal activity by third persons while the decedent was on defendant’s parking lot.

According to plaintiff, defendant breached its duty to provide protection in one or more of the following ways:

(1) by failing to furnish proper security lighting on the parking lot, thus making it more likely that a violent crime would be committed; or

(2) by failing to furnish proper security lighting on the parking lot, which lighting would have permitted observation of the attacker by the decedent or by the security force; or

(3) by failing to provide a sufficient security force to protect the decedent from harm while he was using the parking lot; or

(4) by failing to take sufficient steps to deny access to persons not authorized or invited to be on the parking lot; or

(5) by decreasing the security of the decedent by taking the handguns away from the guards who guarded the entrance gates to the plant.

According to plaintiff, one or more of the foregoing factors was the proximate cause of the decedent’s death, and as a result of the decedent’s death, the decedent’s widow and his three children sustained damage.

The jury ultimately accepted plaintiff’s argument and entered a verdict in her favor in the amount of $415,000. The circuit court entered judgment on that verdict and denied defendant’s post-trial motion. Defendant has now appealed, and as grounds for its appeal it contends: (1) that the circuit court erred in not entering judgment notwithstanding the verdict, or in the alternative, (2) that the circuit court should have granted defendant a new trial because the verdict was against the manifest weight of the evidence, because the court erred in certain rulings on the admission and exclusion of evidence, and because the court committed reversible error in instructing the jury. Defendant also asserts that the judgment should have been set aside and the complaint dismissed with prejudice because plaintiff’s complaint failed even to state a cause of action. We shall begin our discussion with the first of these issues, denial of defendant’s motion for judgment notwithstanding the verdict.

It is axiomatic that a motion for judgment notwithstanding the verdict should be granted only in those cases where all of the evidence, when viewed in the light most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

In this case, defendant argues, inter alia, that its motion should have been granted because it did not, in fact, owe any legally cognizable duty to the decedent. Although both parties have devoted a considerable amount of their argument to this issue, we found this particular issue to be decided without difficulty because defendant voluntarily undertook the task of protecting its employees while on defendant’s property, including the parking lots.

Defendant is correct that a plaintiff cannot recover in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97, 306 N.E.2d 39, 40.) The law is also clear that liability can arise from the negligent performance of a voluntary undertaking. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769, 773.) Applying this principle, our supreme court in Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, held that the defendant’s liability on an assumed duty theory is limited by the extent of his undertaking. The holding in Pippin reflected section 324A of the Restatement (Second) of Torts, which states:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts §324A, at 142 (1965).

As noted in Pippin, the rationale for subsection (c) is expressed in the Restatement comments:

“Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk.” (Restatement (Second) of Torts §324A, Comment e, at 144 (1965).)

(Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 211, 399 N.E.2d 596, 600; see also Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 390, 493 N.E.2d 1022, 1027.) The Pippin court found that the defendant voluntarily engaged a private security guard service, but since the defendant had assumed only the duty of hiring the service, the defendant’s duty to the plaintiff was limited to using reasonable care in hiring the security firm. Pippin, 78 Ill. 2d at 210, 399 N.E.2d at 599.

In Kraustrunk v. Chicago Housing Authority (1987), 95 Ill. App. 3d 529, 420 N.E.2d 429, our colleagues on the First District Appellate Court found that even if an agreement between the housing authority and the local police to increase patrols at a certain housing project amounted to a voluntary undertaking to secure additional protective services, the allegations in the plaintiff’s complaint failed to state a cause of action. In Kraustrunk, the plaintiff was an elevator repairman who was attacked at the housing project where additional patrols were to be placed by agreement of the housing authority and local police. The Kraustrunk court found that the plaintiff’s complaint set out no facts that would lead to the conclusion that either the housing authority or the police actually increased the risk of attack. While the Kraustrunk court found that the plaintiff’s complaint failed to state a cause of action, it nevertheless also found that a duty can arise from a voluntary undertaking under the proper set of facts. Applying this principle to the facts at bar, we find that defendant did have a duty to protect plaintiff.

A company-initiated manual, to which the union agreed, entitled “Standard Operating Procedures, Plant Protection Department, Granite City Steel,” was in effect at the time of the decedent’s death. The plant protection department consisted of the members of the security guard’s local and their supervisors. Under the “objectives” portion of the manual, the following statement of goals was listed:

“— To protect the property of the Company against all acts which would tend to deny the Company the use of said property.
— To maintain the peace and protect all employees and their property while they are on the Company’s premises.
— To deny access to all persons not specifically authorized or properly invited.
— To provide a readily available, trained, and responsive force to function in emergencies.”

From this language it is clear that it was the intention of defendant to protect its employees while the employees were on its premises and to keep unauthorized individuals off its property and to this end to hire a guard force to perform such duties.

A labor contract between defendant and Local Union No. 4063, the plant guard force, was also in effect at the time of the decedent’s death. It included the following language under a provision entitled “Responsibility”:

“The Union recognizes that it is the responsibility of the Plant Guards to guard and protect the employees and their property while on plant property; and to guard and protect the plants, premises, materials, facilities and the property of the company at all times and under all circumstances.”

Because defendant voluntarily chose to undertake the responsibility to perform its own guard services, defendant can be held liable if it can be found that defendant negligently performed these duties.

Plaintiff contends that the issue of proximate cause was not properly preserved by defendant, but we disagree. In its post-trial motion before the circuit court, defendant specifically argued in support of its request for judgment notwithstanding the verdict that there was no evidence that “the violation of any duty owed by defendant to plaintiff’s decedent was a proximate cause of the injury to and death of plaintiff’s decedent.” Although defendant has not devoted a specific section of its brief on appeal to the question of proximate cause, plaintiff’s failure to establish that any negligence on its part was a proximate cause of the decedent’s death was specifically addressed in that brief. The issue is therefore properly before us.

The correct standard to be applied in a wrongful death case such as this is succinctly stated in the case of Hare v. Foster G. McGaw Hospital (1989), 192 Ill. App. 3d 1031, 549 N.E.2d 778. In Hare, Justice Jiganti characterized the causation question as follows:

“This cause is a wrongful death action based upon the alleged medical malpractice of the defendant, Dr. Labrador. In order to recover for wrongful death, the Wrongful Death Act requires the plaintiff to prove that the alleged negligence caused the death of the decedent. (Ill. Rev. Stat. 1987, ch. 70, par. 1.) The Illinois Supreme Court has stated that to prove causation in a medical malpractice action, the plaintiff must establish that it is more probably true than not true that the negligence was a proximate cause of the injury. [Citation.] To prove proximate cause, the plaintiff must establish that the defendant’s negligence was a cause in fact of the death. [Citation.] If the death would have occurred even in the absence of negligence, the negligence was not a cause in fact of the death. The element of cause in fact need not be proved to a certainty. Rather, the evidence is sufficient if it affords the jury a reasonable basis to conclude that the negligence was ‘probably’ or ‘more likely than not’ a cause of the death. [Citations.] Thus, the plaintiff in this action was required to prove that it was more probably true than not that Dr. Labrador’s failure to hospitalize Hare was a cause of this death.” (192 Ill. App. 3d at 1034-35, 549 N.E.2d at 781.)

While Hare involved medical malpractice, the same causation analysis applies to the instant case because both cases were filed under the Act.

In the instant case, while there are other possible theories of the cause of decedent’s death other than defendant’s security deficiencies (i.e., if decedent’s killer was one of his co-workers, the killer would have been authorized to be in the area, and no amount of fencing or additional access control may have prevented his confrontation with decedent), we do not believe that the trial court should have granted defendant’s motion for a judgment notwithstanding the verdict. Where presentation of direct evidence is impossible, courts are reluctant to conclude that verdicts based upon circumstantial evidence cannot be upheld even though a contrary verdict could have been reached upon the same circumstantial evidence. (See Yamada v. Hilton Hotel Corp. (1977), 60 Ill. App. 3d 101, 106, 376 N.E.2d 227, 233 (An action was brought against a hotel owner by two hotel guests due to their being attacked in the defendant’s hotel. The Yamada court found that a jury question was presented by the two guests who had suffered attacks at the hands of an intruder to their room by virtue of the testimony of a former hotel security employee concerning the inadequacy of the hotel’s security despite the fact that there were other theories, unrelated to the hotel owner’s negligence, as to how the assailant could have gained access to the victims’ room).) The acts or omissions alleged as proximate cause must be a cause in fact but need not be the only cause involved (see Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 490 N.E.2d 995), and such matters as cause of death may be established by circumstantial evidence (Hamel v. Delicate (1968), 104 Ill. App. 2d 241, 244 N.E.2d 401).

The evidence in this case clearly showed a homicide as opposed to a self-inflicted fatal wound. The evidence further showed that, although no acts of personal violence had taken place on defendant’s parking lots, there were reported incidents of crimes against property, one of which had resulted in a security guard pulling his weapon. Plaintiff’s expert, Marvin Tunis, testified by deposition that the security at the Nash Street lot was “grossly inadequate.” The particular deficiencies cited by Tunis were essentially the same as those alleged in plaintiff’s complaint. They included inadequate lighting, absence of fencing, and no access control. Tunis testified that defendant should have assigned a security officer specifically to the parking lot instead of relying on a single patrol officer who was required to patrol and inspect all of defendant’s numerous parking areas. He faulted defendant for not having closed-circuit television to observe the parking lot, for not having an elevated observation platform or shelter in the parking lot where security officers could be stationed, and for not allowing the guards stationed at the gate adjacent to the lot to carry firearms. He also recommended additional roving patrols through the parking lot. Defendant’s own expert believed that additional measures could have been taken to minimize the risk of harm to decedent.

The dissenting opinion places great reliance on N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629; however, we find that case distinguishable from the case before us. In N.W., a tenant brought a negligence action against both the owners and the manager of her apartment building to recover damages for injuries she sustained after an unidentified intruder broke into her apartment and sexually assaulted her. The police investigating the crime were of the opinion that the assailant had entered the apartment building through the rear entrance of the building due to a broken lock on a door which the landlords had agreed to maintain. In affirming the summary judgment entered in favor of the defendants, our colleagues on the First District Appellate Court found that the sexual assault was not foreseeable and that the landlords’ failure to repair the lock on the building’s rear door was not a proximate cause of the sexual assault. In N.W., the plaintiff admitted in her deposition that during the years she resided at the defendants’ building she was unaware of any criminal acts committed in the building. Additionally, there were no affidavits or other documents showing previous occurrences of criminal activity in the building. As previously discussed, in the instant case there was evidence of prior criminal acts which made the attack on the decedent foreseeable. Moreover, we have found that in this case, filed under the Wrongful Death Act, there was enough evidence to raise an issue of fact for proximate cause. Finally, we point out that N. W. involved a landlord-tenant relationship, whereas the instant case involves an employer-employee relationship in which the employer has voluntarily undertaken the responsibility to keep its employees safe while on the company’s parking lots. For all these reasons, we believe that N.W. and the instant case are distinguishable.

Considered as a whole, plaintiff’s evidence clearly met the causation standards noted above, and this cause was properly submitted to the jury. Also based on the record as a whole, the jury had sufficient evidence before it to properly reach the verdict which they returned into court. Therefore, we find that the trial court did not err in denying defendant’s motion for a judgment notwithstanding the verdict. Additionally, we find that the verdict was not against the manifest weight of the evidence.

Defendant next contends that the trial court erred in denying its alternative motion for a new trial because the court erred in certain rulings concerning both the admission and the exclusion of evidence. First, defendant argues that the trial court erred in admitting evidence of previous incidents on defendant’s Nash Street parking lot. In support of its argument, defendant cites the case of Taylor v. Hooker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662, in which we held that a shopping mall owner’s knowledge that shoplifting and thefts had occurred in and on the premises was not sufficient to give rise to a duty to protect customers from assaults from third persons. We did not say that previous reports of crimes against property were inadmissible to prove notice on the part of the defendant of the danger of criminal attacks.

In Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358, our supreme court took into consideration previous incidents of criminal activity on a landowner’s property, along with additional information, in considering whether criminal actions were foreseeable as a matter of law. (125 Ill. 2d at 227, 531 N.E.2d at 1369.) Interestingly, in Rowe, the incidents of previous crimes all pertained to crimes against property while the incident in question pertained to crimes against a person, namely, personal injuries sustained by an attack and a shooting, just as we are faced with in the instant case. Relying on Rowe, we believe the previous reports of criminal activity were admissible to prove notice on the part of defendant.

Second, defendant contends that the verdict was against the manifest weight of the evidence due in part to the testimony of plaintiff’s expert who, according to defendant, improperly considered incident reports other than reports which were allowed by the court’s in limine order and testified to conclusions from incident reports that were not supported by the evidence.

Error in the exclusion or the admission of evidence does not require reversal where there has been no prejudice or where the result of the trial has not been materially affected. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 414, 476 N.E.2d 1232, 1237.) A verdict will only be overturned if it is palpably erroneous, wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable, and not based upon the evidence. Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 177, 523 N.E.2d 621, 628.

While plaintiff’s expert did draw conclusions from evidence that had been excluded by the court’s in limine order, we find this error to be harmless. First, defendant’s own security expert, David Smith, admitted that the risk of harm could have been minimized by lighting the parking lot, having a guard on the parking lot, having a guard in an elevated station, fencing the lots, and controlling access to the parking lots. Second, defendant had the opportunity to cross-examine plaintiff’s expert on his conclusions, thereby giving defendant not only the opportunity to point out erroneous conclusions, but also to argue that plaintiff’s expert drew erroneous conclusions from the data. Finally, plaintiff’s expert would not state that any of his suggested measures would have necessarily prevented decedent’s death and further admitted that the crime could have occurred at another location on defendant’s property. Any harm that may have resulted from plaintiff’s expert’s testimony was not so prejudicial as to require reversal, and we do not believe that the verdict was palpably erroneous or wholly unwarranted.

Defendant next argues that the trial court erred in overruling defendant’s objections to security guard Luekerath’s testimony and in allowing evidence that the gate guards were unarmed.

Whether evidence is relevant is within the discretion of the trial court and its determination will not be disturbed on review unless a reviewing court determines there has been an abuse of discretion. (Chladek v. Alton (1987), 161 Ill. App. 3d 884, 888, 515 N.E.2d 191, 194.) A review of the record in the instant case leads us to believe that the trial court did not abuse its discretion in allowing Luekerath’s testimony, including references that the gate guards were unarmed on the night of decedent’s death. Reasonably, an armed security guard would be more of a deterrent to criminal activity than an unarmed guard. Therefore, the question whether the guards were armed was relevant to the question whether defendant breached its duty of care to decedent, and the trial court did not err in allowing this testimony.

The next contention raised by defendant is that the trial court erred in permitting plaintiff’s expert to testify concerning the significance of a statement made by the guard, Luekerath, that he would be reluctant to approach someone on the parking lot if he did not have a gun.

Defendant contends that allowing plaintiff’s expert to testify concerning this statement constituted reversible error because the statement was not substantive evidence since it came from a deposition and there was no showing that it was the type of statement reasonably relied upon by experts in the security field. What defendant fails to consider, however, is that there was substantive evidence introduced at trial through Luekerath’s testimony that he would be reluctant to approach someone on the parking lot if he did not have a gun.

The record shows that during questioning of Luekerath by plaintiff’s attorney the following colloquy ensued:

“Q. Now, in May of 1981, did you go onto the parking lot?
A. No, I didn’t. I was to stay at my post.
Q. Was the possession of a firearm necessary in order to go on the parking lot?
A. No.
Q. You stopped going onto the parking lot after they took away your guns?
A. Yes. Could I elaborate on that?
Q. Sure.
A. We had—
MR. McDONNELL [Attorney for defendant]: Just a moment, your Honor. He has impeached him by bringing out testimony that he had a gun. Now, any questions as to what he would have done if he did not have a gun are, therefore, immaterial, have no relevance to any issues in this case.
MR. STERLING [Attorney for plaintiff]: Your Honor, I think that it is very imperative along the lines that we have discussed prior when we had the motion, the hearing on the motion in limine.
THE COURT: Rephrase your question, please.
Q. (by Mr. Sterling) All right. Is the possession of a firearm necessary in order to go out on the parking lot?
A. No.
Q. Do you remember, sir, when your Deposition was taken in this case on May 16,1985?
A. Yes.
Q. And you were placed under oath at that time?
A. Yes.
Q. And this is at page 11. Do you remember at line 10, do you remember the following question, ‘Why is the possession of a firearm necessary in order to go on the parking lot? Answer: Because you don’t know what they are going to have on the parking lot. A car that pulls in, a carload of people, and here I am, walk over. I have nothing but fists to fight them, and you say, “What are you doing on this parking lot?” They poke a gun in your face or something. When our patrolman and supervisor carries a gun, why should I go over and risk my life?’ Do you remember that question and that answer?
MR. McDONNELL: Your Honor, I object to this and move it be stricken as absolutely irrelevant to any issue in this case. He has just impeached him by showing that he had a gun on the night this killing occurred. Therefore, what he would have done without a gun is immaterial and has no bearing on the issues.
THE COURT: Overruled. You may answer.
Q. (by Mr. Sterling) Do you remember being asked that question and giving that answer?
A. Yes.
Q. Was that true at the time you gave it?
A. Yes.
Q. Is that still true today?
A. If I am going to go over and approach somebody that is breaking in a car, I would want some kind of a weapon. Our employees that go into that parking lot do not approach people breaking in cars or something. I would want some kind of protection if I was to do that.”

Clearly, Luekerath testified at trial that he would want to be armed with a gun before approaching anyone on the lot who was not supposed to be there. Therefore, defendant’s argument that there was no substantive evidence that security guards did not want to venture out on the parking lot without a gun is without merit.

Defendant also contends that the trial court erred in refusing defendant’s offer of proof of prior incidents of trespass on defendant’s property notwithstanding the existence of fencing. Defendant argues that it should have been allowed to rebut the inference created by plaintiff that if fencing had been erected, it could have prevented decedent’s death. Defendant wanted to introduce evidence of three prior incidents which had occurred on defendant’s property in areas where fences were erected. In two of these incidents, individuals had climbed over the fences and had been apprehended. In the third incident, an unidentified person had cut a hole in the fence. The trial court rejected the introduction of these three incidents because they were not in keeping with its prior in limine ruling limiting incidents to those involving theft, vandalism, and acts against persons on the lot in question. None of the incidents defendant attempted to introduce occurred on the lot in question.

We find no error in the trial court’s ruling that these incidents were beyond its motion in limine. While defendant is correct that when evidence of a particular matter is introduced, and a party will be unfairly prejudiced if not given the opportunity to respond to such testimony, generally a response must be permitted (Tromer v. Jones (1988), 121 Ill. 2d 211, 219, 520 N.E.2d 297, 301), defendant has not convinced us that it was prejudiced by not being allowed to introduce the evidence of these three prior incidents concerning fencing. As plaintiff points out in her brief, the first two incidents involved persons who had climbed a fence and had been apprehended. Therefore, the fence served its purpose in limiting access, as two people were caught in an area in which they were not supposed to be. Likewise, the third incident involving a hole being cut in the fence does not show that the fence did not limit access. Even though a hole was cut, there was no evidence that anyone actually crossed the fence line. While it is arguable that this evidence could have been admitted, we do not find that the trial court’s denial of it constituted reversible error.

The final issue raised by defendant is that the trial court committed reversible error in instructing the jury. Defendant specifically complains that the trial court erred in giving plaintiff’s instructions numbers 16, 18A, 22, and 26. The contested instructions read as follows:

Plaintiff’s instruction number 16:

“The defendant undertook the duty, by contract with its employees, to protect its employees while they were on the defendant’s property. To perform that duty, the defendant was obligated to use reasonable care to anticipate, and to protect the plaintiff’s decedent from criminal activity by third persons while the plaintiff’s decedent was on the defendant’s parking lots.”

Plaintiff’s instruction number 18A:

“The plaintiff alleges that it was the contractual duty of the defendant to guard and protect its employees while they were on the plant property and that this duty included an obligation by the defendant to anticipate and guard against the criminal activity of others.
The plaintiff claims that the defendant failed to exercise reasonable care in the performance of the defendant’s contractual duty in one or more of the following respects:
* * *
d. Failed to take sufficient steps to deny access to persons not authorized or invited to be on the parking lot.
or
e. Decreased the security of the plaintiff’s decedent by taking the hand guns away from the gate guards who guarded the entrance to the plant.”

Plaintiff’s instruction number 22:

“An employer may be held liable to its employee, for harm which the employee suffers as a result of a criminal attack upon him on the employer’s premises, if the employer’s negligence has permitted criminal acts by third persons on its premises and if the criminal acts were reasonable foreseeable.”

Plaintiff’s instruction number 26:

“It was the duty of the defendant to use ordinary care to provide the plaintiff’s decedent, George Vaughn, with a reasonably safe place in which to do his work. The plaintiff’s decedent, George Vaughn, should be considered as being at his place of work when he had parked on the defendant’s Nash Street parking lot in order to report for work as a hod carrier for the defendant.”

We have previously discussed the fact that defendant did, in fact, owe a duty to decedent and that plaintiff did present a theory under which she could recover. A careful review of the contested instructions shows that defendant is arguing that there was no duty owed by it to plaintiff’s decedent. Because we have previously found that defendant did owe a duty to the decedent, we find no reason to address each contested instruction separately, but find that, as a whole, the jury instructions were sufficiently clear so as not to mislead the jury and fairly and correctly stated the law. Kane v. Northwest Special Recreation Association (1987), 155 Ill. App. 3d 624, 508 N.E.2d 257, 261.

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

Affirmed.

RARICK, P.J., concurs.

JUSTICE HARRISON,

dissenting:

Under Illinois law, proximate cause is a term of art which encompasses the distinct concepts of cause in fact and legal cause. A plaintiff who fails to establish the first of these elements, cause in fact, has not sustained his burden of making a prima facie case in negligence. Cause in fact can be established only where there is a reasonable certainty that the defendant’s conduct caused the injury. If no facts are put forth by the plaintiff to show that the injuries sustained were caused or contributed to by an act or omission of the defendant, a judgment based on such evidence cannot be sustained. (Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 559-60, 490 N.E.2d 995, 999.) This is such a case. Defendant’s motion for judgment notwithstanding the verdict should have been granted.

In reaching a contrary conclusion, the majority applies the wrong standard for establishing proximate cause. The majority contends that plaintiff here was not, in fact, required to prove causation to a “reasonable certainty.” This is manifestly incorrect. The “reasonable certainty” standard has been uniformly followed in this district (141 Ill. App. 3d at 559-60, 490 N.E.2d at 999; Cornstubble v. Ford Motor Co. (1988) , 178 Ill. App. 3d 20, 34, 532 N.E.2d 884, 893) and elsewhere (see, e.g., N.W. v. Amalgamated Trust & Savings Bank (1st Dist. 1990), 196 Ill. App. 3d 1066, 1076, 554 N.E.2d 629, 637; Kennedy v. Joseph T. Ryerson & Sons, Inc. (1st Dist. 1989), 182 Ill. App. 3d 914, 919, 538 N.E.2d 748, 750; McCormick v. Maplehurst Winter Sports, Ltd. (2d Dist. 1988), 166 Ill. App. 3d 93, 98, 519 N.E.2d 469, 473; Lang v. B.I.T., Inc. (3d Dist. 1981), 96 Ill. App. 3d 37, 39, 420 N.E.2d 767, 769). While a lower threshold may suffice in medical malpractice actions, medical malpractice obviously has nothing to do with this litigation. The majority’s reliance on Hare v. Foster G. McGaw Hospital (1989) , 192 Ill. App. 3d 1031, 549 N.E.2d 778, is therefore completely misplaced.

The majority makes much of the fact that defendant’s expert witness conceded on cross-examination that additional security may have reduced the risk of harm to the decedent. This tentative conclusion, however, scarcely approaches the level of “reasonable certainty” necessary to establish proximate cause. In any case, I fail to see how it adds anything of value to the resolution of this appeal. There is no question that decedent, and everyone else on defendant’s premises for that matter, would have been safer, at least from certain perils under certain circumstances, if additional security measures had been implemented. To recover, however, plaintiff had to show more than just this. She needed to prove that one or more of the particular security deficiencies identified at trial caused or contributed to the specific circumstances that led to the decedent’s death.

This she could not do. No one at trial could substantiate the existence of the requisite causal link, and that link is scarcely self-evident. For example, plaintiff’s expert criticized the absence of fences and inadequate access control. But as the majority itself points out, if the decedent’s killer were one of his co-workers, the killer would have been authorized to be in the area, and no amount of fencing or additional access control may have prevented his confrontation with the decedent.

Improved lighting, surveillance, patrolling, and arming the guards likewise may have done absolutely no good. According to the record before us, their principal benefit apparently would have been deterrence. If, however, the decedent were killed in the heat of passion during an argument, nothing the defendant could have done would have deterred the killer. Deterrence, after all, depends on a considered appraisal of risk, and crimes of passion, by definition, are devoid of any sort of considered judgment.

Because there was absolutely no evidence, direct or otherwise, as to why or by whom the decedent was killed, and because the circumstances leading to the decedent’s shooting death are largely a mystery, each of these possibilities and many others are as likely to have taken place as any scenario offered by plaintiff. Any conclusion that defendant’s security deficiencies were linked in any way to decedent’s death would therefore be purely speculative. This is fatal to plaintiff’s case, for it is fundamental that in a negligence action the jury must base its decision on evidence, not on guess or speculation. Liability cannot be predicated upon surmise or conjecture as to the cause of the injury. Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 560, 490 N.E.2d 995, 999.

The circumstances before us closely parallel those in N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629, a recent decision by a unanimous panel of the Appellate Court, First District. In that case, a tenant brought a negligence action against the owners and manager of her apartment building to recover damages for injuries she sustained after an intruder broke into her apartment through the kitchen door and sexually assaulted her. The tenant argued that defendants should be held liable for this attack because (1) they failed to repair the lock on the building’s rear entrance, and (2) it was through this unlocked back door that the assailant was able to gain access to the tenant’s kitchen door prior to the assault.

The problem, as here, was that the identity of the assailant was completely unknown. There was no evidence that he was not simply another tenant, or a social guest of a tenant, who would have had access to the plaintiff’s kitchen door regardless of whether the rear entrance was locked. In the view of the appellate court, this defeated the tenant’s action, even assuming, for the sake of argument, that the assault was reasonably foreseeable or that defendants had, in fact, engaged in a voluntary undertaking to protect the tenant from criminal activity. According to the court:

“The only piece of evidence supporting the plaintiff on the issue of proximate cause is the fact that the lock was inoperable on the night of the attack and, hence, a mode of access to plaintiff’s apartment was available. From this the plaintiff infers that the assailant entered the building through the unlocked rear entrance. Such an inference would be quite reasonable but for the fact that access to the plaintiff’s kitchen door was also available to other tenants and their social guests. A mere possibility of a causal connection is insufficient to raise the requisite inference of fact.” (196 Ill. App. 3d at 1077, 554 N.E.2d at 637.)

The court therefore affirmed summary judgment in favor of defendants.

Although the present case is before us following a jury trial, not simply a summary judgment, the failure of proof on the question of proximate cause is no less complete. To affirm the jury’s verdict under the circumstances present here would be tantamount to holding that defendant must be an insurer of the safety of everyone lawfully on its premises. While I am naturally sympathetic to the decedent’s widow and his children, the law of this State will not countenance such a result. I therefore dissent.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY D. BROWN, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0752
    Opinion filed May 15, 1991.
    Rehearing denied July 2, 1991.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Sherri L.E. Tungate, State’s Attorney, of Louisville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

After the defendant, Jeffrey Brown, was convicted of the offense of burglary and sentenced to five years in the Department of Corrections, mittimus was stayed, and he was released on his own recognizance until November 2, 1988, when he was to report to the Clay County jail. Brown failed to appear, and a warrant was issued for his arrest on the charge of escape. Brown pled guilty to the escape charge and was sentenced to four years in the Department of Corrections to be served consecutively to the prior sentence for burglary.

The defendant filed a motion to withdraw his plea of guilty to the escape charge and to vacate the conviction, alleging that the trial court failed to properly admonish him of the consequences of his guilty plea in accordance -with Supreme Court Rule 402 (134 Ill. 2d R. 402). The motion was denied, and defendant appeals.

Rule 402 provides in part:

“In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;

(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and

(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.

(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary.” (134 Ill. 2d Rules 402(a), (b).)

The rule requires substantial, not literal, compliance with its provisions. (People v. Walker (1985), 109 Ill. 2d 484, 498, 488 N.E.2d 529, 535, cert, denied (1986), 479 U.S. 995, 93 L. Ed. 2d 598, 107 S. Ct. 598.) Substantial compliance, however, mandates more than the admonishment given by the trial court in this case.

The report of proceedings at the time the plea was taken includes the following exchange:

“THE COURT: Sir this is an open Plea. I have heard what the State is saying their maximum recommendation would be, but do you understand this is not a negotiated plea? In other words, the sentencing is in my discretion. If you entered [sic] this, you can be — you could be sentenced at a later date after we have a pre-sentence investigation report to anything up to and including the legal maximum as previously discussed with you. Do you understand that?
DEFENDANT: Yeah.
THE COURT: Do you have any questions about that at all?
DEFENDANT: No.
THE COURT: Okay. And have there been any promises made to you or threats to you that I haven’t heard about in order to obtain this signature on this document?
* * *
MR. MILONE [Defense Counsel]: Would only add for the record Your Honor, the State’s remarks about the consecutive part, Mr. Brown does understand the Statute is mandatory and that requires any sentence be consecutive with any underlying charges, so ***
* * *
THE COURT: All right. Can the State recite a factual basis for this escape charge?
MRS. TUNGATE [Prosecutor]: Yes, Your Honor. If called upon to prove Mr. Brown guilty beyond a reasonable doubt, we’d introduce testimony ***
THE COURT: All right. Is it still your intent, having heard that recitation, to enter this Plea of Guilty and Waiver of your right to Trial by Jury and also waive your right to preliminary hearing?
THE DEFENDANT: Yes.
THE COURT: All right. *** There are no guarantees. This is a Class 3 felony. The legal maximum which you are subjecting yourself to here as a possibility would include incarceration in the State Department of Corrections of between two and five years; a fine not to exceed $10,000; or combination of both period of incarceration in the DOC, plus fine. In addition, were you to receive penitentiary time, there would be a mandatory release — Class 3, is it one year?
* * *
THE COURT: All right. Sir if you are sentenced to penitentiary time in this case, after your release from the Department of Corrections, there would be a mandatory supervised release period *** You want to enter this Plea of Guilty and waive your right to trial by jury and waive your right to preliminary hearing?
* * *
THE COURT: All right. I’ll accept the Plea, I find it knowing and voluntarily made by Mr. Brown, find that there is a factual basis to support that Plea.”

It is clear from a review of the report of proceedings that Brown was not informed of the nature of the charge, nor was he admonished as to his right to plead not guilty or his right to be confronted with the witnesses against him. Brown was only cursorily admonished that if he pled guilty he would forfeit his right to a trial. In addition, we find merit to Brown’s argument that he was not properly advised of the mandatory consecutive minimum sentence he would receive as a result of his plea.

Any sentence imposed with regard to Brown’s escape charge was required to be served consecutively to the burglary sentence which he received. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(i).) At the outset of the hearing on the guilty plea the State advised the court in the presence of the defendant, “we would recommend no more than four years at sentencing hearing, that it would be consecutive recommendation to another charge which Mr. Brown is currently facing.” During the taking of the plea, the court admonished the defendant that the legal maximum penalty which could be imposed would be between two and five years. The court also admonished Brown that the sentencing is in the court’s discretion and that Brown could be sentenced “up to and including the legal maximum as previously discussed.” Defense counsel stated for the record that the defendant understood that the statute is mandatory and that any sentence he received would be consecutive with any of the underlying charges against him.

While defense counsel informed the court that the defendant was aware of the consecutive nature of the sentence and understood that fact, this does not amount to compliance with the requirements of Rule 402. (People v. Sutherland (1984), 128 Ill. App. 3d 415, 426, 470 N.E.2d 1210, 1218-19.) Similarly, an awareness of the possibility of receiving a consecutive sentence does not equate with an understanding that a consecutive sentence is mandatory. It is the defendant’s understanding which the rule seeks to ensure. (People v. Robinson (1976), 63 Ill. 2d 141, 145, 345 N.E.2d 465, 467.) The expressions by the trial court did not sufficiently inform the defendant that he was subject to a mandatory consecutive sentence. In fact, the court’s statements could conceivably have left the defendant with the impression that the maximum penalty to which he was subject on both the burglary and escape convictions was five years.

The purpose of the Rule 402 admonitions is to assure that the defendant fully understands what he is pleading to, what rights he is waiving by so pleading, and what the results of his action might be. (People v. Billops (1974), 16 Ill. App. 3d 892, 894, 307 N.E.2d 206, 208.) Rule 402 is in fact a rule of procedure and not a suggestion. It is incumbent upon the courts to follow it. (See People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.) In view of the totality of the Rule 402 deficiencies, we find that Brown’s guilty plea was not knowingly and understandingly entered. The defendant’s conviction is hereby vacated and this cause is remanded to allow Brown to plead anew.

Reversed and remanded.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE LEWIS

text:
    OLD BEN COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Clifford Frye, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5 — 90—0376WC
    Opinion filed May 16, 1991.
    Rehearing denied July 5, 1991.

      L. Robert Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellant.
    Harold B. Culley, Jr., of Culley & Associates, of Raleigh, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The employer, Old Ben Coal Company, appeals from the judgment of the circuit court confirming the decision of the Illinois Industrial Commission (hereafter referred to as the Commission). The Commission affirmed the decision of the arbitrator, which found the claimant, Clifford Frye, permanently and totally disabled pursuant to the terms of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36 et seq.) (hereafter referred to as the Act). The Commission found a causal relationship existing “between the exposure to the hazards of an occupational disease, coal dust, and [claimant’s] occupational disease of pneumoconiosis.”

The employer presents two issues for review: (1) whether the Commission should have denied claimant benefits on the basis of section 1(f) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36(f)), pertaining to the requirement that disablement must occur within two years after the last day of the last exposure to the hazards of the occupational disease, and (2) whether the decision of the Commission that the claimant is permanently and totally disabled as a result of occupational pneumoconiosis is against the manifest weight of the evidence. The claimant raises the issue whether the circuit court lacked subject matter jurisdiction because the employer’s written request for summons “neither named Clifford Frye as a party in interest, nor included his last known address as required by statute.”

In Illinois a circuit court’s jurisdiction to review a decision of the Commission is a special statutory power, limited by the statute’s provisions. (Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, 507 N.E.2d 878.) Section 19(f)(1) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.54(f)(1)) provides in pertinent part:

“A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission. The summons shall be issued by the clerk of such court upon written request returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons.”

The employer’s written request for summons, filed November 7, 1989, states as follows:

“TO THE CLERK OF THE COURT:
Please issue a summons to the Industrial Commission of Illinois to certify to this Court on or before January 16, 1990 the transcript of all proceedings, in the case of Clifford Frye v. Old Ben Coal Company, Industrial Commission No. 85— WC — 45230 (89 IIC 852). The Decision of the Industrial Commission was received by this Plaintiff or its attorney on November 1, 1989.
Also issue a Summons directed to Harold B. Culley, Jr. and Wayne R. Reynolds, Attorneys for Clifford Frye, returnable on January 16, 1990.
The name and last known address of the parties in interest and his attorneys of record are: ***.”

The employer then provided the names and last known addresses of the Commission, Wayne R. Reynolds, and Harold B. Culley, Jr. The employer’s attorney signed the request.

Summons was issued by the clerk of the court “TO EACH DEFENDANT” in the case, styled “OLD BEN COAL COMPANY, PLAINTIFF, -VS- INDUSTRIAL COMMISSION OF ILLINOIS, and CLIFFORD FRYE, DEFENDANT.” The request for summons was styled in the same way. The certificate signed by the clerk of the court states that a copy of the summons was mailed to the Commission and to Harold B. Culley, Jr., and Wayne R. Reynolds, whose addresses are included.

On December 12, 1989, the claimant’s attorneys, having entered their special and limited appearance on behalf of the claimant, moved to quash the return of service upon them, asking that the matter be dismissed with prejudice for lack of jurisdiction. The motion stated that the claimant had not been designated as a party in interest and his last known address was not listed and that the clerk of the court had not issued a summons directed to claimant. The motion stated further that “service of Summons on said attorney is not service on CLIFFORD FRYE for the reason that CLIFFORD FRYE was not designated as a party in interest nor was his last known address listed.”

The circuit court denied the claimant’s motion to quash, noting that “the request for summons names the Industrial Commission and ‘Harold B. Culley, Jr. and Wayne R. Reynolds, attorneys for Clifford Frye,’ setting forth the addresses of Culley and Reynolds.” The circuit court observed further that

“[i]n this case, the clerk evidently understood the summons sufficiently that a summons was addressed ‘to each defendant.’ The caption named, as defendants, Industrial Commission of Illinois and Clifford Frye.
While, ordinarily, the case caption would add nothing to the complaint or pleading, of which it was a part in this regard, the request for summons itself is the critical document and Clifford Frye is named in the body of the request twice and in the caption once, and the certificate of service by the clerk names Culley and Reynolds as attorneys of record.
It would seem, therefore, under the rule, that Clifford Frye has received the notice required by the statutory scheme.”

The court stated further that the record shows claimant’s attorneys received the notice and that they must have done so in their capacity as attorneys for a party, namely, the claimant.

On review the claimant takes the position that because the employer failed to comply strictly with the requirements of section 1 of the Act with respect to the contents of the request for summons, the circuit court lacked jurisdiction to entertain the appeal. The employer relies upon Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, 507 N.E.2d 878, and argues that, like the appellant in Chadwick, it provided sufficient information for the clerk to notify the employee and his attorneys of the pending appeal properly. The employer argues further that, as in Chadwick, there is no indication or suggestion here that the employee has been prejudiced in any way as a result of the employer’s failure to include the employee’s address in the request for summons.

In Chadwick we decided that a motion to quash had been improperly granted where the claimant’s written request for summons substantially complied with the requirement of section 19(f)(1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(1)). The claimant in Chadwick sought review of the Commission’s decision in the circuit court, which granted the respondent’s motion to quash, finding that it did not have jurisdiction to hear the cause because the claimant had failed to comply strictly with section 19(f)(1). The written request for review included a praecipe for a writ of certiorari and a writ of scire facias, a certificate of mailing, a writ of certiorari and a writ of scire facias. In the praecipe, the respondent was named as a party in interest, but its address was not given. The praecipe gave the name and address of the respondent’s attorney of record, however, and the respondent’s name and address were listed on the certificate of mailing. In determining whether a praecipe or written request is sufficient where only the name and not the address of the party in interest is listed, we considered the observation of the supreme court in Republic Steel v. Industrial Comm’n (1964), 30 Ill. 2d 311, 196 N.E.2d 654, that the tendency of the courts has been to simplify procedure, to honor substance over form, and to prevent technicalities from depriving a party of the right to be heard. We concluded in Chadwick that, although the claimant had not complied strictly with the requirement of section 19(f)(1) that the praecipe list the last known address of the party in interest, she had given sufficient information in the praecipe and the certificate of mailing for the clerk properly to have notified the respondent and its attorney of the pending appeal. “Most significantly,” we said, “the respondent has not shown that it was in any way prejudiced by the missing address.” (Chadwick, 154 Ill. App. 3d at 862-63, 507 N.E.2d at 881.) Because the claimant’s praecipe complied substantially with the material provisions of section 19(f)(1), we reversed the order quashing the writs.

Recently, in Advance Transportation Co. v. Industrial Comm’n (1990), 202 Ill. App. 3d 449, 559 N.E.2d 1038, we considered the issue whether a respondent’s failure to designate the return date on the request for summons prevents a circuit court from obtaining subject matter jurisdiction over the case. There we concluded that, taken in toto, the facts demonstrated that respondent had complied sufficiently with section 19(f)(1) of the Workers’ Compensation Act so that the claimants and their attorney had been properly notified of the pending appeal. In Advance we distinguished the recent case of Whitmer v. Industrial Comm’n (1989), 187 Ill. App. 3d 409, 549 N.E.2d 353, in which the claimant had failed to file a written request for summons. In Whitmer we reasoned that the written request in Chadwick had been imperfectly completed as opposed to the claimant’s failure in Whitmer to file a written request. The respondent in Advance, we observed, like the claimant in Chadwick, had submitted an incomplete written request for summons rather than no request at all. We concluded that the respondent in Advance was in substantial compliance with section 19(f)(1) despite its failure to designate a return date on the request for summons.

In the further case of Luttrell v. Industrial Comm’n (1987), 154 Ill. App. 3d 943, 507 N.E.2d 533, the claimant filed for review on outdated forms after section 19(f)(1) had been amended by the legislature to require the use of summons instead of praecipes and writs. We determined that mere use of incorrect forms did not deprive the circuit court of subject matter jurisdiction because there was no significant distinction between a written request for summons and a praecipe. In Whitmer we noted that neither Luttrell nor Chadwick was analogous to the situation in Whitmer since in both Luttrell and Chadwick written requests, although imperfectly drawn, were actually filed, whereas in Whitmer no written request was filed at all.

In the instant case, as in Chadwick and in Advance, the employer provided in its request for summons sufficient information for the clerk properly to notify claimant and his attorneys of the pending appeal. Further, and significantly, claimant has shown no prejudice as a consequence of the employer’s omission. The respondent here, like the parties making a written request for summons in both Chadwick and Advance, submitted an incomplete written request rather than none at all. Under all of these circumstances the respondent appears to have been in substantial compliance with the material provisions of section 1 of the Act. Thus, the circuit court did not lack subject matter jurisdiction over the cause of action, and it properly denied the claimant’s motion to quash.

At the hearing before the arbitrator conducted on April 19, 1988, the claimant testified that he was born on August 26, 1923, and last worked as a coal miner on July 16, 1982, when he was exposed to and breathed coal dust. On that date he had worked 39 years and about 10 months as a coal miner, all but three years of which he had worked underground. He had worked “[ejvery job,” he said, “from laborer to mine superintendent.” He had worked for the employer from March 17, 1975, until July 16, 1982. During that time he had worked underground as an “assistant mine manager.” He described the position as “section boss at the face, preparation boss at the face, production boss at the face.” He had been exposed to coal dust “[r]eal bad,” so that “sometimes you couldn’t see a light six (6) inches from your head, real bad, continuous miner.” He described the large amount of dust created by the cutter wheels of the continuous mining machine cutting at the face, where he worked. Asked why he had stopped working on July 16, 1982, the claimant answered, “Disabled.” He stated, “The last two (2) years I worked, this job was getting so hard to do I just almost couldn’t do it,” in part, because of the amount of walking required. “[T]he job got real hard to do,” he said,

“and the last [on July 16, 1982], I was working second shift and the last shift I worked when I come home, I just couldn’t breath [sic]. I mean, I just couldn’t, I couldn’t breath [sic]. So I, I didn’t work on the Saturday. That was on a Friday night. So on the Monday, I went to the doctor. They sent me for breathing tests and x-rays and all this deal you go through with and the doctor recommended then that I quit mining.”

He testified that his breathing problems have become worse since he stopped working, stating, “I can’t walk to that door over there.” He had smoked cigarettes at the rate of approximately a pack a day for about 35 years.

The evidence deposition of Dr. Penny Tippy, formerly Dr. Patton, taken on behalf of the claimant on September 9, 1987, was admitted into evidence. Dr. Tippy, a family practitioner, began to treat the claimant on July 20, 1978. She first treated him for a respiratory problem, namely, chronic bronchitis, on October 5, 1978. An X ray taken in November of 1979 demonstrated pulmonary fibrosis, which she described as “[f]ibrotic changes around the middle of each lung field.” An X ray taken in July of 1982 demonstrated chronic obstructive pulmonary disease, which the witness described as “a disease in which the patient can’t get enough oxygen and can’t breathe out the carbon dioxide.”

The results of pulmonary function studies performed on December 17, 1979, revealed “[significant obstructive and restrictive lung disease with moderate improvement following bronchial dilators.” “Restrictive,” the witness said, “is you can’t breathe in; obstructive is you can’t get it out.” Subsequent pulmonary function studies performed on July 27, 1982, and May 10, 1985, had the same findings, which were abnormal and consistent with chronic obstructive lung disease. The witness characterized the results of the claimant’s pulmonary function studies as “[s]evere, but primarily I base that on what the pulmonologist tells me he reads.” An arterial blood gas study performed in March of 1985 revealed abnormal values consistent with chronic obstructive lung disease.

Pertinent physical findings of the witness were: “[Generally has an increase in the A/P diameter of his chest, which is consistent with chronic obstructive lung disease. He usually has rhonchi and some wheezing, and that varies from visit to visit.” The claimant’s history of smoking was 35 to 40 pack-years or about a pack per day for 35 years until 1982, when it was reduced to about a half a pack per day or less.

The witness considered a history of smoking 35 years significant and a history of exposure to coal dust for 35 years significant. She testified that, based upon a reasonable degree of medical certainty, the claimant has emphysema, chronic bronchitis, and pneumoconiosis. She described the pneumoconiosis as secondary to coal mining and the chronic obstructive lung disease as secondary to coal mining and smoking. In her diagnosis, she said, coal workers’ pneumoconiosis is “an element of chronic obstructive pulmonary disease along with chronic obstructive bronchitis and emphysema.” She testified further that the claimant is impaired as a result of his respiratory distress and that his impairment would preclude him from being gainfully employed as a coal miner. In her opinion claimant is disabled from working as a coal miner. The inhalation of coal dust will, she said, cause emphysema and chronic bronchitis and will aggravate both of these conditions. In her opinion continued inhalation of coal dust would be injurious to the claimant’s health. She described coal workers’ pneumoconiosis as a chronic, irreversible lung disease with no known cure. Asked, “What is the best treatment for coal workers’ pneumoconiosis?” she answered, “Get them out of the coal dust.” Since he stopped working as a coal miner in the summer of 1982, claimant has had “no infection”; prior to that time treatment with antibiotics had been necessary for a bronchitis infection. The witness was not able to “quantify” the contribution of each of the three conditions from which the claimant suffers, namely, emphysema, chronic bronchitis, and coal workers’ pneumoconiosis, to his respiratory distress.

On cross-examination she testified that emphysema and bronchitis are sometimes referred to as “smoker’s disease” because the inhalation of smoke can cause inflammation leading to bronchitis or emphysema; a person could have these conditions and never have been around a coal mine. Smoking, she said, can make chronic obstructive lung disease “worse faster.” On redirect examination she stated that nonsmokers can have emphysema and that the claimant has both emphysema and coal workers’ pneumoconiosis, the latter of which was causéd by the inhalation of coal dust.

The evidence deposition of Dr. P.B. Sanjabi taken on behalf of the claimant on August 28, 1988, was also admitted into evidence. Dr. Sanjabi’s practice consists primarily of pulmonary medicine. In his practice he treats miners who are affected with coal workers’ pneumoconiosis. He had examined the claimant in September and October of 1981, and in February of 1986. He saw the claimant in September of 1981, upon a referral from Dr. Patton, because of complaints of shortness of breath, cough, and sputum production. A pulmonary function test was performed, medications were prescribed and instructions were given. Concerning a diagnosis at that time, the witness stated, “Basically we were worried about chronic obstructive lung disease at that time in general.” When he saw the claimant in October of 1981, he had stopped smoking.

When the witness saw claimant next, on February 17, 1986, the claimant’s main complaint was shortness of breath:

“[W]hen we tried to quantify the level of shortness of breath it was stressed that he cannot walk more than half a block on a level surface without getting dyspneic, short of breath. He also stated that he had shortness of breath when he does his daily routine work and simple things such as taking a shower or grooming himself.”

Dr. Sanjabi testified that the claimant had a history of smoking of about 40 pack-years “altogether” and of working under ground in a coal mine “over 39 years”; he considered this history significant. He described the claimant’s chest shape as “abnormal somewhat” with an “increased anterior posterior diameter.” There was a “general decrease” in the expansion of the chest. In clinical measurement of expiratory time, the claimant took 13 or 14 seconds to take a deep breath and force the air out of his lungs, whereas a normal person usually takes less than three seconds to do so. The general finding of the pulmonary function test was, he said, “very much in keeping with obstructive pattern of severe degree.” He had concluded, he testified, that “this pulmonary function test was compatible with severe obstructive pattern.” In an X ray taken on April 22, 1985, which the claimant had brought with him, Dr. Sanjabi had noticed “alveolar interstitial changes bilaterally which were compatible or suggestive of coal worker’s pneumoconiosis.” In the X ray Dr. Sanjabi also noticed “scarring and emphysematous changes.”

Comparing the results of “arteriole” blood gas studies performed by others upon the claimant, Dr. Sanjabi testified that there was “considerable change” between two such studies, performed in March of 1983 and in May of 1985. He found that “the exercise blood gases are abnormal in 1983” and that the subsequent test in 1985 revealed “a totally abnormal blood gases. It is quite a change as compared to two years ago. Both in resting and with exercise the abnormalities are significant.”

In the opinion of Dr. Sanjabi the claimant suffered from coal workers’ pneumoconiosis caused by his having “worked 40 years in the coal mines.” In his opinion the claimant suffers from a “[s]evere” respiratory impairment. In his further opinion coal workers’ pneumoconiosis was “a contributing factor” in the claimant’s respiratory impairment. Describing coal workers’ pneumoconiosis as an incurable, irreversible chronic lung disease, he discussed the best treatment for the disease:

“We recommend to people with a significant degree of coal workers’ pneumoconiosis to avoid exposure to respirable particles and we also give them bronchodilators of different kinds, if necessary, and try to prevent deterioration.”

In the opinion of Dr. Sanjabi, the inhalation by claimant of coal dust would aggravate that condition. Given the degree of claimant’s respiratory distress, the witness doubted that he could be gainfully employed as a coal miner.

On cross-examination Dr. Sanjabi indicated that emphysema and bronchitis are two of the several diseases comprising the category of obstructive lung disease. The diseases that Dr. Sanjabi had found relative to the claimant’s obstructive lung disease were emphysema and coal workers’ pneumoconiosis. He testified that in a letter of February 17, 1986, he had stated that the claimant had a “mild, simple pneumoconiosis,” which, he testified, is not, in itself, indicative of any disability. Smoking would, he said, enhance the problem of pneumoconiosis: “By theory it should enhance the problem because the smoking effects the cleansing system of the lung and the coal dust is cleared by this system. One can say that it would enhance the problem.” A person with a long smoking history would be more apt to acquire pneumoconiosis, and smoking by a person who had acquired pneumoconiosis would aggravate the condition.

On redirect examination the witness distinguished simple pneumoconiosis from complicated pneumoconiosis, which he described as “progressive massive fibrosis.” Simple pneumoconiosis, however, can produce severe lung impairment. The claimant suffers from three lung diseases, namely, chronic bronchitis, emphysema, and coal workers’ pneumoconiosis, which are “contributing factors” to his “severe obstructive pattern.” The witness was unable to “quantify” the percentage that each disease contributed to claimant’s overall respiratory difficulties, stating, “There is no way to go in there and say in this man so many percentage is coming from this or so many percentage is coming from that. There is no conceivable possible way to do that.” He expressed the opinion that the claimant’s coal workers’ pneumoconiosis is a “contributing factor” to his severe, advanced, chronic obstructive pulmonary disease.

The evidence deposition of Dr. Jeffrey W. Selby, taken on behalf of the employer on January 26, 1988, was admitted into evidence. Dr. Selby, a pulmonary specialist, board certified in internal medicine and pulmonary medicine, had examined the claimant for the employer on May 10, 1985. He described pneumoconiosis as “a condition resulting in scarring and dysfunction of the lung as a result of inhaled dust.” He testified that a chest X ray taken the day of the examination revealed “a mild interstitial pattern of rounded opacities; no large opacities or hilar calcifications noted.” To the witness the fact that some small but no large opacities were seen indicated “that probably it could be looked upon as a degree of pneumoconiosis.” He explained that

“[i]f there are large opacities that are thought due to pneumoconiosis, it usually requires a very significant exposure and a very significant reaction in the lungs to get a large opacity. Small opacities are usually associated with very minimal exposure or very minimal reaction of the lungs to the exposure.”

The witness thought that the pneumoconiosis suffered by the claimant was “an extremely mild form” of the disease. He thought that “there was enough abnormality to term this a 0/1, p/p classification under the ILO Standards,” which he explained as follows:

“Well, that gets kind of technical, but it would indicate that the small opacities are of the smallest size of opacities — being three different classifications of small opacities, and that it was of very minimal profusion, which means the actual volume of opacities in the lung fields, and, for example, 0/0 would be normal chest X-ray; 3/3 would be the very worst, and this was towards the very minimal end of the spectrum.”

He stated, “I think significantly the X-rays showed evidence of chronic obstructive pulmonary disease,” which he described as “a very common condition, for example, just to make it simple, emphysema and asthma and chronic bronchitis are the main players in chronic obstructive pulmonary disease.”

The witness stated his general impression of what pulmonary function studies, which were performed at the time of the examination, revealed:

“I think that these studies were consistent with a severe degree of obstruction that was partially reversible by a broncho-dilator, where the patient inhaled a bronchodilator and then the test reperformed; that they showed a mild degree of restrictive defect based on the lung volumes, and they showed a severe decrease in diffusion capacity. And this indicated to me that the patient was not fully bronchodilated; that perhaps he was being suboptimally treated for his reversible airways obstruction, which I’ll term asthma. And that he had a great degree of emphysema based on the pattern of the pulmonary function test, and also based on the abnormal diffusion capacity, which quite commonly is decreased in emphysema.”

The witness had reached the following conclusions concerning the claimant’s health:

“I thought that Mr. Frye had an overwhelming amount of pulmonary impairment or abnormality. I thought that this was almost entirely due to a combination of emphysema and asthma; that the emphysema was entirely due to his cigarette smoking and perhaps his genetic make-up; that his asthma was entirely due to his genetic make-up and whatever environmental factors may have been involved; that his asthma was not being optimally treated; that he also had some pulmonary impairment from a recent probable viral and/or bacterial bronchitis that could have played a significant role in his worsening at the time of this evaluation; that he had exercise induced bronchospasm, that was brought forth during the exercise test; and that he had a chest X-ray that was not entirely normal, but that was very minimally abnormal that was consistent with inhaled dust in his past, and that I thought that that was playing a very minimal, if any, significant role in his pathophysiology of shortness of breath.”

On cross-examination the witness testified that the claimant has a “severe pulmonary abnormality.” He expressed the view that the continued inhalation of coal dust by the claimant was “not very likely to play a major role in aggravating” the emphysema from which he suffers. He stated that coal workers’ pneumoconiosis “could” be a component of the claimant’s chronic obstructive pulmonary disease. Dr. Selby testified that he and Dr. Eugene Hendershot, a board-certified radiologist, had a “[mjinor disagreement” in their interpretations of the X ray taken on May 10, 1985, which Dr. Hendershot read as “positive for pneumoconiosis.” The witness stated that “[a]t the time” he had disagreed with Dr. Hendershot’s assessment. Dr. Selby had assessed the degree of profusion to be less than that determined by Dr. Hendershot, which was “1/1.” Included in the record is the employer’s evidence deposition exhibit No. 2, which bears Dr. Hendershot’s impression of the X ray: “Pulmonary fibrosis and emphysema. Evidence of pneumoconiosis.” The witness testified that if he were the claimant’s primary health care physician, he would not recommend that he not be exposed to a dusty environment “until I had the opportunity to optimally treat him, and decide that I could not make him better by proper bronchodilators, etc.”

No additional evidence was presented on review before the Commission, which, in its decision dated October 27, 1989, affirming that of the arbitrator, found, in part, as follows:

“9. The Commission finds, consistent with the Illinois Workers’ Occupational Disease Act, that since the [claimant] worked in one or more coal mines for a period of 10 years or more, there is a rebuttable presumption that his pneumoconiosis arose out of such employment. [The employer] failed to rebut this presumption.
10. The Commission relies on the opinions and/or admissions of Drs. Tippy, Sansabi [sic][,] Hendershot[,] and Selby, in finding a causal relationship exists between the exposure to the hazards of an occupational disease, coal dust, and [claimant’s] occupational disease of pneumoconiosis and need for medical services. The Commission assigns the most weight to the medical opinion of Dr. Tippy. The Commission further finds that there is no competent and compelling evidence that the [claimant’s] condition is not work related.”

The Commission found further that the claimant is totally disabled and unable to perform any services without seriously endangering his health or life, except those that are so limited in quantity, dependability or quality, that there is no reasonable stable market for them. In reaching this finding the Commission considered the claimant’s age, physical condition, experience, and education.

It is the function of the Commission to resolve disputed questions of fact, including those of causal connection, to decide which of conflicting medical views is to be accepted and to draw permissible inferences. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.) In the presence of conflicting medical opinion, the Commission’s determination is given substantial deference and will be upheld unless it is contrary to the manifest weight of the evidence. (Material Service Corp., 97 Ill. 2d 382, 454 N.E.2d 655.) The Commission is the judge of the credibility of witnesses. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 454 N.E.2d 252.) It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963; Dunker v. Industrial Comm’n (1984), 126 Ill. App. 3d 349, 466 N.E.2d 1255.) A reviewing court should neither overturn the Commission’s findings simply because a different inference could be drawn nor otherwise substitute its judgment for that of the Commission. Hoegger v. Industrial Comm’n (1987), 158 Ill. App. 3d 1025, 512 N.E.2d 110.

An accidental injury arises out of and in the course of employment if some act or phase of the employment was a causative factor in the ensuing injury; the claimant need not prove that it was the sole causative factor but only that it was a causative factor in the resulting injury. (Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 427 N.E.2d 103.) An employee is totally and permanently disabled when he is unable to make some contribution to the work force sufficient to justify the payment of wages. (Interlake, 86 Ill. 2d 168, 427 N.E.2d 103.) However, an employee is not required to demonstrate total incapacity or helplessness before a permanent total disability award may be granted. (Interlake, 86 Ill. 2d 168, 427 N.E.2d 103.) A claimant is totally disabled when he cannot perform any services except those that are so limited in quantity, dependability, or quality that there is no reasonably stable market for them; conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering his health or life, he is not entitled to total and permanent disability compensation. Interlake, 86 Ill. 2d 168, 427 N.E.2d 103.

In the instant case the record shows that it was not against the manifest weight of the evidence for the Commission to have found the claimant permanently and totally disabled as a result of occupational pneumoconiosis. The testimony of the claimant, whom the Commission expressly found to be “highly credible,” together with that of Drs. Tippy and Sanjabi, supports such a finding. Even the testimony of Dr. Selby, particularly upon cross-examination, supports such a result. Drs. Tippy and Sanjabi clearly indicate that the pneumoconiosis suffered by the claimant was caused by exposure to coal dust during the course of his employment as a coal miner and is a contributing factor to the severe respiratory impairment and consequent disability he experiences. The Commission was entitled to rely upon this evidence, and its decision, contrary to the employer’s assertions, was not erroneous.

The employer maintains that the claimant failed to prove that the disablement occurred within two years after the last day of the last exposure to the hazards of the occupational disease, as required by section 1(f) of the Act. However, the testimony of the claimant taken together with that of Dr. Tippy, in particular, reveals that he was, in fact, disabled when he last worked on July 16, 1982. He testified to the increasing difficulties he had experienced on the job for two years prior to ceasing work, to the inability to breathe when he returned home from work on July 16, 1982, and to the advice of his physician within three days thereafter that he “quit mining” as a result of his condition. The testimony of Dr. Tippy corroborated claimant’s statements concerning his condition at that time and thereafter. If anything, claimant’s condition has become worse since that time. The position of the employer is not borne out by the record.

The judgment of the circuit court confirming the decision of the Commission should be affirmed.

Affirmed.

McCULLOUGH, P.J., and McNAMARA, WOODWARD, and STOUDER, JJ., concur.