author: JUSTICE NICKELS

text:
    LYNN HEALY, Plaintiff-Appellant, v. BEARCO MANAGEMENT, INC., et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0687
    Opinion filed July 26,1991.
    — Rehearing denied September 6,1991.

      Aldo E. Botti, of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook (Marian H. Donohue, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and Thomas A. Brabec and D. Kendall Griffith, both of Hinshaw & Culbertson, of Chicago (Robert G. Black, of counsel), for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

This appeal arises from a personal injury action filed by plaintiff, Lynn Healy, on August 10, 1983, against Bearco Management, Inc., Bear & Sons, Inc., and McDonald’s Corporation, in the circuit court of Kane County. Plaintiff alleged that she fell on a wet floor as she exited a McDonald’s restaurant in Elgin, Illinois, on December 1, 1982, due to defendants’ negligence, and as a result she sustained severe and permanent back injuries. Prior to trial the parties stipulated to dismiss McDonald’s as a defendant, and at the close of the evidence following the trial, Bearco was granted a directed verdict. The jury found in plaintiff’s favor and against Bear & Sons, Inc., hereinafter defendant, in the amount of $120,767.31. This award was then reduced 90% by the jury due to plaintiff’s contributory negligence. Plaintiff raises several issues on appeal.

Gerald Bear, owner of the McDonald’s, testified as an adverse witness. Describing the physical layout of the restaurant on December 1, 1982, Bear said that there was an east and a west entrance from the outside to the lobby. The lobby had east and west entrances into the dining area which consisted of an L-shaped center section, an east and a west section. The west section was one step down from the center section. The center section could be reached from the east or west.

According to an accident report, plaintiff slipped on a wet floor which was recently mopped and twisted her back about 4:10 p.m. on December 1, 1982. Bear testified that the tile floor was slippery when wet and that a yellow caution sign was put out to warn that the floor was wet. Bear was not there, and he did not know whether the sign was displayed at the time.

Bear also testified that the bucket used to mop the floor had a cautionary sign on it. Although the tile floor had a smooth, flat surface, the tile appeared glazed and shiny when wet which was obvious to the eye. However, Bear said that a cautionary sign was still needed.

Marlene Bratthauer, plaintiff’s sister-in-law, testified that she, plaintiff’s husband, and plaintiff, entered the restaurant through the west door and sat in the center section to eat. She saw an employee mopping the western section when they entered the restaurant. Bratthauer then noticed an employee mopping the north portion of the center section while they ate and they made small talk with her. When they left the restaurant they walked through the western section. There were no warning signs indicating that the floor was wet, and no one told them that the floor was wet. Plaintiff fell and then Bratthauer noticed the floor was wet. Plaintiff’s coat was wet and dirty. Plaintiff’s and plaintiff’s husband’s testimony corroborated this account of the occurrence.

Plaintiff’s husband, John Healy, testified that he married plaintiff in June 1979 and that she was in perfect health. Prior to the fall, plaintiff worked full time as a real estate agent, did the housework, yard work, took care of the children and jogged five miles a day. She obtained a broker’s license and opened her own business in February 1981. Plaintiff also purchased houses for investment and renovated them through subcontractors and her own labor. Subsequent to the fall, plaintiff could not do any of her former activities.

After the fall, plaintiff was in the hospital for five weeks. Upon returning home, plaintiff remained in bed most of the time and had to walk with a cane. She went back to the hospital about two months later for about seven weeks. She was home again for about seven months during which time she was in constant pain. She had difficulty sleeping, could not run and could not work. In 1984 she went to Marianjoy Rehabilitation Center in Wheaton, Illinois (Marianjoy), for treatment of her severe pain and stayed seven weeks. In 1985, she returned to Marianjoy because of the pain. In June or July 1989, she went into the hospital again.

Dr. Geraldine Holub testified that she was a psychologist and worked with chronic-pain patients. Chronic pain lasted longer than six months and interfered with all aspects of a person’s life. She first saw plaintiff on April 22, 1985, and plaintiff had been diagnosed as having arachnoiditis, which was an inflammation of the coating surrounding the spinal cord called arachnoid.

Holub diagnosed plaintiff as having adjustment disorder with depressed mood. An adjustment disorder was how a person reacted to stresses or stressors in life. A person with chronic pain found it difficult to manage stress. Holub said that plaintiff’s original major stress was chronic pain and then other stressors were added to her life. The pain caused the adjustment reaction.

Her prognosis was that plaintiff would function at a higher level than at present with the pain under control. Although the chronic pain may continue, plaintiff’s adjustment disorder hopefully would not. In her professional opinion Holub said that the fall on December 1, 1982, could have caused plaintiff’s adjustment disorder with depressed mood. Holub was professionally and personally certain that plaintiff was not faking pain or using pain to gain sympathy.

During cross-examination, Holub explained that adjustment disorder related to the fact that when there was a stressor in plaintiff’s life it would contribute to more physical pain or alternately make plaintiff unable to cope with the pain she had. Pain could increase in part of plaintiff’s body due to the stressor, but this was not due to somatization. Somatization was described as a personality trait whereby a person experienced emotional problems or stressors through a physical symptom such as pain. There was no organic cause for the pain, but the person experienced it as a result of somatizing.

Holub was then questioned about post-accident stressors in plaintiff’s life which exacerbated her chronic pain condition. Holub also described a psychological concept called secondary gain whereby a person had an advantage accruing to her subsequent to an illness or accident which played a part in creating or perpetuating some type of neurosis. Secondary gain could occur where there was a lawsuit and the possibility of a person being compensated at the end led to the development of physical symptoms which were not due to organic circumstances. Plaintiff did not have secondary gain in Holub’s opinion.

Eleanor Supernau, a psychiatric social worker at Marianjoy, had worked with plaintiff’s pain management in 1983, 1984, 1985 and 1988. Plaintiff had made progress in her therapy by the time she was discharged in January 1984 and February 1988.

Martha Kretzschmar, a physical therapist at Marianjoy, treated plaintiff in 1984 and 1988. Plaintiff made progress through physical therapy. The therapist’s observations of plaintiff led her to conclude that plaintiff was in pain. Kretzschmar had indicated on reports that plaintiff’s pain was minimal.

Dr. Mark Lupton, a neurologist, began treating plaintiff in 1983. He diagnosed her condition as arachnoiditis which caused chronic pain syndrome. Arachnoiditis developed in some cases where dye from a myelogram remained in the spine. Plaintiff had a myelogram in the 1960s in England, where it was common not to remove the dye. Lupton opined that plaintiff’s condition remained dormant until her fall, which caused the arachnoiditis to become symptomatic.

Lupton stated that some of plaintiffs symptoms could be due to psychological components while some were inconsistent with arachnoiditis. A test referred to as a “Babinski,” after its creator, indicated plaintiffs problem was not psychological. He believed plaintiff had elements of depression and somatization, but there was overwhelming evidence of a neurological basis for her problems. His prognosis was that plaintiff would lead a limited life, probably not return to real estate work, and would require medical care and therapy from time to time. The arachnoiditis and the chronic pain were permanent conditions.

Dr. T.G. Limberis, plaintiff’s family physician, testified that he saw plaintiff in June 1980 for low back and neck pain brought on by wallpapering and diagnosed lumbar strain. He saw plaintiff in November 1980 for low-neck pain which he diagnosed as muscular. On cross-examination, Limberis’ deposition showed that he could not recall what caused plaintiff’s problem in June 1980 but testified that he was reminded by plaintiff during her recent visit. Although a nurse noted soreness under the right arm and side of the breast in January 1979, Limberis found breast pain.

Dr. Valentino Menis testified that he was the director of the chronic pain program at Marianjoy and first saw plaintiff on December 28, 1983, when she was admitted. After her stay at Marianjoy plaintiff’s condition improved. Menis stated that pain was a totally subjective experience.

Menis found negative “Babinskis” in examining plaintiff which meant that plaintiff had normal functioning of the brain and spinal cord. Menis explained the only significance of the negative Babinski was that plaintiff did not have central nervous system disease.

Plaintiff presented the testimony of six witnesses who testified regarding the many activities of plaintiff prior to her fall and her limited abilities following the fall. Plaintiff’s 23-year-old daughter, Donna Van Nurden, her 19-year-old son, Keith Van Nurden, stepdaughter, Stephanie Healy, John Healy’s former wife, Carol Tweedie, Dorothy Koon and Joel Lerner testified for plaintiff regarding plaintiff’s activities.

Plaintiff called Dr. Sheldon Greenburg, a psychiatrist, who made an evaluation of plaintiff in July 1989. He diagnosed plaintiff as having a “depressive disorder, not otherwise specified,” in that she was having significant symptoms of despair, depression and psychological anguish caused by a demonstrative physical cause. Plaintiff’s pain was consistent with arachnoiditis. The depressed disorder resulted from the inability to function as she did before the fall. Greenburg did not believe plaintiff had somatoform pain disorder because of her past history. Plaintiff would have had this disorder prior to the occurrence. Greenburg defined somatoform as a preoccupation with pain in the absence of adequate physical findings to account for the pain or its intensity. Greenburg said that plaintiff was not malingering to gain money but was trying to improve.

He found, contrary to Dr. Cavanaugh, that plaintiff did suffer from psychiatric illness as a result of the fall. She suffered significant despair, depression and feelings of hopelessness. She did not somatize and did not have secondary gain.

Doris Whittaker, a tax preparer for H & R Block, had prepared plaintiff’s tax forms from 1979 until the present. She testified that the gross income for plaintiff in 1979 was $29,383; in 1980 $51,844; in 1981 $170,577; in 1982 $83,529; and in 1983 $79,523. She did not determine gross income for 1984 or 1985; however, Whittaker said that plaintiff had no income from sales of real estate in those years. During cross-examination Whittaker explained that income from plaintiff’s job as a real estate agent in 1979 was $4,258.34 (less $1,804.56 in deductions); in 1980 it was $1,047.50 (less $660.25); in 1981 it was $6,942.50 (less $13,081.97); and in 1982 it was $35,684 (less $29,909.21). Plaintiff earned no money as an agent in 1983.

Plaintiff testified on her own behalf and related her personal history. She was born in England and studied to be a nurse. In December 1968 she was in a car accident where three others were killed. Plaintiff was hospitalized for a short time with cuts, bruises, shock and sprained back. Plaintiff returned to work about one month later, but while lifting a patient she injured her back due to the prior auto accident. She had a myelogram and then a laminectomy.

Plaintiff described how she fell on the wet floor at the McDonald’s on December 1, 1982. She was exiting the center section through the west section when her feet went out from under her. No one told her the floor was wet, and there was no warning sign. She had seen someone working in the east section and holding some type of handle.

Plaintiff was in the hospital until January 1983 and was diagnosed with arachnoiditis. She had physical therapy and returned to the hospital on March 3, 1983, in tremendous pain and stayed until April 27, 1983. At the end of 1983, plaintiff entered Marianjoy’s pain clinic for seven weeks. She had bio-feedback training, self-hypnosis and warm-water exercises there. Plaintiff said that she still could not work because of the pain. She now drove with the aid of a special device on her car. She could only do things at home if they were at counter level.

Dr. Gary Skaletsky, a neurosurgeon, examined plaintiff on August 9, 1989. He found that she suffered from arachnoiditis and cervical radiculopathy (irritability of the nerves in the neck). He stated that plaintiff’s condition was dormant until the fall at McDonald’s.

Dr. James Cavanaugh, a psychiatrist, was called by defendant. He had reviewed documents, depositions, and medical records pertaining to plaintiff and examined plaintiff one time in December 1988. Cavanaugh also had Dr. Grossman, a psychologist, perform tests of plaintiff, and he reviewed test results of plaintiff from 1983, 1984 and 1988.

Cavanaugh said plaintiff had a personality style called somatization, which meant that she experienced emotions as pain. Cavanaugh explained that somatizing did not mean a person had a psychiatric illness or required treatment. It was merely a personality trait. Plaintiff had this trait prior to her fall.

The doctor found that, in part, plaintiff’s complaints of pain were due to nonorganic factors. These factors were her personality style of somatizing and the post-accident stressors in plaintiff’s life, e.g., loss of her grandparents and loss of a close friend, problems with her children, the instant lawsuit, etc. Relying on Dr. Holub’s records, Cavanaugh found that when plaintiff had a post-accident stressor, plaintiff had an increased level of pain. This pattern was typical in a chronic pain patient who somatized. He also found secondary gain which worked together with somatization in plaintiff’s case. Secondary gain meant that plaintiff got something out of somatizing such as avoiding emotional issues or financial gain from a lawsuit. Secondary gain did not mean that plaintiff was a malingerer or feigning, but plaintiff was a chronic pain patient.

Cavanaugh disagreed with Dr. Holub’s diagnosis and found no evidence of an adjustment disorder with depressed mood. He also disagreed with Dr. Greenburg’s diagnosis of depressive disorder related to plaintiff’s accident. He found no psychiatric reason why plaintiff could not work. He knew that plaintiff had been hospitalized in 1989, but when he saw plaintiff he agreed with Dr. Holub that plaintiff was capable of certain work even if it was homebound.

Defendant called Sharon Mac Phail, an employee at the McDonald’s restaurant at the time of plaintiff’s fall. She said that a person could tell the floor was wet by looking at it due to the glare. She identified a photograph of the floor which showed the glare when wet.

Mac Phail saw plaintiff and plaintiff’s husband on December 1, 1982, sitting in the center section of the restaurant. She engaged in conversation with the Healys. She did not recall seeing a third party with them. As Mac Phail exited through the western section, she noticed that the floor was wet. She told the Healys to be careful because the floor was wet. They watched her walk away, but she could not recall if plaintiff answered her. She did not see plaintiff fall.

During cross-examination Mac Phail could not recall seeing the yellow mop bucket or a warning sign about the wet floor. She did not recall putting out the sign. She did not specify to plaintiff that the western section was wet, but plaintiff watched where Mac Phail walked after she gave her this warning.

Defendant played a videotape evidence deposition of Janet Healy, plaintiff’s former sister-in-law. She testified that the first time she met plaintiff was in December 1981, when plaintiff, John Healy, and John’s daughter came for a visit in Fort Lauderdale, Florida.

They went to the beach and were frolicking around in the water when plaintiff said “oh — ah” and grabbed her back. Plaintiff looked like she was in pain. John Healy picked up plaintiff in his arms and carried her out of the water. They drove back to the motel where Janet Healy’s family was staying, and John carried plaintiff from the car to the room. Plaintiff complained of back pain, but got up by herself, walked into the bathroom and changed from her swimsuit on her own. Plaintiff and her husband decided to return to Illinois that day and left. Janet denied disliking plaintiff.

Plaintiff called Walter Hay, the assistant principal of Stephanie Healy’s school, in rebuttal. The school records showed that Stephanie did not miss any school during December 1981. Other rebuttal witnesses were called: plaintiff, John Healy, Stephanie Healy, Donna Van Nurden, and Carol Tweedie. The testimony of these witnesses showed that plaintiff was not in Florida in 1981 although she was there in 1978. Plaintiff denied having any back pain while in Florida.

The attorneys for plaintiff and defendant entered stipulations regarding the medical records and the amount of the medical bills incurred by plaintiff. The total amount of these bills totalled $120,767.31. The jury returned a verdict against defendant on the issue of liability and awarded plaintiff $120,767.31 in damages. Plaintiff was found 90% contributory negligent, and her award was reduced to $12,077.

In the first issue, plaintiff contends the trial court erred in denying her motion for a new trial because the verdict was inadequate based upon the manifest weight of the evidence. She also claims that, since the jury awarded damages for pain medication and physical therapy but nothing for pain and suffering, the verdict is inconsistent. (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038.) Defendant argues that the jury reached its verdict based upon conflicting evidence and heard and assessed the credibility of the witnesses. It contends that the verdict should not be disturbed. We agree with plaintiff’s latter point.

The amount of the verdict is generally within the discretion of the jury, and a new trial will not be granted on the ground that damages in a personal injury action are too small. (Collins v. Straka (1987), 164 Ill. App. 3d 355.) However, justice requires that a verdict be set aside and a new trial ordered where the amount of damages is palpably inadequate, or against the manifest weight of the evidence, or where the jury has clearly disregarded a proved element of damages (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038), or where it is apparent that the jury made a compromise between the guilt of defendant and the damages sustained by plaintiff (Kinsell v. Hawthorne (1960), 27 Ill. App. 2d 314). The standard to be applied in deciding a motion for a new trial is whether the jury’s verdict is against the manifest weight of the evidence, and the trial court’s determination of a motion for a new trial will not be disturbed absent a clear abuse of discretion. Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808.

The jury awarded plaintiff the exact amount of her medical bills, which included expenses for pain medication and physical therapy. While the bills were not specifically broken down to show medication for pain and physical therapy (Griffin v. Rogers (1988), 177 Ill. App. 3d 690; see Elliott v. Koch (1990), 200 Ill. App. 3d 1), the stipulated bills read to the jury included expenses for Marianjoy, Regency Medical Supplies, Neuman Medical Supplies, and “medication.” There was testimony that plaintiff received pain medication, used a device called a TENS unit for therapy, and received physical therapy at Marianjoy. The evidence established that the medical bills included pain medication and physical therapy.

Despite the fact that the jury awarded plaintiff pain-related expenses, it failed to compensate her for pain and suffering. If the jury believed plaintiff had no compensable pain and suffering, its award of pain-related expenses was contrary to the manifest weight of the evidence. Or, if it believed that plaintiff’s pain and suffering were sufficiently serious to justify the expenses, the jury’s failure to compensate for pain and suffering means it disregarded a proved element of damages. (Kumorek v. Moyers (1990), 203 Ill. App. 3d 908, 912-13; Hinnen, 144 Ill. App. 3d at 1046; accord Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 572 N.E.2d 439; Schranz v. Halley (1984), 128 Ill. App. 3d 125.) The jury’s verdict is irreconcilably inconsistent and must be set aside and a new trial on damages granted. Kumorek, 203 Ill. App. 3d at 913.

While this court upheld a jury verdict which awarded $300 for reasonable medical expenses and nothing for pain and suffering and disability based upon the evidence (Paulan v. Jett (1989), 190 Ill. App. 3d 497), the Paulan court was not presented with an issue concerning an inconsistent verdict. We later found an inconsistent verdict in Rice. Also, the plaintiff in Paulan did not seek further medical treatment until 19 months after the initial injury, and the award was approximately equal to the cost of only the initial medical treatment. This court reasoned that the jury may have found the plaintiff failed to prove significant pain and suffering. Here plaintiff was compensated for treatment at Marianjoy which occurred after the initial stay in the hospital, indicating that the jury may have found pain and suffering and yet failed to award for it.

Although we realize that an itemized verdict was used in Rice and Hinnen, the award in the instant case was clearly the exact dollar amount for plaintiff’s medical expenses, which included pain medication and physical therapy. Defendant acknowledged before the trial court that the award represented only plaintiff’s medical bills. A new trial on damages only is necessary as we are satisfied that the liability verdict was clearly supported by the evidence, the questions of liability and damages are separate and distinct, and there is nothing to suggest the verdict was a compromise. Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 652.

Plaintiff further claims that the jury's verdict that she was 90% contributorily negligent is against the manifest weight of the evidence. A plaintiff is guilty of contributory negligence when she fails to exercise that degree of care which a reasonably prudent person would have used for her own safety under like conditions, and which failure is the proximate cause of her injury. (Beeler v. Chem-Lawn Corp. (1989), 183 Ill. App. 3d 648, 654.) A jury’s finding on the issue of comparative negligence will not be set aside on review absent a finding that the verdict is against the manifest weight of the evidence. (Shiner v. Friedman (1987), 161 Ill. App. 3d 73.) A plaintiff has no duty to anticipate and guard against a defendant’s negligence. Owens v. Stokoe (1985), 140 Ill. App. 3d 355, aff’d (1986), 115 Ill. 2d 177.

The evidence showed that employees were mopping in parts of the restaurant when plaintiff entered although plaintiff said she did not see what they were doing. Mac Phail testified that she actually told plaintiff the floor was wet and to be careful. Plaintiff observed where Mac Phail went and was put on notice that the floor was wet. While plaintiff denied being told the floor was wet, it was the jury’s function to determine the credibility of the witnesses and to assess the weight to be accorded their testimony as well as to decide the facts and inferences to be drawn therefrom. (Collins, 164 Ill. App. 3d at 360.) There was also evidence that the floor became glazed and shiny when wet which was obvious to the eye. Where a danger is obvious to a person of ordinary intelligence, the law will charge one with knowledge of it. (Blacconeri v. Aguayo (1985), 132 Ill. App. 3d 984.) Plaintiff denied noticing that the floor was wet; however, this testimony again went to her credibility.

There were two entrances to the eating section of the restaurant. Plaintiff could have exited the center section without walking through the western section. If a person has available to her two different ways of proceeding, one hazardous and the other safe, and she consciously chooses the former and is injured as a consequence of her choice, she is contributorily negligent. (Blacconeri, 132 Ill. App. 3d at 989.) Although she distinguishes the four-lane highway in Blacconeri as a more serious hazard to avoid, the point is the availability of a safe alternative and not the severity of the hazard to be avoided. The jury’s finding was not against the manifest weight of the evidence.

Plaintiff contends that the trial court erred in admitting the videotape evidence deposition of Janet Healy because the operator of the video camera did not comply with Supreme Court Rule 206(f). (134 Ill. 2d R. 206(f).) According to the record, defendant sought Janet Healy’s deposition but it was plaintiff who was responsible for it being videotaped. Thus, noncompliance with Rule 206(f) was the fault of plaintiff.

The trial court may order that information obtained through abuse of discovery procedures be suppressed. (134 Ill. 2d R. 219(d).) It is within the discretion of the trial court to permit the use of videotaped, as opposed to transcribed, depositions. (People v. Johnson (1987), 118 Ill. 2d 501.) The objective of the reviewing court is not to determine whether the record is totally free of error but whether any error occurred which substantially prejudiced a party and affected the outcome below. Eisenbrandt v. Finnegan (1987), 156 Ill. App. 3d 968.

Plaintiff has not alleged how noncompliance with the procedure of videotaping prejudiced her. She does not allege any conflict between the videotape and the transcription of the deposition, any specific problem in the videotape itself, or any inappropriate editing or alteration. The transcript was available for the parties and the trial court to verify the accuracy of the videotape. Although Rule 206(f) is designed to insure reliability and authenticity, the availability of a proper transcript of the deposition and plaintiff’s failure to establish any prejudice from noncompliance show that the trial court did not abuse its discretion in admitting the tape.

While plaintiff uses Johnson to argue that the trial judge’s exercise of discretion presupposes compliance with Rule 206(f), it is apparent the trial court was fully aware that Rule 206(f) was not followed. The failure to follow Rule 206(f) did not per se render the videotape inadmissible under the facts of this case.

Plaintiff argues that once the videotape deposition of Janet Healy was admitted, plaintiff should have been allowed to present evidence of Janet’s alcoholism and bias against plaintiff. Plaintiff cites to the record wherein she claims she sought to introduce three rebuttal witnesses on alcoholism; however, the record clearly does not support this claim. See Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 952.

Plaintiff made no offer of proof regarding the alcoholism issue. A party cannot obtain reversal based on the failure to admit evidence without showing what that evidence would be in order to allow this court to assess the prejudice. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716.) While a less formal statement of counsel is acceptable as an offer of proof (see Clay v. McCarthy (1979), 73 Ill. App. 3d 462), the informal offer must be specific, or the error will not be preserved. (Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829.) An informal offer of proof which merely summarizes the witness’ testimony in a conclusional manner does not preserve the error. Mulhern, 138 Ill. App. 3d at 834.

Plaintiff claims that during the hearing on defendant’s motion in limine, there was argument which sufficiently preserved the issue on alcoholism. The record consists of general remarks by plaintiff’s counsel. It is impossible to identify which witnesses would have testified to this information or what time period this information was based on; nor is there anyway to tell the specifics of the information. Due to the inadequacy of the record and the lack of an offer of proof, plaintiff’s argument is waived. Mulhern, 138 Ill. App. 3d at 834.

Plaintiff also refers to rebuttal testimony by John Healy and Bratthauer regarding bias. However, the record is insufficient to allow review of these issues. Mulhern, 138 Ill. App. 3d at 834.

Turning to the bias issue, plaintiff’s offer of proof showed that she and some of the rebuttal witnesses would have testified that during their visit to Florida in 1978, Janet, who was drinking, and Clem Healy requested money from John Healy. John Healy refused to give them any more money or to go into business with Clem, and an argument ensued.

Rebuttal evidence must address material issues and not collateral matters, or it is properly denied. (Hall, 152 Ill. App. 3d at 721.) Evidence which tends to establish or show a state of ill feeling on the part of a witness toward a party may be received at trial when it is direct and positive rather than remote or uncertain. Taylor v. Checker Cab Co. (1975), 34 Ill. App. 3d 413.

Although plaintiff refers to a “recent” refusal to give Janet money, the offer of proof showed the money issue arose in 1978, over 10 years prior to Janet’s testimony. This evidence would have been too stale and remote in time to aid the jury in weighing Janet’s testimony. (See Taylor, 34 Ill. App. 3d at 421.) Also, the offer of proof showed that John Healy refused the money and not plaintiff, another indication that the “bias” plaintiff alleged was remote and uncertain. The testimony was properly excluded.

Plaintiff refers to two “significant” facts the jury was not informed of because the proceedings were outside its presence. Contrary to these statements, the record shows the jury was sufficiently apprised of these facts. Plaintiff’s reliance on DiBenedetto v. County of DuPage (1986), 141 Ill. App. 3d 675, and People v. Provenzano (1922), 305 Ill. 493, are clearly different examples of bias than the facts herein.

Plaintiff raises several points of error with respect to the examination of certain witnesses. The points of error, except with respect to Bear’s testimony and rebuttal witnesses, were not included in plaintiff’s post-trial motion, and, hence, plaintiff has waived the issues. (Rexroat v. Devine (1987), 157 Ill. App. 3d 284.) Plaintiff’s general statement in her post-trial motion that “court’s rulings permitted defendant to go beyond the scope of direct examination and unduly restricted the plaintiff’s direct and redirect examination” is insufficient to preserve the issues.

Furthermore, plaintiff merely claims that she was prejudiced by certain rulings with respect to the examinations of Drs. Lupton and Greenburg. She has failed to provide a legal basis or cite authority regarding why the rulings were improper. The party prosecuting the appeal bears the burden of showing affirmatively the errors assigned on review. (In re Estate of Elson (1983), 120 Ill. App. 3d 649.) Bare contentions without argument or citation of authority do not merit consideration on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605.) We deem these points waived.

During defendant’s examination of Gerald Bear, Bear testified that McDonald’s Corporation inspected the restaurant at various times to determine if specifications were adhered to. Plaintiff was not allowed to question Bear regarding a probationary period the restaurant was under sometime prior to the accident. Plaintiff argues that this omission prejudiced her.

First, plaintiff was permitted to make an offer of proof, but she did not. The issue has not been preserved for review. (Piano v. Davison (1987), 157 Ill. App. 3d 649, 668.) Second, plaintiff has failed to legally explain, other than claim prejudice, why the trial court’s determination to exclude the evidence was in error. The party prosecuting the appeal bears the burden of showing affirmatively the errors assigned on review. (In re Estate of Elson (1983), 120 Ill. App. 3d 649.) In any event, even if evidence is relevant it may not be admissible if its probative value is substantially outweighed by the danger of unfair prejudice, and this matter is within the sound discretion of the trial court. (People v. Chambers (1989), 179 Ill. App. 3d 565.) The probationary period had occurred prior to the time of this incident. The trial court found that past failures or probationary periods were too prejudicial, and plaintiff has failed to show how the court abused its discretion by excluding this evidence.

Plaintiff’s motion in limine to prohibit defendant from cross-examining rebuttal witnesses about any trips to Florida prior to 1981 was denied. She claims the court abused its discretion in allowing such latitude in cross-examination and confused and prejudiced the jury.

Plaintiff gives the false impression that defendant cross-examined her rebuttal witnesses about prior trips to Florida other than 1981, when no such cross-examination occurred. The record shows that after the court denied plaintiff’s motion in limine, plaintiff’s attorney asked plaintiff and four other witnesses on direct whether plaintiff was in Florida in 1978. It was plaintiff’s questions and answers on direct examination that brought out the 1978 trip to Florida. (See People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 500.) Defendant asked no questions relating to the 1978 trip, or any other trip. No error occurred.

Plaintiff asserts that the trial court erred in failing to grant her motion for a mistrial when defendant on two separate occasions alerted the jury to plaintiff’s disability income. She claims defendant violated an order in limine which precluded all mention of insurance. Dr. Holub testified that plaintiff received disability income. Plaintiff’s objection was sustained, and the court later instructed the jury to disregard the question and answer. The record shows that defendant did not alert the jury to this fact a second time.

Not every mention of the word “insurance” during a personal injury trial requires the court to declare a mistrial. (Twait v. Olson (1982), 104 Ill. App. 3d 191.) Reference to insurance during trial is not per se reversible, as prejudice must be shown. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713.) The decision to grant a mistrial is within the discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. (Goldstein v. Scott (1982), 108 Ill. App. 3d 867.) The question, of course, is whether the improper reference was so prejudicial as to have required a mistrial. Also, violations of a motion in limine must be clear and rise to the level of having so prejudiced plaintiff to have denied her a fair trial. Smith v. Perlmutter (1986), 145 Ill. App. 3d 783.

The court did not abuse its discretion in denying plaintiffs motion for a mistrial. Despite the fact that no lost wages were awarded, the remark was made only once during a lengthy trial. (Joynt v. Barnes (1979), 71 Ill. App. 3d 187.) In view of the references to medical insurance and financial gain from the lawsuit made throughout the trial, this one statement was not sufficiently prejudicial to warrant a mistrial. The objection was sustained, and the jury was properly instructed to disregard the matter. On remand, of course, we trust this error will not occur again.

Plaintiff asserts that the trial court abused its discretion in allowing defendant to file an affirmative defense of contributory negligence three days before trial. Defendant’s motion to file the affirmative defense was allowed on December 1, 1989, and trial commenced on December 5, 1989.

A trial court has broad discretion to allow amendments and supplements to pleadings. (Halliburton Co. v. Marlen (1987), 154 Ill. App. 3d 111.) Whether discretion was properly exercised is determined by whether the amendment furthers the ends of justice; the ultimate efficacy of the claim and the previous opportunities to assert a claim may be taken into account. (Champaign National Bank v. Landers Seed Co. (1990), 194 Ill. App. 3d 1019.) The timeliness of the amendment and whether other parties have been prejudiced or surprised by the amendment are factors to consider. (American Pharmaseal v. TEC Systems (1987), 162 Ill. App. 3d 351.) Also, the courts look to whether the amendment concerns matters which the pleader knew at the time the original pleading was filed and whether good reason for not filing is offered by the pleader. Hoffman v. Nustra (1986), 143 Ill. App. 3d 259.

Defendant has offered no explanation for its failure to raise the defense for over four years of the litigation. (American, 162 Ill. App. 3d at 360-61.) However, the affirmative defense of plaintiff’s contributory negligence had been raised by one of the two trial defendants, Bearco Management, as early as September 1983, although the defense was not later preserved in subsequent answers. (See Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223; cf. American, 162 Ill. App. 3d at 360 (where other defendants who raised defense had settled with plaintiff).) Plaintiff did not claim surprise before the trial court or ask for additional time to prepare to meet the defense (Baird & Warner, 45 Ill. App. 3d at 230) but merely argued that the defense had not been filed before. The fact that the jury obviously found in favor of defendant on the affirmative defense is not in and of itself prejudice from allowing the amendment as plaintiff contends. Plaintiff has failed to assert below or to demonstrate on appeal how her defense to this issue was prejudiced by the late filing. The record shows that plaintiff presented testimony through herself, John Healy and Marlene Bratthauer to contradict defendant’s witnesses, and we find no error in the court’s ruling.

Plaintiff’s last issue concerning the denial of her motion for a new trial need not be addressed in view of our determinations on the various issues raised. The judgment of the trial court is reversed for the reasons given, and the cause is remanded for retrial solely on the issue of damages. Since we do not disturb the jury’s finding of 90% contributory negligence, the trial judge shall enter judgment in the amount of 10% of the verdict on remand. Rice, 213 Ill. App. 3d at 802-03, 572 N.E.2d at 448.

Affirmed in part; reversed in part and remanded.

WOODWARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    WILLIAM H. SANKE et al., Plaintiffs-Appellants, v. MAXIMILLIAN BECHINA, Defendant-Appellee (Richard Schwartz, Defendant).
    Second District
    No. 2 — 90—1164
    Opinion filed July 30,1991.
    — Rehearing denied September 6, 1991.
    Mary Jo Greene and David A. Nilles, both of Haskell & Perrin, of Chicago (James K. Perrin, of counsel), for appellants.
    Jeanne Leary Maher and Kevin F. Donohue, both of O’Connor, Schiff & Myers, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, William and Margaret Sanke, appeal the dismissal of counts IV through VIII of their second amended complaint for failure to state a cause of action. Plaintiffs alleged defendant Bechina acted in concert, aided and abetted, civilly conspired and willfully and wantonly participated in the wrongful conduct of codefendant Richard Schwartz, and as such was the proximate cause of the death of their daughter, Heather Sanke. On appeal, plaintiffs argue their second amended complaint states facts sufficient to support this cause of action. We agree. Accordingly, we reverse and remand.

The circumstances surrounding this case pose a unique set of facts. The plaintiffs allege on October 15, 1988, Bechina instituted a vehicular competition with codefendant Schwartz, who is not a party to this appeal. Initially, Schwartz accompanied Bechina in Bechina’s automobile, a Porsche. Bechina demonstrated the speed and handling ability of his automobile by driving at an excessive rate of speed.

Later that evening, Bechina accompanied Schwartz in Schwartz’s 1988 Ford Mustang for the purpose of comparing the performance of Schwartz’s automobile against his own Porsche. Bechina was seated in the front passenger seat of the Mustang. The plaintiff’s decedent, Heather Sanke, and another passenger, Amy Viti, were seated in the rear seat of the automobile.

Plaintiffs allege Bechina verbally encouraged Schwartz to exceed the posted 25-mile-per-hour speed limit and advised him to disregard a posted stop sign. Further, plaintiffs allege Bechina used physical gestures to encourage Schwartz’s reckless operation of the automobile. Eventually, Schwartz lost control of the automobile. It careened over a curb and into a cluster of trees where it exploded. Schwartz, Bechina, and Viti survived the crash and subsequent explosion, but 18-year-old Heather Sanke died.

Plaintiffs assert that a passenger in an automobile who aids, abets, conspires and acts in concert with the negligent and willful conduct of a driver owes a duty to another passenger who is killed as a result of such actions under Illinois law. Defendant Bechina counters the plaintiffs’ argument by asserting that Illinois courts have consistently refused to impose a duty upon a passenger in a motor vehicle for injuries sustained by another where the passenger neither owns nor has a right to control the vehicle.

It is true that the law in Illinois is well settled concerning the duty of a passenger to control the conduct of the driver of the vehicle. Generally, a person other than the driver is not held liable for damages caused by negligent acts of the driver unless that person is the owner of the vehicle or has the right to control that vehicle. (Palmer v. Miller (1942), 380 Ill. 256; Wolf v. Liberis (1987), 153 Ill. App. 3d 488; Fugate v. Galvin (1980), 84 Ill. App. 3d 573.) In finding no duty to control the conduct of the driver, the courts have stated, where the passenger neither owns the car nor hires the driver, the driver has the last word and is the only one who could prevent the injury by his decision whether (or how) to drive. Fugate v. Galvin, 84 Ill. App. 3d at 577.

However, plaintiffs in this case are not asserting Bechina had a duty to control Schwartz in order to prevent him from driving in a reckless manner. Instead, they assert Bechina himself is a contributing tort-feasor. Plaintiffs argue that Bechina’s own actions constituted a tort under section 876 of the Restatement (Second) of Torts.

Section 876 states the following:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” Restatement (Second) of Torts §876 (1979).

Plaintiffs have alleged the necessary elements to this cause of action in their pleadings. Count IV alleges Bechina, in furtherance of an agreement and/or common design with Richard Schwartz, actively participated with Schwartz in performing the wrongful conduct. Count V alleges Bechina knew of the wrongful and tortious acts of Schwartz and knowingly and actively encouraged Schwartz’s wrongful and tortious conduct. Count VI alleges Bechina knowingly and substantially assisted the wrongful and tortious actions of Schwartz. Count VII alleges that Bechina civilly conspired with Schwartz in his tortious conduct. Finally, count VIII alleges Bechina encouraged the willful and wanton misconduct of Schwartz. Thus, the issue before this court is whether this cause of action is recognized in the State of Illinois. We turn now to our discussion of that issue.

The general rule that liability for the damage caused by the negligent act of a driver does not attach against a person other than the driver unless that person is the owner or has a right to control the vehicle has its roots in section 315 of the Restatement (Second) of Torts. (See Martino v. Leiva (1985), 133 Ill. App. 3d 1006, 1007; Fugate v. Galvin, 84 Ill. App. 3d at 574-75.) That section provides:

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.” (Restatement (Second) of Torts §315 (1965).)

The special relations referred to in section 315(a) include parent-child, master-servant, land possessor and custodians of a person with dangerous propensities. (Fugate v. Galvin, 84 Ill. App. 3d at 575.) The special relations referred to in section 315(b) included common carrier-passenger, landowner-invitee and the custodianship of another in circumstances depriving the other of the normal opportunities for protection. Fugate v. Galvin, 84 Ill. App. 3d at 575.

However, this section of the Restatement does not address those situations where the individual in question is a direct participant in the wrongful conduct that harms another. For this reason, plaintiffs argue section 315 of the Restatement (Second) of Torts is not implicated in this cause of action. Rather, plaintiffs assert Bechina’s own conduct gave rise to a cause of action under section 876 of the Restatement (Second) of Torts. We agree.

This case differs from an ordinary duty to control case because plaintiffs allege Bechina actively participated in the tortious conduct by substantially encouraging the tortious behavior. The comment to section 876(b) pertaining to substantial assistance or encouragement discusses this distinction. It states in pertinent part:

“d. Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. This is true both when the act done is an intended [one] *** and when it is merely a negligent act. ***
The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.” (Restatement (Second) of Torts §876(b), Comment d, at 317 (1979).)

The Restatement illustrates its point with the following. A and B participate in a riot in which B, although not throwing rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C. The facts in this case are similar.

Bechina and Schwartz were allegedly engaged in a vehicular competition. Although not actually driving the vehicle, Bechina allegedly encouraged Schwartz to drive at an excessive speed and to disobey a posted stop sign. The automobile crashed, and as a result, Heather Sanke was killed.

This is not the first case in Illinois in which section 876 of the Restatement (Second) has been implicated. The plaintiff in Wolf v. Liberis (153 Ill. App. 3d 488) raised a cause of action under section 876 of the Restatement (Second). In that case, the plaintiff alleged that defendant, Linda Liberis, was liable for the death of the plaintiff’s decedent, who was killed as a result of a collision "with an automobile driven by codefendant, Nick Liberis.

Linda Liberis had been drinking. Nick Liberis followed her in a separate car as she drove home. Linda took a wrong turn, drove through a red light and into a store window. Nick parked his car and backed Linda’s car out of the window. He requested that she remain there while he left to call the police. Instead of remaining at the scene, Linda got in her car and drove away. As Nick attempted to get into his car, three assailants attacked him. One of the men grabbed his arm, ultimately causing the car to collide head on with the car of the plaintiff’s decedent. Wolf, 153 Ill. App. 3d at 490-91.

The plaintiff contended that the defendant was vicariously liable to the plaintiff’s decedent under a concert-of-action theory, specifically (1) conspiracy, or concerted action by agreement, or (2) aiding-abetting or concerted action by substantial assistance. (Wolf 153 Ill. App. 3d at 495-96.) Linda Liberis moved for summary judgment, contending there was no genuine issue of material fact that she was liable for the negligent driving of Nick Liberis. Her motion was denied by the trial court, but on appeal the court reversed the denial and remanded the case to the trial court with instructions to grant her motion for summary judgment. Wolf, 153 Ill. App. 3d at 498.

Citing the elements required for a finding of concert of action under section 876 of the Restatement (Second) of Torts, the court stated that neither the allegations of the complaint nor the proofs supported a theory of civil conspiracy against Linda Liberis. (Wolf, 153 Ill. App. 3d at 495.) In addition, the court noted that the plaintiff had not alleged or proved that Linda Liberis in any way assisted or encouraged Nick Liberis in the negligent operation of his vehicle prior to the collision. (Wolf, 153 Ill. App. 3d at 496.) The court concluded that the accident was not caused by the actions of Linda Liberis but by independent subsequent events (i.e., the three assailants who interfered with Nick Liberis’ control of the car). Wolf, 153 Ill. App. 3d at 497-98.

In finding that the plaintiff failed to establish that Linda Liberis either civilly conspired with Nick Liberis or in any way assisted or encouraged him to drive in a negligent manner, the court recognized that, generally, a person other than the driver is not held liable for the negligent acts of the driver unless that person is the owner of the vehicle or has the right to control the vehicle. (Wolf, 153 Ill. App. 3d at 496, citing Fugate v. Galvin, 84 Ill. App. 3d at 575.) Defendant in the present action argues that this statement indicates a rejection by the Wolf court of the concert-of-action theory for imposing liability upon a passenger for the negligent driving of the driver.

To the contrary, the Wolf decision demonstrates the distinction between a cause of action arising under a concert-of-action theory and one that arises under a duty to control. Plaintiff in Wolf failed to allege substantial assistance or encouragement. As a result, the court found the pleadings insufficient to support the cause of action. Failing to find the necessary elements under the concert-of-action theory of liability, the court then looked to the general rule of law governing passenger liability. Finding the necessary elements lacking there as well, the court determined there was no genuine issue of material fact regarding the liability of Linda Liberis toward the plaintiff’s decedent.

Moreover, support for the court’s approach in Wolf is found at 7A Am. Jur. 2d Automobiles and Highway Traffic §635 (1980). That section states in pertinent part:

“As a general rule, an occupant of a motor vehicle other than the driver is not liable for injury to a third person due to the negligence of the driver, in the absence of evidence that the occupant had some control over the driver, or that the driver was in the occupant’s employ, or that the driver and the occupant were engaged in a joint enterprise. However, a guest may be held liable for the consequences of the driver’s negligent operation of his motor vehicle, where the guest directs or encourages the negligent act, or personally co-operates therein.” 7A Am. Jur. 2d Automobiles and Highway Traffic §635 (1980).

Many States have recognized the distinction between the duty to control theory and the concert-of-action theory. In Cobb v. Indian Springs, Inc. (1975), 258 Ark. 9, 522 S.W.2d 383, the Arkansas Supreme Court relied on section 876 to overturn a directed verdict in favor of a defendant who encouraged a driver of an automobile to drive at a recklessly excessive rate of speed. In that case, the defendant encouraged his codefendant, the driver of the automobile, to demonstrate how fast his car could go, although he warned the driver to decrease his speed as he came over the hill. The defendant and a group of the driver’s friends stood on the side of the road near defendant’s car to watch. As the driver came over the hill, one of his friends jumped out in the road to warn him to slow down. The driver lost control of the car, striking the defendant’s car and killing one of the teenagers sitting on the hood of the car. Cobb, 258 Ark. at 10-16, 522 S.W.2d at 383-87.

The court drew an analogy between the facts of that case and a scenario in which two defendants have been racing their automobiles side by side on a public highway. The court stated that clearly in that situation, each defendant would be liable for any injuries to third persons as a result of the race. (Cobb, 258 Ark. at 18, 522 S.W.2d at 388.) After considering the facts of the case before it, the court concluded that a jury could conclude the defendant encouraged and incited his codefendant to engage in tortious conduct and thus was guilty of negligence himself. Cobb, 258 Ark. at 17, 522 S.W.2d at 387-88.

The supreme court of Connecticut was faced with a similar situation. In Slicer v. Quigley (1980), 180 Conn. 252, 429 A.2d 855, there was conflicting evidence as to whether a passenger verbally encouraged the driver’s negligent and reckless driving just prior to a collision with a motorcycle. The court relied upon section 876 to find there was a sufficient basis for the trial court to instruct the jury on a charge of negligence against the passenger in giving substantial encouragement to the negligent actions of the driver. The jury returned a verdict in favor of the defendant passenger.

In Price v. Halstead (W. Va. 1987), 355 S.E.2d 380, the supreme court of appeals of West Virginia held that a passenger may be found liable for injuries to a third party. The court found the intoxication of the driver of the vehicle in which the passenger was riding proximately caused the accident resulting in the third party’s injuries and the passenger’s conduct substantially encouraged or assisted the driver’s alcohol or drug impairment. Price, 355 S.E.2d at 389.

However, defendant argues under Illinois law, in cases where the courts have addressed the liability of one passenger to another passenger as a result of negligent driving by the driver of the vehicle, the courts have declined to impose liability under section 876 of the Restatement (Second) of Torts. In fact, the cases to which the defendant refers do not involve causes of action arising under section 876.

In making his argument, defendant refers to four cases: (1) Palmer v. Miller (1942), 380 Ill. 2d 256; (2) Fugate v. Galvin (1980), 84 Ill. App. 3d 573; (3) Tosh v. Scott (1984), 129 Ill. App. 3d 322; and (4) Baker v. Walker (1988), 173 Ill. App. 3d 836. After examining these cases, it is clear they do not address causes of action under the plaintiffs’ concert-of-action theory, but rather the duty to control theory previously mentioned.

In Palmer v. Miller (380 Ill. 256), one of the allegations made by the plaintiff, Mrs. Palmer, was that defendant, Miller, a passenger, should be liable for injuries received by the plaintiff due to the negligence of driver Dan Park. Plaintiff claimed that because the car belonged to the defendant’s mother, because the defendant was riding in the front passenger seat while Park was driving and was presumed to be in control of the car, and because the trip was made for the defendant’s benefit, the defendant should be held liable. (Palmer, 380 Ill. at 260.) The court held liability for damage caused by the negligent acts of the driver (not arising under the doctrine of respondeat superior) does not attach against a person other than the driver unless that person is the owner of the automobile or possesses the right to control the driving of it. In those situations, the court held a duty on the part of the passenger to control the driver exists. Palmer, 380 Ill. at 260.

The issue before the Palmer court was whether the defendant should be held liable because he had a duty to control the conduct of the driver. The issue at hand is entirely different. Here, as stated previously, plaintiffs are not asserting that Bechina had a duty to control the conduct of Schwartz. Instead, plaintiffs are claiming Bechina had a duty to control his own behavior. Because he did not, plaintiff asserts Bechina is liable under a theory of concert of action, or encouraging the negligent conduct of Schwartz.

The same distinction can be made between the present case and Fugate v. Galvin (84 Ill. App. 3d 573). In that case, Harry Nosal asked defendant, Brian Galvin, to drive him to a friend’s house, knowing that Galvin was intoxicated. Galvin drove Nosal to the friend’s house without incident, but on the way home struck the plaintiff, who was walking along the shoulder of the road. (Fugate, 84 Ill. App. 3d at 573.) The plaintiff argued that because Nosal put Galvin in motion, he was liable for the plaintiff’s injuries. Fugate, 84 Ill. App. 3d at 573-74.

However, plaintiff did not make this argument under a concert-of-action theory based on section 876 of the Restatement (Second) of Torts. Instead, plaintiff referred the court to section 308, which places a duty on the defendant where a third party uses a thing or engages in an activity under the defendant’s control. (Fugate, 84 Ill. App. 3d at 575.) Plaintiff also cited section 307, which places a duty on the defendant where he uses an incompetent as his instrumentality. Fugate, 84 Ill. App. 3d at 575.

The court, citing section 315 of the Restatement, stated that a passenger’s mere request to the driver to take him to a destination cannot create a duty. (Fugate, 84 Ill. App. 3d at 574, 576.) In denying the plaintiff’s cause of action against Nosal, the court reasoned the policy of requiring individuals to take responsibility for their own acts militates against the creation of a new duty. This statement is inapposite to the plaintiffs’ argument in the present case. The plaintiffs contend Bechina should be held liable for his own conduct, not for his failure to control the conduct of Schwartz.

In Tosh v. Scott (129 Ill. App. 3d 322), the court found no cause of action to exist for the negligent sale of an automobile where the defendant sold his automobile to his adult son in spite of the fact that he knew or should have known that his son did not have a valid driver’s license, that his son had a severe drinking problem, and that his son had been convicted on three prior occasions for operating a vehicle while intoxicated. (Tosh, 129 Ill. App. 3d at 323.) Although there were no Illinois cases dealing with the negligent sale of an automobile, the court relied upon the reasoning used by the Fugate court in denying the cause of action. The court also cited a Tennessee case with similar facts in which the court noted the difficulty in creating a line of demarcation when imposing liability under those circumstances.

“ ‘If a father incurs liability by giving an automobile to his son, knowing him to be [a] drunken or incompetent driver, when would it end? Would it last for the life of the automobile? Would it apply to a new automobile in the event of a trade-in? Or would liability attach to a dealer who sold an automobile to a known incompetent or drunken driver? Or to a filling station operator who sold such person gas, knowing of his propensity?’ ” Tosh v. Scott, 129 Ill. App. 3d at 323-24, quoting Brown v. Harkleroad (1955), 39 Tenn. App. 657, 665, 287 S.W.2d 92, 96.

While the court expressed a valid concern, such a concern appears to be unwarranted in the present case. The elements of section 876 require such affirmative conduct that one’s own actions create a duty. Under section 876, liability may be imposed only in instances where the defendant’s conduct is more than benign. Selling an automobile is not in and of itself a wrongful act. The plaintiff in Tosh was arguing that it became a wrongful act when the person to whom it was sold was a known drunk. The court did not want to go that far in extending liability, preferring the approach of the Fugate court (i.e., individuals should take responsibility only for their own acts).

In the present case, the plaintiffs are arguing the actions of Bechina were wrongful in and of themselves. Unlike the act of selling someone an automobile, substantially encouraging anyone to drive in a reckless manner is a wrongful act, no matter who is being encouraged to drive that way. Section 876 recognizes this distinction.

Lastly, defendant relies on Baker v. Walker (173 Ill. App. 3d 836). Again, plaintiff in that case did not proceed under a concert-of-action theory as do the plaintiffs in the present case, but rather a joint venture theory involving a duty to control. Plaintiff alleged that because both the defendant and the driver of the vehicle were employed by the same company and took turns driving the vehicle, the defendant possessed a right to control the vehicle and, therefore, was liable for the driver’s negligence. Baker, 173 Ill. App. 3d at 837-38.

The court stated the mere fact that the defendant may have possessed control over the vehicle does not lead inexorably to the conclusion that the defendant also maintained control over the driver. The court noted coemployees possess no inherent right to direct the conduct of each other. (Baker, 173 Ill. App. 3d at 839.) Again, the crux of the plaintiff’s argument in Baker was that the defendant had a duty to control the conduct of the driver, thus distinguishing that case from the one at hand.

As alleged, the facts of the present case fall squarely within the definition of joint concerted tortious activity as defined under section 876 of the Restatement of Torts (Restatement (Second) of Torts §876 (1979)). Accordingly, we reverse the trial court’s dismissal of counts IV through VIII of plaintiffs’ second amended complaint. We leave it to the trier of fact to determine whether the conduct of defendant Bechina actually constituted substantial assistance or encouragement. It is important to note the discussion in the Restatement as to what constitutes substantial assistance or encouragement. As the Restatement points out, the participation or assistance may be so slight that liability will not be imposed. (Restatement (Second) of Torts §876(b), Comment d (1979).) The determination of whether Be-china’s conduct constituted “substantial encouragement” is a question of fact for the jury.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McLaren and NICKELS, JJ., concur.


author: JUSTICE KNECHT

text:
      In re DENNIS LANTER, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Dennis Lanter, Respondent-Appellant).
    Fourth District
    No. 4 — 91—0072
    Opinion filed July 31,1991.

      Penelope S. Karnes and Jeff M. Plesko, both of Guardianship & Advocacy Commission, of Carbondale, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Kevin T. McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Daniel Lanter challenges the judgment of the circuit court of Macon County, which found him to be a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 91½, pars. 3 — 600 through 3 — 611). Respondent argues the hearing on whether he should be involuntarily committed was not held within five days after the petition for involuntary admission was filed, as required by section 3— 611 of the Code. The record indicates respondent’s hearing was held six business days after the petition was filed, clearly violating the requirements of the Code. (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 611.) We reverse.

On December 10, 1990, a petition for involuntary admission was filed, alleging respondent was a person subject to involuntary admission, pursuant to section 3 — 601 of the Code. (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 601.) Also filed on December 10 were two certificates, executed by physicians who had examined respondent on December 8. Both certificates alleged respondent was a person subject to involuntary admission. On December 13, the trial judge set the hearing on respondent’s case for December 18, six business days after the petition was filed. After the presentation of evidence at the December 18 hearing, the trial court found respondent to be a person subject to involuntary admission, and ordered his hospitalization. This appeal followed.

Article VI of the Code (Ill. Rev. Stat. 1989, ch. 91½, pars. 3 — 600 through 3 — 611) sets forth specific requirements that must be met before an individual is involuntarily admitted for hospitalization. Section 3 — 611 states, in relevant part, “Upon the filing of the petition and first certificate, the court shall set a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays, after receipt of the petition.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 611.) From the face of the record, it is apparent this requirement was not met. The hearing must have been held no later than December 17 to meet the five-day statutory requirement of section 3 — 611.

The State argues the statute was complied with because the hearing was held within five days of the notice of hearing which was issued on December 13, and respondent has waived any error.

The State’s first argument is without merit as section 3 — 611 unambiguously mandates the hearing must be held within five business days from the receipt, i.e., filing of the petition, which clearly occurred on December 10, 1990. Ill. Rev. Stat. 1989, ch. 91½, par. 3— 611.

The need for strict compliance with the statutory requirement is compelling in mental health cases since commitment is involuntary and liberty interests are involved. (In re Elkow (1988), 167 Ill. App. 3d 187, 193, 521 N.E.2d 290, 294 (involuntary commitment reversed where petition was untimely filed); In re Satterlee (1986), 148 Ill. App. 3d 84, 87, 499 N.E.2d 101, 103 (involuntary commitment reversed when petition was untimely filed).) The deadlines in article VI are not mere technicalities, they are bright lines the legislature created to avoid deciding these cases on an ad hoc basis and to prevent abuse of the procedures involved. (People v. Valentine (1990), 201 Ill. App. 3d 10, 13, 558 N.E.2d 807, 809.) Any noncompliance with a statutory procedure for involuntary admission renders the judgment in the case erroneous and of no effect. (Elkow, 167 Ill. App. 3d at 193, 521 N.E.2d at 294.) The trial court did not comply with the five-day requirement in section 3 — 611. Its judgment involuntarily committing respondent was erroneous and is of no effect.

The State claims respondent waived this error as he is now raising it for the first time. This contention is without merit because the error complained of is apparent from the face of the record, i.e., that the hearing in this case was held more than five business days after the filing of the petition. Such errors, clearly demonstrating noncompliance with relevant statutory provisions, render the judgment erroneous and of no effect. In re Whittenberg (1986), 143 Ill. App. 3d 836, 839, 493 N.E.2d 662, 663.

The State argues In re Splett (1991), 143 Ill. 2d 225, 572 N.E.2d 883, supports its argument the circuit court’s judgment need not be reversed despite the statutory violation. However, in Splett the respondent received actual notification of the hearing, but the record failed to contain affirmative proof of formal notice as required by section 3 — 706 (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 706). The supreme court held that as he had actual notice, and appeared at the hearing with his attorney, the purposes of the notice provision were fulfilled, and the error was deemed harmless. (Splett, 143 Ill. 2d at 228, 572 N.E.2d at 886.) Splett does not lessen the need for strict compliance to the deadlines in mental health cases that are contained in the Code. It only excused the requirement of proof of formal notice of a hearing when the circumstances indicated the respondent had actual notice.

Judgment of the circuit court of Macon County is reversed.

Reversed.

SPITZ and McCULLOUGH, JJ., concur.