author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME HOWELL, Defendant-Appellant.
    First District (2nd Division)
    No. 1-86-1717
    Opinion filed August 20, 1991.

      Randolph N. Stone, Public Defender, of Chicago (John Kennedy, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Marie Quinlivan Czech, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Jerome Howell was found guilty of murder and sentenced to 30 years’ imprisonment. On appeal, defendant asserts as grounds for reversal that (1) the trial court erroneously admitted the prior inconsistent statements of two witnesses; (2) the refusal of the State to grant immunity to the two witnesses deprived him of his sixth amendment right of confrontation; (3) the trial court erroneously allowed one of the witnesses to testify without benefit of counsel; and (4) the State did not prove him guilty of murder beyond a reasonable doubt.

On June 19, 1982 at approximately 9 p.m., in the vicinity of Keeler and Washington in Chicago, 15-year-old Jeffrey Peebles was shot in the back as he walked past defendant and a group of other youths. Peebles died as a result of the shooting. Later that night, juveniles Michael Downer and Darren Lay were arrested and charged with murder; after juvenile court proceedings, the case against them was dismissed. Defendant was subsequently arrested and charged with murder. In an earlier trial, he was convicted of murder and sentenced to 30 years’ imprisonment. That conviction was reversed by this court and the case was remanded for a new trial in a Rule 23 order. People v. Howell (1st Dist. 1984), No. 83 — 2128 (unpublished order under Supreme Court Rule 23).

At the retrial, Ricky Gray testified on behalf of the State. On June 24, 1982, he, Devan Wilson, and defendant committed an armed robbery of a gas station, during which he used a gun that he had received from defendant. The first time Gray saw the gun had been approximately two weeks before the robbery, when it was in defendant’s possession. The gun had a chipped hammer, and defendant carried it in a black bag with straps. The police recovered the gun from the scene of the armed robbery. It was stipulated that a firearms expert would testify that the bullet taken from Peebles’ body was fired from that gun.

Vemard Smith also testified for the State. Smith was with defendant and a group of friends on June 19, 1982, in the vicinity of Keeler and Washington. As the group approached the corner, Peebles, who lived a few doors away, walked towards them. As Peebles approached, defendant said “Almighty,” which was a gang sign for the Vice Lords. Defendant was actually a member of the Black Gangster Disci-pies, a rival street gang. Peebles then raised his hand and said “Five in the ski [sic],” which was a sign representing the Vice Lords.

Peebles walked past. When his back was to the group, Smith saw defendant reach for something from a purse-like pouch that he carried over his shoulder with a long strap. Defendant pulled out a gun, held it with both hands, and fired at Peebles, who fell face forward onto the ground. As the group fled, two more shots were fired.

The stipulated testimony of Dr. Yusef Konakci was that, from the autopsy on Peebles’ body, he determined the cause of his death was a bullet wound of the back.

Christopher Williams and Jerry Bogan were also called to testify on behalf of the State. Since their testimony relates to specific issues raised by defendant in this appeal, it is necessary to understand not only their testimony, but the procedure by which that testimony was elicited.

After Williams stated his name for the record, defendant’s attorney objected to any testimony from him because he did not have an attorney present. The court informed defendant’s attorney that he had no standing regarding the witness and told the prosecutor to continue with questioning. Williams did not ask for his lawyer; the court later stated that if Williams had requested counsel at that time, the court would have granted the request. Williams then answered 25 questions from the prosecution. He stated that he couldn’t recall the answers to eight questions.

Williams testified that he was currently incarcerated in Cook County jail and had a case pending before another circuit court judge. He stated that he lived in Chicago on June 19, 1982, that he knew defendant, and that he hung around with the Impression Black Souls street gang. When asked if he remembered a young man being shot in the vicinity of Keeler and Washington on June 19, 1982, Williams responded, “No. No. It was like spread out, you know, around the neighborhood.” Williams identified defendant in court. He stated that he knew Michael Downer, and that he remembered testifying previously in juvenile court in the case against Downer and Lay. When asked whom he was with on the night of the homicide, however, Williams stated that he did not remember. When asked if he was with Vernard Smith or Michael Downer on the night of the shooting, he said he could not remember.

When the prosecutor asked Williams preliminary questions regarding his testimony in juvenile court, defendant’s attorney objected and argued that the prosecutor could neither impeach Williams nor refresh his recollection. The trial court then excused Williams and heard the arguments of counsel.

Williams was again called the next day to testify; again, his attorney was not present. After stating his name and age, he invoked the fifth amendment privilege against self-incrimination and was excused until his attorney could assist him. Immediately following this, the trial court stated that Williams had not waived his fifth amendment privilege by virtue of his testimony of the day before that he “did not recall.” After further researching the issue, however, the trial court ruled that Williams had waived his privilege against self-incrimination by his previous testimony.

Williams was called to testify a third time, this time with his attorney present. He refused to answer any questions, invoking the fifth amendment, even though the trial court ruled, as to many of the questions, that the answers could not incriminate him as a matter of law. Defense counsel was given the opportunity to cross-examine the witness, but did not do so.

The trial court found that Williams’ refusal to answer and inability to recall were inconsistent with his prior juvenile court testimony against Darren Lay and Michael Downer, and admitted the prior testimony pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1). Additionally, the court noted that, although he chose not to do so, defense counsel had an opportunity to cross-examine Williams.

The trial court then allowed the State to introduce Williams’ prior juvenile court testimony in which he stated that on June 19, 1982, at approximately 9 p.m., he was in the vicinity of Keeler and Washington in Chicago. At that time, he saw defendant shoot a gun that he then placed in a blue or black Jordache bag that looked “[l]ike a long string purse.” Though he saw the person who was shot fall, he did not know who that person was.

When Jerry Bogan was called to testify, he stated his name and then invoked his fifth amendment privilege against self-incrimination because his attorney was not present; the trial court excused him and he was recalled the next day, when his attorney was present. At that time, he testified that he was 18 years old and that on the night of the shooting, he was alone.

Bogan refused to answer any questions regarding his membership in a street gang. He then invoked the fifth amendment privilege and refused to answer a series of questions. On several occasions, the trial court stated that Bogan’s responses would not incriminate him and directed him to answer. Bogan answered a few questions and then invoked the privilege.

On cross-examination, however, Bogan answered every question asked of him. He stated that he previously testified that he was not present at the time of the shooting of Jeffrey Peebles and that he did not see the shooting. In response to defendant’s attorney’s question, “And you didn’t see a shooting at Keeler and Washington, did you?” and over the advice of his attorney to invoke the fifth amendment, Bogan testified, “my head was turned at the time.” He then testified that one of the people on the corner was Darren Lay. He then invoked the fifth amendment throughout redirect examination.

The trial court stated that Bogan had “a very selective ability to answer questions.” The court then permitted admission of Bogan’s previous testimony from the juvenile court proceedings against Lay and Downer and from defendant’s first trial. Both were allowed as prior inconsistent statements under section 115 — 10.1, and the latter was allowed on the additional grounds that, by invoking his fifth amendment privilege, Bogan had absented himself from the trial.

Bogan’s testimony on direct examination at the prior trial was that he was a member of the Black Gangster Disciples and that he saw defendant fire the gun at Keeler and Washington on June 19, 1982. On cross-examination, he said that his head was turned at the time of the shooting and that he did not see who fired the shot. Two or three days prior to the shooting, he had seen defendant at Wilcox and Kostner in Chicago, where he told defendant that he had a gun, which belonged to his aunt’s boyfriend. He gave the gun to defendant and did not see it again until a couple of months before the first trial. He identified the gun he was shown at the prior trial as the same gun he had given defendant before the shooting. At the juvenile court proceeding, Bogan testified that he was not in the area of Washington and Keeler at the time of the shooting. He further testified that two days before the June 19 shooting, he gave defendant a gun that belonged to his aunt’s boyfriend.

After the State rested, defendant made a motion for acquittal, which was denied by the trial court. Defendant’s first witness, Michael Downer, then claimed the fifth amendment privilege. The trial court did not order him to answer questions, and he was excused.

Two defense witnesses, Vanessa Brown and Rotanya Young, both approximately 12 years of age at the time of the shooting, testified that Darren Lay shot Jeffrey Peebles. Both Brown and Young testified that they saw Michael Downer give the gun to Darren Lay, and that Lay, not defendant, shot Peebles. Both Downer and Lay were subsequently charged with Peebles’ murder; after juvenile court proceedings, those charges were dismissed.

The State called Assistant State’s Attorney James McCarter in rebuttal. As part of the investigation into the death of Jeffrey Pee-bles, he spoke with Vanessa Brown and Rotanya Young. They went to the scene of the homicide, where Young said she had been standing when she saw the shooting. McCarter stated that from Young’s vantage point, he could not see the corner where the shooting took place because there was a small newspaper stand obstructing the view. Brown’s testimony was contradicted by that of Officer E. Waters of the Chicago police department. He testified that he found the body of Jeffrey Peebles on the southeast corner of Keeler and Washington; Brown had testified that Peebles fell on the north side of the street.

The trial court stated that the testimony of Brown and Young was “implausible, incredible and unbelievable.” The court found defendant guilty of murder and sentenced him to 30 years’ imprisonment. This appeal followed.

I

Defendant maintains that the trial court erred in admitting the prior testimony of Christopher Williams and Jerry Bogan as prior inconsistent statements because both invoked their fifth amendment privilege against self-incrimination. He argues that, since both witnesses refused to testify on constitutional grounds, there was no trial testimony which could be inconsistent with any prior testimony. For reasons that follow, we conclude that the trial court properly ruled that both witnesses offered testimony in this case which subjected them to impeachment by their prior inconsistent testimony, and that the trial court therefore properly admitted their prior inconsistent statements as evidence.

Section 115 — 10.1 of the Code of Criminal Procedure of 1963 provides that evidence of a statement made by a witness is not made inadmissible by the hearsay rule if (1) the statement is inconsistent with the witness’ testimony at the hearing or trial; (2) the witness is subject to cross-examination concerning the statement; and (3) the statement was made under oath at a trial, hearing, or other proceeding. Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1.

In People v. Redd (1990), 135 Ill. 2d 252, 302, 553 N.E.2d 316, our supreme court held that a witness who invokes the fifth amendment does not testify and thus there can be no prior inconsistent statement. The court therefore held that section 115 — 10.1 is not applicable where a witness properly invokes his constitutional privilege against self-incrimination.

However, in People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481, the supreme court held that a witness’ professed memory loss at trial as to statements made previously before the grand jury was inconsistent with that previous testimony. In so holding, the court reasoned that a witness’ prior testimony need not directly contradict testimony given at trial to be considered inconsistent within the meaning of section 115 — 10.1. The court quoted Dean Wigmore’s statement on the issue: “ ‘[WJhere a witness now claims to be unable to recollect a matter, a former affirmation of it should be admitted as a contradiction.’ (See 3A J. Wigmore, Evidence in Trials at Common Law §1018, at 1061 (Chadbourn rev. 1970).)” (Flores, 128 Ill. 2d at 87.) The court noted that the Federal courts have adopted the Wigmore statement in construing Rule 801(d)(1)(A) of the Federal Rules of Evidence (28 U.S.C. R. 801(d)(1)(A) (1982)), which is similar to section 115 — 10.1.

Moreover, the court noted Federal decisions which found inconsistencies not only in direct contradictions, but also in evasive answers, silence, or changes of positions. Finally, the court held that “[t]he determination of whether a witness’ prior testimony is inconsistent with his present testimony is left to the sound discretion of the trial court.” Flores, 128 Ill. 2d at 87-88.

We conclude that this case is governed by the supreme court’s holding in Flores, and not its holding in Redd. Though it is true that both Williams and Bogan invoked their fifth amendment rights, they did in fact testify, and the trial court properly concluded that the testimony they gave was inconsistent with their prior testimony. At trial, Williams denied knowledge of the shooting at Keeler and Washington and stated that he did not remember who was with him that night. That testimony was inconsistent with his juvenile court testimony that he was at the scene of the shooting and that he saw defendant fire a gun which he then placed in a bag. Likewise, Bogan’s trial testimony, in response to cross-examination questioning, that he previously had testified that he was not present at the shooting and did not witness it and that his “head was turned at the time,” while partially consistent with his prior testimony, was inconsistent with that portion of his prior trial testimony that he had seen defendant fire the gun at Keeler and Washington on June 19, 1982. Further, his testimony that his head was turned was inconsistent with his juvenile court testimony that he was not at the scene.

Though we note that the prior trial testimony of Bogan may have been admissible under the theory that he was an absent witness whom defendant had an adequate opportunity to cross-examine at the prior trial (see People v. Horton (1976), 65 Ill. 2d 413, 358 N.E.2d 1121; People v. Tennant (1976), 65 Ill. 2d 401, 358 N.E.2d 1116), we conclude that section 115 — 10.1 provided an adequate basis for the trial court’s admission of his prior testimony.

II

Defendant’s next contention is that, because the State refused to grant immunity to Williams and Bogan, use of their prior testimony deprived him of his sixth amendment right of confrontation. The State responds that neither witness was entitled to immunity since they were not in any danger of incriminating themselves.

The record reflects that the trial court considered the questions put to the witnesses and repeatedly ruled that there was no danger of self-incrimination involved in answering many of them. The determination of whether there is a real danger of incrimination under the particular facts is for the trial court; mere reluctance to testify is not a valid ground for the assertion of the fifth amendment privilege. Redd, 135 Ill. 2d at 314.

Here, the trial court correctly ruled that Williams and Bogan had no fifth amendment privilege to invoke, and that, in any case, they had effectively waived the privilege. Defendant’s argument that it was error for the State not to grant immunity to Williams and Bogan lacks merit.

Ill

Defendant next maintains that the trial court erred in allowing Williams, who was represented by counsel in other unrelated pending charges, to testify without his attorney. The State responds that Williams, as a witness, was not entitled to counsel.

The cases upon which defendant relies (Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093; United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117) are not relevant to the case at bar. In the custodial interrogation setting, a suspect who has invoked his right to counsel is entitled to the assistance of counsel because the purpose of questioning is to elicit an incriminating response. (Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682.) Where, however, the testimony of a witness is used not to implicate the witness, but someone else, neither fifth amendment nor sixth amendment rights are implicated. The recent holding of the United States Supreme Court in McNeil v. Wisconsin (1991), 501 U.S. _, 115 L. Ed. 2d 158, 111 S. Ct. 2204, adequately illustrates that Williams had no right to counsel as a witness in this case. Moreover, the assertion that Williams’ rights may have been violated does not mean that defendant’s rights were thereby violated.

The trial court committed no error in allowing Williams to testify without counsel.

IV

Defendant’s final argument is that the State failed to prove that he was guilty of murder beyond a reasonable doubt.

When presented with a challenge to the sufficiency of the evidence, a reviewing court is to view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 48, 538 N.E.2d 453.) A criminal conviction should not be reversed unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Young, 128 Ill. 2d at 51.

In the instant case, Vernard Smith testified that he saw defendant shoot Jeffrey Peebles. He described how defendant removed the gun from a black pouch he carried over his shoulder with long straps. This testimony was corroborated by Ricky Gray, who saw the gun and the pouch in defendant’s possession approximately one week before the shooting. The gun was distinctive in that it had a chipped hammer. The stipulated testimony of the firearms expert established that the bullet which killed Peebles came from that gun.

Defendant contends that both Ricky Gray and Vernard Smith were untrustworthy. He also contends, contrary to the trial court’s finding, that Vanessa Brown and Rotanya Young were credible. The credibility of witnesses is primarily a question for the trier of fact, and the resolution of that question will not be upset on appeal even where the evidence is conflicting. (People v. Harris (1987), 154 Ill. App. 3d 308, 316, 506 N.E.2d 1353.) Even without the disputed testimony of Williams and Bogan, there was sufficient evidence to lead a rational trier of fact to conclude beyond a reasonable doubt that defendant murdered Jeffrey Peebles.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORDELL SEALS, Defendant-Appellant.
    First District (4th Division)
    No. 1-89-1892
    Opinion filed August 22, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Mary Brigid Kenney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant Cordell Seals was convicted of reckless homicide and sentenced to a six-year term. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).) Upon appeal defendant contends that the State failed to prove him guilty beyond a reasonable doubt.

Gregory Green testified that on May 14, 1988, he was a passenger in the back seat of the car which defendant was driving. According to Green, defendant was driving at about 40 miles per hour and observing all traffic rules. He had not seen defendant drink any alcohol or use any drugs that day.

Terry Williams testified that on that date he was driving his car with his grandfather in the front passenger seat. Although Williams looked in the proper direction of oncoming traffic at the intersecting one-way street, he did not see defendant’s car until it struck the passenger side of Williams’ car as Williams was going through the intersection on a green light. According to Williams, defendant’s car was going “about 80, close to 90” upon impact. His grandfather subsequently died from injuries he sustained in the accident.

Assistant State’s Attorney Mary Pat Devereux testified that she interviewed defendant about the accident. Defendant told her that he had been at home where he consumed eight beers “and had smoked about three joints of marijuana.” He then left to drivé Henretta Mc-Calin and Green to downtown Chicago. Also, according to defendant’s statement, he did not recall how the accident happened. Upon cross-examination, Devereux said that at the time she interviewed defendant, “he appeared alert and was able to answer my questions,” and she did not remember “if [she] could smell alcohol or not.”

Police officer William E. Moss testified that he arrived at the accident scene which involved defendant’s car. He later spoke with defendant at the hospital and arrested him. Defendant told Moss that he drank “a few beers and smoked a few marijuana cigarettes.” When Moss inspected defendant’s car, he saw that “the speedometer was stuck at about I would say between 70 and 80 miles per hour.” Upon cross-examination, Moss said that a police sergeant administered the breathalyzer test to defendant and that defendant did not appear intoxicated at the hospital. Moss also said that defendant adequately performed the appropriate motor skill tests and that “his speech was clear.”

Mrs. Carol Trojan, a toxicologist, testified that defendant’s blood and urine tested positive for phencyclidine (PCP). Defendant’s samples were not tested for marijuana.

Dr. Michael Schaffer of the medical examiner’s office specialized in toxicology and had an advanced degree in pharmacology. He testified that the defendant’s blood “was screened for alcohol, opiates and barbiturates and that was negative. *** The blood was also screened for cocaine and that was negative.” In relation to PCP Dr. Schaffer remarked:

“If we can measure at all any level of phencyclidine in the blood, an individual in my opinion *** is not capable of safely operating a motor vehicle ***.”

Defendant testified that on May 14, 1988, he drank five seven-ounce bottles of beer in the morning, but he denied smoking any marijuana. He then went to Green’s apartment, and with Green and Green’s girl friend in defendant’s car he drove down a one-way street the wrong way. Defendant then “proceeded to back up to turn around some kind of way. Next thing I remember was I was in an ambulance.” Defendant also testified, “I couldn’t have been going no more than 35 or 40.” Defendant denied that he had any PCP on May 14, 1988, but admitted that he had been using PCP about twice a month for four months prior to that day. Defendant also said that he did not remember telling Devereux on May 14, 1988, that he had smoked about three marijuana cigarettes.

The trial court found defendant guilty of reckless homicide for acting “recklessly in driving a motor vehicle under the influence of phencyclidine and marijuana.” The trial court denied the defendant’s motion for new trial and sentenced defendant to six years’ imprisonment. The record contains no post-trial motion.

Upon appeal defendant contends that the State failed to prove him guilty beyond a reasonable doubt of reckless homicide based on driving under the influence of PCP. Section 9 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3) provides in pertinent part:

“(a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.
(b) In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be prima facie evidence of a reckless act.
(c) *** [A] person shall be considered to be under the influence of alcohol or other drugs while:
(3) Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving.”

PCP is a substance listed under the Illinois Controlled Substances Act. Ill. Rev. Stat. 1987, ch. 56V2, par. 1206(e)(5).

In the case at bar, the trial court was correct in concluding that defendant met all the statutory requirements for a conviction for reckless homicide. Defendant concedes and Williams testified that defendant drove a car the wrong way down a one-way street. The trial court also concluded that defendant disobeyed a traffic signal and struck another car at a speed “well beyond anything allowable on the city streets.” Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact reasonably could have found that defendant recklessly crashed into Williams’ car, thereby killing Williams’ grandfather. See People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461.

One could also reasonably conclude that defendant drove the wrong way down a one-way street at an excessive speed because his driving ability was impaired by drug use. (See People v. Nunes (1986), 143 Ill. App. 3d 1072, 1075, 494 N.E.2d 202 (defendant was apprehended driving in the wrong direction on a highway due to intoxication).) The trial court found that defendant smoked three marijuana cigarettes laced with PCP that morning because PCP was detected in defendant’s blood and urine, defendant admitted smoking marijuana to the police, and “one of the ways of ingesting PCP is on a cannabis cigarette.” Furthermore, Dr. Michael Schaffer, an expert witness, testified regarding the effects of PCP in humans and said that any amount in defendant’s body could cause a driving problem. While Dr. Schaffer relied in part on seminar materials for his opinion on PCP intoxication, we conclude that he was qualified to testify and that the trial court did not abuse its discretion in admitting his expert testimony. (See People v. Pruitt (1974), 16 Ill. App. 3d 930, 939, 307 N.E.2d 142, cert. denied (1974), 419 U.S. 968, 42 L. Ed. 2d 184, 95 S. Ct. 232.) For the above reasons, we conclude that the trial court properly found defendant guilty of reckless homicide.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE McMORROW

text:
    ALBERT NICHOLS, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1-90-0094
    Opinion filed August 22, 1991.

      Legal Assistance Foundation of Chicago, of Chicago (James A. Lat-turner, Julian Henriques, Jr., and Theodora M. Rand, of counsel), for appellant.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chieago, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Albert Nichols (Nichols) appeals from the order of the circuit court affirming the decision of the Board of Review (the Board) of the Illinois Department of Employment Security (the Department) that he is ineligible for unemployment insurance benefits because he was discharged for misconduct connected with his work. Plaintiff contends that the circuit court’s ruling was erroneous as a matter of law and contrary to the manifest weight of the evidence.

The facts of record are as follows. Plaintiff had been employed intermittently as a janitor at the Hilliard Center, a property of the Chicago Housing Authority (CHA), between 1968 and 1980, from which time he worked continuously until his discharge in October 1988. On August 29, 1988, the CHA sent a “final disciplinary notice” to plaintiff advising him that his termination from CHA employment was being sought because (1) his conduct did not conform to CHA policies and practices and (2) his work performance was unsatisfactory. Specifically, the notice stated that on August 20, 1988, plaintiff had refused a direct assignment from his immediate supervisor to mow the grass, following which plaintiff left work for the day. In addition, it was noted that since June 1988, when a 60-day probation for excessive absenteeism ended, he had been absent from work a total of 35 hours for sick leave and IOV2 hours without pay in addition to 16 hours’ annual leave time. The disciplinary notice further advised plaintiff that because of his refusal to perform an assigned task and because he had ignored repeated warnings regarding his abuse of leave privileges, he was suspended effective August 29,1988, pending termination proceedings.

A pretermination meeting was held on September 12, 1988. In attendance were plaintiff, maintenance supervisor Harry Green, the assistant manager of the Hilliard Center, and three union representatives. Regarding the events of August 20, Green stated that when he arrived at work at 8 a.m., he asked Sylvester Johnson, a maintenance employee who acted as a weekend supervisor, if everyone was present for work. Johnson stated that he had assigned plaintiff to help him cut the grass but plaintiff had refused and left the CHA premises. Green and plaintiff had a conversation approximately 30 minutes later in which plaintiff acknowledged that he refused to cut the grass and had not signed in for work. Green noted that in late June 1988 he removed plaintiff from a 60-day probation and that he had repeatedly warned plaintiff, both verbally and in writing, about his poor attendance and performance. Green explained that because of plaintiffs poor attendance record and his refusal to follow his supervisor’s directive, he believed that suspending plaintiff pending termination was appropriate.

Johnson stated that he had been told by the building manager that the grass was to be cut that day. He assigned plaintiff to first mop the stairwells in one of the buildings and then to assist him in cutting the grass. Plaintiff told him that Green had not assigned him to cut grass that year and that he would not cut the grass. Johnson advised plaintiff that if he refused, he may as well not work that day, whereupon plaintiff left.

Plaintiff did not dispute Johnson’s statement, but maintained that the reason Green had not assigned him to grass cutting was because Green knew he had had a prior accident with the lawnmower. Green denied that that was the reason for not assigning plaintiff to cut grass. He stated that there were other people who cut the grass better and, so, he usually assigned those people to do it.

A memorandum from the acting manager of labor relations regarding the termination recommendation contained a list of plaintiff’s work history. Between 1980 and 1988, the CHA disciplined plaintiff 11 times for poor attendance, tardiness, and poor work performance. The memorandum stated that despite the imposition of progressive disciplinary measures short of termination, plaintiff had failed to modify his behavior. Termination based on insubordination and a poor work record was recommended.

Green’s recommendation to terminate plaintiff’s employment was upheld, and plaintiff was subsequently notified that he was discharged for insubordination and excessive absenteeism. Plaintiff then submitted an application for unemployment insurance benefits. Thereafter he and Green both gave statements to the Department regarding the reasons for his discharge. The statements were essentially the same as their statements at the pretermination meeting. The claims adjudicator found that plaintiff was discharged for misconduct connected with his work and denied plaintiff’s claim for benefits on that ground. Plaintiff sought reconsideration of the determination, asserting that he had injured his back at work on four occasions. He alleged that the CHA was aware of his injuries and was firing him because he had sued the CHA twice. The denial of his claim was reversed; but, after further reconsideration, the original determination denying his claim was affirmed. The claims adjudicator noted that although plaintiff maintained that he refused to cut the grass for reasons relating to his health, he had produced no medical evidence in support of his assertion that he was physically unable to cut the grass.

Following the denial of his claim, plaintiff appealed, pro se, and a hearing was held before a referee. Plaintiff testified that prior to signing in for work on August 20, he made some joking remarks to Johnson which “rubbed him the wrong way” and resulted in an argument. Plaintiff claimed that he was unable to cut grass because of the injuries to his back and ankle from pushing the mower out onto the lawn and pushing heavy containers of garbage. He stated that he believed that it was his joking or “jiving” that prompted Johnson to “get back at him” by directing him to assist in mowing the grass.

Johnson denied that the joking between him and plaintiff got out of hand, stating that it was something they did every morning. He knew that plaintiff had been off from work due to an injury, but he did not know the nature of it, nor did he know of any physical problems which would prevent plaintiff from cutting grass. Jackson described the lawn mower as a multipurpose vehicle which was convertible into a snow blower or compactor. The vehicle is motor driven and does not require much physical exertion to run.

There was no dispute at the hearing that plaintiff submitted to the CHA a written release prepared by Dr. Kocalis, the physician for the union and plaintiff’s attending physician, on August 4, 1988. The release stated that plaintiff was physically able to return to work on August 9, 1988. Dr. Kocalis placed no restrictions on his activities but plaintiff testified that both Dr. Kocalis and Dr. Javlin, the CHA. physician, verbally told him that he should perform only light duties. Plaintiff testified that neither the release prepared by Dr. Kocalis nor any other doctor’s statement mentioned light duty because there is no such thing as light duty in his job. He knew that when he returned to work, he would be required to perform the jobs he had performed prior to his medical leave, such as mopping, sweeping and garbage removal, but he did not expect to cut grass because he had not been assigned that task all year.

In his testimony, plaintiff referred to another doctor he had consulted regarding his back injury. He did not provide the physician’s name and did not have a copy of any records from him, but he was “pretty sure” that this unidentified doctor had given him a letter restricting him to light duty. He stated that the original injury to his back occurred in 1982, that he had seen several doctors since that time and had given copies of all his medical records since 1980 to Green. He acknowledged, however, that the August 4 release from Dr. Kocalis was the only doctor’s statement he received since January 1988 when he returned to work after a prior medical leave. He also testified that Dr. Javlin told him that he (Javlin) would not give plaintiff copies of his medical records unless he hired an attorney.

Ms. Kraly, a hearings representative of the CHA, testified that the only statement in the CHA’s possession relating to plaintiff’s ability to return to work in August 1988 was the full release from Dr. Kocalis. Plaintiff alleged that Ms. Kraly’s statement was “a lie.”

The referee noted that Green would be the person who had all of plaintiff’s records and suggested that the hearing be continued to have Green “clear this up.” Kraly advised the referee that she did not know when Green was scheduled to return to work and would call the CHA to obtain that information. Plaintiff, however, interjected that Green never took more than one week of vacation at a time and would be back on the following Monday.

When the hearing resumed and Green did not appear, the referee stated that his decision would be written on the evidence of record. The referee found that the release issued by Dr. Kocalis contained no restrictions, and that no other documents were presented supporting plaintiff’s contrary assertion that he was unable to cut grass because of a back injury. The referee therefore affirmed the decision of the claims adjudicator, holding that plaintiff was discharged for misconduct connected with his work, and that he was not eligible for unemployment insurance benefits.

Plaintiff filed a pro se appeal to the Board which adopted the referee’s findings of fact and affirmed his decision. Plaintiff thereafter filed a complaint, pro se, in the circuit court for administrative review of the Board’s determination. A hearing was held on August 28, 1989. The court reviewed the findings and decision of the referee and the decision of the Board, and heard arguments by the parties. Plaintiff maintained that he had given Green a copy of a physician’s statement restricting him to light duty, but that Green had “held it back.” When asked by the court if he could have obtained another copy, plaintiff responded that he “could have” “[b]ut didn’t think it was necessary.” The court stated that it had reviewed the entire record, including the evidence that plaintiff had been disciplined numerous times, and affirmed the decision of the Board that plaintiff was ineligible for unemployment insurance benefits. Plaintiff thereafter retained counsel who filed a motion to vacate the August 28 order. After arguments by counsel, the court denied plaintiff’s motion, holding that there was no error on which to base vacatur of its earlier ruling. This appeal followed.

The purpose of the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.) (the Act) is to provide monetary benefits to unemployed workers to alleviate the hardships of involuntary unemployment. (Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760.) The receipt of unemployment insurance benefits in Illinois is a conditional right (Clark v. Board of Review of the Illinois Department of Labor (1984), 126 Ill. App. 3d 559, 467 N.E.2d 950), and the claimant has the burden of proving entitlement to such benefits (Clark, 126 Ill. App. 3d 559, 467 N.E.2d 950; Siler, 192 Ill. App. 3d 971, 549 N.E.2d 760). The Act is to be liberally construed for the benefit of unemployed individuals (Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 494 N.E.2d 1266; Flex v. Department of Labor, Board of Review (1984), 125 Ill. App. 3d 1021, 466 N.E.2d 1050). However, the Act is not intended to benefit those who are unemployed on account of their own misdeeds. Siler, 192 Ill. App. 3d 971, 549 N.E.2d 760; Popoff, 144 Ill. App. 3d 575, 494 N.E.2d 1266; Bochenek v. Department of Employment Security (1988), 169 Ill. App. 3d 507, 525 N.E.2d 893.

It is the responsibility of the administrative agency to weigh the evidence, determine the credibility of witnesses and resolve conflicts in testimony. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879.) Under the Code of Civil Procedure, the agency’s factual findings and conclusions are considered prima facie true and correct (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Wilson v. Department of Employment Security (1990), 196 Ill. App. 3d 711, 554 N.E.2d 1006; Bochenek v. Department of Employment Security (1988), 169 Ill. App. 3d 507, 525 N.E.2d 893), and must be upheld on review unless they are contrary to the manifest weight of the evidence (Ferretti v. Department of Labor (1987), 115 Ill. 2d 347, 500 N.E.2d 560). Thus, a reviewing court cannot reweigh the evidence, judge the credibility of witnesses or resolve conflicts in testimony. The function of the court regarding factual issues is limited solely to determining whether the agency’s decision is against the manifest weight of the evidence. (Jackson 105 Ill. 2d 501, 475 N.E.2d 879; Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760; Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44.) The mere existence of conflicting testimony is not a sufficient basis on which to reverse. Finik v. Department of Employment Security (1988), 171 Ill. App. 3d 125, 524 N.E.2d 1148.

However, a reviewing court is not bound to give the same deference to an agency’s conclusions of law as it must give to its findings of fact, and will reverse a decision based on an erroneous interpretation or application of the law. London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 532 N.E.2d 294; Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 510 N.E.2d 422; Gee v. Board of Review of the Department of Labor (1985), 136 Ill. App. 3d 889, 483 N.E.2d 1025.

Under section 602(A) of the Act, an individual is not eligible for benefits if he was discharged for misconduct connected with his work. (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) Misconduct is defined in section 602(A) as follows:

“For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

Plaintiff contends generally that the Board’s decision that he was discharged for misconduct connected with his work was erroneous as a matter of law. Plaintiff asserts that the Board improperly failed to consider whether cutting grass was one of his job duties. He argues that an employer’s directive to an employee to perform a task which is outside the scope of his job duties is not, as a matter of law, “reasonable,” within the meaning of the Act. He contends then that his refusal to do the work does not constitute misconduct under section 602(A) of the Act, which requires disobedience of a “known and reasonable rule.” Plaintiff bases his argument on his testimony that he had not been assigned to cut the grass all year and Johnson’s testimony that cutting grass “hadn’t been” one of plaintiff’s duties.

We are not persuaded by this argument. The fact that plaintiff had not been personally assigned to cut the grass that season does not mean that grass cutting was not one of the duties within the scope of his job as a maintenance worker. Plaintiff’s own testimony established that cutting grass and removing garbage with the tractor were part of his job duties for several years. Also, Johnson, a fellow maintenance employee who was acting as supervisor only on weekends, testified that grass cutting was one of the routine maintenance duties. In fact, despite being the supervisor on the day in question, Johnson testified that he was responsible for the grass being cut that day and had merely directed plaintiff to assist him. In a written statement to the Department regarding plaintiff’s application for insurance benefits and at the pretermination meeting, Green denied that his reason for not having assigned grass cutting duty to plaintiff in the recent past was because of any injury plaintiff had suffered. Rather, he explained, it was because other people did a better job, and so he usually assigned the task to them.

Further, numerous documents in the record make clear that plaintiff’s discharge was not based solely on his refusal to cut the grass on August 20. These documents expressly state that plaintiff’s discharge was also based on his long history of poor work performance and excessive absenteeism. The incident which culminated in plaintiff’s discharge occurred less than two months after a 60-day probation for poor attendance had ended. On his last working day plaintiff did not work because he refused to cut grass. Plaintiff does not and cannot validly argue that rules prohibiting excessive absenteeism and tardiness are not reasonable under the Act. See, e.g., Wilson v. Department of Employment Security (1990), 196 Ill. App. 3d 711, 554 N.E.2d 1006; Bochenek v. Department of Employment Security (1988), 169 Ill. App. 3d 507, 525 N.E.2d 892; Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 465 N.E.2d 1052.

In its written decision, the Board expressly stated that it had reviewed the entire record, including the records of the Division of Unemployment Insurance, as did the circuit court in affirming the Board’s decision. Thus, there is no basis for plaintiff’s contention that the Board failed to consider whether plaintiff had disobeyed a reasonable rule or that its decision that he had been discharged for misconduct was contrary to the manifest weight of the evidence.

Plaintiff also asserts that the Board erred in basing its denial of his claim on the ground that he did not produce a physician’s statement substantiating his claim that his physical condition justified his refusal to cut the grass. Plaintiff first argues that the Act is intended to provide benefits to persons discharged for incapacity or inability to perform his job duties (Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760). He maintains that the uncontradicted testimony established that the CHA knew he suffered injuries which prevented him from cutting grass, and that Johnson’s directive that he do so was not, therefore, reasonable.

Plaintiff misstates the evidence. Although it is true that the CHA did not dispute that plaintiff had suffered an injury, it vigorously contested plaintiff’s claim that the injury prevented him from cutting grass. As noted above, Johnson testified that he knew plaintiff had taken time off from work because of an injury, he did not know the nature of it nor was he ever told that there were jobs that plaintiff was physically unable to perform. Green also disputed plaintiff’s claim that he, Green, knew plaintiff was physically unable to cut grass and, for that reason, had not assigned the task to plaintiff. Most important, however, was that the union physician’s release form stated, without qualification, that plaintiff was physically able to return to work. We are not persuaded by plaintiff’s argument that the form of physician’s release did not provide the physician the ability to specify whether the employee being returned to work should refrain from performing certain types of work. First, the form was not a CHA form given to the doctor for his completion but was one on the letterhead of the Union Health Service. Also, there is sufficient blank space on the form for the doctor to include any limitations on the employee’s ability to return to work.

Plaintiff further asserts that the Act does not require that a claimant provide medical evidence that he is unable to perform certain tasks, and that even a reasonable subjective fear that performing a certain job will cause him injury is sufficient to qualify him for benefits. He argues that the Board erred in failing to consider whether he had a reasonable fear that cutting the grass would injure him.

In analyzing whether a plaintiff had “good cause” under section 601 of the Act, dealing with claimants who voluntarily leave work, courts have stated that good cause may consist of a reasonable subjective fear concerning the employee’s health, even absent the advice of a physician. For a claimant to demonstrate that a health concern is a justifiable reason for leaving his employment, the claimant must (1) offer competent testimony that adequate health reasons existed to justify his leaving work on the date he terminated his employment; (2) have informed the employer of the health problem; and (3) be available, where reasonable accommodation is made by the employer, for work which is not inimical to his health. Finik v. Department of Employment Security (1988), 171 Ill. App. 3d 125, 524 N.E.2d 1148; Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 510 N.E.2d 422; Burke v. Board of Review, Illinois Department of Labor (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351.

From our review of the record, we conclude that plaintiff failed to present sufficient evidence on which the Board could have reversed the decision of the referee on the ground that plaintiff had a reasonable subjective belief that assisting Johnson in cutting the grass would cause him injury. We note that the evidence established that the vehicle used to cut the grass and remove garbage was a motor driven tractor which, according to Johnson, did not require much physical assertion to operate. Plaintiff stated at the hearing that his injuries resulted from manually pushing the tractor out onto the grassy area. However, both he and Johnson testified that the reason plaintiff gave for refusing Johnson’s assignment was that plaintiffs injuries resulted from the cutting of the grass. Plaintiff also testified that while he did not expect to be required to cut grass after his sick leave, because he had not been assigned that job during the entire year, he did expect to be required to resume his other chores, including garbage removal.

Of special significance in this case, however, was the written statement of the union physician and plaintiffs attending physician, Dr. Ko-calis, who, aware of plaintiff’s job duties, stated that plaintiff was physically able to return to work. This document contradicted plaintiff’s testimony that both Dr. Kocalis and Dr. Javlin verbally advised him to perform only light duties. Resolution of conflicts in the evidence are within the province of the trier of fact. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879.) Further, plaintiff’s testimony regarding one or more other doctors he had consulted was incohesive and vague as to the identity of those doctors and the dates on which he had consulted them. He acknowledged that Dr. Kocalis’ statement was the only medical record relating to the injury from which he had just returned to work. Considering that plaintiff submitted to the CHA a written release from the union doctor stating that he was physically able to return to work, we find no merit in plaintiff’s argument that the Board improperly failed to consider his subjective fear of injury from cutting grass.

We also reject plaintiff’s argument that the Board improperly imposed an evidentiary requirement, not contained in the Act, that he supplement his testimony with a doctor’s statement that he was restricted from performing certain tasks. As noted previously, the burden is on the claimant to establish his entitlement to benefits under the Act. (Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760.) Although plaintiff testified that his injuries resulted from cutting grass and that he had received medical advice to restrict his work activities to light duty, that testimony was contradicted by the physician’s statement in evidence. The denial of his claim for benefits was not based on his failure to produce documentary evidence supporting his testimony but, rather, because competent medical evidence in the record expressly refuted his testimony.

In summary, we find that the decision denying plaintiff’s claim for unemployment insurance benefits was neither erroneous as being the result of any improper application of the law nor as being contrary to the manifest weight of the evidence. Accordingly, we will not disturb the judgment of the circuit court affirming the Board’s decision that plaintiff was discharged for misconduct connected with his work and was, therefore, ineligible for unemployment insurance benefits.

The judgment of the circuit court is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


text:
    DONALD BURGER, Plaintiff-Appellant, v. PRAIRIE DEVELOPMENT, LTD., Defendant-Appellee (Dayton Resources, Ltd., et al., Defendants).
    First District (4th Division)
    No. 1-90-2913
    Opinion filed August 22, 1991.

      Burke & Burke, Ltd., of Chicago (John M. Burke and Thomas M. Lake, of counsel), for appellant.
    Schoen & Smith, Ltd., of Chicago (Lee J. Schoen, of counsel), for appel-lee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Donald Burger, sustained injuries when he fell off a ladder at a construction site. He is suing several defendants, including the owner of the real estate, Prairie Development, Ltd. Prairie successfully moved for summary judgment and was dismissed from the litigation. Burger appeals from that judgment, contending that the court erred in its conclusion that Prairie was not “in charge of” the work for purposes of liability under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Burger also contends that the trial court mistakenly allowed Prairie to absolve itself of liability under a “hold harmless” agreement with the general contractor and that Prairie had an independent duty to Burger under tort principles of landowner liability.

We affirm the trial court’s entry of summary judgment in favor of Prairie.

Background

Burger was taping drywall at a construction site owned by Prairie when he fell off of a ladder. Count I of his complaint alleges that various defendants violated the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69). Count II alleges that the defendants were negligent in failing to provide proper and adequate protection to plaintiff in the performance of his work. The trial court granted summary judgment in favor of Prairie and also entered a finding that there was no just reason to delay enforcement of or appeal from the order. The litigation remains pending against other defendants.

At the time of his injuries, Burger was an employee of Levy Company, the drywall subcontractor engaged by the general contractor, Dayton Resources, Ltd., and S. Ballis, both of whom are defendants in the lawsuit. Burger is also suing Bryce, Inc., construction manager of the project, and Gustaf-Lindberg Company, the manufacturer of the wooden ladder from which Burger fell. Roy H. Kruse and his architectural firm have been dismissed from the pending action.

The site of Burger’s injuries is 933 W. Wrightwood, where 33 townhomes were being constructed. Prairie held title to the property and provided all of the financing for the development of the project. Prairie is a service corporation owned by Pathway Financial Institution.

The record contains the deposition of Prairie’s president, Ronald Reichert, who signed the “Building General Contractor Agreement” on behalf of Prairie. Also of record is the deposition of Steven Ballis, who signed the contract on behalf of the general contractor, Dayton Resources. Under the contract, Prairie was to purchase the real estate and obtain the deed. Dayton’s obligation was to direct the construction of the townhomes. Prairie was to review the architectural plans and specifications, as well as a marketing program. Upon approval of the plans, Dayton would begin construction. Prairie agreed to pay all costs of construction, in exchange for 50% of the profits from sales of the units.

Reichert testified that he visited the construction site at least twice a month, pursuant to the general contractor’s requests for interim payments, or draws. Under the contract, Prairie would not be obligated to approve the draws until it checked to see that the work for which payment was requested had been completed. Prairie reserved the right to terminate the contract and take over the project if Dayton became unable or unwilling to perform under the contract. In the pending case, however, Prairie never stopped the work or interfered in the construction activities. Prairie also had the right to issue or approve change orders of $1,000 or more, pursuant to the construction contract. Prairie bore the risks of loss during the period of construction. If any extra work or change order of a significant nature was deemed necessary by Dayton, Prairie retained the right to be consulted before the change order was implemented.

Steven Ballis, president of Dayton, testified at his deposition that Prairie’s role was “to provide the funding for the project and then whatever role it had as overseer on behalf of its own entity and act as owner.” Ballis acknowledged that Prairie sent people to inspect the work periodically and testified that he believed they were there to verify that the work had in fact been performed so that payment could be approved.

In its motion for summary judgment, Prairie argued that there was no issue of material fact under count I, the Structural Work Act claim, because there was no evidence Prairie was “in charge” of the work. Prairie further challenged count II on the grounds that Burger was the employee of an independent contractor, Levy, and therefore Prairie had no special duty in negligence because it retained no control or supervision over independent contractors. Further, Prairie argued that a landowner owes no duty to warn an independent contractor of the obvious and normal hazards incident to the work performed.

Opinion

I

Burger charges that the trial court improperly tried issues of fact. He cites a number of cases for the proposition that whether a person or entity is “in charge of work” under the Act is to be resolved by the trier of fact. (See, e.g., McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157; Scrimager v. Cabot Corp. (1974), 23 Ill. App. 3d 193, 318 N.E.2d 551.) While we acknowledge the general accuracy of that statement, factual questions nonetheless may be determined as a matter of law if the evidence presented is insufficient to raise a genuine issue of material fact. See, e.g., Winter v. Davis (1980), 85 Ill. App. 3d 912, 407 N.E.2d 696; cf. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403.

There is no all-encompassing test to guide the courts in deciding whether a particular defendant had charge of the work as that concept is understood under the Act. (See Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247; Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946.) Courts have listed various factors that may bear on the decision in a particular case, however. These include a consideration of whether the defendant (1) supervised and controlled the work; (2) retained the right to supervise and control; (3) constantly participated in the ongoing activities at the construction site; (4) supervised and coordinated the subcontractors; (5) took responsibility for safety precautions at the jobsite; (6) had the authority to issue change orders; (7) had the right to stop the work; (8) owned the equipment at the jobsite; (9) was familiar with construction customs and practices; and (10) was in a position to assure worker safety by correcting unsafe habits and equipment deficiencies. (E.g., Simmons, 104 Ill. 2d 444, 423 N.E.2d 946; Gentile v. Kehe (1987), 165 Ill. App. 3d 802, 520 N.E.2d 830, appeal denied (1988), 121 Ill. 2d 569, 526 N.E.2d 830.) These factors may be viewed as focussing on two hallmarks of being “in charge”: (1) actual or clearly implied control and supervision over the construction; and (2) responsibility for job safety.

While an owner of property may exercise such control and supervision over construction as to make him liable to an injured party under the Act, the mere fact of ownership has little to do with which party or parties actually “have charge” of it. See O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, 543 N.E.2d 546 (mere ownership of premises or retention of right to reject or stop work is not enough for liability under Structural Work Act); Winter v. Davis (1980), 85 Ill. App. 3d 912, 407 N.E.2d 696 (owner of house was not liable under the Act for painter’s injuries even though owner had suggested method of work and directed worker’s attention to missed spots; owner did not direct the work, was not generally present while work was done, and was not involved in erection and placement of scaffolding).

A defendant cannot be held responsible for injuries sustained at the jobsite unless there is a “showing that he had some direct connection with the construction operations.” (Emphasis added.) McGovern v. Standish (1976), 65 Ill. 2d 54, 67, 357 N.E.2d 1134 (architect was not liable where his function was limited to general overseeing); cf. Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348 (architectural firm with authority to stop work was found to be in charge where its project representative was present on jobsite continuously for more than three years).

The facts of record are not in dispute; rather, the parties disagree as to the inferences that may be drawn from the facts. The depositions and the construction contract indicate that Dayton, as general contractor, was responsible for the day-to-day construction operations, including the hiring of subcontractors and directing the actual work activities. Prairie, on the other hand, was the financing entity for the project and maintained a periodic presence at the site to ensure that the contractors’ draws were justified by the work being completed. Prairie’s visits to the site to ensure that specific draws were justified differ markedly from Dayton’s ongoing presence as general contractor responsible for all phases of construction.

Notwithstanding the different roles of the general contractor and owner in this case, Burger argues that several of the “in charge” factors are present and therefore the issue should go to a jury. While we do not believe that the courts must examine each separate factor in a mechanical application, we recognize that a party’s right to summary judgment must be free of doubt. Accordingly, we will consider each factor as it relates to Prairie’s actual or implied control of the work or responsibility for safety.

Burger’s first, and primary, contention is that Prairie controlled and supervised the construction because Prairie’s representatives visited the construction site at least twice a month and while there inspected the improvements to make certain the work was being done in a workmanlike manner. From this right of inspection, Burger leaps to the conclusion that Prairie undertook a direct responsibility for jobsite safety, speculating, “Surely, PRAIRIE looked for unsafe conditions during such inspections.” We find this to be unsupported by any evidence of record; on the contrary, Reichert testified in his deposition that he did not look for defective conditions because that was not his job. An example of the type of inspection he conducted was checking to see that 10 garage doors were installed if Prairie was being billed for 10 garage doors.

Liability under the Structural Work Act is not automatically triggered when one who makes periodic site inspections for a limited purpose also has an incidental opportunity to observe unsafe conditions. If a person is not otherwise found to be in charge of the work, mere failure to inspect for unsafe conditions is not a ground for liability, at least unless that person’s responsibilities include safety precautions. (See Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 401 N.E.2d 1287 (affirming summary judgment in favor of architect, who did not have authority to stop the work because of hazardous conditions and who was to make only periodic visits to the site).) In Diomar, as in the pending case, the defendant’s inspections encompassed defective workmanship but not unsafe conditions.

Burger does not allege that Prairie was on notice of any unsafe conditions at the work site or that Prairie was overseeing the operations involving the ladder at the time of the injury. It is true that a party may be found to be in overall charge of work even if not directing the particular operations during which an injury occurs. (See MFA Mutual Insurance Co. v. Crowther, Inc. (1983), 120 Ill. App. 3d 387, 391, 458 N.E.2d 71.) Before a defendant can be found liable for a “willful” violation of the Act, however, the evidence must show that he knew or should have known of the defective condition; he cannot be held strictly liable for all injuries that may occur. (See Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51, appeal denied (1989), 124 Ill. 2d 562, 535 N.E.2d 921; see also McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157.) In McKanna, the court upheld a jury’s verdict against an owner in favor of the deceased worker who fell from a ladder. There, the evidence showed that the owner of the building exercised exclusive control over the boiler room ladder from which the worker fell, the room was kept locked, and the owner knew the ladder was defective and had even instituted a rule against its use.

Burger next argues that the parties’ contract gave Prairie the right to supervise and control the work, even if the right was not exercised in the pending case. The grounds for this argument are these contractual rights: (1) Prairie was to notify the general contractor of any defects in the work that Prairie observed; (2) Prairie could terminate the agreement if Dayton defaulted in the performance of its obligations; and (3) Prairie could issue or approve change orders. (This argument encompasses the second, sixth, and seventh factors of the Simmons formulation.)

We do not agree that these contract rights support an inference that Prairie maintained the right to control and supervise the construction as contemplated under the Act. Under its contract with Dayton, Prairie’s primary role was to pay the money. Prairie’s periodic, on-site visits were meant to ensure that the terms of its contract with Dayton were being fulfilled, not to oversee and direct the workers responsible for adhering to the plans and specifications of the project. Nothing in the contract suggests that Prairie was to take an active and direct role in the construction itself.

The contract between Prairie and Dayton stated that the “General Contractor [Dayton] is an independent contractor and not an employee, partner or joint venturer of the Owner. Except for the Owners’ payment and other obligations as set forth in this Agreement, the Owner shall have no liability with respect to the liability arising from the acts or omissions of the General Contractor, its agents, employees and contractors.” In defining the respective parties’ contractual rights and duties, the contract charged Dayton with responsibility for constructing each unit and the common areas “of good materials and in a first-class, workmanlike manner and substantially in accordance with [the plans and specifications]. If the Owner becomes aware of any fault or defect in the work or non-conformance with the plans and specifications, Owner shall give prompt written notice thereof to the General Contractor.”

Without checking on the work in progress, Prairie would not be able to notify the contractor of sloppy or unacceptable workmanship. This does not, in our opinion, translate to the type of supervision and control that puts a party “in charge” of the construction. Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 401 N.E.2d 1287.

The contract goes on to provide that the owner “shall make no disbursements until its representatives shall have inspected the improvements to verify the partial or total completion of the improvements at the date of inspection; however, the Owner shall exercise reasonable diligence and dispatch in the inspection of the partial or total completion and shall not delay said inspection so as to put off or unreasonably delay the payment of the disbursements as certified by the General Contractor.”

By its terms, this provision links payment of the contractor’s draw requests to the owner’s inspections, and appears designed to assure Dayton that Prairie would not hold up payment simply because its agents were slow in verifying that the work was completed. As Rei-chert testified, he visited the site twice a month to ensure that the work Prairie was being billed for was actually completed. We do not believe that this type of inspection constitutes a reservation of the right to control and supervise work for purposes of Structural Work Act liability. See Gentile v. Kehe (1987), 165 Ill. App. 3d 802, 520 N.E.2d 827, appeal denied (1988), 121 Ill. 2d 569, 526 N.E.2d 830 (owner’s observations of work to see he is getting what he paid for did not put him in charge of work).

Nor do we find that Prairie’s contractual right to approve certain change orders or terminate the contract under certain conditions puts Prairie “in charge” of the construction. While the right to stop work, especially for safety reasons, may well support liability under particular facts, they are not to be viewed in a vacuum. See Kjellesvik v. Commonwealth Edison Co. (1979), 73 Ill. App. 3d 773, 777, 392 N.E.2d 116 (owner was in charge of work where his engineers had the authority to stop work that was being performed unsafely); Voss v. Kingdon & Naven, Inc. (1975), 60 Ill. 2d 520, 527, 328 N.E.2d 297 (engineering firm hired by city in connection with constructing sewage plant was in charge of work where engineers had broad authority over the work including the right to remove workers and suspend the work).

In Sasser v. Alfred Benesch & Co. (1991), 216 Ill. App. 3d 445, the court reversed summary judgment entered in favor of a structural engineering firm because the record contained detailed descriptions of the construction section engineer’s duties. These included the right to reject work; notify the contractor to stop work in progress; suggest that the contractor consider effective coordination of construction activities; recommend disbursal of payments to contractor; recommend approval of equipment and materials; initiate and negotiate necessary changes; direct the contractor to correct any observed deficiencies in traffic control through construction zones; and furnish continuous field inspection of the materials and jobsite. The engineering firm also provided safety devices and kept daily records of the work. Six to eight personnel from the firm were present at the site each workday.

In contrast to the facts of Sasser, here it is evident that Prairie had no intent, right, or obligation to oversee the construction, interfere with or advise the contractor on how to perform its work, see to safety precautions, or otherwise participate in the construction, except insofar as Prairie’s financial rights and obligations were affected. Rei-chert testified in his deposition that Prairie had the right to approve change orders or extra work if such orders exceeded $1,000. He also testified that Prairie would be notified of a change order if it significantly affected the proformas submitted at the project’s start so as to cause a significant deviation from the original financial schedule. These statements reinforce Prairie’s role as the party responsible for the financing, rather than the construction itself. Prairie’s interest in the changes was not shown to stem from any concern other than those affecting cost.

On the question of stopping work, there is no evidence in this case that Prairie ever exercised the power to stop the construction work for safety reasons (or any reason). Its retention of the right to terminate the contract with Dayton for substantial breach was directly related to its concern with costs and scheduling factors. Any material default or delay could stymie Prairie’s ability to sell off the units at a profit. Moreover, under the common law of contract, a party may always treat as terminated a contract that has been materially breached. In any event, we do not find a factual link between this inchoate right and the right to control the construction or suspend work for safety reasons, as was the case in Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348 (engineer had authority to suspend work, change the plans and remove careless workers from the jobsite). (See also Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 662, 534 N.E.2d 680, 684 (“[Rjight to merely reject work was not the same as having the right to stop the work ‘if it were being done in a dangerous manner’ ”).) In Fruzyna v. Walter C. Carlson Associates Inc. (1979), 78 Ill. App. 3d 1050, 1054, 398 N.E.2d 60, 63, the court noted that “[wjhether or not [a party] has charge is determined not only from [his contractual obligations] but also from the surrounding circumstances and from the role he in fact assumed. ” (Emphasis added.)

The third factor in the previously cited Simmons formulation relates to the degree of participation in ongoing activities at the site. Like the ability to control the work, this factor goes to a party’s actual and regular involvement in the construction. Burger claims this factor is satisfied solely by Prairie’s “placing several representatives at the site on a monthly basis.” We have previously discussed the reason why Prairie’s representatives visited the site and conclude that this does not equate with evidence of Prairie’s actual “participation” in ongoing construction. See Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 514 N.E.2d 188 (owner of excavation company that rented out equipment and operators but was not responsible for digging of ditch was not in charge of the excavation of a basement; company owner’s visits to the site and furnishing of safety cage after accident occurred did not constitute constant participation in the work or exercise of supervision).

Burger does not contend that the fourth factor is present, and indeed it is indisputable that Dayton, not Prairie, coordinated the subcontractors. Dayton hired Levy, the drywaller that employed Burger. Prairie had no say in the hiring decisions.

The fifth factor concerns responsibility for safety precautions. Burger maintains that in addition to Prairie’s ability to inspect the premises, Prairie’s purchase of the builder’s risk comprehensive general liability insurance also supports Prairie’s obligations to ensure the safety of the workers. We disagree. The purchase of general liability insurance is often a necessity of doing business, and Prairie asserts that it was required to purchase insurance in order to obtain financing for the project. We find it difficult to accept the premise that the mere purchase of insurance might give rise to liability under the Structural Work Act. Acquiring insurance is prudent in any event and bears little relationship to being responsible for the safety of a work site. Likewise, the fact that Prairie assumed the risk of loss during the period of construction goes to the financial risks that the parties allocated pursuant to their contract.

The eighth factor, familiarity with construction practices, is so general as to be almost useless in the analysis. Of course, anyone working on a construction project might be said to have some familiarity with construction practices, and certainly architects, engineers, general contractors, and subcontractors should have some such familiarity because that is their business. The owner of land might have no familiarity with construction practices or he might have a great deal of experience with them. In this case, Prairie had been involved in the financing of a number of major developments and could be assumed to have familiarity with construction practices. Knowledge of construction practices alone, however, is insufficient for Structural Work Act liability if the particular owner has no involvement in the construction itself and only comes to the site periodically to ensure that the contractor’s draws are justified.

The final 2 of the 10 factors concern the ownership of equipment used at the site and the ability to correct unsafe or improper work habits or deficient equipment. Burger does not assert that Prairie owned or provided the equipment that the contractors used. Nor does he assert that Prairie directed any workers in the use of the ladder or its placement. Burger does not allege facts to support any inference that Prairie knew or should have known of any defects in the ladder. As for the authority to correct unsafe conditions, we have already found that Prairie had no authority or responsibility to oversee safety concerns, even assuming there was an unsafe condition or improper work habit involved in this case.

We conclude that the trial court did not err in granting summary judgment on count I of Burger’s complaint. While Burger may have an abstract argument as to the existence of 1 or 2 of the 10 factors, we do not believe that isolating particular factors necessarily helps to resolve specific cases. Not all of the factors are created equal, and the courts consistently have looked to the totality of the circumstances. The pending case demonstrates that Prairie maintained a distinct and well-defined role as provider of the money and had only an attenuated connection with the actual construction activities, particularly those related to job safety. If Prairie was not in charge of the work, in its role as owner and money lender, it was not responsible under the Act for Burger’s injuries.

II

Burger next argues that the trial court’s decision was flawed because the court cited the “hold harmless” agreement in the construction contract and implied that Prairie could insulate itself from its own negligence under that provision. According to Burger, provisions that purport to absolve a person from his own liability are void under Illinois law.

This argument may be summarily rejected because although the general principle that Burger cites is accurate, it has no application to the facts of this case. The trial court merely noted that a provision in the contract required the general contractor to indemnify or hold harmless the owner “for any liability arising out of the work of the general contractor.” Burger seemingly ignores the actual wording of the contractual provision, which states in relevant part:

“To the extent not otherwise covered by insurance, the general contractor shall hold the Owner harmless from any and all damages and claims that may be caused by the negligence on the part of the general contractor, his agents or employees [or subcontractors]. Provided, however, the aforesaid indemnification and hold harmless shall not include or cover any injury, death, damage or destruction relating to any negligent act or omission of the Owner (or its officers, agents or employees) or any other contractor (or its subcontractors) or architect who has contracted directly with the Owner. *** The general contractor will take all precautions necessary to protect the public against injury ***.” (Emphasis added.)

Nothing in the foregoing provision attempts to shift the liability of Prairie’s own negligence to Dayton. Burger cites cases that are inap-posite to the pending situation and concludes that “[t]here can be no doubt that if, in fact, the contracting parties intended to relieve PRAIRIE of tort liability premised upon its own negligence, such agreement would be void against the public policy of Illinois.” While we agree such an agreement would be void, the pending contractual provision does not, by its own terms, attempt to absolve Prairie from liability for its own negligence.

Ill

Burger’s final argument relates to Prairie’s alleged duty as a landowner to protect him from harm, the basis of count II of the complaint. This theory is premised on the allegation that Prairie was negligent, as a landowner, in failing to provide Burger with a safe and suitable support or scaffold so as to protect him in the performance of the work. We believe that if a landowner is not in charge of the work under the Act, he cannot logically or legally be found in breach of a tort duty that arises out of the negligent failure to provide a support or scaffold. Nevertheless, we briefly consider Burger’s argument, which relies on section 414 of the Restatement (Second) of Torts (1965):

“§414. Negligence in Exercising Control Retained by Employer. One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts §414 (1965).

The central concept of this section, like that of the Structural Work Act, is “control.” Unless Prairie, acting as employer of the independent contractor, maintained control over Dayton’s or Levy’s work, Prairie had no common law duty to Burger, the injured employee of the independent contractor. We have already held that Prairie was not in charge of the work as a matter of law. While there may be some difference between a party’s being in “control” instead of “in charge,” we believe that the concepts are similar enough that the analysis under the Structural Work Act applies equally to the control issue. Prairie’s contract with Dayton carefully delineates the parties’ roles and the evidence reinforces that Prairie’s actual role was titleholder and financial entity. Under Restatement section 414, moreover, the bare allegation that Prairie failed to provide an adequate support or scaffold is insufficient; the duty to exercise control with reasonable care is not assumed merely from landowner status. Since there is nothing to indicate that Prairie was responsible for providing the support or scaffold, or that it knew or should have known that the ladder in question was defective, there is no ground for a charge of common law negligence. Accordingly, we affirm the trial court.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Plaintiff-Appellee, v. WILLIAM K. STORY, Defendant-Appellant.
    First District (6th Division)
    No. 1-89-3073
    Opinion filed August 23, 1991.

      Patrick J. Moran, of Hillside, for appellant.
    Cantwell & Cantwell, of Chicago (Peter A. Cantwell and Stephen F. Boulton, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellee Merrill Lynch, Pierce, Fenner & Smith (Merrill Lynch) sued below, seeking to recover damages for breach of a written contract. The trial judge entered a default judgment against defendant-appellant William K. Story (Story) for the failure of Story to appear at trial after Story received notice according to Supreme Court Rule 237 (107 Ill. 2d R. 237). Merrill Lynch subsequently filed a petition for attorney fees. After a hearing, the trial court granted Merrill Lynch fees in the amount of $6,500. Story appeals both the entry of default judgment against him and the award of attorney fees granted to Merrill Lynch.

Merrill Lynch filed the underlying complaint against Story on August 24, 1983, alleging that Story breached a standard option agreement between the parties, dated September 15, 1982. Merrill Lynch sought to recover from Story payment for purchases of securities which the agreement authorized. The agreement, entered into in Florida, provided that New York law would control disputes arising thereunder.

On May 5, 1989, Merrill Lynch filed a Rule 237 (107 Ill. 2d R. 237) notice upon Story which requested Story be “present in court for testimony as witness in this action.” The week before the date of trial, counsel for Merrill Lynch telephoned counsel for Story. At that time, counsel for Story voiced no objection to the Rule 237 notice and confirmed that Story would be present at trial. On June 12, 1989, the case was set for trial before the Honorable John P. Tully. Story was not present. According to Story’s counsel, Story was in Florida and was unable to appear. Story’s counsel could not give the court a reason for his client’s absence. The trial court offered to set the matter over until later in the afternoon, but when it became apparent that Story would not appear, the trial court indicated that he would enter a judgment of default against Story on the principal amount claimed by Merrill Lynch, and a jury was impanelled to hear the case on the issue of interest. Subsequently, an order was entered in favor of plaintiff and against defendant to include principal and interest, in the amount of $5,148.57. Story does not challenge the awarding of interest in any respect.

In accord with the June 12, 1989, order, Merrill Lynch’s oral petition for attorney fees was continued. Merrill Lynch later filed a petition for attorney fees, which was supported by affidavit. After the petition was fully briefed, the trial court conducted hearings on the petition and awarded Merrill Lynch attorney fees in the amount of $6,500.

The first issue we address is whether the entry of the sanction of default pursuant to Rule 237 for the failure of Story to appear at trial was an abuse of the trial court’s discretion.

Supreme Court Rule 237(b) provides in pertinent part:

“The appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party, may be required by serving the party with a notice designating the person who is required to appear. *** Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.” (107 Ill. 2d R. 237(b).)

Illinois Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)(v)) specifically provides that the entry of a default judgment against an offending party or an order dismissing the offending party’s action are authorized sanctions. As Merrill Lynch points out:

“The particular sanction imposed rests largely in the trial court’s discretion, the exercise of which will not be disturbed absent an abuse of discretion, and the burden is on the offending party to establish that his failure to comply was justified by extenuating circumstances.” Quarles v. Nationwide Insurance Co. (1978), 66 Ill. App. 3d 455, 465, 383 N.E.2d 1234.

In arguing that the trial court’s action was an abuse of discretion in this case, Story relies primarily on the case of Ryan v. Bening (1978), 66 Ill. App. 3d 127, 383 N.E.2d 681. There, the court held that the entry of a default judgment in response to a defendant’s failure to appear pursuant to Rule 237 was not an appropriate sanction in the absence of the plaintiff proving a -prima facie case. Though the parties have not cited it, a similar situation was presented in the more recent case of People ex rel. Hartigan v. Organization Service Corp. (1986), 147 Ill. App. 3d 826, 498 N.E.2d 597. There, as in Quarles, the defendant had failed to show up at trial pursuant to notice under Rule 237. The court held as follows:

“One of the sanctions provided by section 219(c) is the entry of a default judgment against the offending party. [Citation.] We realize that where a defendant has appeared and placed in issue the allegations in the complaint, a trial court cannot enter a default judgment merely because defendant failed to appear at trial. Plaintiff must proceed to prove his claim as if defendant had been present to try the case. [Citing Ryan, 66 Ill. App. 3d at 131.] However, we believe that this condition has been satisfied in the instant case.” People ex rel. Hartigan v. Organization Service Corp., 147 Ill. App. 3d at 831.

Ryan, which appears to be the first case to apply the general “nonappearance at trial” rule in the Rule 237 sanctions scenario, cited a number of cases in support of its holding. None of these cases involved the levying of a statutorily permitted sanction. The legislature’s mandate that the sanction of default be available as a result of noncompliance with Rule 237 is undercut by the application of the Ryan rule in situations where the plaintiff requires defendant’s testimony to establish plaintiff’s prima facie case. This is because the plaintiff could not prove a prima facie case without the defendant’s presence, and, under the rule, a court cannot enter a default judgment until such is shown. Thus, a distinction between the entry of judgment as a sanction and the entry of default due to the simple failure to appear at trial appears warranted. It must be remembered that in the sanction scenario, the entry of judgment is premised upon the statutory grant of authority to ameliorate a party’s noncompliance with court orders and authority. In the Rule 219 noncompliance situation, which is somewhat analogous to the Rule 237 noncompliance situation, it has been observed that the legislative grant of power to enter judgment for violation of discovery rules is premised upon the presumption that the withholding of documentation or testimony is sufficient to establish liability. (See Day v. Schoreck (1975), 31 Ill. App. 3d 851, 853, 334 N.E.2d 864, citing People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) In our view, the presumption of liability, which validates the use of the default sanction, is present in Rule 237 cases as well.

Here, Story failed to show at trial despite the existence of the statutorily permitted sanction of default. Story had no excuse other than that he was “busy.” At oral argument, counsel for Story argued that the trial court should have determined the necessity of Story’s presence in the first instance. Yet Story never objected to the Rule 237 request (either upon receipt of the notice or during his telephone conference with Merrill Lynch’s counsel the week before the day of trial). Rather, he left plaintiff’s counsel with the impression that Story would be available for the presentation of plaintiff’s case. Counsel for Merrill Lynch insisted, and the trial court expressly indicated belief, that Merrill Lynch needed Story’s testimony. Thus, while we note the existence of the Ryan rule, we nonetheless hold that the entry of a default judgment against Story was within the trial court’s discretion.

We next address the issue of whether Merrill Lynch was entitled to an award of attorney fees and costs under the agreement of the parties. Story contends that Merrill Lynch was not entitled to any attorney fees or costs. According to Story, Merrill Lynch is not entitled to attorney fees or costs because its claim was for breach of the standard option agreement, an entirely different and distinct agreement from the customer agreement which contained the attorney fee provision. The customer agreement, entered into August 26, 1982 (almost three weeks prior to the option agreement), states in paragraph 6 under the heading “Liability For Costs Of Collection”:

“The reasonable costs and expenses of collection of the debit balance and any unpaid deficiency in the accounts of [Story] with [Merrill Lynch], including, but not limited to, attorney’s fees, incurred and payable or paid by [Merrill Lynch] shall be payable to [Merrill Lynch] by [Story].”

Story does not contend that this agreement is either void or voidable, or that Story was not bound by it. The standard option agreement provides the following language:

“Any agreement by [Story] with [Merrill Lynch], whether previously or hereafter made applicable to any account of [Story’s] with [Merrill Lynch], shall also apply to such option transactions except to the extent which it conflicts with this agreement. In the event of conflict, this agreement shall control, and where this is no conflict, each provision of each agreement shall apply.”

It is readily apparent that the customer agreement was incorporated into the standard option agreement, and the attorney fees and costs provision of the customer agreement does not conflict with the standard option agreement. Therefore, it is apparent that Merrill Lynch was entitled to attorney fees in the action below.

Story’s second contention with respect to the issue of whether Merrill Lynch was entitled to fees is that Merrill Lynch failed to prove that the fees were “incurred and payable or paid.” However, the affidavit of Cantwell, Merrill Lynch’s attorney, clearly stated that all fees detailed constituted “the total fees due and owing to Plaintiff’s attorneys for services rendered in the prosecution of Plaintiff’s claim against William K. Story.” This evidence fits into a plain reading of the fees provision, and we therefore reject Story’s second contention that Merrill Lynch was not entitled to fees.

The final issue we address is whether the trial court erred in the amount of attorney fees it awarded. The court in Kaiser v. MEPC Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, upon which Story relies heavily for support on this issue, discussed the parameters within which this issue is to be analyzed. In Kaiser, the court observed:

“Provisions in contracts for awards of attorney fees are an exception to the general rule that the unsuccessful litigation in a civil action is not responsible for the payment of the opponent’s fees. [Citations.] In all cases, however, only those fees which are reasonable will be allowed [citations], the determination of which is left to the sound discretion of the trial court [citations]. It is also well settled that the party seeking the fees, whether for himself or on behalf of a client [citation], always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness [citations]. An appropriate fee consists of reasonable charges for reasonable services [citation]; however, to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client [citation], since this type of data, without more, does not provide the court with sufficient information as to their reasonableness — a matter which cannot be determined on the basis of conjecture or on the opinion or conclusions of the attorney seeking the fees [citations]. Rather, the petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. [Citations.] Because of the importance of these factors, it is incumbent upon the petitioner to present detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated. [Citations.]
Once presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and the work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client [citation], and whether there is a reasonable connection between the fees and the amount involved in the litigation [citations]. Finally, the decision of the trial court will not be reversed absent an abuse of discretion. [Citation.]” 164 Ill. App. 3d at 983-84.

In this case, Merrill Lynch requested fees in the amount of $12,268.75 on a claim whose principal consisted of $3,723.57 and which ultimately resulted in a judgment of $5,148.57 being entered. The trial court awarded $6,500 in fees to Merrill Lynch. Story argues that the petition for fees was so lacking in detail that the trial court could not use its discretion in entering fees in a reasonable amount.

It is clear that a hearing was conducted on the petition. While the record reveals that Story’s counsel indicated on the last day of the hearing that additional testimony from Merrill Lynch’s counsel was necessary, the trial court stated that it had a figure in mind and was ready to rule. The order was subsequently entered without objection from Story’s counsel, and Story does not argue that the cessation of testimony is a ground for reversal.

In argument below, Story’s counsel argued the inadequacy of the fee petition, pointing out duplicative billings, billings entered for matters of purely the plaintiff’s doing (i.e., the vacatur of a dismissal for want of prosecution) and time lengths which Story felt were far too long for the work entailed. The trial court specifically indicated that it was taking Story’s contentions into account, and that it had disallowed numerous entries. While Story complains that no time sheets were provided, the record reveals discussion that time sheets were available to the court, but that the time sheets generally contained no greater detail of the individual billings than the affidavit of Merrill Lynch’s attorney. After a review of the record, we are convinced that the trial court’s award of attorney fees was not an abuse of discretion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and EGAN, JJ., concur.