author: JUSTICE MURRAY

text:
    RUDOLF STONITSCH, Plaintiff-Appellant, v. LAREDO CONSTRUCTION COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 90—1289
    Opinion filed November 1, 1991.
    Hayes & Power, of Chicago (Joseph A. Power, Jr., Terrence J. Lavin, David A. Novoselsky, and Linda A. Bryceland, of counsel), for appellant.
    Gurion & Lewis, of Chicago (Richard J. Aronson, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Rudolf Stonitsch (Stonitsch) brought a Structural Work Act claim against defendant Laredo Construction Company (Laredo) alleging that he fell from a defective ladder and received injuries while working at a construction site controlled by Laredo. (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) The trial court granted Laredo’s motion for summary judgment in its favor ruling that, as a matter of law, there was insufficient evidence from which a jury could find that Stonitsch was injured as a result of a fall from a ladder. After summary judgment was granted, plaintiff filed a motion for reconsideration, supported by a deposition and an affidavit, alleging the discovery of new evidence. The trial court denied the motion for reconsideration, and plaintiff now appeals both orders.

In November 1985 Laredo was the general contractor for a construction project at Trinity College in Illinois. Stonitsch was a boilermaker employed by Kyllingstad Engineering, a subcontractor to Laredo. On November 5, 1985, while working on a partially constructed building at the Trinity College campus, Stonitsch sustained several injuries, including a broken arm, fractured skull, concussion, and other head injuries.

Due to these head injuries, Stonitsch suffers from retrograde amnesia and can recall little about the day that he was injured. According to his deposition, the last thing he can recall is cleaning up in preparation to go home for the day. However, he cannot even remember what floor of the three-story building he had been working on. Nevertheless, based on where he was found, he surmised that he fell from a temporary ladder-like structure which consisted of 2 by 4’s nailed to wall studs in the open stairwell, and which had been erected for access between the floors of the building where he was working.

The evidence presented to substantiate Stonitsch’s claim came from the deposition testimony of Daniel Kuberski, who was another worker at the site. Kuberski did not actually see Stonitsch fall, but was only about 40 to 50 feet away from the stairwell when he heard a “thud.” He walked over to the stairwell area and found Stonitsch on the ground with a severe head injury attempting to stand up. He told Stonitsch to lie back down and called for help. Kuberski also testified that he had previously complained to his supervisor about the unsafe condition of the ladder-like structure and noted that immediately after the accident the 2 by 4’s that had been nailed to the wall studs were removed and a permanent staircase installed the next day.

On November 20, 1986, Stonitsch filed a complaint against Laredo. Subsequently, on August 22, 1988, November 4, 1988, and on February 11, 1989, he filed amended complaints to add Carani Construction Company (Carani) and Trinity College (Trinity) as party defendants. A motion for summary judgment was filed by Carani on August 8, 1989, arguing that there was no evidence as to how Stonitsch fell and that Carani was not in charge of the worksite. On August 18, 1989, Laredo also filed a motion for summary judgment arguing that there was no evidence as to how Stonitsch fell so that there was no proof that Laredo proximately caused Stonitsch’s injury. Trinity College later joined in Laredo’s motion.

A hearing on Carani’s motion was held on December 8, 1989, and the trial judge denied the motion, finding that there was sufficient circumstantial evidence to support a finding that Stonitsch was injured due to a fall from a faulty ladder. On February 14, 1990, a different judge heard Laredo’s and Trinity’s motions and granted them summary judgment, finding a lack of evidence on the proximate cause issue.

On March 13, 1990, Stonitsch filed a motion for reconsideration of the order granting Laredo summary judgment. He alleged that, on the basis of answers to interrogatories that Laredo filed, he was led to believe that there were no eyewitnesses to the accident and that there were no post-occurrence witnesses other than Kuberski. However, after the summary judgment order was entered, he learned of two other witnesses, including one eyewitness to the accident. In support of the motion, Stonitsch submitted to the court the deposition testimony of the one eyewitness, Shannon, who testified that he had seen Stonitsch fall from the temporary make-shift ladder when a nail pulled loose. Stonitsch also submitted the affidavit of the other witness, Van Wiel, who stated that he had seen Stonitsch climbing the ladder and then seconds later heard a thud and saw Stonitsch at the bottom of the ladder. Stonitsch further averred that Laredo knew about the eyewitness but had withheld the information. Shannon’s deposition testimony revealed that he told both Daniel Druck, Laredo’s field superintendent at the construction site, and Norbert Geers, the owner of Laredo, that he had witnessed the accident.

The trial court denied the motion to reconsider as to Laredo but granted it as to Trinity. The matter apparently still pends in the lower court as to Carani and Trinity.

Stonitsch now appeals the order of summary judgment granted to Laredo and the trial court’s refusal to vacate the summary judgment order upon reconsideration. Jurisdiction is vested in this court by virtue of the fact that the trial court included in its order granting summary judgment the language that “there is no just reason to delay enforcement or appeal.” See 137 Ill. 2d R. 304(a).

The issues before this court are (1) whether the trial court erred in finding that, as a matter of law, there was insufficient circumstantial evidence of liability, i.e., that there was no evidence to support Stonitsch’s claim that he had fallen because of the defective ladder, and (2) whether the trial court erred by refusing to reinstate the case after Stonitsch came forth with new evidence in his motion to reconsider. For the following reasons, we reverse.

Summary judgment is proper where the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005; Kennedy v. Joseph T. Ryerson & Sons, Inc. (1989), 182 Ill. App. 3d 914, 918, 538 N.E.2d 748.) When ruling on a motion for summary judgment, it is not the court’s function to resolve a disputed factual question, but to determine whether one exists. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) Circumstantial evidence may be used to establish facts necessary to a claim, but only where the circumstances are so related that the conclusion to be drawn is the only probable one, not merely a possible one, to be drawn from the undisputed facts. Kellman v. Twin Orchard Country Club (1990), 202 Ill. App. 3d 968, 560 N.E.2d 888; Bakkan v. Vondran (1990), 202 Ill. App. 3d 125, 130, 559 N.E.2d 815.

In the present case the only claim brought by Stonitsch against Laredo was that Laredo violated the Structural Work Act. To state a cause of action for a violation of the Structural Work Act it is necessary to show (1) that the plaintiff was involved in a construction activity covered by the Act, (2) that the activity was being performed on a structure covered by the Act, (3) that a scaffold or other device as defined by the Act was being used in the activity, (4) that the scaffold or device was unsafe, (5) that the unsafe condition proximately caused the injury, (6) that the defendant had charge of the work place, and (7) that the defendant wilfully violated the Act. (Tracy v. Montgomery Ward & Co. (1990), 193 Ill. App. 3d 304, 549 N.E.2d 984.) A cause of action may only be maintained under the Act when it is shown that the injury had some connection with the hazardous nature of one of the devices named therein. (Bakkan v. Vondran, 202 Ill. App. 3d at 128.) Based upon these standards, we believe that the trial court did not err by granting Laredo summary judgment on the Structural Work Act claim brought by Stonitsch.

The evidence before the trial court at the time the motion was heard did not establish that plaintiff had an actionable claim under the Act because Stonitsch was unable to make a connection between his accident and the admittedly unsafe ladder-like structure present at the worksite. There was absolutely no evidence, either direct or circumstantial, to connect Stonitsch’s fall to the ladder, which is what was necessary to establish plaintiff’s cause of action under the Act. To have found otherwise, we believe, would have been merely speculation, guess or conjecture as to the probable cause of the injury which is not proper. Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.

Plaintiff correctly argues that there was sufficient circumstantial evidence to establish that he fell at the construction worksite, based upon the evidence that he was found at the bottom of the stairwell with severe injuries. However, the record at the time of the motion was devoid of any evidence as to how the fall occurred. Simply stated, there was no evidence before the court at the time of the motion to indicate that Stonitsch was attempting to ascend, descend, or even on the ladder at the time of his fall. (See Bakkan v. Vondran, 202 Ill. App. 3d at 129.) Therefore, the missing link was the evidence that related his fall to the faulty ladder.

The stairwell where Stonitsch was found was open with guardrails placed around it to prevent persons from falling in. Laredo’s field supervisor, Druck, testified in his deposition that the guardrails were sometimes removed or displaced by workers. Given this circumstance and without any evidence that Stonitsch was on the ladder at the time of his fall, it was equally likely that Stonitsch fell into the stairwell for some reason unrelated to the ladder. If there had been any evidence that Stonitsch had been using the ladder at the time of his fall, a material issue of fact would have been created on whether the ladder had, in fact, caused the fall. Lacking this connection between the fall and the ladder, we must find that Stonitsch could not establish a necessary element of his claim without resorting to mere speculation, guess and conjecture. For this reason summary judgment was properly granted.

We must now consider whether the trial court abused its discretion by refusing to vacate the summary judgment order. The facts related to this issue are that Stonitsch filed interrogatories in August 1988 indicating that the only person he was aware of who witnessed or claimed to have witnessed the accident was Dan Kuberski, an employee of the plumbing subcontractor. In response to the interrogatory question which asked him to state the “name and address of each person not named in (2) above [i.e., the list of persons believed to be witnesses] who was present or claims to have been present at the scene immediately before, at the time of, or immediately after said occurrence,” Stonitsch listed Jim Shannon and Mike Van Wiel.

However, in October 1988 Stonitsch took the deposition of Laredo’s Trinity College project superintendent, Dan Druck. In this deposition Druck indicated that he was aware of only one witness to the accident and that he believed the one witness was a plumber on the project. He gave a listing as to all the subcontractors who were involved in the Trinity College construction project and named Shannon as one of the employees of Shamrock Insulation Company. He, however, did not indicate that he knew Shannon to be present at the scene or that he was a witness to the accident.

In November 1988 Laredo, through its owner, Norbert Geers, answered interrogatories requested by Stonitsch. In response to questions asking for known witnesses to the accident and the names of other persons known to have been present at the scene before, at the time of, or after the accident, Geers replied “[n]one other than those identified at Dan Druck’s deposition.”

Apparently believing, based upon this information, that there were no additional witnesses to the accident, Stonitsch never deposed Shannon or Van Wiel. After summary judgment was granted to Laredo, however, Stonitsch contacted Shannon and Van Wiel and learned that both persons had information critical to the case. That is, both of these persons could place Stonitsch on the ladder at the time of the accident. In addition, Shannon testified that he had personally notified both Druck and Geers that he had witnessed the accident.

We believe that under the above circumstances the deposition testimony of Shannon and affidavit of Van Wiel were new evidence and that Stonitsch’s failure to obtain this evidence prior to the summary judgment hearing did not constitute a lack of due diligence. Stonitsch reasonably believed that there were no other witnesses to the accident and therefore provided a valid explanation as to why he did not have the evidence available at the time of the first hearing. See Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E.2d 689.

But, perhaps just as importantly, Stonitsch believed that he had a viable cause of action based upon the evidence already in his possession. That this belief was reasonable is amply demonstrated by the fact that, with the exact same evidence before the court, he survived a summary judgment motion heard by a different judge. Thus, we cannot say that Stonitsch was dilatory in seeking out other witnesses and, therefore, the new evidence should have been considered by the trial court.

Because the purpose of a motion for reconsideration is to alert the court to any errors it has made and to provide an opportunity for correction and because a rehearing should be granted where the newly discovered evidence is sufficiently conclusive so as to make it probable that the trial court would have reached a different conclusion (Dietz v. Spalla (1989), 186 Ill. App. 3d 742, 542 N.E.2d 855), we believe that the trial court abused its discretion by denying Stonitsch’s motion for reconsideration.

For the reasons stated above, the orders of the circuit court granting Laredo summary judgment and denying Stonitsch’s motion for reconsideration are hereby reversed and the matter remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ, P.J., and GORDON, J., concur.

      Trinity College and Carani Construction Company are not parties to this appeal.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    ARNETT GREER, Adm’r of the Estate of Henry Greer, Deceased, Plaintiff-Appellee, v. YELLOW CAB COMPANY et al., Defendants (Kimberly Hatley et al., Minors, by Their Mother and Next Friend, Jo Anne Hatley, Intervening Petitioners-Appellants).
    First District (5th Division)
    No. 1 — 89—1548
    Opinion filed November 8, 1991.

      Heller & Richmond, Ltd., of Chicago (Jay A. Heller and Bruce A. Slivnick, of counsel), for appellants.

      Corboy & Demetrio, P.C., of Chicago (Philip Hartnett Corboy, Jr., of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Petitioners, Kimberly Hatley and Kevin Hatley, by their mother and next friend, Jo Anne Hatley (Hatley), appeal from a trial court order denying their petition to intervene in a wrongful death action filed by plaintiff Arnett Greer (decedent’s adult child), administrator of the estate of Henry Greer, decedent, against defendants, Yellow Cab Company and its driver Ronald Bracey.

The trial court denied the petition to intervene, noting that Hatley, who had lived with decedent for seven years just prior to his death, and who had two children (the petitioners here) with decedent, had not yet proved paternity of the children. The court entered an order pursuant to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Petitioner filed a motion for reconsideration, which the court refused to hear, stating that once a trial court enters a Rule 304(a) finding, it loses jurisdiction to hear any further motions in the case.

On appeal, petitioners contend that the trial court erred in denying their petition to intervene as a matter of right (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408(a)), or their alternative request for permissive intervention (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408(b)), and that the trial court erred in ruling that it lacked jurisdiction to hear the motion for reconsideration.

We conclude that while the trial court erred in its belief that a Rule 304(a) finding divested the court of jurisdiction, the appeal must be dismissed because the requisite Rule 304(a) language was not included in the trial court order.

On March 10, 1988, the decedent died intestate in Chicago when he was struck by a cab owned by defendant Yellow Cab and being driven by Bracey. At the time of his death, decedent had been living with Hatley for seven years. Kimberly was eight years old, and Kevin was two years old. Decedent had six other children from other relationships or marriages, including Brian Taylor, a minor; Henry Wilburn, a minor; Arnett Greer, Cassandra Greer, Katrina Greer and Freddie Pittman, all of whom are adults.

On April 4, 1988, the circuit court granted Hatley’s petition to appoint her as special administrator of decedent’s estate. On the same day, Hatley filed a wrongful death action against defendants Yellow Cab and Bracey. (Hatley v. Yellow Cab, No. 88 L 6104.) On April 29, 1988, the circuit court granted Brian Taylor’s petition to intervene in No. 88 L 6104.

On July 12, 1988, the court entered an ex parte order dismissing Hatley as administrator. (On September 14, 1988, this order was vacated, and a new order dismissing Hatley was entered.)

On August 4, 1988, plaintiff Arnett Greer petitioned the circuit court seeking an appointment as administrator of decedent’s estate. Her petition was granted. Plaintiff also filed an order of heirship which listed petitioners as heirs of decedent.

On September 2, 1988, plaintiff filed a wrongful death action against defendants. Greer v. Yellow Cab, No. 88 L 16139.

On September 14, 1988, plaintiff filed a motion seeking to vacate the order appointing Hatley as special administrator of decedent’s estate. Hatley then filed a motion seeking to vacate plaintiff’s appointment as administrator or, in the alternative, seeking the right to intervene in plaintiff’s lawsuit.

On September 14, 1988, the probate division of the circuit court granted plaintiff’s motion to vacate Hatley’s appointment as special administrator and denied Hatley’s request to vacate plaintiff’s motion as special administrator. On September 28, 1988, Hatley’s petition to intervene was transferred back to the law division.

In an ex parte order, on December 20, 1988, the court granted plaintiff’s motion to dismiss Hatley’s wrongful death action (No. 88 L 6104) and denied Hatley’s petition to intervene in plaintiff’s wrongful death action (No. 88 L 16139). On December 22, 1988, the court vacated the December 20, 1988, order.

On May 3, 1989, petitioners filed a petition to intervene as of right or, alternatively, for permissive intervention, in case No. 88 L 16139. Attached to the petition was an affidavit from Hatley stating she believes there is ill will between petitioners, herself and plaintiff. The petition alleges that on May 23, 1988, plaintiff’s former counsel, an attorney in Missouri, contacted Hatley’s attorney and stated that he was willing to allow Hatley to remain administrator if she would guarantee that the Greer children would receive 50% of the judgment recovered in the wrongful death action. The petition alleges further that plaintiff, unlike petitioners, “had little or no contact with the decedent during the last few years before his death.” Thus the “claims of these heirs [petitioners] are qualitatively different and in direct conflict.” Petitioners asked that they be permitted to participate in the wrongful death action; that they receive notice of any proceedings in the action; and that no settlement be entered into or release be executed without their approval.

On May 15, 1989, the court denied the petition to intervene on the basis that Hatley had not proved paternity of petitioners. Petitioners asked the court for necessary findings pursuant to Illinois Supreme Court Rule 304(a). The court agreed to grant the request, and the order reads: “[T]his order is final and appealable pursuant to Supreme Court Rule 304(a).”

On May 17, 1989, petitioners filed a motion for reconsideration, attaching a February 10, 1986, and an August 4, 1988, order of the circuit court establishing the paternity and heirship of Kevin and Kimberly, respectively.

On May 23, 1989, the court stated that it could not hear the motion for reconsideration, finding that the inclusion of the Rule 304(a) language in the May 15, 1989, order divested the trial court of jurisdiction. At a second hearing on this motion on June 5, 1989, the court made the same ruling.

On June 8, 1989, petitioners filed a notice of appeal from the May 15, May 23, and June 5, 1989, orders. On June 23, 1989, the trial court denied petitioners’ motion to stay proceedings. On July 19, 1989, this court granted petitioners’ motion for stay pending appeal. That stay remains in effect.

Opinion

The refusal of the trial court, on jurisdictional grounds, to entertain petitioners’ motion for reconsideration misconstrues the jurisdictional consequences of a Rule 304(a) finding.

The previous version of Rule 304(a) provided: “The time for filing the notice of appeal shall run from the entry of the required finding.” 107 Ill. 2d R. 304(a).

The amended version of Rule 304(a) in effect at the time of the May 15, 1989, order permitted the trial court to consider a motion for reconsideration even after it made a proper Rule 304(a) finding. (134 Ill. 2d R. 304(a) (effective January 1,1989).) The rule states:

“Judgments as to Fewer Than All Parties or Claims — Necessity for Special Finding. *** [A]n appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment.” (Emphasis added.) 134 Ill. 2d R. 304(a).

Rule 303 provides that notice of appeal is due within 30 days of the “order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(1).) The committee comments to the new Rule 304(a) state that the rule was amended in response to the holding in Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232. The committee comments to the amended Rule 304(a) read:

“Rule 304(a) was amended in 1988 to cure the defect that compelled the Supreme Court, in Elg v. Whittington (1987), 119 Ill. 2d 344, to hold that the filing of post-trial motions in the trial court do not toll the time for filing a notice of appeal under Rule 304, as it does under Rule 303. This amendment clarifies Rule 304 and makes it clear that the time for filing a notice of appeal under Rule 304 is governed by the provisions of Rule 303 and that the date on which the trial court enters its written finding that there is no just reason for delaying enforcement or appeal shall be treated as the date of the entry of final judgment for purposes of calculating when the notice of appeal must be filed. It should be noted that the filing of post-trial motions in cases appealed under Rule 304 will have the same effect as spelled out in Rule 303.” Ill. Ann. Stat., ch. 110A, par. 304, Committee Comments, at 21 (Smith-Hurd 1991 Supp.).

See generally Dienstag, The Short, Troubled Life of Elg v. Whittington: Amended Supreme Court Rule 304(a), 77 Ill. Bar J. 420 (April 1989).

The trial court therefore erred in its belief that upon entry of a proper Rule 304(a) finding it would be divested of its jurisdiction to hear the motion for reconsideration. Under the amended version of Rule 304(a), such divestiture would clearly not occur. See Kotalik v. Jensen (1990), 201 Ill. App. 3d 838, 841, 559 N.E.2d 251 (appeal dismissed for lack of jurisdiction where notice of appeal not timely filed because it was filed before entry of order disposing of last pending post-trial motion; court relied on amended Rule 304(a) and supreme court opinion in Elg); Dowling v. Otis Elevator Co. (1989), 192 Ill. App. 3d 1064, 1069, 549 N.E.2d 866.

Moreover, a strong argument can be made that even before Rule 304(a) was amended, the trial court would have retained jurisdiction because petitioners did not attempt to use the rule to toll the 30-day period for filing a notice of appeal. Petitioners filed both the May 17, 1989, motion for reconsideration and the June 8, 1989, notice of appeal within the 30 days following the court’s May 15, 1989, order denying the petition to intervene. Thus, they do not argue that the 30-day period under the amended Rule 304(a) needed to be tolled in order to file a timely notice of appeal, but instead argue only that the trial court retained jurisdiction to hear a post-judgment motion after entering its final order containing the Rule 304(a) findings.

Petitioners rely on the pre-amendment cases of Parrish v. Lee (3d Dist. 1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188 (with one justice dissenting), and the appellate court opinion in Elg v. Whittington (4th Dist. 1986), 149 Ill. App. 3d 307, 311-12, 500 N.E.2d 568 (with one justice dissenting). The appellate court in Elg held that post-trial motions filed in appeals based on Rule 304(a) findings do not toll the time for filing the appeal, and stated in dicta that the Rule 304(a) finding divests the court of jurisdiction. This dicta was followed in Parrish v. Lee, where the court, relying on the appellate court opinion in Elg, held that the trial court lacks jurisdiction to consider any motions in a case once a Rule 304(a) finding has been made.

This position, however, has not been upheld in several other preamendment cases where the court has restricted the holding in Elg to the issue of tolling, and has not extended the holding to the jurisdictional question. See, e.g., Lake County Trust Co. v. Two Bar B, Inc. (1st Dist., 3d Div., 1989), 182 Ill. App. 3d 186, 537 N.E.2d 1015 (rejecting Parrish); Battisfore v. Moraites (2d Dist. 1989), 186 Ill. App. 3d 180, 541 N.E.2d 1376 (Rule 304(a) finding does not divest court of jurisdiction; rejecting Parrish); Cain v. Sukkar (4th Dist. 1988), 167 Ill. App. 3d 941, 521 N.E.2d 1292 (same). See also Elg v. Whittington, 119 Ill. 2d at 366 n.l, 518 N.E.2d at 1242 n.l (Simon, J., dissenting) (criticizing the dicta in the appellate court opinion in Elg, and reasoning that the filing of a timely notice of appeal under Rule 304(a) does not divest a trial court of jurisdiction). See also Beck v. Stepp (1991), 144 Ill. 2d 232, 239 (“Assuming, without deciding, that under the law in effect at the time of the [pre-Rule 304(a) amendment] proceedings the trial court would have possessed jurisdiction to grant post-judgment relief in these circumstances, we consider here whether plaintiff filed a proper post-judgment motion”), citing Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 521 N.E.2d 1292 (rejecting Parrish).

However, regardless of the posture of the law prior to the amendment of Rule 304(a), there is no question that under the 1989 amendment, jurisdiction exists to consider post-judgment motions even after a Rule 304(a) finding has been entered. See Kotalik v. Jensen, 201 Ill. App. 3d at 841.

Accordingly, the trial court here was incorrect to rely on Parrish and to refuse to consider the motion for reconsideration on its merits.

Whether to grant a motion for reconsideration lies within the discretion of the trial court. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424; Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 236, 360 N.E.2d 1245.) Its decision will not be reversed absent an abuse of that discretion. (Hahn v. A.G. Becker Paribas, Inc. (1987), 164 Ill. App. 3d 660, 672, 518 N.E.2d 218.) Whether a court’s discretion has been abused “in denying a party’s motion to reconsider is tested by considering whether the refusal violated the moving party’s right to fundamental justice and manifested an improper application of discretion.” (In re Marriage of Wilson (1990), 193 Ill. App. 3d 473, 478, 549 N.E.2d 1348.) Similarly, a court has discretion to allow supplemental documents to be filed along with a motion for reconsideration. In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 771, 458 N.E.2d 1065 (court abused its discretion in failing to consider list of documents and affidavits attached to motion to reconsider summary judgment where additional information had not been filed earlier due to failure of communication between attorneys).

Where a trial court erroneously believes it has no discretion or authority to perform some act, the appellate court should not preempt the exercise of such discretion, but should remand the cause back to the trial court. Where the court’s “exercise of discretion has been frustrated by the application of an erroneous rule of law, review is required to permit the exercise in a manner ‘consistent with the law.’ ” (People v. Brockman (1991), 143 Ill. 2d 351, 363-64, 574 N.E.2d 626, quoting People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 181 (remand required where the trial court was “laboring under a misapprehension of the law”).) The appellate court must not usurp the trial court’s function in exercising its discretion. McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 194, 520 N.E.2d 293 (cause remanded where trial court “acted under the misapprehension that it did not have discretion” to permit leave to amend complaint); People v. Bryant (1988), 176 Ill. App. 3d 809, 812-13, 531 N.E.2d 849 (cause remanded where trial court was under the “erroneous belief that it lacked discretion to grant the jury’s request” to review the trial transcript).

In initially denying the petition to intervene, the trial court apparently believed, under Knobloch v. Peoria & Pekin Union Ry. Co. (1983), 118 Ill. App. 3d 205, 454 N.E.2d 1083, that paternity had to be first proved. The court raised the issue of paternity sua sponte. Thus, the trial court denied petitioners’ request to intervene on the sole basis that petitioners had not established paternity. The court denied the petition by distinguishing it from Knobloch v. Peoria & Pekin Union Ry. Co.:

“The sole distinction I see in this case, in the [Knobloch] case you have cited, the [Knobloch] case went one step further which [petitioners] have not yet done. The fact [is] that *** in the [Knobloch] case *** the paternity was established by the probate court. You haven’t done that. *** So your petition to intervene is denied on the basis of the very case you submitted.”

At the hearing on the motion for reconsideration, the court again expressed this concern, while maintaining that it had no jurisdiction to consider anything outside of the petition itself. The court stated: “You never established to the court, declared these to be the children of Henry Greer, deceased.”

The motion for reconsideration responds to the court’s concern directly by attaching court orders, including the order of heirship filed by plaintiff, establishing the paternity of petitioners. Here, it would be fundamentally unfair to petitioners to have the trial court raise the undisputed issue of paternity, refuse to exercise its discretion regarding the petition to intervene without proof of paternity, despite the order showing paternity having been filed seven months earlier, and then refuse to hear proof of paternity.

We note that plaintiff conceded at oral argument that she did not contest petitioners’ paternity. Her brief, however, argues that petitioners “never proved paternity *** [and] [w]hile [plaintiff] does not contest it at this time, there still remains the undeniable absence of its proof before the trial court." (Emphasis added.) Moreover, it is clear that the trial judge did not acknowledge that there was sufficient proof of paternity.

Plaintiff argues that even if the trial court would have accepted the proof of paternity and gone on to exercise its discretion regarding the petition to intervene, the court would necessarily have determined that no intervention was appropriate.

As decedent’s next of kin, petitioners will certainly be bound by any order of judgment in the wrongful death action. We acknowledge that it was plaintiff’s former counsel, not her current counsel, who made the offer to allow Hatley to remain as administrator if she would guarantee 50% of the judgment to the adult Greer children. It may be in plaintiff’s best interests to include the losses suffered by petitioners, the decedent’s only minor children, in her evidence in the wrongful death case. Nevertheless, the trial court is the proper tribunal for making the initial determination regarding the propriety of the petition to intervene, a determination never reached by the trial court because it believed that paternity had never been established.

We cannot agree with plaintiff’s argument that the trial court’s refusal to hear the motion was “harmless error.” We cannot say that, had the trial court entertained the motion for reconsideration and permitted intervention, we would have been compelled to reverse the decision on the basis of an abuse of the trial court’s discretion.

In balancing the factors relevant to the exercise of its discretion, and in determining what — if any — additional evidence it may choose to consider, the trial court may well be free to conclude that petitioners’ interests would best be served by permitting them to have an official presence, either through intervention as of right or through permissive intervention, as plaintiffs in the wrongful death action such that they will be certain to receive notice of all related proceedings and offer their cooperation and assistance in the most efficient manner. Intervention has been permitted in cases involving factual circumstances somewhat analogous to those in the present case. (See, e.g., Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 502 N.E.2d 474; Knobloch v. Peoria & Pekin Union Ry. Co. (1983), 118 Ill. App. 3d 205, 454 N.E.2d 1083.) We also note that a different circuit court judge had previously permitted the minor Brian Taylor to intervene in Hatley’s wrongful death action.

However, although we have considered and evaluated the pivotal issues raised by the parties, we find that we are precluded from disposing of this appeal on its merits because our own jurisdiction under Rule 304(a) has not been adequately established.

Although neither of the parties raised any challenge to our jurisdiction under Rule 304(a), we have a duty, sua sponte, to consider our jurisdiction and to dismiss an appeal if jurisdiction is wanting. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 490 N.E.2d 1252.

Upon our review of the record, we note that the order denying petitioners’ petition to intervene, which was written by plaintiff’s counsel, merely states:

“[TJhis order is final and appealable pursuant to Supreme Court Rule 304(a).”

Although there has been some debate regarding the extent to which the precise language of Rule 304(a) must be followed, and several dissenting opinions have vigorously argued that the rule should be liberally construed, that is not the holding of this division. We have previously held that this language is insufficient to confer jurisdiction upon the appellate court. We held that Rule 304(a) requires “an express written finding” of both enforceability and appealability. Hamer v. Lentz (1st Dist., 5th Div. 1987), 155 Ill. App. 3d 692, 694-95, 508 N.E.2d 324 (no jurisdiction where trial court order states: “This is a final and appealable order”).

Accord Hopkins v. Illinois Masonic Medical Center (1st Dist., 4th Div., 1991), 211 Ill. App. 3d 652, 653, 570 N.E.2d 575 (“[t]his order of dismissal is Final and Appealable”) (with one justice dissenting), appeal denied (1991), 141 Ill. 2d 541; Arachnid, Inc. v. Beall (2d Dist. 1991), 210 Ill. App. 3d 1096, 1101, 569 N.E.2d 1273 (“a final judgment *** there being no just reason for delaying appeal”); Pettie v. Williams Brothers Construction, Inc. (2d Dist. 1991), 216 Ill. App. 3d 801, 803, 576 N.E.2d 424 (“[pjursuant to *** Rule 304(a), there is no just reason for delaying appeal of this order”) (with one justice dissenting); Lurz v. Panek (2d Dist. 1988), 166 Ill. App. 3d 179, 181, 519 N.E.2d 1110 (“final and appealable”); Rauscher v. Albert (5th Dist. 1985), 138 Ill. App. 3d 799, 804, 485 N.E.2d 1362 (this order is a final order).

Contra Cwiertnia v. Zaborowski (1st Dist., 3d Div., 1989), 192 Ill. App. 3d 841, 845, 549 N.E.2d 655 (language sufficiently “demonstrated the intent to permit appeal”); Kucharski v. Floro (1st Dist., 3d Div., 1989), 191 Ill. App. 3d 1032, 1033, 548 N.E.2d 483 (exact language of 304(a) not necessary; “final and appealable *** pursuant to Rule 304(a)” is sufficient; to rule otherwise would be a “triumph of form over substance”); Lawyers Title Insurance Corp. v. Kneller (3d Dist. 1988), 172 Ill. App. 3d 210, 213, 525 N.E.2d 1155 (an order can “constructively” fulfill “the technical language requirement” of Rule 304(a)) (with one justice dissenting).

The order in this case is indistinguishable from the order in Hamer, and thus we are compelled to dismiss the appeal for want of jurisdiction.

We note that since the language of the Rule 304(a) finding contained in the trial court order is insufficient to invest us with appellate jurisdiction, it goes without saying that the finding could not divest the trial court of its jurisdiction even were we otherwise to adopt plaintiff’s contentions in that regard.

Thus, the result of our dismissal for lack of appellate court jurisdiction coincides with what would have resulted if we had accepted jurisdiction and reversed and remanded after finding the trial court had jurisdiction to consider the post-judgment motion, as discussed above. Even if the required Rule 304(a) language had been included in the court order, the result would be the same, i.e., we would be compelled to remand the case for consideration of petitioners’ motion to reconsider and the attached documentation of paternity.

For the above reasons, the appeal is dismissed.

Appeal dismissed.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE O’CONNOR

text:
    HELEN THOMAS, Plaintiff-Appellant, v. UNIVERSITY OF CHICAGO LYING-IN HOSPITAL et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 90—2713
    Opinion filed November 12, 1991.

      Malek & Wein, P.C., of Chicago (Grace E. Wein, of counsel), for appellant.
    Cassiday, Schade & door, of Chicago (Timothy J. Ashe and Lynn D. Dowd, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Helen Thomas, appeals from an order of the circuit court, which directed a verdict for defendant Dr. Bruce Pielet at the close of Thomas’ case in chief during the parties’ medical malpractice trial. Thomas also appeals from the court’s judgment entered upon the jury’s verdict in favor of defendant University of Chicago Lying-In Hospital. The issues presented for review are whether the circuit court committed reversible error by directing the verdict and whether the jury’s verdict in favor of the hospital was against the manifest weight of the evidence. We affirm, for reasons which follow.

On August 10, 1984, Thomas filed a two-count complaint, sounding in medical malpractice against defendants, which alleged that the hospital discharged Thomas in unsatisfactory condition following the birth of twins. She further charged that Dr. Pielet gave her improper medication when she returned to the hospital for the treatment of post-delivery bleeding.

At trial, Thomas testified that she entered the hospital on June 14, 1983, and delivered twins in the early morning of June 15. At the time of the delivery, several “interns” were present, but no one assisted her in the birth of the second twin. After the second twin was born, those present “pressed” out the afterbirth. Thomas remained in the hospital for two days during which time she experienced nothing unusual.

Thomas returned to the university clinic in the evening of June 27 because she was bleeding heavily from her vagina. According to Thomas, she had lost about one-half to three-quarters of a cup of blood since 2:30 that afternoon. Dr. Pielet examined her and found no evidence of bleeding. Pielet gave Thomas a prescription, but did not tell her to return to the clinic if the bleeding continued. For the next three days, Thomas experienced mild cramping and continued bleeding. She did not return to the clinic because Pielet had told her to take all the medicine until it was finished. By June 30, Thomas experienced heavy blood loss, which necessitated her return to the clinic. When Thomas arrived at the clinic, she was semi-conscious and very weak. After receiving fluids, Thomas suffered a collapsed lung, and doctors needed a venous catheter to restore her breathing. Doctors then told Thomas that she required a dilatation and curettage (D & C). After that procedure was performed, Thomas’ condition improved.

Dr. Pielet testified as an adverse witness. On June 27, 1983, Thomas came into the university clinic where Pielet was on duty and told him that she had been bleeding since 2:30 that afternoon. Pielet examined her and found only an old blood clot in the vaginal cavity, with no sign of active bleeding. Thomas did not complain of fever, chills, cramping or abdominal pain, and all of her vital signs were normal. Her uterus size was consistent with that of a patient who was 12 days postpartum. Pielet also performed a hematocrit, which revealed that Thomas’ red blood cell count also was within normal range for Thomas’ post-delivery condition. Pielet did not perform a manual inspection of the uterus because Thomas’ cervix was not dilated. Pielet prescribed medication and told Thomas that she might experience additional bleeding. He informed her that she would have to return to the hospital immediately if the bleeding resumed.

Dr. Anita Stewart testified as Thomas’ expert. Stewart is a board-certified pediatrician, but is not certified in either obstetrics or gynecology. Stewart is the medical director at the New City Health Center and also works as a consultant for the Illinois Department of Public Aid, where she, with a panel of other doctors, reviews the care received by aid recipients. Stewart reviewed all of Thomas’ records and found that, in her medical opinion, Thomas did not receive the appropriate care. Based on Stewart’s review of the delivery room chart, Stewart stated that it appeared that Thomas was “checked” only by a medical student. Stewart stated the standard of care dictates that the placenta be inspected only by a licensed physician and not by a medical student since a licensed physician can better detect signs of complications. Moreover, Stewart asserted that the incidence of retained placental fragments is greater with twins; therefore, the standard of care is heightened. This heightened standard requires the delivery physician to “feel inside the uterus,” checking to ensure that it is smooth and that no fragments remain. Since the manual exploration was not performed in Thomas’ case, Stewart believed Thomas received substandard care from the hospital staff during her delivery.

Stewart identified further deviations from the standard of care which occurred on Thomas’ June 27 visit to the clinic. According to Stewart, Pielet should have reviewed the pathology report and should have manually inspected the uterus. A complete blood count (CBC) should have been ordered as opposed to the hematocrit which was performed. Stewart stated that the CBC would have been more inclusive and reliable. Finally, Pielet should have told Thomas to return to the hospital if bleeding resumed.

On cross-examination, Stewart admitted that retained placental tissue can occur even where no negligence occurs. A patient can suffer from placental retainage, and doctors reasonably may be unable to diagnose the condition. Furthermore, missing placental fragments sometimes are not visible. Stewart believes that post-delivery manual exploration should be done in all cases. However, retained placental fragments can still remain undetected even if manual uterine exploration is performed. The pathology report on the placenta revealed that it appeared to be complete although several lacerations were discovered. Stewart admitted that Thomas’ delivery record was signed by Dr. Herbst, the delivering physician, and that Pielet’s record of Thomas’ June 27 visit contained instructions for Thomas to return if bleeding, fever, or chills occurred.

At the close of plaintiff’s case, defendants moved for directed verdicts. The circuit court granted the motion as to Dr. Pielet, but denied the motion as to the hospital.

Dr. David Zbaraz, a board-certified obstetrician/gynecologist, testified as the hospital’s expert witness. He reviewed Thomas’ records and found that the care she had received was both appropriate and within the accepted standards. Zbaraz explained that, in 3% of all deliveries, the succenturiate lobe of the placenta is not expelled during the afterbirth. However, it is very difficult to ascertain if the lobe is missing when the placenta is visually examined. According to Zbaraz, a physician has to perform a D & C after delivery in order to determine definitively if the lobe was expelled. Such a procedure, however, would subject the patient to more risks than benefits. Furthermore, the retainage can escape detection if the patient does not experience any post-delivery fever, chills, unusual uterine tenderness and excessive bleeding. In Thomas’ case, her hospital records indicated that the delivery physician, Dr. Herbst, checked the placenta. Moreover, the placenta also was sent to the pathology department for a test which later revealed that the placenta, although lacerated, was intact. Based on these facts, Zbaraz did not find any evidence of negligence on the part of the delivery team.

Zbaraz disagreed with Dr. Stewart’s opinion that a manual exploration of the uterus should be done after all deliveries. He stated that such a procedure should only be done on occasion. In Thomas’ case, a manual exploration would have been against the standard of care because Thomas was not anesthetized and had been in the delivery room for over two hours, thereby increasing the risk for contamination and infection. Since both the visual and pathological inspections had revealed an intact placenta, a manual exploration would have been unnecessary.

The videotaped evidence deposition of Dr. Arthur Herbst also was shown to the jury. After Thomas was admitted on June 14, Herbst, chairman of the obstetrics and gynecology department at the university, performed an ultrasound to verify that Thomas was carrying twins. The fetuses’ vital signs were monitored, as were Thomas’ contractions. Herbst delivered Thomas’ twins on the morning in question. Herbst swore that he was present in the delivery room throughout both births and that he had inspected the placenta.

The jury returned a verdict in favor of the hospital upon which the circuit court entered judgment.

Thomas argues that the circuit court erroneously directed the verdict in favor of Dr. Pielet, constituting reversible error. She contends that a question of fact existed which precluded the grant of a directed verdict. Defendants urge affirmance of the circuit court’s judgment due to Dr. Stewart’s lack of expertise in the areas of obstetrics and gynecology.

On a motion for directed verdict, the role of the circuit court is to view the evidence in a light most favorable to the nonmovant and decide whether a verdict for the nonmovant could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) In properly directing a verdict, the court determines as a matter of law that there are no evidentiary facts out of which the jury may construct the necessary fact essential to recovery. (Blacconeri v. Aguayo (1985), 132 Ill. App. 3d 984, 992, 478 N.E.2d 546.) The circuit court’s ruling will not be reversed unless it is contrary to the manifest weight of the evidence.

In a negligence medical malpractice case, the burden is on the plaintiff to prove the essential elements of the cause of action: the proper standard of care against which the defendant’s conduct is measured, an unskilled or negligent failure to comply with the applicable standard, and a resulting injury proximately caused by the physician’s want of skill or care. (Purtill v. Hess (1986), 111 Ill. App. 3d 229, 242, 489 N.E.2d 867.) Moreover, unless the alleged negligence is so grossly apparent or within the common knowledge of a lay person, expert testimony is required to establish the standard of care and its breach. (Novey v. Kishwaukee Community Health Services Center (1988), 176 Ill. App. 3d 674, 531 N.E.2d 427.) When an expert is offered to establish the applicable standard of care and breach, Illinois courts employ a two-part test to determine the admissibility of the expert testimony. (Bartimus v. Paxton Community Hospital (1983), 120 Ill. App. 3d 1060, 458 N.E.2d 1072.) The proponent must show that the expert is licensed in the same “school of medicine” to which the defendant doctor belongs (Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 396 N.E.2d 13), and the expert must demonstrate that she is otherwise qualified to give expert testimony on the case.

The “school of medicine” doctrine dictates that “the expert who establishes the practitioner’s deviation from the pertinent standard of care must be both a licensed member of the school of medicine about which he opines and familiar with the ordinary methods, procedures and treatments of practitioners in the actual or a similar community unless certain uniform standards apply regardless of either locality or available conditions and facilities.” (Novey, 176 Ill. App. 3d at 678.) In this case, Thomas’ expert, Dr. Stewart, was licensed to practice medicine in the State of Illinois and was employed as the medical director of the New City Health Center and as a consultant for the Department of Public Aid. Clearly, Dr. Stewart is licensed in the same “school of medicine” as Dr. Pielet, and the first prong of the test for admission of expert testimony was satisfied.

However, defendants assert that Dr. Stewart failed to meet the second prong of the test, citing Northern Trust Co. v. Upjohn Co. (1991), 213 Ill. App. 3d 390, 572 N.E.2d 1030. There, the appellate court held that the plaintiff failed to provide sufficient expert testimony when a doctor specializing in emergency medical care rendered opinions as to obstetrics and gynecology. Although the expert’s criticism centered around the defendant’s assessment of the patient and not his administration of any gynecological procedure, the court stressed that the defendant’s “assessment of his patient should not be taken out of context of the setting in which it was made since the issue is whether he deviated from the accepted or customary medical standards at the time and place that the event occurred.” Northern Trust, 213 Ill. App. 3d at 407.

At bar, Dr. Stewart testified that, at the Department of Public Aid, she renders opinions as to standards of medical care received by aid recipients in conjunction with a peer review panel composed of doctors from various specialty fields. Stewart is not board certified in either obstetrics or gynecology, and her specialty is pediatrics. Stewart stated that, during a delivery, her job as a pediatrician was to care for the baby after birth. She would not render any care to the mother because that was the obstetrician’s duty. Stewart had never practiced in either gynecology or obstetrics except during medical school. More importantly, Stewart had never treated postpartum bleeding, which was the medical problem at issue here. For these reasons, she was not competent to testify on the standard of care to be applied to Dr. Pielet.

In order to establish a prima facie case, a plaintiff must introduce more than the mere presentation of testimony from another physician who would have acted differently. (Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53.) Plaintiff is required to present evidence to show that the doctor deviated from established procedures. Here, Dr. Stewart, whose experience was in pediatrics, may have reacted to Thomas’ symptoms in a distinctively different manner from the manner in which an obstetrician/gynecologist would have reacted.

Although a question of fact was raised with regard to Pielet’s instructions to Thomas, the entry of the directed verdict was not error since Thomas failed to establish a prima facie case of negligent medical malpractice due to her failure to present sufficient expert testimony setting forth the standard of care and the breach of that standard. The circuit court did not err in directing the verdict.

Thomas also claims that the jury’s verdict in favor of the hospital was against the manifest weight of the evidence.

Based on the reasoning set forth above, the verdict rendered at bar was not against the manifest weight of the evidence. Since Thomas failed to establish a prima facie case due to her failure to present sufficient expert testimony, any verdict other than the one returned here could not stand. The circuit court’s judgment, therefore, will not be disturbed.

For the foregoing reasons, the order and judgment of the circuit court are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC MITCHELL, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—3396
    Opinion filed November 13, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

After a bench trial, defendant, Eric Mitchell, was convicted of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) and was sentenced to a term of four years’ imprisonment. He argues on appeal that the Illinois second degree murder statute violates the Illinois and United States constitutions because it (1) relieves the prosecution of its burden of proving beyond a reasonable doubt every element of second degree murder; (2) violates the separation of powers because it infringes on the State’s Attorney’s discretion to charge second degree murder instead of first degree murder; and (3) violates due process and equal protection by deterring those convicted of second degree murder from appealing their convictions. He also argues that (1) his conviction must be reversed because the only account of the shooting was his statement that it was accidental and the statement was not contradicted, improbable, or impeached; (2) there was no evidence that his mental state was an actual but unreasonable belief in his right to use self-defense; and (3) he did not receive a fair trial because the trial court rejected his defense from the start.

On March 1, 1988, 18-year-old Eric Mitchell and Jacqueline Gardner went on a date. They returned to Gardner’s apartment and went to sleep. Around 2:30 a.m. on March 2, 1988, Gardner’s ex-boyfriend, Samuel Curry, began pounding on her door. Gardner testified that Curry, who was drunk, refused to leave and Gardner eventually let him in. Defendant got out of bed, put his handgun in his pocket, and dressed. Curry, who was unarmed, shoved defendant and put his hand in Gardner’s face, yelling at her, “Bitch, you are going to die.” Gardner had previously told defendant about some of her problems with Curry, including his threats and physical attacks.

Gardner further testified that defendant tried talking to Curry, but Curry grabbed Gardner by the neck, forced her into the bathroom, and started choking her. After Curry refused to release Gardner, defendant broke down the bathroom door, and Gardner fled from the apartment.

Defendant’s statement, paraphrased by the assistant State’s Attorney and introduced without objection, related that Curry then rushed toward defendant and grabbed the gun from his pocket. The two men began wrestling over the gun, knocking over the refrigerator in the process. During the struggle, the gun went off twice. Curry then ran toward the back of the apartment, followed by defendant. They began struggling again. The gun, which was in defendant’s hand, went off, shooting Curry in the head.

Defendant left the apartment and went to the emergency room to be treated for a gunshot wound. He spoke to the first uniformed police officer he saw, reported the shooting, and cooperated fully with the police. He was arrested at the hospital.

The testimony of a Chicago police officer and a Chicago police detective corroborated that the apartment was in a state of disarray, consistent with a struggle having taken place. The deputy medical examiner who performed the autopsy on Samuel Curry found gunshot wounds to the left shoulder, left side of the chest, and head. The deceased’s blood tested positive for alcohol with a .13 level.

Defendant was charged with first degree murder, but the trial court judge found him guilty of second degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.) Although the trial judge found that the victim had provoked the altercation, he rejected defendant’s argument that the shooting was an accident because there had been three gunshots. The trial judge also found that the force used by defendant was unreasonable since the victim was unarmed.

Defendant’s motion for a new trial was denied. The only issue raised in that motion was whether defendant was found guilty beyond a reasonable doubt. The trial judge sentenced defendant to four years’ imprisonment.

Initially, defendant challenged the constitutionality of the second degree murder statute on three grounds. Before we reach those arguments, the State contends that defendant lacks standing to challenge the constitutional validity of the statute and has waived those issues because he did not raise them in the trial court. While it is generally true that failure to raise an issue in the trial court will waive it on appeal, a constitutional challenge to a statute can be raised at any time. (People v. Bryant (1989), 128 Ill. 2d 448, 454.) Therefore, defendant has not waived his challenge of the constitutional validity of the second degree murder statute. Furthermore, defendant has standing to challenge the statute’s constitutionality because he has sustained a direct injury as a result of its enforcement. (People v. Esposito (1988), 121 Ill. 2d 491, 512.) We find, however, that Illinois’ second degree murder statute is constitutional.

First, defendant argues that the second degree murder statute is unconstitutional because it relieves the State from proving beyond a reasonable doubt every element of the offense. He contends that the prosecution should be required to prove beyond a reasonable doubt that he had an unreasonable belief that the circumstances would justify or exonerate the killing. He further argues that the statute misplaces the burden of proof because he must prove the mitigating factor by a preponderance of the evidence.

Defendant’s arguments misinterpret the law. Contrary to defendant’s assertion, the homicide statute in Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, was not substantially identical to the Illinois second degree murder statute. Instead, it required the defendant to disprove an element of homicide before the charge could be reduced to manslaughter. Both the homicide and manslaughter statutes shared the common elements of intentional and unlawful (neither justifiable nor excusable) killing, but the homicide statute added malice aforethought as an element. The Mullaney jury was instructed that malice aforethought, which was an essential and indispensable element of the crime of murder, could be implied unless the defendant proved that he acted in the heat of passion on sudden provocation. This presumption of malice aforethought unconstitutionally shifted the burden to the defendant to negate that element. Mullaney, 421 U.S. at 701-02, 44 L. Ed. 2d at 521-22, 95 S. Ct. at 1891.

The State correctly asserts that Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, is controlling. The statute in Patterson, which was substantially the same as the lilinois second degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2), required the prosecution to prove beyond a reasonable doubt that there was an intent to cause the death of another person and the death of that person or of a third person was caused by the defendant’s acts. (Patterson, 432 U.S. at 205, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324.) No further facts were presumed or inferred in order to constitute the offense. (Patterson, 432 U.S. at 205-06, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324.) The court in Patterson held that it was constitutional to require the defendant to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance, which was a mitigating factor to reduce murder to manslaughter. 432 U.S. at 206, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324-25.

Due process does not require the State to disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. (Patterson, 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.) Instead, it requires the prosecution to prove beyond a reasonable doubt all elements included in the definition of the offense with which the defendant is charged. (Patterson, 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.) The Illinois second degree murder statute does not relieve the State of its burden of proving beyond a reasonable doubt every element of the offense. The State must prove all the elements of first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).) To reduce that conviction to second degree murder, the defendant must prove the mitigating factor by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).) That requirement is constitutional. Patterson, 432 U.S. at 205-06, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324-25.

Defendant then asserts that the second degree murder statute is unconstitutional because it violates the doctrine of separation of powers in that it forbids the prosecution from charging second degree murder rather than first degree murder. There is nothing in the statute, however, prohibiting the State from initially charging the defendant with second degree murder. Furthermore, the recent cases of People v. Clark (1991), 207 Ill. App. 3d 439, 449, and People v. Burks (1989), 189 Ill. App. 3d 782, 785, ruled that the second degree murder statute does not violate the separation of powers doctrine. The State may charge second degree murder when it alleges that it can prove the elements of first degree murder, but concedes the presence of a mitigating factor that would reduce the charge to second degree murder. (Burks, 189 Ill. App. 3d at 785.) Moreover, the procedure outlined in section 9 — 2(c) of the Elinois Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c)) refers only to the circumstances where the State charges first degree murder and the defendant wants to reduce it to second degree murder. Clark, 207 Ill. App. 3d at 449.

Defendant further contends that the second degree murder statute is unconstitutional because it discourages those convicted of second degree murder from appealing their convictions. On remand, defendant argues, the trial court might convict him of first degree murder.

Defendant’s argument is without merit. There is an implied acquittal of an offense where there is a guilty verdict on a lesser offense and silence as to the charged offense. (Green v. United States (1957), 355 U.S. 184, 190-91, 2 L. Ed. 2d 199, 206, 78 S. Ct. 221, 225; Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).) In order to be classified as a lesser included offense, all the elements must be included within the greater offense or there must be a less culpable mental state. (People v. Smith (1980), 78 Ill. 2d 298, 306; Ill. Rev. Stat. 1987, ch. 38, par. 2 — 9.) Because the elements of first and second degree murder are the same, and second degree murder requires a less culpable mental state (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2), 9 — 2(b)), second degree murder is a lesser included offense of first degree murder. A conviction for second degree murder is therefore an acquittal of first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).) If a defendant appeals his second degree murder conviction and it is overturned and remanded for a new trial, double jeopardy bars being retried for first degree murder. Consequently, the statute does not deter appeals and is not unconstitutional on those grounds.

Defendant then argues that his conviction must be reversed because the only account of how the shooting occurred was his uncontradicted statement that it was accidental. Defendant relies on cases ruling that the trier of fact cannot disregard or reject the defendant’s version of events if it is not contradicted and not inherently improbable. (See People v. Jordan (1954), 4 Ill. 2d 155, 163; People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85; People v. Sumner (1982), 107 Ill. App. 3d 368, 371.) This is true especially where the defendant’s testimony is corroborated at least in part. People v. Harling (1975), 29 Ill. App. 3d 1053, 1059.

Defendant’s argument fails because there is no evidence in the record that the trial court rejected or disregarded defendant’s testimony. The evidence presented at trial was sufficient to show that defendant had an actual but unreasonable belief in his right to use self-defense. The victim entered the apartment, started an argument, physically attacked his ex-girlfriend, and tried to get defendant’s gun. Moreover, the defense counsel commented in the opening and closing arguments that the shooting occurred in self-defense and, in the alternative, was accidental.

Next, defendant argues that the trial court’s finding that he shot in self-defense was purely speculative. It was defense counsel, however, who presented self-defense as the defense theory. As defendant concedes, there was some evidence that defendant intentionally shot the victim after he chased the victim down the hallway. While it is true that defendant also stated that the shot to the head occurred after defendant lost his balance and his elbow hit the wall, causing the gun to discharge, there was no testimony regarding which of the three shots caused the victim’s death. Therefore, the trial court’s finding that defendant actually believed he had the right to use self-defense was not speculative.

Further, defendant asserts that even if he fired intentionally, there was no evidence that he had the mental state required for a conviction of second degree murder based on an unreasonable belief in self-defense. Defendant contends that the evidence shows that the victim provoked the incident, that he was violent, and that it was he who introduced the gun into the struggle. Defendant states that possibly this evidence could support a conviction of second degree murder based on provocation, but not on an unreasonable belief in the right to use self-defense. Even if that were true, defendant states, the mental states required for self-defense and provocation second degree murder are mutually exclusive. People v. Clark (1973), 15 Ill. App. 3d 756, 759.

Again, in this argument, defendant concedes that there was some evidence that the shooting was intentional. The record shows that defendant was armed and the victim was unarmed. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the conviction -will not be overturned. (Collins, 106 Ill. 2d at 261.) The evidence presented at trial was sufficient to establish beyond a reasonable doubt that defendant had an actual but unreasonable belief in his right to use self-defense. Not only was he aware of the victim’s previous threats and physical attacks on Gardner, but the victim shoved defendant, attacked Gardner, rushed toward defendant, and grabbed defendant’s gun.

Finally, defendant contends that he did not receive a fair trial because the trial court judge rejected his defense from the start. Defendant relies on People v. Bowie (1976), 36 Ill. App. 3d 177, 180, where the court stated that the trial court must consider all the matters in the record before deciding a case. Because the trial court in Bowie did not remember defendant’s testimony or consider the crux of his defense when it entered judgment, the defendant was denied a fair trial. 36 Ill. App. 3d at 180.

The trial court judge in this case stated in his finding:

“The defense is twofold. Number one, it was an accident. I rejected that right from the start. How can he shoot him three times, if it was an accident?
The other issue was the force necessary here; was it necessary, or was it unreasonable. Here, three shots were fired; one to the head, chest and arm. The victim here had absolutely no weapon, except his hands, and there is no question in my mind, hearing the testimony, that his action was completely unreasonable.”

This statement implies that the trial court judge made up his mind, at least that the shooting was not accidental, without considering all the evidence. Although it was error, it was harmless because there was sufficient evidence to reject the defense of an accidental shooting. Considering the totality of the evidence presented, it can be concluded that a trial without this error would produce no different result. People v. Warmack (1980), 83 Ill. 2d 112, 128-29.

Based on the foregoing, the conviction is affirmed.

Affirmed.

RIZZI and GREIMAN, JJ., concur.

       Justice Freeman heard oral arguments prior to his election to the Illinois Supreme Court; Justice Greiman was substituted, read the briefs and record and concurred with this opinion.