text:
    JACOB H. SHAPIRA, Plaintiff-Appellee, v. LUTHERAN GENERAL HOSPITAL et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—89—1035, 1—89—1036 cons.
    Opinion filed May 22, 1990.

      Cassiday, Schade & Gloor, of Chicago (Rudolf G. Schade, Jr., Timothy J. Ashe, and Steven P. Garmisa, of counsel), for appellant Lutheran General Hospital.
    Lord, Bissell & Brook, of Chicago (M.J. Yardley, Hugh C. Griffin, and Nancy Shaw, of counsel), for other appellants.
    Holstein, Mack & Klein, of Chicago (John M. Mack, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This consolidated defendants’ appeal is from the circuit court’s order granting plaintiff’s section 2—1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) (section 2—1401) petition to vacate the dismissal of his medical malpractice suit with prejudice, claiming that the circuit court abused its discretion in allowing the vacatur.

The alleged malpractice took place on November 7, 1980. On November 8, 1982, plaintiff, Jacob H. Shapira, filed an eight-count negligence and medical malpractice complaint against defendant Lutheran General Hospital (Lutheran General) and defendants Dr. Khushroo Patel, Dr. T.K. Raghunath and Dr. Robert Gordon (sometimes collectively defendant doctors). On November 5, 1984, following a pretrial conference, the circuit court entered orders for taking depositions of parties and nonparties, and identification and depositions of experts, within certain time limits. February 10, 1985, was the time limit set for disclosing and deposing experts. Plaintiff failed to comply. On May 20, the court again ordered plaintiff to disclose any experts’ names by October 18, 1985, who also were to be deposed by that date. Once again, plaintiff did nothing. Another court order, entered October 18, extended plaintiff’s disclosure date to July 10, 1986, stating that any expert not so disclosed and deposed by that date would be barred under Supreme Court Rule 220 (107 Ill. 2d R. 220). All discovery was to have been closed by that date. This order, too, was ignored by plaintiff. The final order, addressing discovery and expert disclosure and deposing, gave plaintiff until October 1, 1986, to comply. This order also set March 11, 1987, as the parties’ final pretrial conference date. Plaintiff, therefore, was given over one year to disclose and depose his expert, but failed to do so. Nothing was filed of record advising the court, either before or after entry of any of the foregoing orders, that plaintiff did not intend to utilize the services of an expert.

Defendant doctors, on October 14, 1986, sent plaintiff a notice of motion to dismiss the cause of action for failure to obey discovery orders. In the motion, defendants argued that plaintiff had repeatedly disregarded the court’s orders to identify his expert and that dismissal was warranted because defendants were unable to properly prepare their case for trial. In the alternative, they asked that any expert later produced by plaintiff be barred if dismissal was not appropriate. On October 31, 1986, the circuit court continued the hearing on the motion until November 25, 1986. On that date, more than four years after plaintiff’s complaint had been filed, the court dismissed plaintiff’s cause of action with prejudice. No one from plaintiff’s law firm attended this hearing; significantly, one of plaintiff’s counsel had drafted the order setting the hearing date. One of plaintiff’s counsel also attended a November 3, 1986, pretrial conference, when the forthcoming motion hearing date was discussed. In the record are copies of two letters sent by defense counsel on December 1 and 3, 1986, enclosing copies of the November 25, 1986, dismissal order. The second letter was sent in response to a telephone request initiated by one of plaintiff’s counsel who asked about the result of the dismissal motion, and also asked that another copy of the order be sent to him. Defense counsel’s assertions in this regard are supported by an affidavit filed with the court. No countervailing affidavit was filed on plaintiff’s behalf.

Plaintiff’s counsel nevertheless appeared before the pretrial judge on March 11, 1987. There he was again informed of the November 25, 1986, dismissal, this time by the judge who, counsel admits, also showed him a copy of the dismissal order. Another order noting the previous dismissal was entered by the pretrial judge on November 11, 1987. More than seven months later, on October 29, 1987, plaintiff filed an untitled and unsupported motion to vacate the dismissal, arguing that he never violated any orders because he was not going to call any experts, but only plaintiff’s treating doctor. Plaintiff asserted that defendants knew of this intention.

On January 5, 1988, the court struck plaintiff’s motion, but granted him leave to file a section 2 — 1401 petition within 30 days. Several days after the petition was to have been filed, on February 10, 1988, plaintiff filed a motion to extend time. The reason given for the newly requested extension was the “fpjress of other business and shortage of personnel.” No order was entered as to this motion. Nine months thereafter, on October 19, 1988, plaintiff filed the instant section 2—1401 petition, alleging that he did not need to identify any expert since plaintiff did not intend to use an expert witness, but would rely on the testimony of treating doctors. Plaintiff claimed to have relied on Tzystuek v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525. Plaintiff’s asserted intent not to call an expert was not made a matter of record, however, until after dismissal of his complaint. Further, plaintiff argued that one of his attorneys could not locate the court file at the Daley Center in order to ascertain the status of the case. Although the court’s computer system confirmed that the dismissal was entered, plaintiff’s counsel asserted he had never seen copies of the order itself. Plaintiff’s counsel conceded that due diligence was a requirement in section 2— 1401 petition evaluation, but that the court, in its equitable power, could vacate the order if “unfair.”

After two additional continuances, the circuit court conducted a hearing on plaintiff’s section 2—1401 petition on January 5, 1989. The court specifically found that (1) plaintiff had failed to show proper diligence in bringing the petition; (2) the order dismissing the case, entered by another judge, was too extreme a sanction for the discovery violation in the court’s opinion; and (3) plaintiff had to show the court that it had the jurisdiction “to remedy this *** either under 1401, *** or under some other doctrine.” The matter was again continued.

On March 17, 1989, the court granted plaintiff’s petition, stating that the order dismissing the cause because plaintiff failed to identify an expert was erroneous since plaintiff planned to rely on his treating doctor’s testimony. By timely notice of appeal, both defendant doctors and Lutheran General appeal the order.

Defendants contend that the circuit court erred in granting plaintiff’s petition for relief from a final judgment pursuant to section 2—1401, because it failed to meet the statutory requirements and failed to allege proper grounds for section 2— 401 relief. We agree.

Section 2—1401 provides a statutory mechanism by which a final order or judgment may be vacated more than 30 days after its entry. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381; Manning v. Meier (1983), 114 Ill. App. 3d 835, 837, 449 N.E.2d 560.) The petitioner must affirmatively set forth four elements under section 2—1401 to be entitled to relief: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; (3) due diligence in presenting the section 2—1401 petition; and (4) misapprehension of the circuit court with regard to the facts, the valid defense or claim through no fault or negligence of petitioner, at the time the challenged order or judgment was entered. (Gayton v. Levi (1986), 146 Ill. App. 3d 142, 148, 496 N.E.2d 1045.) A petition seeking to reinstate a claim dismissed for failure to comply with discovery also “must set forth due diligence, both prior to the dismissal and in the subsequent pursuit of the section [2—1401] remedy.” Lohja v. Checker Taxi Co. (1980), 92 Ill. App. 3d 491, 493, 416 N.E.2d 32.

Section 2—1401 is not a substitute for an appeal (Eldorado Towers by Shaf, Inc. v. Chicago Title & Trust Co. (1989), 182 Ill. App. 3d 263, 266, 537 N.E.2d 1042), nor can it be used to shield a litigant from the consequences of his own mistakes or his counsel’s negligence. (Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719; Fabian v. Norman (1985), 138 Ill. App. 3d 507, 486 N.E.2d 335.) Relief should not be granted “in the face of inexcusable neglect in complying with rules and orders of court designed to ameliorate this burgeoning problem [of backlogged calendars].” (Emphasis added.) (Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 495.) The section 2—1401 remedy was not intended to put in issue matters that previously could have been adjudicated. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 223, 527 N.E.2d 474.) The question of whether a section 2—1401 petition should be granted lies within the discretion of the circuit court; its judgment will not be disturbed absent an abuse of that discretion. Smith v. Airoom, Inc., 114 Ill. 2d at 221.

Plaintiff does not take issue with the circuit court’s express finding that due diligence in bringing the section 2—1401 petition was not met, but maintains that the circuit court granted the petition pursuant to its equitable powers to achieve justice. In Smith v. Airoom, Inc. (114 Ill. 2d at 228-29), the supreme court described the type of conduct which entitled a defaulted party to equitable relief as fraud, fundamental unfairness, deception and unconscionable behavior on the part of the party seeking the default. Plaintiff here does not allege deception, fraud or unconscionable behavior by defendants which would entitle him to equitable relief.

Plaintiff’s motion asserts that defendants were aware of plaintiff’s intention of calling only the treating doctor instead of an expert. This claim lacks credible support. The motion baldly states that “[i]t was made known to the defendants that plaintiff intended to call no experts, but only to use treating doctors,” and that “[t]his matter had been discussed with one or more of the defendants’ attorneys.” The supporting affidavit sets forth that counsel announced before one pretrial judge, or another, that “we would use the treating doctors or secure a surgeon if necessary who would qualify as an expert in this matter,” which was “made known” to defense attorneys. No date or identity of the alleged discussants is set forth. In contrast, the affidavit of John MacRae, one of defendant’s attorneys, was filed by defendants in which MacRae swore that at a pretrial hearing before Judge Passarella on November 3, 1986, which was the last hearing prior to the ruling on defendants’ motion to dismiss, plaintiff’s counsel David Poindexter represented to the court that the matter was being reviewed for plaintiff by an expert and plaintiff would be able to reveal that expert’s identity in two weeks. Poindexter also then allegedly stated that if the expert was not supportive of plaintiff’s case, defendants’ pending motion to dismiss might be well taken. No countervailing affidavit was filed by plaintiff.

More importantly, plaintiff’s contention mocks the bases for four orders entered by the circuit court extending over and over again the time for plaintiff to identify and depose his expert, when not one continuance for this purpose would have been necessary. Plaintiff’s counsel thereby had four separate and distinct opportunities to advise the court of his intentions. Two years afterwards, he claims that he did so; yet why did the court on each occasion enter an order directing that plaintiff name its expert, without corrective action by counsel, in particular on November 3, 1986? This record, therefore, reveals no basis to contend that defendants secured the dismissal order through the use of fraud, fundamental unfairness, or unconscionable behavior; rather, the dismissal order was the result of contradictory, inexcusable and unexplained conduct on plaintiff’s behalf. None of the recognized equitable principles are implicated in the case sub judice.

Nevertheless, plaintiff insists that this court should overlook the due diligence requirement and evaluate the propriety of the circuit court’s original order dismissing the case, citing Hardware Wholesalers, Inc. v. Clemenic (1984), 124 Ill. App. 3d 304, 464 N.E.2d 700. Plaintiff’s reliance upon Hardware Wholesalers, Inc., is entirely misplaced. There, a default judgment against defendant was obtained as a discovery sanction for failure to comply with plaintiff’s requests for discovery. Plaintiff in Hardware Wholesalers, Inc., never sought or secured any orders of court directing compliance with discovery requests. Here, four court orders were ignored by plaintiff, which led to the instant dismissal.

Plaintiff’s reliance upon Saeed v. Bank of Ravenswood (1981), 101 Ill. App. 3d 20, 427 N.E.2d 858, is also unavailing. There, a dismissal order was based upon plaintiff’s failure to appear for a court-ordered deposition due to his absence from the country. (Saeed, 101 Ill. App. 3d at 28.) There are no factual or legal similarities between that case and the case sub judice.

Plaintiff correctly argues that sanctions should not be imposed as punishment, but to compel cooperation between the parties and promote the flow of discovery. (Conover v. Smith (1974), 20 Ill. App. 3d 258, 314 N.E.2d 638.) Discovery is a serious aspect of litigation and careful attention must be given to prompt and orderly handling of these matters. (Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 884, 412 N.E.2d 608.) Illinois courts are becoming less tolerant of violations of discovery rules and orders, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation. (See Harris v. Harris (1990), 196 Ill. App. 3d 815, 820-21.) The imposition of Rule 219(c) sanctions is a matter within the discretion of the circuit court, and its decision will not be changed absent abuse of such discretion. (Gayton v. Levi, 146 Ill. App. 3d at 152.) Dismissal of a complaint for failure to comply with discovery is a drastic sanction (Price v. Grefco, Inc. (1989), 187 Ill. App. 3d 514, 518, 543 N.E.2d 521; Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307); however, such an action is authorized where the conduct of the offending party is characterized by a deliberate and contumacious disregard of the court’s power. (Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 495; Gayton v. Levi, 146 Ill. App. 3d at 152; Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 361 N.E.2d 36; Conover v. Smith (1974), 20 Ill. App. 3d 258, 260, 314 N.E.2d 638.) Dismissal of this case was not an inappropriate remedy for the repeated and contumacious disregard of the multiple discovery orders entered by the circuit court. The conjectural assertion that a second judge might have ruled otherwise does not authorize the latter to overrule the former. Balciunas v. Duff (1983), 94 Ill. 2d 176, 188, 446 N.E.2d 242; People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 257, 357 N.E.2d 534.

Section 2—1401 also requires diligence on the part of the party seeking post-judgment relief to pursue his remedy. (See Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 493; Chovan v. Floor Covering Associates, Inc. (1987), 159 Ill. App. 3d 447, 449-50, 512 N.E.2d 801.) At bar, the case was dismissed on November 25, 1986. Plaintiff’s counsel, however, although informed about the dismissal by defense counsel in December 1986 and by yet another circuit court judge on March 11, 1987, did nothing until seven months later, October 29, 1987, when he filed an insufficient, untitled and unsupported motion to vacate the dismissal order. On January 5, 1988, the circuit court struck the motion and granted plaintiff leave to file a section 2—1401 petition within 30 days. Plaintiff did not comply even with this order, but tardily asked for a further extension of time after the 30-day period had already expired. No order is found which allowed this motion. Nevertheless, plaintiff’s petition ultimately was filed 10 months later, on October 19, 1988. His counsel’s explanation that this delay was the result of his being unaware of the court’s dismissal on November 25, 1986, as previously noted, flies in the face of evidence that counsel was informed twice by letter and once by telephone of the dismissal by defense counsel in early December 1986, as well as plaintiff’s counsel’s admission in court that, by at least March 11, 1987, he knew of the dismissal, when a pretrial judge “showed [him] a copy of the order that had been entered in November [1986].” Assuming arguendo, plaintiff had first learned of the dismissal on March 11, 1987, no explanation is offered as to why no post-judgment action was taken until October 1987, when the untitled and unsupported motion to vacate the dismissal was filed. Clearly, plaintiff has failed to satisfy the requirement of diligence in seeking the section 2—1401 remedy. See Gayton v. Levi, 146 Ill. App. 3d at 152.

The decision to vacate a final order or judgment is generally within the discretion of the circuit court; however, a section 2 — 1401 petition is not intended to protect a litigant from his own mistake or negligence, nor to relieve him from inexcusable neglect to comply with the rules and orders of the court. Plaintiff’s representatives here have not followed either the rules or court orders, nor have they shown a credible excuse for failing to do so. In addition, plaintiff failed to follow his case. “[Vjacatur of a dismissal, based upon a petition which does not set forth a sufficient excuse for the noncompliance underlying the dismissal, constitutes an abuse of discretion requiring reversal.” Lohja v. Checker Taxi Co., 92 Ill. App. 3d at 495.

Accordingly, the circuit court’s order of March 17, 1989, granting section 2—1401 relief for plaintiff is reversed, and the circuit court’s order of November 25, 1986, dismissing the action is reinstated.

Reversed.

DiVITO, P.J., and BILANDIC, J., concur.

      Lutheran General apparently orally joined in defendant doctors’ motion at the ensuing hearing. This joinder is not reflected in the record; however, plaintiff does not dispute its propriety.

      At the time of dismissal in 1986, Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, had not yet been decided. The appellate court decision also came after the dismissal. Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 508 N.E.2d 215.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL RIDLEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1188
    Opinion filed May 23, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Richard E. Cunningham, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Mary Schultz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Following a jury trial, the defendant, Carl Ridley, was convicted of committing the offense of residential burglary and was sentenced to a term of eight -years in the Department of Corrections. On appeal, the defendant contends: (1) the identification evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the State’s use of the defendant’s pretrial silence deprived him of a fair trial; (3) he was denied due process of law when the prosecution commented on his failure to call witnesses; (4) the State improperly withheld evidence favorable to the defense; (5) remarks by the prosecution during closing argument deprived him of a fair trial; and (6) the trial judge engaged in improper questioning of witnesses. We have considered the defendant’s first contention that the evidence adduced at trial was insufficient to convict (People v. Frazier (1984), 127 Ill. App. 3d 151, 152-53, 469 N.E.2d 594; People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366), and we find that the evidence was sufficient. However, because we agree with the defendant’s second and fifth contentions, we reverse the defendant’s conviction and remand for a new trial.

The complaining witness, Phyllis Cooper, was a resident at 4215 North Sheridan in Chicago. Cooper testified that on the night of August 13, 1986, she locked her front and back doors and turned off the lights upon going to bed. She awoke at approximately 5:45 a.m. on August 14 and discovered a man wearing white gloves standing at the foot of her bed. She stated that the blinds in her bedroom were open and that sunlight illuminated the room. Cooper testified that the intruder told her he had a gun and ordered her to remain quiet. The intruder grabbed Cooper’s leg and commanded her to turn over and not look at him. Cooper reacted instead of raising herself up, prompting the intruder to push her down and in the process tear off her nightshirt. Cooper still refused to turn over. As the intruder leaned over in an effort to obtain control, Cooper grabbed her curlers from the end table beside her bed and swung them at her assailant. The intruder ran out of her bedroom and exited through the back door. Cooper promptly left her apartment and ran to a neighbor’s apartment. The police, who had been called by a neighbor who had witnessed the intruder enter the apartment, arrived a short time later.

Cooper further testified that following the burglary, she recalled an earlier incident where a man had attempted to gain entrance onto the premises of her apartment complex through the main gate. Cooper testified that she had refused him access and that she believed her intruder was the same person. On August 15, Cooper undertook her own investigation by questioning residents to see if anyone could identify her suspect. After talking to several residents, she obtained a name, Carlos Nigril or Nigro, and his phone number from someone named Bart. Another resident told Cooper that the person she described was a former janitor of the building. Cooper turned this information over to a police detective.

Cooper viewed a lineup on August 20 and identified the defendant as the intruder. Cooper stated that Ridley was wearing the same shirt and had the same unusual hairstyle as her assailant. On cross-examination, Cooper testified that she told the police that her assailant was between 5 feet 9 inches and 5 feet 11 inches in height. Ridley is 6 feet 2 inches tall and all the participants in the lineup were seated in order to eliminate any height disparities.

Detective Carey Orr testified that he received a phone number from Phyllis Cooper and that he was able to trace the number to Carl Ridley. Orr further stated that the defendant’s address was 4302 North Sheridan, only a block north of the victim’s residence. On cross-examination, the detective stated that a neighbor told him that the intruder was a former janitor of the building. On redirect, Orr testified that he was told that the intruder was a friend of a former janitor. Orr had to concede on re-cross-examination, however, that his police report disclosed that the neighbor positively identified the suspect as a former janitor of the building.

The State rested its case, and the defense called Tomika Jones, Louella Smith, Jeffrey Simms, and Beula Posten to establish that the defendant was somewhere else when the crime was committed. Their testimony revealed that the defendant and Simms picked up Jones and Smith around 10 p.m. on August 13. They stopped at a liquor store and then drove to Simms’ residence, located at 9534 South Perry, where Simms lives in the basement of his grandmother’s home. Shortly after their arrival, Simms’ grandmother, Beula Posten, walked halfway down the stairs and asked for Simms to come upstairs for a moment. Although Posten never actually saw the defendant, she testified that they exchanged greetings and that she recognized the defendant’s voice as he had visited her home on numerous occasions. During the course of the night, Ridley and Simms played drinking games with Smith and Jones. Upon finishing the liquor, they altered the rules of the game so that items of clothing.were removed. In the early morning hours of August 14, they finally went to bed. The testimony revealed that there were two beds in the basement and, according to Jones, she and the defendant slept together while Simms and Smith slept in the other bed. Smith contradicted Jones, however, testifying that she slept with the defendant. There was additional testimony, however, that the defendant slept with Jones and then switched beds when Jones went upstairs to use the bathroom and Simms left to get a drink of water. When Jones returned and discovered the defendant in bed with Smith, an argument ensued. The argument was quickly resolved. This argument occurred somewhere between 6 a.m. and 7:30 a.m. The defendant’s alibi witnesses further testified that sometime between 8 a.m. and 9:30 a.m. they left to visit a doctor’s clinic because the defendant had an appointment to have his hand treated for an injury sustained at a construction site where the defendant was employed.

Beula Posten testified that she awoke at 5 a.m. on the morning of August 14 and began pressing a garment. She stated that she saw her grandson and heard the defendant talking downstairs around 6 a.m.

John Moschetto, an investigator for the public defender’s office, testified that he drove from Simms’ residence to the victim’s residence. He calculated the distance to be 19 miles and testified that it took him 35 minutes to travel from Simms’ residence to Cooper's residence.

The defendant testified that he has never worked as a janitor and has been employed at the Mayfair Construction Company for three or four years. He denied trying to gain access into the building on the day that Cooper stated she first saw him. Ridley further testified that he was at Simms’ residence on the morning of the incident until around 10 a.m. He explained that he injured his hand while on the job and that his attorney advised him to see a doctor at a clinic on Lawrence and Broadway in Chicago. On cross-examination, Ridley testified that he does have a friend named Bart who lives in Cooper’s building and has been in Cooper’s building on prior occasions.

The State presented a rebuttal witness, Donzella Nelson, who testified that she was letting her dog out on her back porch around 5:45 a.m. when she observed the defendant enter Cooper’s apartment through the back door. She heard screaming and instructed her husband to call the police. Nelson testified that she then observed the assailant exit the apartment and, as he walked away, the assailant saw her. According to Nelson, the intruder spoke to her, saying “That son of a bitch is crazy — I’m telling you, that mother-fucker is crazy.” Nelson later identified the defendant in a lineup. Nelson further testified that she had often seen Ridley in the neighborhood and that she too was present when Ridley tried to gain access through the main gate a few days earlier.

In surrebuttal, the defense presented the stipulated testimony of a Mr. Glen Whitcomb from the National Weather Service that on the morning of the incident, sunrise occurred at 5:57 a.m., the skies were overcast and thunderstorms were reported at 8 a.m., 9 a.m. and 10 a.m. that morning.

The defendant contends that the State impermissibly commented upon his pretrial silence during cross-examination and rebuttal argument in violation of Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. The State argues that the defendant has waived this issue by failing to object at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) This court takes notice of Doyle violations under the plain error rule. (People v. Green (1979), 74 Ill. 2d 444, 450, 386 N.E.2d 272; People v. Upshire (1978), 62 Ill. App. 3d 248, 251, 379 N.E.2d 38.) During the State’s case in chief, the prosecutor elicited testimony from Detective Orr that Ridley made a statement after his arrest:

“Q. Now, Officer, did you have an opportunity to have a conversation with Mr. Ridley after you advised him of these Constitutional rights?
A. Certainly.
Q. And what, if anything, did he say to you and what, if anything, did you say to him?
A. After I advised Mr. Ridley of his rights, I informed him of the nature of the allegations made against him. I asked him if he would like to talk about this. He said that he would. At this point, he told me he had absolutely no knowledge of this incident and he did not participate in it in any way, shape, or form.”

Then during the defendant’s case, the prosecutor sought to impeach Ridley:

“Q. Mr. Ridley, do you remember being taken to Belmont and Western?
A. Yes, I do.
Q. Do you remember after being advised of various rights that you, of telling the police officers that you had nothing to do with the incident ***.
A. Yes.
Q. That’s what you said, is that right?
A. Yes.
Q. You had nothing to do with the incident and you don’t remember the incident. Is that what you told the officer?
A. Right.
Q. Mr. Ridley, you told the police officer that you didn’t know anything about it, that you had nothing to do with it period, is that right, sir?
A. Yes, sir.
Q. But you didn’t tell the police officer that just four days before you were in a room with two women naked in bed and another individual did you?
A. No.
MR. GERBER: I have no further questions of this witness, you honor.”

The prosecution then argued to the jury during its rebuttal argument that if Ridley was really with his friends on the morning of the crime, he would have told the police where he was and whom he was with. This argument is intended to invite the jury to infer from the defendant’s silence that his alibi defense is a recent fabrication. (See People v. Tate (1978), 63 Ill. App. 3d 119, 127, 379 N.E.2d 693.) As Doyle and its progeny have demonstrated, however, the inference that one’s silence is inconsistent with an alibi defense offered for the first time at trial is unreliable.

In Doyle v. Ohio, the United States Supreme Court ruled that silence following recitation of the Miranda warnings is always “insolubly ambiguous” as such silence may be nothing more than the accused’s exercise of his right to remain silent. (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court further ruled that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused choose to invoke that right. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Therefore, the Court held that it is fundamentally unfair to permit use of a defendant’s silence after inducing him to remain silent. Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.

The State argues, however, that there was no Doyle violation as Doyle does not prohibit inquiries into prior inconsistent statements. (Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182.) If a defendant’s trial testimony is inconsistent with statements made to the police, the prosecution may impeach his trial testimony by using his failure to give the same statements to the police. (People v. Adams (1981), 102 Ill. App. 3d 1129, 1132, 430 N.E.2d 267.) Although the defendant’s first version of events involves silence insofar as it omits facts included in the trial version, use of that silence for impeachment is permissible “because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.” (Anderson, 447 U.S. at 408, 65 L. Ed. 2d at 226, 100 S. Ct. at 2182.) The State maintains that Ridley’s statement denying guilt is inconsistent with his alibi defense. This contention is without merit. There is no inconsistency between the statement Ridley gave to police and his trial testimony. Ridley’s statement to the police was nothing more than a general denial of guilt, and a general denial of guilt made upon arrest is not inconsistent with an alibi defense offered for the first time at trial. (Tate, 63 Ill. App. 3d at 127.) Accordingly, we hold that the prosecution’s use of the defendant’s silence was error. We further find that we cannot say this error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

The defendant further contends that remarks made by the prosecution during closing arguments deprived the defendant of a fair trial. These remarks include: (1) a statement to the jury that in order to believe the defense witnesses, it must find that the State witnesses were lying; (2) a statement injecting the prosecutor’s personal opinion regarding the veracity of the defense witnesses; (3) statements not supported by the evidence that the defendant cut his hair just before trial and that he could not remember the day of his arrest; and (4) statements designed to inflame the passions of the jury. The State argues that this issue is waived as the defendant failed to object at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Because the evidence in this case was closely balanced, we conclude that it was plain error for the prosecutor to tell the jury that it must find that the State’s witnesses were lying in order to believe the defendant’s alibi witnesses.

It is improper for a prosecutor to distort the burden of proof by incorrectly arguing to the jury that it must find the State witnesses were lying in order to acquit the defendant. (People v. Pegram (1987), 152 Ill. App. 3d 656, 664, 504 N.E.2d 958; People v. Roman (1981), 98 Ill. App. 3d 703, 708, 424 N.E.2d 794; People v. Crossno (1981), 93 Ill. App. 3d 808, 821, 417 N.E.2d 827; People v. Cole (1980), 80 Ill. App. 3d 1105, 1108, 400 N.E.2d 931.) In the instant case, the defendant offered an alibi defense and attempted to convince the jury that he was mistakenly identified by Cooper and Nelson. This is not a case where the testimony of the defense witnesses directly contradicted the testimony of the State witnesses. (Pegram, 152 Ill. App. 3d at 664-65; Roman, 98 Ill. App. 3d at 707.) Because it was possible that the State witnesses could have been mistaken, it was incorrect to tell the jury that it could not believe the defense witnesses unless it found that the State witnesses were lying.

For the foregoing reasons, we reverse the judgment of the circuit court and remand for a new trial.

Reversed and remanded.

RIZZI and FREEMAN, JJ., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALEIGH ROBINSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1123
    Opinion filed May 23, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mary C. Arundel and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Latisha Martin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Raleigh Robinson, was charged by indictment with reckless homicide and driving while under the influence of alcohol. (Ill. Rev. Stat. 1985, ch. 38, par. 9—3(a); ch. 95½, par. 11—501.) After a bench trial, defendant was found guilty as charged and sentenced to 18 months’ periodic imprisonment. Defendant was fined $1,000 and he was assessed $20 for the Violent Crime Victims Assistance Fund (Ill. Rev. Stat. 1987, ch. 70, par. 510(c)(2)). Defendant now appeals, contending that there was insufficient evidence to prove him guilty of reckless homicide beyond a reasonable doubt.

About 9:15 p.m. on July 21, 1986, Lennise Kersh was struck by an automobile as he stepped off the curb near 800 South Pulaski Road in Chicago. Brenda Jones was an eyewitness to the accident. She testified that she had been outside her 800 South Pulaski Road apartment on the evening of July 21, 1986, talking with her friend Sheila. At that time she noticed a man walking east on Polk Street toward the Pulaski Road intersection. As this man, who was at the southwest corner of the intersection, stepped off the curb to cross Pulaski Road, he was struck by a large gray vehicle traveling south on Pulaski Road. The front passenger-side portion of the vehicle struck the man, hurling him into the air until he fell back onto the hood of the car, rolled off and was struck again. The victim ultimately landed about 100 feet away, although his shoes were found at the point of impact.

Jones testified that it appeared as though the vehicle had been traveling at a high rate of speed when it struck the victim and that the car never stopped or slowed down after the incident. Rather, it appeared to go faster after striking the victim. As the gray vehicle continued south on Pulaski, another vehicle, which had also been heading south on Pulaski, stopped at the scene. This vehicle was being driven by Terrence Rice, an individual known to Jones. Jones and the others who had gathered at the scene yelled at Rice to follow the gray vehicle that just struck the victim. Rice then departed after the vehicle.

Terrence Rice testified that at about 9:15 p.m. on July 21, 1986, he was driving his automobile west on Congress when he noticed a gray Cadillac in the left-hand lane in front of him. At the Pulaski intersection, the gray Cadillac went through the red light and turned left to go south on Pulaski Road. Rice approached the intersection, waited for the light to turn green, and then he too turned left onto Pulaski Road. Rice could see the gray Cadillac, which was traveling in the right lane or curb lane, going south on Pulaski proceeding at a high rate of speed. Rice estimated the Cadillac’s speed at between 60 to 70 miles per hour.

Rice testified that he watched as the Cadillac approached the intersection at Polk Street. Rice could see that a man was standing at the curb and about to step into the street. However, Rice saw no brake lights on the Cadillac. The Cadillac did not stop or slow down, nor did it swerve to avoid the pedestrian. The Cadillac continued down Pulaski and struck the man as he stepped off of the curb. The pedestrian flew into the air, fell down onto the hood of the Cadillac, rolled off of the hood and was struck again by the Cadillac. The Cadillac never stopped after striking the man, but continued on its way south on Pulaski. Rice paused momentarily at the scene of the accident, but when he was directed by the people who had gathered to chase the Cadillac, Rice proceeded at a high rate of speed south on Pulaski in an attempt to catch up with the Cadillac.

At the Roosevelt Road intersection, the Cadillac pulled over into the left-hand lane of southbound Pulaski and stopped at the light. Rice pulled up next to him and tried to signal to the driver to stop because he had hit a pedestrian. The driver, whom Rice later identified as defendant, ignored Rice and proceeded to turn left onto Roosevelt Road. Defendant then turned left again onto 13th Street and then left once more into an alleyway. Defendant then parked his Cadillac in a backyard of this alleyway behind a two-story structure at 1247 South Pulaski Road.

Rice followed defendant to the alleyway and saw that he had parked his vehicle. As Rice paused at the entrance of the alleyway, he noticed his fiancee’s father pull up in a car next to him and Rice directed him to get the police. Then Rice drove into the alleyway and parked near the Cadillac.

As Rice stood in the backyard near the Cadillac, defendant appeared on the second-floor porch of the building at 1247 South Pulaski. Although defendant was not now wearing a shirt, Rice recognized him as the driver of the Cadillac. Defendant yelled at Rice and two other individuals who had come on the scene, asking what they were doing by his car. Defendant then began to descend the staircase on the exterior of the building. Rice noticed that defendant was walking in an unsteady manner, that defendant appeared to sway as he walked and that defendant had to hold onto his car as he stood in the backyard. Rice also noticed a strong odor of alcohol coming from defendant. Based on his previous experience as a bartender, Rice believed that defendant was intoxicated.

As defendant had been descending the stairs, two police officers arrived in a squad car. Rice pointed defendant out to the officers as the driver of the gray Cadillac that struck the man on Pulaski Road. Defendant was then arrested.

Chicago police officer Edward Kulbida testified that he and his partner, Denise Liska, received a radio transmission at about 9:20 p.m. on July 21, 1986, concerning a pedestrian being struck by an automobile at the intersection of Polk and Pulaski. They proceeded to that location and found a man lying in the street. They secured medical attention for the man and, after the paramedics arrived, began to interview the bystanders. As they were gathering information from these people a car pulled up at the scene. At the direction of the driver of this vehicle, they proceeded to the rear of the building at 1247 South Pulaski. There they saw a 1976 gray Cadillac with license number MTX 875. An individual identified as Terrence Rice was also present. Rice directed the officer’s attention to defendant, who was descending the rear staircase of the building. Rice also indicated that defendant had been the driver of the vehicle that struck the pedestrian on Pulaski Road.

Officer Kulbida testified that defendant was yelling as he descended the stairs, asking what they were doing by his car, and shouting vulgarities. Defendant appeared to have difficulty maintaining his balance. He staggered and swayed and grabbed onto things for support. Kulbida also noticed the strong smell of alcohol.

Kulbida told defendant that he was under arrest and then advised him of his Miranda rights and his implied-consent rights. Kulbida then asked defendant if he would agree to a breathalyzer test, a blood test or urine test to determine the alcohol content in his system. Defendant became visibly upset and began swinging his arms. He yelled that they should “just put him in the electric chair or shoot him.” When the police vehicle arrived to transport him to the police station, defendant thwarted all efforts to place him inside by kicking and swinging at the officers.

After defendant was removed from the scene, Officer Kulbida inspected the gray Cadillac and noticed that the front of the vehicle had a dent and that certain plastic pieces had been broken. The hood of the car was hot to the touch and the engine made “pinging and clicking” noises, indicating that it had recently been driven. Kulbida took the vehicle identification number from the vehicle. Kulbida then identified exhibit 1 as a photograph depicting defendant’s gray Cadillac.

Kulbida further testified that he spoke with defendant later that night at the police station. He again advised defendant of his rights and asked defendant to submit to testing. Defendant refused all tests, including performance tests such as touching one’s nose or walking a straight line. Kulbida noticed that defendant’s speech was slurred and that he was difficult to understand. Defendant continued to mutter, incoherently at times, and to swing his arms and yell that they should just shoot him. Defendant was then taken to the lockup, and as he walked he swayed and grabbed onto the bars of the cells for support.

Kulbida knew defendant, who was a cook at a restaurant that the officer frequented. Kulbida had spoken to defendant and heard him speak several times previously. Based on his general experiences as a police officer and his prior knowledge of defendant, Kulbida opined that defendant was “strongly” intoxicated.

The next two witnesses presented evidence concerning the victim, Lennise Kersh, and his cause of death. First, Dr. Tae An testified that he was the Cook County medical examiner who performed the autopsy on Kersh. Dr. An indicated that his external examination of Kersh revealed that, as a result of being struck by an automobile on July 21, 1986, the victim suffered fractures to the left hip, left femur, and tibia and fibula of the left leg. He also sustained a fractured humerus of the right arm, as well as multiple lacerations and abrasions. An internal examination revealed that the victim had extensive bronchial pneumonia, severe tracheitis (inflammation of the trachea), cerebral hemorrhage and contusions of both frontal lobes of the brain. The brain was in a state of necrosis due to cerebral hypoxia (lowered oxygen to the brain).

Although Dr. An’s opinion was that the victim’s death, which occurred on August 5, 1986, was a result of the multiple injuries sustained from being struck by an automobile, his report included the notation that one possible contributing factor was the cerebral hypoxic incident, which occurred on July 25, 1986, as a result of a cardiac arrest which might have been brought on by a malfunctioning ambu bag (a manual device used for ventilating the victim).

Dr. An explained that during his investigation of the death of the victim, he learned that the victim suffered a cardiac arrest on July 25, 1986, as he was being transported to the X-ray department. During this time, the victim was being ventilated manually with an ambu bag. According to information received from a resident doctor who had been assisting the victim, there was a possibility that the ambu bag had malfunctioned and that the reduced flow of oxygen had caused the slowing of the heart rate. Dr. An continually stated, however, that there was no clear evidence that the ambu bag had failed or that the victim’s cardiac arrest was in any way related to his ventilation from the ambu bag. Dr. An indicated that the multiple injuries sustained by the victim could have caused him to suffer cardiac arrest at any time. There was no way of confirming upon examination after the victim’s death the cause for the cardiac arrest.

Dr. John Barrett then testified that he was the director of the Cook County Hospital Trauma Unit. He was the attending physician for the victim and, as such, supervised and reviewed all of the physicians and medical staff who provided care and treatment to the victim on an ongoing basis.

Dr. Barrett indicated that the victim had been in shock upon his arrival at the hospital and had been placed in an anti-shock garment by the paramedic team. Examination at the Trauma Unit showed that the victim had a concussion, a shattered left hip with fragmentation, a broken and fragmented left femur, as well as open fractures (i.e., the bone was protruding from the body) of the lower left leg. The victim required intravenous fluids and was sent to surgery immediately for treatment of the multiple fractures.

Dr. Barrett explained that the hospital used a grading system to classify the severity of injuries to a patient. The scale ranges from one to five. A grade of one is the least serious, indicating minor injuries that do not require admission into the hospital. A grade of two is still relatively minor but the patient may require admission. A grade of three indicates that the injuries may be life threatening but that the patient is expected to survive. A grade of four indicates that the injuries are definitely life threatening but that there is a chance of survival. A grade of five indicates that the patient will almost inevitably succumb due to the injuries, which are severe. Upon his arrival, the victim was classified as a grade four. Although he was able to be stabilized after surgery, the victim remained critical. He was placed in the intensive care unit, where he required the assistance of a ventilator to supply sufficient oxygen to his system.

Dr. Barrett went on to explain that the victim, like any other patient who is placed on a ventilator, was removed from the ventilator once every hour and ventilated manually with an ambu bag. This is because the ambu bag can force more air deeper into the lungs and because the patient is treated with a saline solution that is forced into the lungs to help eliminate mucus. The ambu bag is used to force this solution into the lungs and then remove it. To limit the risk of disease transmission, the victim was provided with an ambu bag upon admission and this ambu bag remained with him throughout his stay in the hospital.

The victim remained stable but critical through July 25, 1986. On that date he was transported to radiology so that more X rays could be taken to confirm a suspicion that the victim suffered a fractured neck. When taken to radiology, the victim was accompanied by a resident, a nurse and a respiratory therapist. The therapist ventilated the victim with the ambu bag that had been used by the victim since his admission. As they transported him, the monitor, attached to the victim, showed that his heart rate was dropping dramatically. Although the heart never stopped completely, it slowed to such a rate that the victim received no blood flow. This is called a functional cardiac arrest. As a result of this severely decreased rate, the victim suffered a cerebral hypoxic episode (decreased oxygen to the brain). Although the victim’s heart rate was later increased and the victim was again stabilized, he never again regained consciousness. He suffered another complete cardiac arrest on August 5, 1986, from which he could not be resuscitated. Consequently, the victim died on that date.

Dr. Barrett admitted that the resident who attended the victim as he was being transported to radiology on July 25, 1986, indicated that he felt an increased resistance in the ambu bag as he tried to ventilate the victim. For this reason, the therapist examined the ambu bag and found that it contained two valves superimposed on one another, instead of one. Dr. Barrett later inspected the ambu bag and found that, despite the two valves, there was no significantly increased resistance so as to cause a reduced air flow. Thus, it was his opinion that the cardiac arrest suffered by the victim on July 25 was due to causes other than the ambu bag.

After the State completed the presentation of its evidence, defendant moved for a directed finding. The court denied the motion. Defendant then testified that about 3 a.m. on July 21, 1986, his supervisor picked him up at his residence and drove him to the Moon Restaurant, where he worked as a cook until about 3 p.m. After that, he and some friends played cards and drank beer at the restaurant until about 6:30 p.m., when a friend drove him back home. At home he took a shower, drank another beer, and then fell asleep on the bed. Sometime later that night, his wife came home and woke him up, stating that people were near his car, which was a gray Cadillac parked at the rear of his residence at 1247 South Pulaski. Defendant then went outside, where he was subsequently arrested. Although defendant admitted that exhibit 1 depicted his gray Cadillac as it was parked outside his home and that he had possessed the keys to this vehicle at the time of his arrest, he denied that he had driven the car at all that day. He further denied that he was intoxicated at the time of his arrest. He claimed that the officers never asked him to perform any sobriety tests or submit to breath, blood or urine tests.

After hearing argument, the trial court found defendant guilty of driving while intoxicated and reckless homicide. On appeal, defendant questions the sufficiency of the evidence, claiming that the State failed to show beyond a reasonable doubt that his actions were reckless or that the victim’s death resulted from the injuries sustained from being struck by his automobile. Defendant claims that the evidence at trial clearly showed that the ambu bag used to ventilate the victim was defective and that the malfunctioning ambu bag constituted a supervening cause of the victim’s death.

A conviction for reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9—3) requires proof beyond a reasonable doubt that the defendant unintentionally killed another individual without lawful justification by the reckless use of a motor vehicle. (People v. Jackson (1987), 118 Ill. 2d 179, 189, 514 N.E.2d 983; People v. Gittings (1985), 136 Ill. App. 3d 655, 659, 483 N.E.2d 553.) A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that his acts will cause death or great bodily harm to another or where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in a given situation. (People v. Gittings, 136 Ill. App. 3d at 659.) Proof that the defendant operated his motor vehicle at an excessive rate of speed is not, by itself, sufficient indicia of recklessness. (People v. Ziegler (1979), 78 Ill. App. 3d 490, 496, 396 N.E.2d 1160.) But when combined with other circumstances, excessive speed may indicate a conscious disregard of the risk of serious harm to others. (People v. Boyle (1979), 78 Ill. App. 3d 791, 797, 396 N.E.2d 1347.) Proof that defendant was under the influence of alcohol at the time of an alleged violation is, however, prima facie evidence of a reckless act. Thus, a conviction for driving under the influence of alcohol (DUI) is prima facie evidence of recklessness that may only be rebutted by evidence that, despite the influence of alcohol, the acts committed by defendant were not performed recklessly. People v. Jackson, 118 Ill. 2d at 190-91.

In the present case, the State presented ample evidence that defendant operated his automobile recklessly by driving while under the influence of alcohol and at an excessive rate of speed. The testimony adduced at trial showed that the speed limit in the vicinity of Pulaski Road where the accident took place was 30 miles per hour. Even if we were to discount Rice’s opinion testimony that defendant was traveling at 60 or 70 miles per hour, both he and Jones indicated that defendant appeared to be driving at a rate of speed above the speed limit. Furthermore, there was sufficient evidence that defendant was highly intoxicated at the time he operated his vehicle. Both Rice and Officer Kulbida testified at length as to defendant’s condition upon his arrest, which occurred just moments after the accident. Additionally, the evidence that defendant struck the victim without attempting to swerve away from him, as well as the fact that defendant failed to slow down at the intersection before or after striking the victim, is also indicative of recklessness.

Consequently, we find that the evidence fully supports the trial court’s finding that defendant operated his motor vehicle in a reckless fashion. The evidence which tended to show that the victim was also intoxicated and that he stepped into the path of defendant’s oncoming vehicle does not, in our opinion, diminish the recklessness of defendant’s acts since defendant failed to rebut with any credible evidence the evidence of his extreme intoxication at the time of the incident and its contribution to the accident.

We now consider whether the State failed to prove the causation element of reckless homicide, that is, whether the State failed to show that the victim’s death resulted from defendant’s reckless acts and not some supervening factor.

Defendant concedes that the State need not prove that his acts were the sole and immediate, cause of death, but only that his acts were a contributing cause of death and that death did not occur as a result of a supervening cause, separate and unconnected to his actions. (People v. Gruner (1985), 130 Ill. App. 3d 1042, 474 N.E.2d 1355.) Defendant contends, however, that the evidence adduced at trial concerning the defective ambu bag and its malfunction on July 25, 1986, constituted such independent intervening cause. We disagree.

It has long been established that when the State has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it can be shown that death was caused by a supervening act disconnected from any act of the accused. (People v. Meyers (1945), 392 Ill. 355, 64 N.E.2d 531.) Furthermore, when a defendant causes serious, life-threatening injuries to another, he cannot exonerate or insulate himself from the consequences of his actions by showing that the victim’s death resulted from unskilled or improper medical treatment. (People v. Stamps (1972), 8 Ill. App. 3d 896, 291 N.E.2d 274.) Unskilled or improper medical treatment which may aggravate the victim’s preexisting condition or contribute to the victim’s death is considered reasonably foreseeable and, thus, does not constitute an intervening act, unless the treatment is so bad that it can be classified as gross negligence or intentional malpractice. People v. Gulliford (1980), 86 Ill. App. 3d 237, 407 N.E.2d 1094.

In the present case, there was abundant evidence that defendant’s act of striking the victim with his automobile caused the victim to suffer serious, life-threatening injuries. Upon his admission to the Cook County Hospital Trauma Unit, he was classified at a grade four, i.e., seriously injured with only a chance of survival. Although the victim was stabilized, he remained in critical condition throughout, until his death on August 5, 1986. The evidence presented at trial did not conclusively establish that the ambu bag, although defective in that it contained two valves rather than one, did actually malfunction. The same ambu bag was used by the victim since his admission on July 21, 1986. Thus, the possibility that the dual valves caused the ambu bag to spontaneously malfunction on July 25, 1986, is remote. The greater weight of the evidence supported the conclusion that the ambu bag, even though defective, had no significant relationship to, and did not bring about, the victim’s cerebral hypoxic episode on July 25, 1986. However, even if a malfunctioning ambu bag did instigate the reduced heart rate which ultimately led to the cerebral hypoxic episode and even if this episode did contribute to the victim’s death, such circumstances would not exonerate defendant since the defective ambu bag did not constitute gross negligence or intentional malpractice. The record clearly indicates that the victim obtained exemplary medical care and that he ultimately succumbed to his multiple, serious injuries despite all efforts to keep him alive.

Finally, we note that it is the trier of fact’s duty to resolve all conflicts raised by the evidence, and we could not substitute our opinion, even if we were so inclined. (People v. Titone (1986), 115 Ill. 2d 413, 505 N.E.2d 300.) Our review is limited to a determination of whether any rational trier of fact could have found that all the essential elements of the offense were proven beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) In light of this standard, we do not find the evidence so improbable or unsatisfactory that we feel compelled to reverse the decision of the trial court.

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

Affirmed.

CERDA, RJ., and WHITE, J., concur.


text:
    RICHARD S. FLEISHER, Plaintiff-Appellant and Cross-Appellee, v. NORMAN LETTVIN et al., Defendants-Appellees and Cross-Appellants.
    First District (3rd Division)
    Nos. 1—88—2176, 1—88—2728 cons.
    Opinion filed May 23, 1990.

      Donald J. O’Brien, Jr., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellant.
    Harvey J. Barnett & Associates, Ltd., of Chicago (Michael S. Blazer, of counsel), for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Richard Fleisher, brought a four-count complaint against defendants Norman and Roslyn Lettvin et al., to recover damages incurred from plaintiff’s purchase of residential property from defendants. After the close of plaintiff’s case in chief, the trial court entered judgment for defendants on counts III and IV of plaintiff’s complaint. After the close of all the evidence, the trial court entered judgment for defendants on counts I and II of plaintiff’s complaint. Thereafter, the trial court denied defendants’ motion for attorney fees and costs under section 2—611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). Plaintiff appeals the judgments for defendants. Defendants appeal the denial of their section 2—611 motion. The appeals have been consolidated.

Count I of plaintiff’s complaint sounded in fraud. It alleged that, after he took possession of the premises purchased from defendants, located at 345 Cedar Avenue in Highland Park, Illinois, plaintiff learned that: (1) there was water damage to the structure; (2) water flowing through the gutter system, which was contained within the walls of the structure, was leaking into the structure’s interior walls; (3) the leaking had damaged the electrical system, electrical conduits, insulation and lathe and plaster work; (4) the garage door opener was defective and unusable; and (5) the plumbing system was defective and unusable and not in the condition warranted to plaintiff. Count I further alleged that defendants were aware of the leakage condition, the defective plumbing and garage door opener; contracted with various repairmen and roofers over a period of years to secure estimates on repairs but had made none; and had concealed the water damage with wallpaper and patchwork plastering, which prevented plaintiff from discovering it.

Count II alleged that the alleged defects in the structure constituted a breach of a warranty to plaintiff contained in the real estate contract with defendants that “the mechanical, electrical, plumbing, heating and cooling systems and appliances are in good working order and will be maintained up to and including the date of possession.” It further alleged that plaintiff had relied on the warranty. Count III of plaintiff’s complaint alleged that defendants’ misrepresentations of the condition of the premises were negligent. Count IV alleged that defendants’ misrepresentations constituted a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261, et seq.).

The testimony at trial is too voluminous to allow a witness-by-witness summary sufficient to give a clear understanding of their often conflicting and varying testimony. Therefore, we will at this point set forth only those facts essential to a basic understanding of this case.

Plaintiff and defendants entered a real estate contract for the purchase and sale of the premises involved (hereinafter the house) in July 1982. Plaintiff’s wife (hereinafter Mrs. Fleisher) had been shown the home in the spring of 1982 for the first time. During a subsequent visit by plaintiff and his wife (hereinafter the Fleishers), they noticed signs of water damage in the walls of two bedrooms on the second floor and in the basement. The Fleishers thus inquired about water damage to the house and were specifically told that it resulted from a 1979 winter storm. Subsequently one or both of the Fleishers returned to the house with various individuals to inspect it further. One of these was Paul Cocose, the president of Mayfair Construction Company (Mayfair), a general contractor. He also noticed and therefore inquired about water damage to the house. Plaintiff and Cocose claimed at trial that in response they were told only of the 1979 winter storm. After this inspection, Cocose did not advise against the purchase of the house.

Prior to signing the real estate contract, plaintiff requested another inspection of the house. During this inspection, Ira Kephart, a licensed architect employed as a project manager by Mayfair, accompanied plaintiff and Cocose. During this inspection, all three men again noticed signs of water damage and conjectured as to its causes. Kephart testified that he told plaintiff that it could not be determined whether there was any water damage in the second-floor walls of the house without opening them up, that it could not be determined whether there was a problem with the gutter and downspouts of the house because they were an interior type, installed inside the exterior wall of the house. He also told him that there could be a problem with water draining from the roof but that, without opening up the roof, they would have to rely on what defendants told them. As a result of his inspection, Kephart advised plaintiff that the house required $14,400 worth of repairs. Plaintiff reduced his offer for the house accordingly.

Also before signing the contract, Mrs. Fleisher took Mr. Soprani of Superior Sheet Metal (Superior), a specialist in copper gutters, to examine the condition of the gutters on the house. Soprani attempted to determine whether there was any water in the walls by placing a meter on the surface but was unsuccessful because of their thickness. He therefore stated that the only way to make that determination was to open the walls up.

The Fleischers eventually took possession of the house in January 1983. However, they did not move in until May 1983. In the interim, they employed Mayfair and others to perform major renovations and repairs to the house.

In entering judgment for defendants on count I, the trial court found that plaintiff had failed to prove scienter on defendants’ part or reliance on defendants’ alleged misrepresentations. In entering judgment for defendants on count II, the court found that defendants had not breached the term of the contract with plaintiff requiring that “the mechanical, electrical, plumbing, heating and cooling systems and appliances be in good working order and be so maintained up to and including the date of possession,” whether or not that term constituted a warranty.

On appeal, plaintiff contends the trial court’s findings were against the manifest weight of the evidence.

I

Initially, plaintiff contends that he established that defendants knew of leakage problems in the house’s gutter system, specifically the downspouts. The trial court’s reliance on defendants’ inability to observe the gutter system, plaintiff asserts, ignored that defendants could and did observe the effects of the defects in the downspouts. Plaintiff therefore argues that this knowledge imposed upon defendants the duty to inform plaintiff of the prior damage caused by this problem and the prior repairs necessitated thereby.

In an action for fraud, each of the elements of the action must be proved by clear and convincing evidence. (In re Marriage of Morris (1986), 147 Ill. App. 3d 380, 497 N.E.2d 1173.) Moreover, on review of a judgment in such an action, the applicable inquiry is whether the judgment is against the manifest weight of the evidence. (Morris, 147 Ill. App. 3d 380, 497 N.E.2d 1173.) A judgment is not against the manifest weight merely because there is sufficient evidence to support a contrary judgment. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 454 N.E.2d 723.) Rather, to satisfy that standard the opposite conclusion must be clearly evident, and a reviewing court will not overturn the judgment merely because it would have reached a different conclusion had it been the trier of fact. (See In re J.H. (1987), 153 Ill. App. 3d 616, 505 N.E.2d 1360.) Finally, we note that a vendor of a used home has a duty to disclose facts which: (1) materially affect the value or desirability of the property; (2) are known or accessible only to him; and (3) he knows are not known or accessible to a diligent buyer. Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133.

Applying the foregoing principles here, we affirm the judgment of the trial court on count I of plaintiff’s complaint. The parties cite conflicting testimony in the record or draw conflicting inferences of fact from undisputed testimony in support of their diametrically opposed positions. In view of that evidence and those inferences, we cannot say that the trial court’s judgment was against the manifest weight of the evidence. Simply put, given the conflicting evidence at trial with respect to what defendants knew and when they knew it, it is not clearly evident that they made knowingly false representations with respect to, or fraudulently concealed, any defects in the house. See, e.g., First National Bank v. Chrysler Realty Corp. (1988), 168 Ill. App. 3d 784, 790, 522 N.E.2d 1298.

Plaintiff cites the following evidence as proof of defendants’ fraudulent concealment of the water-damaged condition of the house. Defendants had repairs made to some interior downspouts in 1973 and 1976. The 1976 repairs consisted of the installation of a “scupper box” to divert water away from one of the interior downspouts and the installation of an exterior downspout in its place. Additionally, in 1978, James McDonald, a painter employed by defendants to work on the premises, found mildew on the south wall of two second-floor closets and informed Mrs. Lettvin that there was moisture “coming in somewhere” and it had to be fixed. Mrs. Lettvin told him to fix it the best way he could. At trial, Mrs. Lettvin denied employing anyone to put a plywood or masonite panel in one of the second-floor closets. However, plaintiff impeached this testimony with Mrs. Lettvin’s deposition testimony that a painter had advised her to put up such a panel in the closet and that she had observed “black streaks” on the wall at that time. Similarly, Mr. Lettvin testified at trial that he was not aware of a mildew condition in the second-floor closets before dealing with the Fleishers. However, he too was impeached with his deposition testimony that a painter who had done some painting for him had believed back then that there was mildew in the closets above the garage.

It may be reasonable to infer from the foregoing evidence that defendants knew of but failed to disclose problems in the interior gutter system. However, we do not find that conclusion clearly evident from the foregoing evidence.

Specifically, the fact that an interior downspout was repaired in 1973 does not alone make fraudulent concealment of that fact clearly evident absent evidence that the damage found by plaintiff after purchasing the house was somehow connected to that downspout. Moreover, plaintiff’s allegation of fraudulent concealment of the scupper box and exterior downspout installed in 1976 completely ignores the evidence which tended to show that both Kephart and Soprani conducted inspections of the exterior of the house, the latter for the specific purpose of determining the condition of the gutters. As plaintiff’s agents conducted exterior inspections of the house, he cannot now complain that an exterior downspout was not disclosed to him, especially absent evidence that the downspout was not visible from the outside. Cf. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052 (person may not enter into transaction with eyes closed to available information and then charge that he has been deceived); Carter v. Mueller (1983), 120 Ill. App. 3d 314, 457 N.E.2d 1335 (plaintiff is not justified in relying upon representations made when he has ample opportunity to ascertain truth of representations before he acts).

Moreover, that defendants had the interior gutter system repaired in 1973 and 1976 does not compel the conclusion that they must have known that the moisture in the closet in 1978 was caused by problems with the gutters. In addition, while Mrs. Lettvin knew the black streaks on the wall of the upstairs closet wall were caused by moisture, it is not clearly evident that she knew that the moisture was coming from the interior gutter system. McDonald also testified that he did not know the source of the moisture and that it might have been coming through the exterior wall. The evidence of any knowledge on defendants’ part that the moisture and mildew problems in the upstairs closet were caused by problems in the gutter system is insufficient for us to conclude that such knowledge is clearly evident in the record before us.

Plaintiff also relies on the evidence of basement flooding as imposing a duty upon defendants to disclose the water entry problem in the house. However, we find the testimony of facts giving rise to an inference of basement flooding of little avail to plaintiff in proving fraudulent concealment of that fact by defendants.

The signs of flooding in the basement observed by plaintiff and his agents, which were obvious to anyone inspecting the basement, put plaintiff as much on notice of the probability of basement flooding as any disclosure by defendants would have. As already noted, one cannot shut his eyes to available information and then charge that he has been deceived. Seefeldt v. Millikin, 154 Ill. App. 3d 715, 506 N.E.2d 1052.

Moreover, not having taken any apparent steps to conceal the signs of flooding, defendants had no duty to disclose the possibility or fact of flooding. Additionally, defendants did disclose to the Fleishers the fact of two floodings caused by spring rainstorms. Plaintiff failed to prove, either directly or circumstantially, that there were other floodings of the basement and that defendants knew of other floodings. In view of the foregoing, we find insufficient record evidence to show a clearly evident fraudulent concealment of the fact of basement flooding by defendants. Cf. Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133; Russow v. Bobola (1972), 2 Ill. App. 3d 837, 277 N.E.2d 769 (silence accompanied by deceptive conduct or suppression of material facts results in active concealment, and it then becomes the duty of a person to speak).

Plaintiff further relies on the evidence of the 1979 winter storm damage, which both plaintiff’s and defendants’ witnesses agreed defendants informed the Fleishers of, as also imposing a duty of disclosure upon defendants. However, we cannot see how that evidence, i.e., evidence of a disclosure, is of any avail to plaintiff in proving fraudulent nondisclosure by defendants.

Additionally, plaintiff asserts that defendants’ awareness that the roof of the house needed extensive repairs, in that a roofing company had recommended replacement of the entire roof, also proved fraudulent concealment by defendants in that they failed to inform the Fleishers thereof.

This assertion ignores Kephart’s testimony that upon noticing the infiltration of water into the walls of the structure, while working there for Mayfair after plaintiff purchased the house, he examined the roof and found only a couple of small areas of minor leaking which were not related to the water infiltration. It also ignores the testimony of Kostas Kikes, a carpenter also working for Mayfair at the house, that he examined the roof, found it in good shape and found no evidence of leaks. Given this testimony, we do not find the conclusion that defendants concealed the need for extensive repairs, or for replacement of the entire roof, clearly evident from the record. In this regard, we believe that, for fraudulent concealment to occur, that which a plaintiff alleges a defendant concealed must be an actual fact. One cannot be damaged by the concealment of that which does not later turn out to be true in fact.

As further proof of fraudulent concealment, plaintiff cites the testimony of Harry Hugel, a garage door opener repairman for American Automatic Door Company (American Automatic), that he had recommended that defendants have the garage doors and door opener replaced. Plaintiff further cites Mrs. Lettvin’s admission at trial that defendants failed to advise the Fleishers of Hugel’s recommendation.

Here, too, we do not find it clearly evident from the record that defendants fraudulently concealed a defective condition of the garage doors and opener. Hugel testified that, at the time of his recommendation to defendants, the garage doors were in bad condition because the rollers had all worn out. However, he also testified that on August 12, 1982, which was subsequent to the execution of the contract, he replaced a roller on one of the doors. It is reasonable to infer from this testimony that, at the time of the execution of the contract, the garage doors and opener were functioning properly. Thus, it is not clearly evident that defendants fraudulently concealed any defects therein.

Plaintiff further relies on the testimony of Steven Braverman, a foreman for Gerson Electric Company, employed to inspect the electrical system of the house after plaintiff purchased it. Braverman testified that defendants must have been aware of the problem which Gerson’s inspection revealed, i.e., water damage to the electrical system, because it would have caused the circuit breakers and fuses in the house to blow out repeatedly.

Fraudulent concealment of water damage to the electrical system is not clearly evident from Braverman’s testimony. Mr. Lettvin testified, and plaintiff does not dispute, that, during an inspection of the home by plaintiff and Cocose, he informed them that the electrical supply to the house was limited. He so concluded because use of several coffeemakers as well as other electric appliances during large gatherings at the house would result in power outages. Mr. Lettvin therefore advised plaintiff not to overload the system. We find Mr. Lettvin’s warnings to plaintiff and his agent sufficient to have put them on notice of a possible problem with the electrical system and, thus, to have required them to investigate further. Moreover, we note that plaintiff conceded the possibility that Cocose and Kephart examined the circuit breakers during their subsequent inspection of the house. We cannot imagine how Cocose and Kephart could have failed to detect the condition of the circuit breakers if, as Braverman testified, they were loosened by constantly being blown and reset over the years.

The foregoing are the major instances of fraudulent concealment asserted by plaintiff. In summary, while we might have reached a different conclusion than the trial court on the issue of fraud, we cannot, in reviewing that conclusion, say that the contrary conclusion is clearly evident from the record before us. As such, we need not address whether plaintiff justifiably relied on defendants’ allegedly fraudulent concealment of the house’s water entry problems.

II

Plaintiff next contends that the trial court erred in entering judgment for defendants on count II. The parties’ real estate contract provided, “Seller agrees that the mechanical, electrical, plumbing, heating, cooling systems and appliances are in good working order and will be maintained in the same condition up to and including the date of possession.” Plaintiff asserts that this provision constituted an express warranty that specified systems would be in good working order at the time he took possession. Even if not a warranty, plaintiff alternatively argues, the quoted provision obligated defendants to turn the various systems over to plaintiff in “good working order.” Plaintiff further argues that the trial court erred in relying upon Exchange National Bank v. Heller (1975), 26 Ill. App. 3d 675, 325 N.E.2d 328, to equate “good working order” with “good condition” and to hold that defendants were not obligated to deliver the house in perfect condition.

Defendants assert that the quoted provision merely meant that Mr. Lettvin was agreeing to the condition of the various systems in the house “to the best of his knowledge” and that plaintiff confirmed this understanding. Even assuming, arguendo, that the quoted provision was a warranty, defendants reason, plaintiff failed to prove his reliance thereon.

Like the trial court, we find it unnecessary to determine whether the quoted provision was a warranty. Therefore, we also find it immaterial whether plaintiff proved his actual reliance on the provision. We do find that, as the quoted provision constituted an express term of the contract, defendants could not ignore it. Finally, whether “good working condition” is comparable to “good condition” as construed in Heller is of no moment.

It is well settled that courts cannot rewrite contracts to suit either party thereto but must enforce their terms as written. (A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 477 N.E.2d 30; Mineral Resources, Inc. v. Classic Coal Corp. (1983), 115 Ill. App. 3d 114, 450 N.E.2d 379.) Moreover, where contract terms are clear and unambiguous, they must be given their ordinary and natural meaning and no parol evidence can be considered to vary their meaning. (Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 500 N.E.2d 47.) We find the language of the provision at issue to be clear and unambiguous. As such, no parol evidence was admissible to vary its ordinary and natural meaning. Thus, that Mr. Lettvin may have understood the provision to mean that the specified systems were in good working order to the best of his knowledge, as he testified, was irrelevant (the record does not support defendants’ assertion that plaintiff confirmed Mr. Lettvin’s understanding of this provision either at the time of contracting or when he testified at trial). The limiting words “to the best of his [or seller’s] knowledge” were not included in the provision at issue. We will not read them into it. The next question is whether it is clearly evident in the record that defendants breached the provision.

Defendants assert that other than one brief instant when a puff of smoke came from an electrical outlet, being employed for a power tool used by a workman, there was not one instance of any problem with the electrical system and that plaintiff failed to establish that the electrical system was not in good working order as of the closing date. These assertions completely ignore Braverman’s testimony.

Braverman testified that there were water-damaged conduits and wiring as well as wiring with the insulation worn off in the house. He also testified that the worn-off insulation posed a fire hazard. Finally, he testified, as previously noted, that defendants must have been aware that there was a problem, i.e., water damage, with the electrical system because that problem would cause the circuit breakers and fuses in the home to blow out repeatedly.

The latter testimony was, alone, inadequate to clearly show that defendants knew of the water damage to the electrical system. However, it was adequate to clearly show that the water damage to the electrical system existed prior to the closing of the sale of the house. As such, it clearly showed that the electrical system was not in good working order at that time. In this regard, we disagree with the trial court that an electrical system in a house is in good working order merely if all the lights work. Rather, to be in good working order, we believe it necessary that there be no major defects in or problems with the underlying wiring in that system. That requirement was clearly not met in this case. The trial court’s judgment was thus against the manifest weight of the evidence on this aspect of count II.

Defendants next assert that the plumbing system was not shown to be in nonworking order. Specifically, they note the testimony of Arthur Kavanaugh, the project manager for Litvin Plumbing Company (Litvin), which plaintiff employed to do some work at the house. Kavanaugh testified that the downspouts in the house were not plugged, that the plumbing system was in good working order and that no problems in the downspouts were found by Litvin. Moreover, defendants question the value of testimony by Kavanaugh, upon which plaintiff relies on appeal, by asserting that it was given merely in response to hypothetical questions.

Notwithstanding Kavanaugh’s testimony on direct examination by defendants’ counsel, his testimony under cross-examination by plaintiff’s counsel clearly revealed that the plumbing system was not in good working order prior to plaintiff’s purchase of the house. Kavanaugh testified to the effect that Litvin was initially employed by plaintiff to merely determine whether the interior downspouts were clogged and that, in the course of making that determination, some downspouts may coincidentally have been unclogged. Thereafter, plaintiff’s counsel questioned Kavanaugh regarding Litvin’s use of a power rodding machine in addition to a tape to determine whether the downspouts were clogged. Under that questioning, Kavanaugh conceded that Litvin charged extra for removing obstructions from the downspouts and charged plaintiff for 19 hours of plumber labor and three hours of foreman labor. He also conceded that Litvin used three plumbers to rod out obstructions in the downspouts. Plaintiff’s counsel then asked the following questions and received the following answers:

“Q. And if those downspouts were obstructed as revealed by your bill, the water would have been coming up in heavy rains * *
A. Yes, sir.
Q. And it would have to be flowing down the interior walls * * *<¡>
A. Yes, sir.
Q. And if it flows the interior walls [sic], the downspout isn’t carrying out its intended function ***?
A. No sir.”

The foregoing testimony was given in response to questions, which, while phrased as hypothetical, were clearly based on the evidence adduced through Kavanaugh and others that, in fact, downspouts were clogged and many of the walls in the house were water damaged. Kavanaugh’s testimony thus clearly established a probability that the water-damaged walls were the result of clogged downspouts. Earlier, Kavanaugh testified that the interior downspouts were part of the house’s plumbing system. As such, the only reasonable conclusion from his testimony was that part of the plumbing system was not in good working order. In this regard, defendants disingenuously point to Kavanaugh’s testimony that the gutters were not part of the plumbing system. That fact is irrelevant given Kavanaugh’s concession that the downspouts, which were clogged, were part of that system. For that same reason and because it related more to the condition of the roof than the gutters and downspouts, defendants’ citation to testimony by Kikes as disproving that the gutters were not the cause of the water damage to the walls is unavailing.

The foregoing testimony by Kavanaugh was not the only evidence that the plumbing system was not in good working order. Kavanaugh testified on direct examination that the plumbing system was in good working order, in part, because “the toilets flushed.” However, plaintiff had earlier testified that the sewer line running from the house emptied into a ravine behind the house and that the Highland Park building inspector had said that the problem would have to be rectified. Referring to the foregoing evidence, plaintiff’s counsel asked Kavanaugh whether the plumbing would not be in good working order as far as Highland Park officials were concerned unless the sewer problem was fixed. Kavanaugh agreed. Plaintiff’s counsel also asked whether Litvin billed plaintiff $4,468 for fixing the sanitary sewer so that the plumbing “would work as intended” and whether, although it arose in the sanitary sewer, the problem rendered the plumbing “inoperable.” Kavanaugh answered these questions affirmatively. The only reasonable conclusion from this testimony was that the plumbing system in the house was not in good working condition to the extent that it was affected by the sewer line emptying into the ravine. The trial court’s conclusion to the contrary was thus against the manifest weight of the evidence.

Finally, with respect to a breach of the provision at issue as a result of problems with the garage doors and door opener, defendants assert that there was no evidence that the garage door opener was constantly breaking down or that there was anything wrong with the garage doors themselves. They also rely on the reasoning of the trial court that the mechanical problem with the garage door opening system was merely a failure of design remedied by a state of the art installation that defendants did not choose to purchase, and that it was in good working order “though necessitating periodic repair.”

Were it our function to determine the issues in this case de novo, we would not necessarily agree with the trial court that a garage door opener that needs periodic repair is in good working order. However, our function is merely to determine whether its conclusion that the system was in good working order was against the manifest weight of the evidence without regard to its specific rationale in so concluding. Reviewing the record in this case, we cannot say that standard is met here.

Plaintiff testified at trial that after moving into the house in May 1983, he learned that the garage door opening system only worked occasionally. However, there was no proof at trial that the garage door opening system did not work immediately upon plaintiff’s taking possession of the house. Moreover, the invoice from American Automatic is dated five months after plaintiff took possession of the house. Thus, there was altogether insufficient evidence to clearly show that the garage doors were not in good working order at the time the sale of the house was closed. Moreover, unlike the problems with the downspouts, electrical system and sanitary sewer line, it could not be inferred simply from the nature of the problem with the garage door opening system that the system was not in good working order. The trial court’s judgment was not against the manifest weight of the evidence on this aspect of count II.

III

In their cross-appeal, defendants contend the trial court erred in denying their motion for section 2—611 sanctions against plaintiff. We find no need to address this issue at length. While not all of plaintiff’s allegations were borne out by the evidence at trial, they were not so bereft of factual support that they can be said to have been made in bad faith. The record reveals a substantial amount of evidence in support of the parties’ conflicting positions at trial. The trial court did not abuse its discretion in denying defendants’ motion.

IV

For all of the foregoing reasons, the judgment on count I of plaintiffs complaint is affirmed; the judgment on count II is reversed, judgment thereon is entered for plaintiff and the cause is remanded for a new trial on the issue of damages only; the denial of section 2— 611 sanctions is affirmed.

Affirmed in part; reversed in part and remanded.

RIZZI and WHITE, JJ., concur.