author: JUSTICE McMORROW PRESIDING JUSTICE JIGANTI,

text:
    MICHAEL KOSINSKI, Plaintiff-Appellee, v. INLAND STEEL COMPANY, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1843
    Opinion filed December 28, 1989.

      JIGANTI, P.J., specially concurring.

      French, Rogers, Kezelis & Kominiarek, P.C., and Kevin G. Burke and Dennis A. Ferraro, both of Cassiday, Schade & Gloor, both of Chicago (David C. Burtker, of counsel), for appellant.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Leslie J. Rosen, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant Inland Steel Company (Inland) appeals from judgment entered against it upon a jury verdict in the amount of approximately $235,000 finding Inland liable for personal injuries suffered by plaintiff Michael Kosinski (Kosinski). Upon review, we affirm, finding that: (1) the trial court properly denied Inland’s motion for a directed verdict at the close of Kosinski’s case in-chief; (2) the trial court did not abuse its discretion when it denied Inland’s motion to bar testimony of Kosinski’s medical expert for Kosinski’s alleged violation of Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220); (3) remarks by Kosinski’s counsel in closing argument regarding a special interrogatory pertaining to Kosinski’s alleged contributory negligence were not reversible error; and (4) the trial court did not abuse its discretion when it permitted one of Kosinski’s exhibits, a jar containing graphite, to be taken into the jury room.

The evidence presented by Kosinski in his case in chief established the following pertinent facts. At the time of Kosinski’s injury on June 17, 1976, Kosinski was employed by Three Star Construction Company (Three Star) as an apprentice ironworker. Three Star had been awarded a subcontract to erect pipe supports on plant property owned by Inland in East Chicago, Indiana. Kosinski and other Three Star journeymen ironworkers had been working to erect these supports on the roof of an Inland slabbing mill for approximately two weeks prior to Kosinski’s injuries. The mill was used to process steel. The steel processing caused the mill to emit an impurity, known as graphite, which accumulated on the mill roof. The mill operated on a 24-hour basis throughout the time Three Star worked to erect steel pipe supports on the mill roof.

The ironworking crew employed by Three Star, including Kosinski, noticed the graphite on the sloped roof, and noticed that the graphite caused the roof to be more slippery than normal. Screws had been placed in the roof by the ironworking crew, as was their customary procedure on any roof job, and these screws allowed the crew to obtain a more secure footing despite the graphite. Kosinski testified that if graphite accumulated to the level of several inches in the area where he was working, he would remove it with a shovel, since its presence in such an amount rendered it impossible to perform his work. Kosinski stated that if the graphite were only a light coat on the roof, he would take no action to remove it.

Inland’s safety manual for outside contractors specified that it was the contractor’s responsibility to clean up debris caused by the contractor’s work on Inland property. Inland’s safety guidelines for its own employees directed that employees should be alert to maintaining a clean and orderly workplace, especially with regard to “traction robbing” substances. Robert Feckler, Inland’s field engineer who checked Three Star’s work progress, and who was on the roof when Kosinski was injured, testified that, in his experience and based on Inland’s safety manuals, it was the responsibility of a contractor to maintain its workplace regardless of the source of any waste or debris, including graphite. Michael Oliver, an Inland safety engineer, testified that based upon his experience at Inland, it was “implied” that tfte contractor would be responsible for the condition on the contractor’s worksite, regardless of the source of the debris, including graphite.

The day on which Kosinski was injured was warm and sunny. Hugh Orr, Three Star’s temporary steward that day, noticed that the graphite was particularly slippery because of the warm weather. He complained to Three Star’s superintendent about this condition, but was told to return to work. Orr did not complain to Inland regarding the presence of the graphite on the roof. Kosinski arrived for work at 8 a.m., and he and the other members of his crew proceeded to erect steel beams above a portion of the slabbing mill roof that was sloped at a 30° angle and was covered with a thin coat of graphite. Because the portion of the roof on which the crew was working was close to an Inland office building, the crew foreman decided that, in order to hoist the beams to the roof, it would be necessary to position a Three Star crane over a section of Inland railroad track. Inland personnel complained of this location of the crane, and insisted that the iron-workers speed up their work so that the crane could be moved as soon as possible. The ironworkers attempted to comply with this directive from Inland personnel.

The location of the Three Star crane rendered it impossible for the ironworkers to lower a metal beam directly into place on the slabbing mill roof. As a result, once a beam had been raised by the crane, the ironworkers would manually pull the beam into position. Each metal beam weighed approximately 1,200 to 1,500 pounds. Kosinski, who was directed to work alone at one end of the beam, would hold the beam in place with one arm and use a spud wrench to facilitate attachment of the beam to a separate piece of structural steel that had already been placed upon the roof. As Kosinski was doing so, a beam with which he had been working slid out of position. Kosinski attempted unsuccessfully to replace the beam in its proper position. He then turned to his left in an effort to avoid the beam as it began to fall. The graphite prevented him from obtaining a secure footing, however, and the beam fell upon his right leg and left foot, injuring him.

Kosinski was taken to St. Catherine Hospital in East Chicago, Indiana, where he was seen and treated by Dr. D.A. Campagna. It was determined that Kosinski had sustained compound, comminuted fractures in his right leg, and simple fractures in his left foot. The leg fractures were placed in their proper position without surgery, and a cast was placed upon the leg from Kosinski’s hip to ankle. His left foot was later placed in a cast after his transfer to a hospital in Illinois.

Dr. Campagna, Kosinski’s original treating physician, testified that, at the time of Kosinski’s injuries, a considerable portion of his private practice was concentrated in industrial and accident medicine and surgery, including the treatment of injuries sustained by iron-workers. Dr. Campagna testified that when he examined Kosinski again in February 1988, Kosinski complained of pain in his right leg and hip, of instability in his right leg, and restricted motion in his right ankle. Dr. Campagna found that Kosinski’s right leg was three-eighths of an inch shorter than his left leg, and that his right calf was three-fourths of an inch smaller in circumference than his left calf. The physician testified that these disabilities, caused by Kosinski’s accident at the Inland slabbing mill in June 1976, would be permanent. Dr. Campagna also testified that it would be “risky” for Kosinski to return to work as an ironworker, since it would be difficult, and sometimes impossible, for Kosinski to do most of the climbing associated with such work.

Kosinski returned to work for Three Star at the Inland slabbing mill several months after his injury. Kosinski stated that he ceased working as an ironworker in 1984, and eventually took employment selling insurance, since most of the ironworking jobs available were ones he could not perform because of his leg and foot injuries. Kosinski testified that his income since the injury has been substantially less than what he would have received had he continued doing the kind of ironworking job allocated to him prior to his accident.

Dr. David Fischer, a medical physician specializing in orthopedic surgery, examined Kosinski on March 16, 1984, and reviewed records pertaining to Kosinski’s medical treatment. Dr. Fischer testified that Kosinski’s right leg was one-half inch shorter than his left leg and was bowed outward at approximately 20° beyond normal. Kosinski’s right calf had atrophied and was one inch smaller in circumference than his left calf. His right ankle was also twisted approximately 15° from normal alignment. Dr. Fischer stated that these circumstances caused Kosinski’s right leg to appear to be V-k” shorter than his left leg. He testified that it also caused Kosinski to walk with a limp and rendered Kosinski to be predisposed to injury, back pain, and future degeneration of the knee and ankle. Dr. Fischer stated that these disabilities were permanent and made it hazardous for Kosinski to return to employment as an ironworker. He also testified that surgery to correct the improper angulation of Kosinski’s leg and ankle might alleviate the extent of Kosinski’s disabilities.

Donald Carter, who was the general foreman for Three Star at the time of Kosinski’s accident, testified on behalf of Inland. Carter stated that, to the best of his recollection, no Three Star worker ever complained to him about the graphite on the slabbing mill roof. Carter also testified that Three Star, because it had its own tools and equipment to do so, would clean graphite off the roof whenever the graphite accumulation caused the roof to become slippery and hazardous.

Based upon this evidence, the jury returned a verdict in favor of Kosinski that awarded him $235,458.12 in damages, apportioned as follows: $135,000 for disability and disfigurement; $90,000 for pain and suffering; $1,908.12 for medical expenses; and $8,550 for lost time and earnings. The jury answered in the negative a special interrogatory that asked, “Was the Plaintiff, at or near the time of the occurrence complained of, guilty of contributory negligence which was a proximate cause of the Plaintiff’s injuries or damages?” The trial court entered judgment in conformance with the jury’s verdict and denied Inland’s motion for a new trial. Inland’s timely appeal followed.

I

Inland argues that the trial court erred in its denial of Inland’s motion for a directed verdict at the close of Kosinski’s case in chief. The parties agree that Indiana law governs the substantive issues presented in the cause. “Under Illinois conflict-of-law principles, the substantive law of the State with the most significant contacts with the occurrence applies. [Citation.] Procedural issues are governed by Illinois law. [Citation.]” Macias v. Inland Steel Co. (1986), 147 Ill. App. 3d 411, 414, 497 N.E.2d 1206.

Inland argues its safety manuals established that Inland did not assume the legal obligation to inspect or maintain a safe condition at Three Star’s worksite. We need not consider this contention. Kosinski’s negligence suit was also based upon Inland’s alleged breach of a legal duty imposed upon Inland by Indiana common law. Under Indiana common law, “a landowner has a common law duty to exercise due care to keep his property in a reasonably safe condition for business invitees, including employees of independent contractors. [Citations.]” (Howard v. H.J. Ricks Construction Co. (Ind. App. 1987), 509 N.E.2d 201, 205.) Thus, a landowner in Indiana “has an affirmative duty to exercise ordinary care to keep his property in a reasonably safe condition coextensive with the purpose and intent of the implied invitation.” (Howard v. H.J. Ricks, 509 N.E.2d at 205.) However,

“ ‘there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. *** [W]here the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, *** where the condition is one *** which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it.’ ” (Broadhurst v. Davis (Ind. App. 1970), 255 N.E.2d 544, 545-46, quoting W. Prosser, Torts §61, at 402 (3d ed.) (1964).)

Indiana law in this regard reflects the principles stated in sections 343 and 343A of the Restatement (Second) of Torts. (Restatement (Second) of Torts §§343, 343A (1965).) With respect to the liability of a landowner to an invitee for an open and obvious danger, the Restatement (Second) notes:

“There are *** cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, *** where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. [Citation.] It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” Restatement (Second) of Torts §343A, comment/, at 220 (1965).

Inland maintains that the slippery condition on the slabbing mill roof was open and obvious to Kosinski, and that it therefore had no duty to clean the roof of any graphite accumulation. We disagree. In our view, the danger of slipping on the graphite, although known to Kosinski, was a hazard which Inland should reasonably have foreseen Kosinski would choose to encounter because the advantages of Kosinski’s doing so, in order to complete Three Star’s work at Inland’s slabbing mill, would outweigh the apparent risk.

Inland also argues that Kosinski’s injuries occurred because Three Star failed to “secure adequate and proper equipment (i.e., a longer boom on the crane) in order to continue to erect and set the structural I-beam directly in place by use of the crane.” Inland asserts that because the crane was the instrumentality that caused Kosinski’s injuries, and because the crane was in the exclusive control of Three Star, Kosinski’s injuries were not proximately caused by any breach of a duty owed by Inland to Kosinski. We disagree with Inland’s premise that Kosinski’s injuries were proximately caused by the improper use of Three Star’s crane. Kosinski testified that the presence of graphite on the roof prevented him from avoiding the beam as it fell from position. Consequently, the evidence introduced by Kosinski, when viewed in the light most favorable to him, demonstrated that the slippery condition resulting from graphite on Inland’s mill roof was a proximate cause of Kosinski’s injuries. As stated above, we conclude that Inland had a duty to maintain its slabbing mill roof in a reasonably safe condition for Kosinski’s work on the roof. It was the province of the trier of fact to determine whether Three Star’s failure to use the proper crane was also a proximate cause of Kosinski’s injuries.

For these reasons, we conclude that the trial court properly denied Inland’s motion for a directed verdict. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Based upon the review of the record, and in response to the argument made by Inland in its reply brief on appeal, we also determine that the judgment was not against the manifest weight of the evidence.

II

Inland argues that the trial court erred in denying its motion to bar Dr. William B. Fischer from testifying because of Kosinski’s failure to seasonably identify Dr. Fischer as an expert witness in violation of Illinois Supreme Court Rule 220. We disagree.

The record shows that in March 1984, Dr. Fischer examined Kosinski, reviewed pertinent medical records, and prepared a written report to his findings and conclusions regarding Kosinski’s injuries. Approximately two years later, on April 9, 1986, Kosinski’s attorney informed Inland in writing that he intended to have Kosinski “evaluated by Dr. Donald Miller, an orthopod.” On January 27, 1988, approximately a year and a half later, and less than two weeks prior to February 8, 1988, the date on which the cause was set for trial, Kosinski’s counsel provided Inland with the medical report prepared by Dr. Fischer in March 1984 and informed Inland that Kosinski intended to call Dr. Fischer as an expert witness.

Because of a conflict in the trial judge’s calendar, the trial was rescheduled for March 3, 1988, and began on that date. On the first day of trial, Inland represented, for the first time, its motion to exclude Dr. Fischer’s testimony. Since Inland had been aware for more than a month that Kosinski intended to call Dr. Fischer as an expert witness, but failed to motion for the medical expert’s disqualification until the first day of trial, the trial court declined to enter an order instanter that would exclude the testimony. The trial court suggested as an alternative that Inland depose Dr. Fischer, and that the court would reserve its ruling on Inland’s motion to exclude the physician’s testimony until Dr. Fischer would be called as a witness. Inland declined the court’s invitation to formally depose Dr. Fischer, and informed the trial judge that Inland had arranged with Kosinski’s counsel to interview Dr. Fischer, outside the presence of Kosinski’s counsel, before Dr. Fischer would testify at trial. Thereafter, when Dr. Fischer was called to testify on behalf of Kosinski, Inland did not renew its motion in limine to exclude his testimony or object to his testifying at trial.

Initially, we conclude that Inland has waived error with respect to the trial court’s decision to permit Inland the opportunity to depose Dr. Fischer prior to his trial testimony. The record shows that Inland acquiesced in the trial court’s arrangement that Inland question Dr. Fischer prior to trial and inform the trial court if Inland found such questioning insufficient to present its defense at trial. A party cannot claim error in a trial court’s ruling when the party has acquiesced in that disposition. See Fischer v. G&S Builders (1986), 147 Ill. App. 3d 168, 173, 497 N.E.2d 1022; see also Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 205, 526 N.E.2d 450; Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 339-40, 514 N.E.2d 532.

Even assuming arguendo that the question has not been waived, we determine that the trial court did not abuse its discretion when it permitted Inland the opportunity to depose Dr. Fischer, rather than excluding the medical expert’s testimony at trial. Illinois Supreme Court Rule 220 provides:

“In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. *** Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (107 Ill. 2d R. 220(b)(1).)

Rule 220 must be read in conjunction with Illinois Supreme Court Rule 219, however, which provides that when a party fails to comply with Rule 220:

“[T]he court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
(i) that further proceedings be stayed until the order or rule is complied with;
(iv) that a witness be barred from testifying concerning that issue[.]
In lieu of or in addition to the foregoing, the court may order that the offending party or his attorney pay the reasonable expenses, including attorney’s fees incurred by any party as a result of the misconduct ***.” (107 Ill. 2d R. 219(c).)

It is well established that the trial court’s determination of the appropriate sanction for violation of discovery núes is a matter within its sound discretion and will not be disturbed upon review, absent an abuse of that discretion. See, e.g., Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 205, 526 N.E.2d 450.

It is clear that Kosinski’s counsel violated Rule 220 in his failure to seasonably inform Inland that Dr. Fischer would testify as a medical expert on Kosinski’s behalf at trial, and we do not condone the laxity toward Rule 220’s requirements that was displayed by Kosinski’s counsel in the case at bar. However, disqualification of a medical expert is not the only sanction that the trial court may, in its discretion, impose for a violation of Rule 220. We have previously held that, depending upon the circumstances of a particular case, the sanction of a continuance to permit deposition of the expert may be “ ‘an acceptable response.’ ” (Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 205, 526 N.E.2d 450, quoting Fischer v. G&S Builders (1986), 147 Ill. App. 3d 168, 173, 497 N.E.2d 1022, citing Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 442 N.E.2d 241.) We do not believe that the trial court’s selection of a sanction other than disqualification of the expert witness automatically renders Rule 220 ineffective, especially in view of Rule 219’s specific inclusion of several alternative sanctions as proper remedies for a violation of Rule 220. See Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 533 N.E.2d 22.

Given the facts of the case at bar, we find that the trial court did not abuse its discretion in suggesting that, rather than enter an order instanter to bar Dr. Fischer’s testimony, Inland first depose Dr. Fischer prior to his testifying at trial. The record shows that Inland never expressed an interest in deposing the medical expert, Dr. Miller, whom Kosinski’s attorney had disclosed well before trial. In addition, Inland was aware for more than a month that Kosinski intended to call Dr. Fischer as an expert witness, but failed to motion for the medical expert’s disqualification until the first day of trial. By permitting Inland the opportunity to depose Dr. Fischer prior to his trial testimony, and to inform the court if such deposition would be inadequate for Inland to present a full defense at trial, the trial court obviated any surprise or prejudice to Inland resulting from Kosinski’s tardy disclosure of Dr. Fischer as an expert witness. (Cf. Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224-25, 511 N.E.2d 974 (expert witness should be barred from testifying where litigant will be surprised and prejudiced by tardy disclosure under Rule 220).) “Had the facts shown that [Kosinski’s] expert presented a novel theory to which [Inland] could not sufficiently respond ***, a motion to bar that expert’s testimony would have been in order.” (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 4, 442 N.E.2d 241.) Inland does not contend that it was unable or impeded in its efforts to defend itself with respect to Dr. Fischer’s testimony. In view of the circumstances in the case at bar, we conclude that the trial court’s disposition of Inland’s motion to bar Dr. Fischer’s testimony was proper.

We also believe that, based upon the admission of Dr. Fischer’s testimony, Inland has not shown prejudice sufficient to grant Inland a new trial. Dr. Fischer’s testimony was essentially cumulative to that of Dr. Campagna. Both doctors stated the nature and extent of Kosinski’s injuries and his resulting disabilities. Consequently, even if we were to accept Inland’s claim of error with respect to the violation of Rule 220, we do not find it sufficient ground to grant a new trial. See, e.g., Fear v. Smith (1989), 184 Ill. App. 3d 51, 539 N.E.2d 1297.

III

Inland contends that certain remarks by Kosinski’s counsel in closing argument regarding the special interrogatory pertaining to Kosinski’s alleged contributory negligence were reversible error. These remarks were:

“If you listen to what negligence is and what he was doing, because what they are telling you, and if you answer that interrogatory any way other than no, then you are saying this accident is [Kosinski’s] fault and he can’t recover, if you answer it any way other than no.”

Inland acknowledges that these comments are virtually identical to those found permissible in Burns v. Howell Tractor & Equipment Co. (1977), 45 Ill. App. 3d 838, 360 N.E.2d 377. Inland argues that Burns is “nothing more than a semantical change from what is prohibited” in Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 222 N.E.2d 468. In Sommese, the Illinois Supreme Court found reversible error in comments made by counsel during closing argument that had the effect of “improperly alertpng] the jury to the fact that its decision to assess damages would be nullified by an affirmative answer to the interrogatory.” (36 Ill. 2d at 267-68.) The court reasoned that as a result, “the safeguard against a jury awarding damages out of passion or prejudice or sympathy without first making specific factual determinations and then applying the law thereto was thwarted.” 36 Ill. 2d at 268.

Contrary to Inland’s argument, our adherence to the holding of Burns, and our approval of the comments of Kosinski’s counsel during closing argument, will not emasculate the pronouncement of the Illinois Supreme Court in Sommese. The remarks of Kosinski’s attorney did not alert or emphasize to the jury that an award of damages to Kosinski would be nullified by an affirmative answer to the interrogatory, but advocated that the jury, upon its review of the evidence, should answer the interrogatory in favor of Kosinski. Consequently, we find no error in the comments of Kosinski’s attorney during closing argument. Our holding is consistent with other decisions that have adhered to the ruling of Burns. See, e.g., Blevins v. Inland Steel Co. (1989), 180 Ill. App. 3d 286, 535 N.E.2d 972; Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 518 N.E.2d 205; Macias v. Inland Steel Co. (1986), 147 Ill. App. 3d 411, 497 N.E.2d 1206.

IV

Inland argues that the trial court abused its discretion when it permitted one of Kosinski’s exhibits, a jar containing graphite, to be taken into the jury room. Because Kosinski’s counsel told the jury during closing argument that the jury should “[Qeel [the graphite], put it on your hands, it won’t be easy to come off, but put a little on your hands,” Inland contends that there was a danger the jury would experiment "with the graphite or attempt to recreate the accident. (See Main v. Ballymore Co. (1983), 116 Ill. App. 3d 1040, 449 N.E.2d 169.) We can find no abuse of discretion in the trial court’s ruling in the case at bar, since it was unlikely that the jury would attempt to recreate the circumstances surrounding Kosinski’s accident in order to perform an independent experiment thereof. Even assuming arguendo that the evidence should not have been permitted in the jury room during deliberations, we cannot discern in what manner the jury’s examination of the graphite deprived Inland of a fair trial. See, e.g., Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 504 N.E.2d 772.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

LINN, J., concurs.

PRESIDING JUSTICE JIGANTI,

specially concurring:

In concluding that the trial court did not err in refusing to bar Dr. Fischer’s testimony pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), the majority ignores relevant facts and adopts an interpretation of the rule which renders it utterly ineffective. However, because Dr. Fischer’s testimony was cumulative and resulted in no prejudice to Inland, I agree with the majority that a new trial is not warranted.

A reading of the language of Rule 220, quoted by the majority, reveals that its disclosure requirement is clear and specific. The obvious import of the rule is that discovery be completed, at the very latest, 60 days before trial. Although, as the majority notes, the trial court may in its discretion impose sanctions other than disqualification, the fact that the rule explicitly states that failure to disclose “will result in disqualification of the expert as a witness” appears to indicate that the court’s discretion is “severely limited,” at least when faced with a clear and egregious violation of the rule. See Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224, 511 N.E.2d 974, 981.

The record in the case at bar reveals just such a clear and egregious violation of Rule 220. Kosinski had a medical report prepared by Dr. Fischer dated March 21, 1984. Approximately two years after the date on the report, on April 9, 1986, Kosinski’s counsel responded to Inland’s Rule 220 interrogatories by stating that “it is my present intention to have plaintiff evaluated by Dr. Donald Miller, an orthopod.” Apparently, Dr. Miller never evaluated Kosinski. On January 27, 1988, 13 days before the anticipated trial date, Kosinski provided Inland with the four-year-old medical report prepared by Dr. Fischer. Kosinski suggested that the discovery violation was inadvertent.

Instead of focusing on the egregious nature of Kosinski’s violation of Rule 220, the majority focuses its attention on Inland’s reaction to the violation, criticizing Inland for waiting too long to present a motion to exclude Dr. Fischer’s testimony and for failing to depose him in the short time remaining before trial. The prospect of such last-minute depositions was one of the evils sought to be remedied by Rule 220. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974.) In my view, the interpretation placed upon Rule 220 by the majority completely undermines its effectiveness as a tool for ensuring fair and adequate discovery. Under the facts presented in this case, I believe that the trial court abused its discretion in allowing Dr. Fischer to testify.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    MARGARET HARE, Personal Representative of the Estate of John Hare, Deceased, Plaintiff-Appellant, v. FOSTER G. McGAW HOSPITAL et al., Defendants (Andrew Labrador, Defendant-Appellee).
    First District (4th Division)
    No. 1—88—1933
    Opinion filed December 28, 1989.
    Michael R. Panter, of Michael R. Panter & Associates, of Chicago, for appellant.
    Brian T. Henry, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises from actions for survival and wrongful death brought by the plaintiff, Margaret Hare, mother of the decedent John Hare, against Dr. Andrew Labrador, an emergency room physician. The complaint alleged that the defendant’s failure to discover the severity of the decedent’s hepatitis and to hospitalize him was a cause of his death. In a jury trial, the trial court directed a verdict in favor of the defendant and against the plaintiff on the wrongful death count on the basis that the plaintiff failed to produce evidence showing that the alleged malpractice proximately caused the decedent’s death. The plaintiff then voluntarily dismissed the survival count with prejudice and initiated this appeal. The plaintiff contends on appeal that the trial court erred in directing a verdict in favor of the defendant on the issue of proximate cause where evidence was produced to show that the defendant’s negligent failure to hospitalize the decedent denied him a significant chance to survive his illness. This appeal involves issues of proximate cause and the emerging doctrine of “lost chance” or increased risk of harm.

On August 27, 1980, 22-year-old John Hare went to the emergency room at the Loyola University Medical Center (Loyola) and was diagnosed as having hepatitis B. He was told to rest and to follow up at the Hepatitis Clinic within one week. Hare decided to convalesce at his girlfriend’s house in Calumet City, Illinois.

On September 9, 1980, Hare went to the emergency room at St. Margaret Hospital in Hammond, Indiana, complaining of abdominal cramping. He stated that he had been diagnosed as having hepatitis B and that he wanted an enzyme test. The triage nurse recorded that Hare was “very jaundiced,” then directed him to the defendant, who took a medical history and examined Hare. The defendant reported that Hare was jaundiced and that his liver was enlarged and mildly tender but smooth and firm. Hare was alert and did not look weak. The defendant discussed Hare’s condition with him and advised him to continue rest and to maintain a high-protein, high-carbohydrate, low-fat diet. He also advised him to follow up at Loyola. Hare was not given any tests.

Five days later, on September 14, 1980, Hare was brought to the emergency room at St. Margaret, given blood tests and immediately admitted to the hospital. He had developed fulminant hepatitis, a severe form of hepatitis characterized by mental confusion. Hare went into a deep coma and died on September 23, 1980, of hepatic encephalopathy, a swelling or edema of the brain which is an untreatable complication of fulminant hepatitis.

At trial, the plaintiff presented expert testimony by Dr. Jonathan Alexander, who testified that the defendant breached the duty of care by failing to order a pro-thrombine time (PT) test and by failing to communicate to Hare the immediacy of his need for specialized care. Alexander stated that although Hare did not have fulminant hepatitis when treated by the defendant on September 9, a PT test would have shown that the impairment of his liver function was severe enough to require hospitalization. According to Dr. Alexander, there is no cure for hepatitis. However, it is necessary to hospitalize patients with severe hepatitis in order to give them supportive care, such as bed rest and appropriate diet to keep them in the best condition possible to fight the disease. Hospitalization also enables the early detection and treatment of certain complications which arise from hepatitis. Dr. Alexander then testified as follows:

“Certainly the reason why doctors admit patients to the hospital who have severe hepatitis is because this general [supportive] care that I have just been talking about certainly is a benefit to the patient, and does increase the patient’s chance of surviving [his] illness.
The consequences of failing to provide the standard of care for John Hare on 9/9, the failure to admit him on 9/9 was that, in my opinion, he was essentially denied any reasonable opportunity to benefit from medical intervention. He was denied a reasonable opportunity to benefit from whatever the world of medicine could give him to help stabilize him and make him the [sic] as strong as possible in his battle against the liver disease that he had.”

Dr. Alexander further testified that the defendant’s failure to hospitalize Hare “doomed him to death” and “denied him a significant chance to survive his illness.” He stated, however, that there is no known method of detecting hepatic encephalopathy, no cure for the disease, and no way of preventing it other than general supportive care. Although most hepatitis patients do not need to be hospitalized, fulminant hepatitis is a potentially fatal disease with a 20% rate of survival.

The defendant presented the testimony of two medical experts, Dr. Andrew Matthews and Dr. John Payne, who testified that based on the medical records, Hare did not have fulminant hepatitis on September 9, 1980. They also stated that a PT test would not indicate fulminant hepatitis in a patient and that there is no cure for fulminant hepatitis. Dr. Matthews testified that hospitalization increases a patient’s chances of surviving fulminant hepatitis because “[tjhere are people there that are there to prevent certain complications, to treat certain complications.” Dr. Payne testified that in 1980, it was believed that patients with fulminant hepatitis should be hospitalized to increase their chances for survival. He further testified, however, that hospitalization would only make a difference “if you find a treatable complication such as bleeding or infection. And in 1980 if the cause of death was cerebral edema it didn’t make any difference where the patient was” in terms of increasing his chance for survival.

The issue on appeal is whether the trial court properly directed a verdict in favor of the defendant on the grounds that the plaintiff failed to produce sufficient evidence from which the jury could find that the defendant’s alleged malpractice was a proximate cause of John Hare’s death.

A verdict is properly directed in favor of a defendant when all of the evidence, viewed in an aspect most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) A directed verdict properly prevents the jury from engaging in “mere speculation, guess or conjecture.” Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 505.

This cause is a wrongful death action based upon the alleged medical malpractice of the defendant, Dr. Labrador. In order to recover for wrongful death, the Wrongful Death Act requires the plaintiff to prove that the alleged negligence caused the death of the decedent. (Ill. Rev. Stat. 1987, ch. 70, par. 1.) The Illinois Supreme Court has stated that to prove causation in a medical malpractice action, the plaintiff must establish that it is more probably true than not true that the negligence was a proximate cause of the injury. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 424, 328 N.E.2d 301.) To prove proximate cause, the plaintiff must establish that the defendant’s negligence was a cause in fact of the death. (W. Keeton, Prosser & Keeton on Torts §41, at 265-66 (5th ed. 1984).) If the death would have occurred even in the absence of negligence, the negligence was not a cause in fact of the death. The element of cause in fact need not be proved to a certainty. Rather, the evidence is sufficient if it affords the jury a reasonable basis to conclude that the negligence was “probably” or “more likely than not” a cause of the death. (W. Keeton, Prosser & Keeton on Torts §41, at 269 (5th ed. 1984); Comment, Proving Causation in “Loss of A Chance” Cases: A Proportional Ap proach, 34 Cath. U.L. Rev. 747, 749 (1985).) Thus, the plaintiff in this action was required to prove that it was more probably true than not that Dr. Labrador’s failure to hospitalize Hare was a cause of his death.

Tested by this standard, the evidence of proximate cause was clearly insufficient to submit to the jury. Dr. Alexander, the plaintiff’s expert, did not testify that the failure to hospitalize Hare on September 9 caused his death. He did state the opinion that the failure to hospitalize denied Hare a significant chance to survive his illness and “doomed him to death.” However, he further testified that there is no cure for hepatitis and that hospitalization is usually not necessary. He also stated that fulminant or severe hepatitis is a form of the disease which is highly fatal and that standard medical practice requires hospitalization in cases of fulminant hepatitis for the purpose of providing the patient with general supportive care. Such supportive care helps the patient by facilitating the early detection and treatment of treatable complications arising from the hepatitis and by giving the patient the proper rest and diet to best condition his body to fight the disease. The uncontroverted evidence shows that John Hare died of hepatic encephalopathy, a complication of hepatitis that cannot be detected before it occurs and cannot be cured. Thus, the only evidence supporting Dr. Alexander’s opinion was his testimony that general supportive care such as rest and proper diet would have helped keep Hare in the best possible condition to fight the disease. A finding that the defendant’s failure to hospitalize Hare was more probably than not a cause of his death based solely on this testimony would necessarily amount to nothing more than mere speculation. Therefore, under the existing standard of probable cause as stated in Borowski, the trial court properly directed a verdict in favor of the defendant.

It has been recognized that there are problems in applying the existing “more probable than not” standard of proximate cause to cases in which the patient had a change of a better result absent malpractice, but the malpractice deprived the patient of that result or increased the risk of an unfavorable outcome. (See Note, Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases, 65 B.U.L. Rev. 275 (1985); Comment, Proving Causation in “Loss of A Chance” Cases: A Proportional Approach, 34 Cath. U.L. Rev. 747 (1985); Wolfstone & Wolfstone, Recovery of Damages for the Loss of a Chance, 1982 Med. Trial Tech. Q. 121.) For example, to satisfy the existing standard of proof, the plaintiff in a wrongful death case must show that the patient would more probably than not have survived if he had been treated properly. If the patient would probably have died from the underlying illness, then it was the illness and not the doctor’s malpractice which caused the death. Therefore, a patient whose doctor’s malpractice deprived him of a 49% chance of surviving his illness would be denied recovery of the basis that it was more probable than not that he died from the illness. On the other hand, a patient deprived by malpractice of a 51% chance of survival would recover the full extent of damages for the death because it was more probable than not that the malpractice caused the death.

These perceived inequitable results gave rise to a line of cases, known as “lost chance” cases, which have attempted to correct the problem by altering the proof requirements on causation in cases where negligence deprived the plaintiff of a better result or increased the risk of an unfavorable outcome. (See, e.g., Hamil v. Bashline (1978), 481 Pa. 256, 392 A.2d 1280; Thompson v. Sun City Community Hospital, Inc. (1984), 141 Ariz. 597, 688 P.2d 605; Herskovits v. Group Health Cooperative (1983), 99 Wash. 2d 609, 664 P.2d 474.) In the most frequently cited of these cases, Hamil v. Bashline, the Pennsylvania Supreme Court held that once it has been shown that the defendant’s negligence increased the risk of harm to the plaintiff and that the harm was actually sustained, it then becomes a jury question as to whether the increased risk was a substantial factor in producing the harm. The rationale for this holding was provided by section 323 of the Restatement (Second) of Torts, which states:

“One who undertakes *** to render services to another which he should recognize as necessary for the protection of the other’s person *** is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm.” (Restatement (Second) of Torts §323(a), at 135 (1965).)

The Bashline case involved a situation in which the plaintiff’s expert testified that negligent treatment of the decedent deprived him of a 75% chance of surviving a heart attack. No one would testify, however, that to a reasonable degree of medical certainty the negligence caused the death. Under the holding in Bashline, the jury was allowed to find that the increased risk caused by the doctor’s negligence was a substantial factor in causing the death.

Subsequent cases applying Bashline’s lost chance analysis have shown that it is not without problems of its own. For example, in Herskovits v. Group Health Cooperative (1983), 99 Wash. 2d 609, 664 P.2d 474, an expert testified that the defendant’s negligent delay in diagnosing the decedent’s lung cancer decreased the patient’s chance of surviving the cancer from 39% to 25%. The court held that the jury could find that this 14% reduction in the chance of survival proximately caused the death. Applying the Bashline reasoning, the court stated that once the plaintiff introduced evidence that the defendant’s negligence increased the risk of harm, the jury could “go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm.” (Herskovits, 99 Wash. 2d at 617, 664 P.2d at 478.) If the jury made such a finding, the plaintiff would be entitled to the full amount of damages for the death. In contrast to the traditional “more likely than not” requirement of proving causation, which would deny recovery to a patient with a less than 50% chance of survival, the Bashline approach as exemplified in Herskovits would allow a full recovery for the decedent’s death on a showing of any increase in the risk of harm, no matter how slight. One commentator has criticized Herskovits as bringing to life the fears raised by the Bashline approach, because a finding that a 14% reduction in the chance of survival constituted a substantial factor in producing the death can be nothing more than the product of pure speculation. 34 Cath. U.L. Rev. at 775.

Certain commentators have suggested that the solution to the “all or nothing” results in medical malpractice cases where there is evidence of both negligence and an underlying illness is to recognize a separate cause of action for the loss of a chance to survive. (34 Cath. U.L. Rev. 747; King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981); Herskovits, 99 Wash. 2d at 633, 664 P.2d at 486 (Pearson, J., concurring).) Rather than altering the burden of proof with respect to causation, the injury would be redefined as the “loss of a chance” and the relevant inquiry would be whether the defendant “probably” caused a reduction in the patient’s chance of survival. If causation were proved, compensation would be awarded in direct proportion to the extent of the loss of chance. 34 Cath. U.L. Rev. 747.

Illinois case law shows an apparent conflict as to the requirements of proving proximate cause in lost chance of survival cases. Two cases, Curry v. Summer (1985), 136 Ill. App. 3d 468, 483 N.E.2d 711, and Russell v. Subbiah (1986), 149 Ill. App. 3d 268, 500 N.E.2d 138, held that under the “more probably true than not” standard stated by the supreme court in Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301, the plaintiff must show a better than even chance of a better result, or of survival in a wrongful death action, in order to prove that the doctor’s negligence caused the harm. However, Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987), 155 Ill. App. 3d 458, 508 N.E.2d 426, and Northern Trust Co. v. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 493 N.E.2d 6, appear to adopt the Bashline approach of allowing the issue of proximate cause to go to the jury upon a showing that the doctor’s negligence increased the risk of harm.

Although we recognize the problems inherent in requiring a plaintiff to prove that the doctor’s negligence was more probably than not a proximate cause of the decedent’s death, this is clearly the burden of proof in medical malpractice actions as set forth by the Illinois Supreme Court in Borowski. It is well established that the appellate court is without authority to overrule the supreme court or to modify its decisions. (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 552, 457 N.E.2d 1.) Thus, any alteration in the burden of proof regarding proximate cause as was done in Bashline would have to come from the supreme court. Also, we note that the Illinois Wrongful Death Act specifically requires proof that the negligent conduct caused the death. (Ill. Rev. Stat. 1987, ch. 70, par. 1.) In order to adopt the suggestion of the commentators that a plaintiff be compensated for a reduction in the decedent’s chance of survival, an amendment to the statute would be needed.

As stated earlier, the evidence in the case at bar is far too insubstantial to support a jury verdict that it was more probably true than not that the defendant’s negligence was a proximate cause of John Hare’s death. For this reason, the trial court properly directed a verdict in favor of the defendant.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


text:
    ROGER OWENS, Plaintiff, v. MIDWEST TANK AND MANUFACTURING COMPANY et al., Defendants (Midwest Tank and Manufacturing Company, Third-Party Plaintiff-Appellant; Tyrolt, Inc., d/b/a Dunn Company, Third-Party Defendant-Appellee).
    First District (4th Division)
    No. 1—88—3482
    Opinion filed December 28, 1989.

      McDermott, Will & Emery, of Chicago (Donald C. Clark, Jr., and Luke DeGrand, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (David H. Levitt and Nancy G. Lischer, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Roger Owens, filed a product liability action against the defendant Midwest Tank and Manufacturing Company (Midwest) alleging that he was injured as a result of a defective asphalt storage silo manufactured by Midwest. Midwest then filed a third-party complaint against the plaintiff’s employer, Tyrolt, Inc., d/b/a Dunn Company (Dunn). Count I of the third-party complaint sought indemnity pursuant to a contractual provision which required Dunn to indemnify Midwest for any injury resulting in whole or in part from an unauthorized modification or misuse of the silo. The trial court granted Dunn’s motion to dismiss count I for failure to state a cause of action for indemnity. Following the parties’ settlement of the remaining claims, Midwest has appealed the dismissal of its indemnity count. Midwest contends on appeal that the indemnity provision is sufficiently clear and specific to be enforceable, that it is not illusory and that enforcement of the provision would not violate public policy.

The complaint filed by the plaintiff against Midwest alleged that Midwest “designed, manufactured, sold and installed” an asphalt storage silo. During the course of his employment with Dunn, the plaintiff was cleaning the interior of the silo and was injured when the doors at the bottom of the silo closed upon him. The complaint alleged that the silo was in the same condition as at the time of its manufacture and that it was unreasonably dangerous in four respects: (1) there was no control mechanism at the bottom of the silo or near the silo doors by which the doors could be opened; (2) there was no method to shut down the hydraulic system for the doors without turning off the entire system; (3) the only way to open the doors was to have a person in a booth depress a button; and (4) it was foreseeable that asphalt would become lodged between certain beams in the silo and that workmen would go between the silo doors to dislodge it.

Midwest filed a two-count third-party complaint against Dunn. Count II was for contribution and is not a subject of this appeal. Count I was for express indemnity based upon a contractual provision contained in the detail specifications for the asphalt production plant manufactured by Midwest and sold to Dunn. The language of the provision is as follows:

“The Customer [Dunn] agrees that if any damage or injury (including death) to person or property (including the loss or use thereof) results in whole or in part from a modification or alteration of the equipment purchased from the Company [Midwest] which is made without the Company’s written approval or consent or which results from improper or abnormal operation of such equipment without the company’s written approval or consent, then in any such event the Customer will indemnify and save the Company harmless from all liability, cost and expense (including costs of litigation and defense) for which the Company may be held liable in connection with such damage or injury.”

Midwest’s complaint then alleged that the plaintiff’s injuries resulted in whole or in part from either a modification or alteration or from improper or abnormal operation of the asphalt production plant and that Dunn was accordingly required to indemnify Midwest from any liability resulting from the plaintiff’s strict liability action.

Dunn filed a motion to dismiss the third-party complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). With respect to count I, the motion to dismiss alleged that the language of the indemnity agreement was ambiguous and therefore insufficient to require indemnity where Midwest was sued for strict product liability. The motion also alleged that Midwest could not state a claim for indemnity based on allegations of modification or misuse, because if the allegations were proved true, Midwest could not be held liable and there would be no basis for indemnity. The court granted the motion to dismiss, and Midwest has appealed, contending that the allegations of its third-party complaint against Dunn sufficiently set forth a cause of action for indemnity.

Midwest’s complaint should not have been dismissed unless it clearly appeared from the pleadings that no set of facts could have been proved which would have entitled Midwest to relief. (Patton v. T.O.F.C., Inc. (1979), 79 Ill. App. 3d 94, 98, 398 N.E.2d 313.) The issue before us involves interpretation of a written contract provision, which is a question of law subject to de novo review by this court. Kerr Steamship Co. v. Chicago Title & Trust Co. (1983), 120 Ill. App. 3d 998, 1007, 458 N.E.2d 1009.

Dunn’s motion to dismiss challenged the indemnity provision on two bases. First, Dunn alleged that the provision was not sufficiently specific to be construed as an agreement to indemnify Midwest against its own strict liability. Second, Dunn alleged that the provision was illusory because it called for indemnity only where the product was modified or misused; however, because modification and misuse are defenses to a product liability action, proof of Midwest’s allegations would result in no liability to the plaintiff and there would be no need for indemnity.

With regard to the argument involving lack of specificity, the Illinois Supreme Court in Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604, set forth the principles applicable to indemnity agreements. The court held, in the context of a negligence action, that agreements to indemnify a party against liability arising from its actions are disfavored and must be strictly construed against a party seeking indemnity. In construing such agreements the meaning and intent of the parties must be determined from the words of the agreement; phrases or terms will not be added to reach a more equitable result. Westinghouse, 395 Ill. at 432.

The same rules of construction apply to indemnity agreements in product liability cases. An agreement will not be construed as indemnifying a party against its own strict liability unless the language of the agreement clearly and specifically shows that this was the intent of the parties. (Smith v. Clark Equipment Co. (1985), 136 Ill. App. 3d 800, 805, 483 N.E.2d 1006; Patton v. T.O.F.C., Inc. (1979), 79 Ill. App. 3d 94, 98, 398 N.E.2d 313; Sorrentino v. Waco Scaffolding & Shoring Co. (1976), 44 Ill. App. 3d 1055, 1058, 358 N.E.2d 1244.) In construing an agreement to indemnify, the language and provisions must be considered as a whole. Smith v. Clark Equipment Co., 136 Ill. App. 3d at 805.

Midwest relies heavily upon Patton v. T.O.F.C., Inc. (1979), 79 Ill. App. 3d 94, 398 N.E.2d 313, to support its argument that the indemnity provision in the case at bar is sufficiently clear and specific to be enforceable. In Patton, the injured plaintiff was an employee of T.O.F.C., which had leased certain equipment from the Erie Lackawanna Railway Company (Erie). The plaintiff filed a product liability action against Erie, alleging that his injury was caused by the defective condition of the equipment. Erie then filed a declaratory judgment action against T.O.F.C., seeking a declaration that T.O.F.C. was contractually required to defend and indemnify Erie. The indemnity provision in Patton stated that T.O.F.C. was obligated to indemnify Erie from:

“ ‘[A]ny and all claims, losses, liabilities, demands, suits, judgments, or causes of action and all legal proceedings *** which may be attributable to any defect in the Equipment arising from the material or any article used therein or from the design, testing or use thereof or from any maintenance, service, repair, overhaul, or testing of the Equipment, regardless of when such defect shall be discovered ***.’” (Emphasis in original.) (Patton, 79 Ill. App. 3d at 99, 398 N.E.2d at 317.)

T.O.F.C. contended, as does Dunn in the instant cause, that the language of the provision was not specific enough to require indemnity because the term “strict liability” was not mentioned. The court rejected this argument, finding that inclusion of the term “defect,” which is an essential element of proof in a product liability action, was sufficient to establish that the parties intended the provision to apply to product liability actions. The court stated:

“We cannot believe that this similarity between the essential allegation of a strict products liability action and [the provision’s] requirement that Erie be indemnified for liability for injuries attributable to a ‘defect’ in the [equipment] is mere coincidence. We think it was the clear intent of the parties *** that Erie be indemnified by [T.O.F.C.] for any liability which might arise from a strict products liability claim ***.” Patton, 79 Ill. App. 3d at 99, 398 N.E.2d at 317.

Applying the reasoning of the Patton decision, Midwest points out that the indemnification provision in the instant cause applies only where the injury is caused in whole or in part by a modification or misuse of the silo. Because a plaintiff in a strict liability claim must prove that the defect in the product existed at the time it left the manufacturer’s control, a third party’s modification of the product may defeat the manufacturer’s liability. (Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232.) Also, misuse of a product may bar recovery in a strict product liability action. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 513 N.E.2d 958.) Midwest argues that since “modification” and “misuse” are terms particular to product liability actions, inclusion of those terms in the indemnity provision evinces an intent by the parties that the provision would apply to product liability claims.

We agree with this argument. Although indemnity provisions are disfavored and must be strictly construed, they are not illegal. Where the intent of the parties to indemnify is clear and unambiguous, it should be given effect. (Higgins v. Kleronomos (1984), 121 Ill. App. 3d 316, 319, 459 N.E.2d 1048.) It is our interpretation that the indemnity provision here specifically provides for indemnity when an injury caused by a modification or misuse of the product gives rise to a strict liability claim against Midwest. As in Patton, we believe that the parties’ reference to concepts particular to product liability actions establishes that it was their intent to provide for indemnification in the context of product liability claims.

Dunn’s motion to dismiss also attacked Midwest’s claim for indemnity on the grounds that the indemnity provision was illusory. Dunn maintains that the provision calls for indemnity only in cases where the product was modified or misused; yet proof of such modification or misuse would be a successful defense to a product liability claim and there would therefore be no need for indemnity. In support of this argument, Dunn cites the supreme court decision in Burke v. Sky Climber, Inc. (1974), 57 Ill. 2d 542, 316 N.E.2d 516, and its subsequent decision in Heinrich v. Peabody International Corp. (1987), 117 Ill. 2d 162, 510 N.E.2d 889.

Burke and Heinrich both held that where the allegations of the indemnification complaint, if proven, would render the indemnitee not liable to the plaintiff, no cause of action for indemnity could be stated. However, those cases involved actions for implied indemnity based upon an active/passive theory of negligence. To recover under a theory of implied indemnity based on active/passive negligence, the party seeking indemnity had to show that the indemnitor’s conduct was the sole cause of the plaintiff’s injuries and that the indemnitee was only technically at fault. (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 255, 527 N.E.2d 1248.) The court in Burke and Heinrich recognized that if in fact the indemnitor’s conduct constituted the sole proximate cause of the injury, no liability would exist on the part of the indemnitee and indemnity would not be needed.

In contrast to the negligence cases cited by Dunn, a plaintiff seeking to recover from a manufacturer on the basis of strict liability need only prove that the condition of the product was “a” proximate cause of the injury. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 914, 513 N.E.2d 958.) Thus, even if the allegations of modification or misuse were proved, Midwest would remain liable to the plaintiff if a defect in the equipment contributed to the injury or if Dunn’s modification or misuse was foreseeable by Midwest. (See King, 160 Ill. App. 3d 898, 513 N.E.2d 958.) The indemnity provision between Dunn and Midwest addresses this situation by providing for indemnity where a modification or misuse of the product is “in whole or in part” a cause of the injury. Because there are situations in which Midwest’s liability can exist simultaneously with Dunn’s indemnity obligation, we must reject Dunn’s contention that the indemnity agreement is illusory.

Finally, Dunn contends that the indemnity provision violates public policy because it allows Midwest to seek downstream indemnification. Dunn argues that the provision would allow Midwest to avoid responsibility for manufacturing defective equipment and remove the incentive to produce a safer product. No authority is cited in support of this argument, and we are not persuaded by it. We do not believe that it is violative of public policy for members of the distributive chain to freely bargain with respect to the ultimate apportionment of liability as long as the injured party’s right to compensation is not jeopardized. As stated in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 14, 374 N.E.2d 437, 443:

“The public policy considerations which motivated the adoption of strict liability (see Suvada v. White Motor Co., 32 Ill. 2d 612[, 210 N.E.2d 182]) were that the economic loss suffered by the user should be imposed on the one who created the risk and reaped the profit, including everyone from the manufacturer on through to the seller or any one of them. When the economic loss of the user has been imposed on a defendant in a strict liability action the policy considerations of Suvada are satisfied and the ordinary equitable principles governing the concepts of indemnity or contribution are to be applied.”

Consistent with the rationale of Skinner, we do not believe that public policy prohibits downstream actions for indemnity.

For the foregoing reasons, we believe that the trial court erred in dismissing Midwest’s claim for indemnity against Dunn. Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

LINN and McMORROW, JJ., concur.


author: JUSTICE LORENZ

text:
    JOSE GOMEZ, Plaintiff-Appellee, v. VITINO’S PIZZA et al., Defendants-Appellants (James Pugh, Defendant).
    First District (5th Division)
    No. 1—88—3026
    Opinion filed December 29, 1989.
    Vito DeFrancesco, of Cicero, appellant pro se.

    Berman, Traehtman & Malek, P.C., of Chicago (Edward J. Malek, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Jose Gomez, obtained a default judgment against defendants, Vitino’s Pizza and James Pugh. Prior to satisfaction of the judgment, defendant Vito DeFrancesco was added as a party and judgment was entered against him. Defendants Vitino’s Pizza and DeFrancesco now appeal. We address the issue of whether a person can be named as a party defendant under section 6 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State” (Ill. Rev. Stat. 1985, ch. 96, par. 8a) (Assumed Business Name Act or Act) when plaintiff failed to sue unknown owners as allowed under the Act. For the following reasons, we reverse and remand.

Plaintiff filed a complaint for negligence against defendants Vitino’s Pizza and Pugh seeking damages for personal injuries which resulted from a car accident that occurred on December 27, 1980. Plaintiff alleged that Pugh was driving a car as an “agent, servant and employee” of Vitino’s Pizza when it struck plaintiff as he was walking across the street.

Both defendants were served with summons and complaint. On May 7, 1981, pursuant to plaintiff’s motion, Pugh was found in default for his failure to file an appearance.

DeFrancesco, appearing pro se on behalf of Vitino’s Pizza, prepared a motion to dismiss which was denied. Subsequently, an attorney filed an appearance for Vitino’s Pizza. Vitino’s Pizza filed an answer denying the allegations of the complaint which was verified by De-Francesco. Certain discovery was conducted, and DeFrancesco was deposed. During the course of litigation, Vitino’s Pizza was periodically represented by several different attorneys or by DeFrancesco appearing pro se.

On December 20, 1984, a default judgment was entered against Vitino’s Pizza for failure to appear for trial. After a prove up on January 3, 1985, judgment was entered against Vitino’s Pizza and Pugh for $150,000.

On January 17, 1985, a motion to vacate default was filed on behalf of “Vito DeFrancesco d/b/a Vitino’s Pizza.” The trial court denied the motion because DeFrancesco was not a party, and no judgment was entered against him individually. On February 8, 1985, Vitino’s Pizza filed a motion to vacate but the trial court denied it for lack of jurisdiction because it was filed more than 30 days after judgment. On April 30, 1985, Vitino’s Pizza filed another motion to vacate, this time pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401). That motion was also denied. Vitino’s Pizza did not file a notice of appeal within 30 days from entry of any of those orders.

On June 22, 1988, plaintiff filed a motion to add DeFrancesco as a defendant pursuant to section 6 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 8a). The motion argued that in violation of the Act, Vitino’s Pizza was not registered as an assumed name and that during litigation plaintiff learned DeFrancesco owned Vitino’s Pizza. Relying on section 6, plaintiff sought to amend the judgment against Vitino’s Pizza and Pugh, which had not yet been satisfied, to include DeFrancesco. DeFrancesco filed a special appearance and a response to the motion. On September 12, 1988, the trial judge entered an order naming DeFrancesco as an additional defendant and entering judgment against him individually for $150,000 plus costs. Vitino’s Pizza and DeFrancesco filed a notice of appeal.

Opinion

In their notice of appeal defendants seek review of seven orders, final and interlocutory, entered between September 29, 1983, and September 12, 1988. These orders include several final orders, such as the orders denying Vitino’s Pizza’s motions to vacate entered on January 29, 1985, and February 28, 1985. However, no appeal was taken from these orders within 30 days of their entry. To seek review of a final order, a notice of appeal must be filed within 30 days from when it was entered. (107 Ill. 2d Rules 301, 303(a).) Because defendants failed to file a timely notice of appeal from those orders, this court does not have jurisdiction to review them.

The only final order listed in the notice of appeal that is subject to review is the one entered September 12, 1988, which added De-Francesco as a defendant and entered judgment against him pursuant to section 6 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 8a). The Act requires persons conducting or transacting a business under an assumed name to register with the county and identify the names and addresses of the owners of the business. (Ill. Rev. Stat. 1985, ch. 96, par. 4.) Section 6 provides a vehicle for a plaintiff to sue the unknown owner of a business who failed to comply with the Act and allows the plaintiff to name the previously unknown owner as a defendant if his identity is discovered prior to satisfaction of the judgment. The section states:

“§6. If a person or persons required to register hereunder do not do so and such persons, or any of them, are unknown, civil actions may be brought against such person or persons, by filing suit against the business under its assumed name, naming all known owners, and designating as ‘unknown owner or owners’ the other person or persons transacting business under such assumed name. *** At any time prior to satisfaction of judgment, if any, if the identity of a previously unknown owner is discovered, such person shall be named as a party defendant by motion to the court in which such case is pending or in which the judgment was entered, supported by an affidavit showing that notice of such motion has been given[.] *** If the defendant does not file an appearance within such 10 day period or if after hearing the defendant is found to be liable, the judgment, if any, theretofore entered in such suit shall be amended to include such person and shall at such time become a personal judgment against such person as if he had been individually named in the original complaint.” (Ill. Rev. Stat. 1985, ch. 96, par. 8a.)

By passing the Act, “[ojbviously the General Assembly intended that a cause of action arising out of the conduct or transaction of business be not defeated because of the claimant’s inability to identify the individuals who in fact own and conduct the business[.]” Curtis v. Albion-Brown’s Post 590 American Legion (1966), 74 Ill. App. 2d 144, 149-50, 219 N.E.2d 386, 389.

In Gulley v. Fountalas (1987), 153 Ill. App. 3d 100, 505 N.E.2d 1176, defendants operated a business under an assumed name but failed to substitute their names for the previous owners of the business as required under the Act. Plaintiff initially filed her complaint against the previous owners but did not designate unknown owners as defendants. After the statute of limitations ran, plaintiff discovered defendants were the present owners of the business and was granted leave to amend her complaint to name them. Plaintiff obtained a default judgment against defendants for their failure to file appearances. Defendants’ subsequent motion to vacate was granted on statute of limitations grounds and plaintiff appealed. One of plaintiff’s arguments on appeal was that her complaint was properly amended under the Act. The appellate court initially noted that defendants’ failure to comply with the Act was not an exception to the applicable statute of limitations. The court explained that the Act provides a plaintiff with “procedural safeguards.” (Gulley, 153 Ill. App. 3d at 102, 505 N.E.2d at 1178.) When a business is not registered under the Act, a plaintiff can sue the business under its assumed name, name any known owners, and designate unknown owners as defendants. (Ill. Rev. Stat. 1985, ch. 96, par. 8a.) The court noted that plaintiff could have taken advantage of these procedural safeguards and sued unknown owners. Because plaintiff failed to do so, she could not subsequently take advantage of the statute and add the names of the previously unknown owners. The court stated, “[t]o use these safeguards the terms of the statute must be followed.” Gulley, 153 Ill. App. 3d at 103, 505 N.E.2d at 1179.

Similarly, in the present case, plaintiff filed suit against Vitino’s Pizza and Pugh without designating unknown owners as defendants as allowed under the Act. Plaintiff never asserted an inability to obtain the names of the owners of Vitino’s Pizza within the statute of limitations period. After the statute of limitations ran and judgment was entered against Vitino’s Pizza and Pugh, plaintiff moved to amend the judgment to include DeFrancesco, relying on section 6 of the Act. The trial court granted the motion, discounting the fact that plaintiff did not sue unknown owners. As stated in Gulley, the Act does not confer an additional period of time to file suit and the Act is not an exception to the statute of limitations period. Following Gulley, plaintiff in this case could not rely on section 6 of the Act to name DeFrancesco as a defendant after the statute of limitations ran because he did not sue unknown owners. Accordingly, the judgment against DeFrancesco must be reversed.

Plaintiff attempts to avoid the effect of Gulley by relying on section 2 — 616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(d)). Section 2 — 616(d) allows the amendment of a complaint to add a previously unnamed person as a defendant to an action even after the statute of limitations has run. Neither plaintiff nor the trial judge relied on this section to add DeFrancesco as a defendant. Nevertheless, plaintiff claims he has met the requirements of section 2 — 616(d), which allows him to add DeFrancesco as a defendant. Plaintiff’s reliance on section 2 — 616(d), however, is misplaced. In this case, judgment had been entered before plaintiff sought to add De-Francesco as a defendant. After judgment has been entered, a complaint may only be amended to conform pleadings to proof. (Ill. Rev. Stat. 1985, ch. 110, par. 2—616(c); Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104.) Therefore, plaintiff cannot rely on section 2 — 616(d) to amend his complaint after judgment was entered.

Reversed and remanded.

MURRAY, P.J., and COCCIA, J., concur.

       Justice R. Eugene Pincham participated in this case prior to his resignation. Since that time Justice Michel A. Coccia was designated the third member of the panel and has read the record and briefs and has listened to the oral argument tape.


author: JUSTICE COCCIA

text:
    EDITH MATTHEWS, Guardian of the Estate and Person of Inez Swaim Matthews, a Disabled Person, Plaintiff-Appellant, v. JAY DORN, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—1283
    Opinion filed December 29, 1989.
    Raymond I. Suekoff, of Arlington Heights (Stuart H. Wolf, of counsel), for appellant.
    Harry A. Schroeder, of Flossmoor, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff, guardian Edith Matthews, brought this action to declare a constructive trust for the benefit of Inez Swaim Matthews, a disabled person. At the close of plaintiff’s case the court granted defendant Jay Dorn’s motion for a directed finding. On appeal plaintiff claims that the court erred in failing to impose a constructive trust.

The first witness at trial was Cynthia Farenga, who was appointed guardian ad litem of the estate of Inez Matthews in January 1986. She first saw Inez at Northwestern Community Hospital in Arlington Heights, where Inez had been hospitalized for hip pain. At that time Inez knew her own and her late husband’s names and her date of birth, but she could not recall anyone else’s name. She remembered selling her home, but recalled none of the terms of sale except that she told Farenga that defendant “moved in and took over.” At the conclusion of her interview Farenga determined that Inez needed a guardian.

Defendant was called as an adverse witness and testified that he was introduced to Inez by his father in 1979, and that he moved into Inez’s home at 6250 Gaynelle Road in Tinley Park, Illinois, as a tenant. He offered to pay rent, but Inez refused and requested that he perform chores and household repairs for her instead. Inez had a slight limp at the time and used a cane. Defendant testified that Inez seemed “fine mentally” to him. She continued to drive her 1976 station wagon and did her own shopping, but he went to the store for her on a weekly basis. Defendant testified that by 1984 she was not driving as much and at some point stopped driving, that he then bought her automobile for $2,000 in cash, had the title transferred, and then did all the shopping.

Defendant further testified that Inez’s sister-in-law Edith visited her approximately three times per year. Defendant and Inez discussed his purchase of her home in 1984: Inez told defendant that she had helped Edith previously and wanted defendant to have the house. After she mentioned it several times, defendant contacted attorney James Ebersohl in 1984. In the summer of 1985, because Inez had been insistent, he obtained a form contract and filled it out. He gave the contract to Ebersohl and went to the Tinley Park Bank to apply for a loan. After the bank advised him that Inez should be represented by counsel, he contacted attorney Richard Wojnarowski and asked him to call Inez. Wojnarowski came to the house and spent time with Inez before drafting an agreement between her and defendant. Wojnarowski came again with defendant’s attorney on the day of closing. During this period Inez continued to experience pain in her hip and used a cane but not a walker.

On cross-examination defendant testified that he filled out checks for Inez in 1984 and 1985 but she never signed them in blank. Defendant admitted that two checks for utilities and hardware were prepared by him and signed by Inez after title to the house had been transferred to him. Defendant could not explain a check dated January 1, 1986, nor did he know where the bank statements were for November and December 1985 and January 1986. Inez left the house in December 1985.

Edith Matthews testified that she had been appointed Inez’s guardian following Inez’s hospitalization. She first met defendant after he moved into Inez’s home a year after her brother, Inez’s husband, died. According to Edith, Inez had fallen at work before she had retired and suffered thereafter from hip pain. Inez had relied completely on Edith’s brother while he lived, but Edith helped her obtain a driver’s license after his death. During the next few years it became harder for Inez to get around, and she used a walker outdoors. Edith regularly telephoned Inez several times a week and visited her twice a month. Often Edith would come and stay or bring Inez back to Edith’s home in Buffalo Grove for a visit. After defendant moved in, Inez relied mainly on defendant and stayed home and watched television. When Edith visited Inez, defendant was usually not present, but the house was neat.

Edith testified that Inez’s mental condition deteriorated in 1985 and that Inez only recalled people who were close to her. In the spring of 1985 the house was put into a land trust to which Edith and defendant were beneficiaries in the event of Inez’s death, but Inez had complete control over the house. In the autumn of 1985 Edith asked Inez if she knew she had “signed the house over.” Edith also testified that she had to rewrite a check completely at that time because Inez could not do it.

Edith further testified that Inez’s condition had continued to deteriorate during the last year and that Inez had been on public aid for two years. Edith testified that she did not believe that Inez had a will but did have one living brother.

On cross-examination Edith testified that she had a will drawn up for Inez naming Edith and defendant as beneficiaries, and that Inez signed it. On redirect examination Edith testified that Inez called defendant after her hospitalization and asked him to send her checkbook to her but defendant refused. Edith further testified that after she was appointed guardian of Inez’s estate, defendant refused to give her any of Inez’s check records.

James Ebersohl testified that he was contacted by defendant in June 1985 regarding a real estate closing in which Inez was going to sell her home to defendant. Ebersohl recalled ordering a title policy and mortgage payoff letter. He also recalled recommending that attorney Richard Wojnarowski, with whom he shared office space, represent Inez in the transaction. Tinley Park Bank, which had agreed to extend a mortgage to defendant for the balance due, asked that Inez be represented. Ebersohl identified an agreement between Inez and defendant, which had been prepared by Wojnarowski. It provided that Inez was to live on the premises as long as she wanted without paying rent in exchange for selling the property to defendant. It further provided that defendant would not be liable for any of Inez’s medical bills.

Ebersohl testified that he met Inez at her home on the day of closing because she was not planning to attend. He witnessed her signature on the power of attorney form. He testified that he also wanted to ascertain her condition for his own “peace of mind.” Ebersohl recalled that Inez had a problem with her leg for which she used a walker. Inez indicated clearly to Ebersohl that she wanted defendant to have the property because defendant had been doing things for her for some time, that she relied on defendant greatly, and that no one else was available to take care of her. At this meeting Wojnarowski explained all the closing documents to Inez, who appeared to understand the ramifications of the transaction. Ebersohl also believed Inez’s memory was good.

Richard Wojnarowski testified that Inez called him in October 1985 as a referral from Ebersohl. Inez explained that she wanted to sell her home to defendant for the amount left on the mortgage because defendant and she had resided together and he had cared for her for years. Inez told Wojnarowski that defendant had arranged to pay the loan and transfer title and that his bank insisted that she be represented. She also explained that she wanted him to draft an agreement which would allow her to continue living in the house in her own bedroom, but would provide that defendant would take care of the building and utilities. She did not want defendant to be responsible for her food or medical bills and stated that she did not walk well and preferred that Wojnarowski come to her home. Wojnarowski prepared such an agreement and also prepared a waiver requested by the bank stating that the sale of her home was voluntary and that she understood the terms of the contract and its ramifications. Wojnarowski testified that she appeared as if she were of sound mind when he spoke to her.

The contract that Wojnarowski drafted between Inez and defendant also contained a clause holding him harmless. He had advised Inez against selling her home for only $6,000 because he believed it to be worth between $50,000 and $60,000. He saw defendant sign the contract in Ebersohl’s office and met with Ebersohl, defendant, and Inez in her bedroom for her signature. She also signed the bank waiver, but she did not sign a letter of direction to the land trustee. On October 29, 1985, before the closing, he again came to Inez’s home. While in her kitchen she signed the power of attorney which was witnessed by Ebersohl, the affidavit of title, bill of sale, and the closing statement. The only document Wojnarowski signed for her was the RE SPA (Real Estate Statement Practices Act) form. The contract between Inez and defendant was not recorded. The price on the day of closing was $7,076.34; this amount was in excess of the contract price because all the closing costs were added to the amount required to pay off the mortgage.

On cross-examination Wojnarowski testified that he found Inez to be an alert, witty, and articulate woman. The first time he met her she was watching a ball game on television. They discussed baseball and exchanged other pleasantries before she stated her intention to give her home to defendant. Except for the small amount due on the mortgage she would have made a direct gift. Wojnarowski had no doubt that Inez understood all the closing documents. Wojnarowski further testified that Inez did not believe a written contract between her and defendant to be necessary, but he insisted that she be protected.

After the close of plaintiff’s case defendant moved for a directed verdict. The trial court found that a fiduciary relationship existed between the parties, and that the disparity between the price and the fair market value of the residence created a presumption of violation of the fiduciary relationship. The trial court then found that the presumption was overcome by the evidence presented.

Plaintiff contends that the trial court erred when it failed to find that the gross inadequacy of consideration was sufficient to set aside the contract. Plaintiff claims that the cause should be remanded with directions that defendant reconvey the house to Inez and permit her to assume defendant’s mortgage. In response defendant contends that the issue plaintiff presents is not before this court, and he addresses the more general issue of the trial court’s decision to grant his motion for a directed finding.

We agree with defendant that inadequacy of consideration is not before this court. The trial court found that both a fiduciary relationship existed and that the inadequacy of consideration for purchase of the house gave rise to a presumption of a violation of that relationship. The only question before this court is whether the record supports the trial court’s finding that the presumption was rebutted. See Boryca v. Parry (1962), 24 Ill. 2d 320, 181 N.E.2d 124.

In general the burden of proving that a transaction was not fraudulent between parties in a fiduciary relationship rests on the dominant party. (See Boryca, 24 Ill. 2d at 327, 181 N.E.2d at 127.) He must show that there was fairness in every particular. (See Crawford v. Krebs (1976), 40 Ill. App. 3d 568, 574, 352 N.E.2d 76, 81.) In the case before us two attorneys, defendant, and Edith all testified that Inez was not mentally incompetent generally at the time of the transaction in September 1985. Attorney Wojnarowski explained that she wanted to make the conveyance, that it would have been an outright gift to defendant except for the mortgage balance due, and that Inez understood what she was doing despite his advice against it. Thus there is nothing in the record to persuade us to alter the trial court’s decision. Moreover we defer to the trial court’s evaluation of the credibility of the witnesses because it had the opportunity to view them and hear their testimony. (See Crawford, 40 Ill. App. 3d at 575, 352 N.E.2d at 81.) Accordingly, we will not overturn the trial court’s decision.

We note that attorney James Ebersohl, while representing defendant Jay Dorn, recommended to Inez Matthews that attorney Richard Wojnarowski, with whom he shared office space, represent her at the real estate closing. As stated above, Inez Matthews accepted the recommendation and retained Wojnarowski. Our concern is that this conduct could be construed by some as giving the appearance of impropriety, which could be considered to be a conflict of interest. However, since this issue was neither raised before the circuit court nor before us, it has been waived. (See Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 405, 442 N.E.2d 338, 342; see also 113 Ill. 2d Rules 341(e), (f).) Thus, our opinion does not represent an approval of this state of affairs.

Affirmed.

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