author: JUSTICE RAKOWSKI

text:
    STEPHAN POZZI, Plaintiff-Appellee, v. McGEE ASSOCIATES, INC., Defendant (McDonald’s Corporation et al., Defendants-Appellants; Knorr and Meyers Roofing Company, Third-Party Defendant-Appellee).
    First District (6th Division)
    No. 1—91—0522
    Opinion filed October 2, 1992.

      Hinshaw & Culbertson, of Chicago (Joseph J. O’Connell, Stephen R. Swofford, and Gary J. Bazydlo, of counsel), for appellants.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (Curt N. Rodin, Richard A. Kimnach, and Martin J. Lucas, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is a cause of action filed under the Illinois Structural Work Act (Act) (Ill. Rev. Stat: 1983, ch. 48, par. 60 et seq.) by the plaintiff, Stephan Pozzi, against the defendants, McDonald’s Corporation, McDonald’s Restaurants of Hlinois (McDonald’s) and Peter Schwabe, Inc. (Schwabe), after plaintiff was injured falling from a roof. Defendants filed a third-party action against the plaintiff’s employer, Knorr & Meyers Roofing Co. (Knorr & Meyers). Following a jury trial, a verdict was returned in favor of the plaintiff in the amount of $700,804.33 and in favor of the third-party plaintiffs, apportioning fault as 35% for McDonald’s, 37.7% for Schwabe, and 27.3% for Knorr & Meyers. Defendants filed a post-trial motion seeking a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied defendants’ motion, and defendants filed this appeal. The issues on appeal are: (1) whether the Structural Work Act was applicable to plaintiff’s injury; (2) whether it was error for the trial court to exclude evidence that plaintiff had received a warning regarding the slippery condition of the metal flashing; (3) whether the trial court erred in allowing plaintiff’s expert to offer an opinion not provided during discovery; and (4) whether the trial court improperly denied defendants the opportunity to cross-examine plaintiff’s expert concerning OSHA regulations.

In 1983, McDonald’s decided to build a new restaurant in Rockford, Hlinois. The successful bidder for the construction contract was Schwabe, a general contractor who had built several other McDonald’s restaurants. Schwabe was responsible for hiring the subcontractors, one of which was Knorr & Meyers. According to the testimony of McDonald’s construction project manager, Mark Goetzinger, specifications on general safety conditions were included in the contract as was a provision that Schwabe insure that all work conform to OSHA standards. Goetzinger also stated that Schwabe was required to follow McDonald’s plans and specifications. Earl Barrette, Schwabe’s chairman of the board, and Goetzinger testified that one of these specifications was that the roofers were to be careful not to drip tar on the finished section of the roof. Raymond Riska, the construction engineer for McDonald’s, confirmed the concern for the finished roof.

The restaurant was designed to have a “double mansard” roof which was described as a shingled roof which had a lower 30 degree slope and an upper 60 degree slope. The upper portion of the mansard, while resembling a roof, was actually a mansard wall with a flat inside vertical surface. It surrounded a flat surface roof which held heating ventilation and air conditioning equipment. The flat vertical surface extended about 3V2 feet above the flat surface roof and surrounded it on the north, west, and east side of the building, leaving the south side open for access to the flat surface roof. After the wooden framework of the mansard roof was constructed, a 36-inch-wide metal valley or flashing was installed in order to provide a waterproof membrane at the mansard junctures. However, because the surface was flat sheet metal it was slippery.

Knorr & Meyers was responsible for applying hot tar on the flat surface roof, and a separate contractor was hired to shingle the mansard roof. The first two days that Knorr & Meyers worked on the project, the roofers accessed the flat roof from the south side of the building, which had no upper mansard. The plaintiff was one of its roofers. On July 8, 1983, plaintiff and his immediate supervisor, Louis Redler, who was the superintendent and owner of the company, sought access to the flat surface roof from the east side of the building. Redler had positioned the tar kettle and ladder on the east side. The tar kettle contained 500 gallons of tar which had been heated to a temperature of 600 degrees. Redler and Harold West, Schwabe’s superintendent, had previously discussed McDonald’s concern about spilled tar on the finished roof. Redler had moved the tar kettle and ladder to the east side of the building in order to avoid this problem. The plaintiff testified that he remembered Redler informing him that he could not use the south end of the building to get to the flat roof because the general contractor did not want tar tracked on the finished roof.

Plaintiff made his first trip up the ladder with some tools, which he carried in a five-gallon bucket. When he reached the lower mansard, he got off the ladder on the right side and angled his way up and to the left to get to the upper mansard because the lower mansard was too steep to climb straight up. When the plaintiff reached the point where the two mansards met, the top of the upper mansard was level with the plaintiff’s chest. To climb over the upper portion, he mounted it by swinging his left foot over the crest, straddling the mansard and then descending to the flat roof 3V2 feet below. He then dropped off the tools and climbed down in the same manner that he had gone up. On the second trip up, plaintiff carried a mop with a six-foot handle which was covered with tar. In order to keep the tar from dripping, plaintiff carried the mop in a five-gallon bucket. The plaintiff proceeded up the wooden ladder, but when he reached the upper mansard, he was unable to lower the mop and pail because the mansard was too high. He placed the mop and bucket on top of the upper mansard and positioned himself to hold it. He then placed his left hand on top of the mansard wall and began to swing his left side over the wall. However, at that point his left heel caught the corner edge of the metal valley, and he slipped and lost his balance. In order to avoid the hot tar from the mop, the plaintiff pushed the mop over the edge and slid down the plywood mansard. He fell into the ladder, which served as a buffer between himself and the hot tar kettle as he fell to the ground below.

Goetzinger testified that there was no reason why the metal flashing which caused plaintiff to lose his balance had to be installed before the hot roof was put on. Riska stated that McDonald’s could have required that the flat roof be completed before the metal flashing was installed on the mansard roof and also could have had the flashing covered. Goetzinger further testified that he believed it to be hazardous for a construction worker to gain access to the flat roof by climbing over the mansard roof, particularly if he was trying to balance a bucket with a six-foot mop handle on the six-inch ledge of the upper mansard. Riska, who replaced Goetzinger as project manager, gave a similar opinion. Barrette and West stated that the means of access would be safe if there was someone on the roof to accept the equipment.

The witnesses questioned regarding the OSHA standards acknowledged that the provision regarding ladders and scaffolds required an additional ladder for safe access to the upper mansard. West conceded that he could have ordered the carpenters on the project to make a ladder. However, Goetzinger testified that he had never seen the type of ladder required by OSHA on this jobsite and that, even though McDonald’s insisted that its contractors adhere to the safety codes and regulations, Schwabe was never required to supply such a ladder.

Goetzinger described a ladder which was part of McDonald’s specifications and design. It consisted of a “catwalk” and ladder which was to be attached to the rear of the building and went from the ground level up parallel to the restaurant. It then sloped from the south end with the catwalk running from the ladder to the flat roof. The catwalk also had handrails for support. This structure would provide access to the flat roof other than via the sloped roof. However, the witnesses testified that the catwalk structure was usually set up close to or at the end of the project after the tarring of the flat roof had been completed. There was conflicting testimony as to whether the structure could be set up earlier in the project and before the flat roof was tarred.

Dennis Pulchalski, an expert in construction safety, testified on behalf of plaintiff that the mansard roof was not a safe means of access to the flat roof, that a second ladder or the McDonald’s-designed ladder should have been provided, and that it was unsafe to require plaintiff to carry equipment up the ladder.

After the accident plaintiff filed a complaint against McDonald’s and Schwabe which in its final form alleged the following violations of the Structural Work Act: (1) that defendants allowed plaintiff to use the mansard roof as a support to gain access to the flat roof when defendants knew or could have discovered that such access was unsafe; (2) that defendants failed to provide a ladder to gain safe access to the flat roof from the mansard roof; (3) that defendants failed to provide cleats or see that 2 by 4 cleats were provided for safe access to the flat roof from the mansard roof; (4) that defendants allowed plaintiff to carry a mop and bucket up a ladder and over the mansard when defendants knew or could have discovered that this was an unsafe use of the ladder or mansard support; and (5) that defendants failed to permit plaintiff or other workmen to use the permanently affixed rear ladder to gain access to the roof. McDonald’s filed a third-party complaint against Knorr & Meyers on a negligence theory. Before trial plaintiffs brought a motion in limine to bar any mention of plaintiff’s conduct in causing his injury which the trial court granted. However, during the third-party defendant’s opening statement, the fact that plaintiff had been given a warning regarding the metal flashing was mentioned, and plaintiff’s counsel requested a mistrial, which the trial court granted. The second trial commenced shortly thereafter.

Defendants contend that plaintiff’s injury does not come under the purview of the Structural Work Act because plaintiff was not using the mansard roof as a scaffold or support in the process of erecting, repairing, altering, removing, or painting any part of McDonald’s restaurant. The Structural work Act provides in relevant part:

“§1 That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1983, ch. 48, par. 60.)

The purpose of the Act is to protect persons engaged in extrahazardous occupations such as the construction, repair, alteration, or removal of buildings, bridges, viaducts, or other structures. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 422, 512 N.E.2d 1223.) The Act should be liberally construed, but it is not intended to cover all construction activities or all injuries which occur at or near a construction site. (Vuletich, 117 Ill. 2d at 422.) Rather, the inquiry should focus on the particular circumstances surrounding the occurrence of the injury. Harper v. Schal Associates, Inc. (1987), 159 Ill. App. 3d 542, 545, 510 N.E.2d 1061, citing Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 295-96, 448 N.E.2d 1011.

To state a cause of action for a violation of the Act, it is necessary to show: (1) the device involved is one listed in the Act; (2) the device was used to complete a building or other structure within the Act; (3) the device was unsafe, not safely placed or operated, or there was a failure to provide such a device; (4) those in charge of the work willfully violated the Act; and (5) the violation of the Act proximately caused the plaintiff’s injury. Harper, 159 Ill. App. 3d at 545; Ashley, 114 Ill. App. 3d at 296.

The violations of the Act, as alleged in plaintiff’s first amended complaint, involve the third element, whether defendants failed to provide a safe means of support by which plaintiff could gain access to the flat roof and whether the support defendants provided was unsafe. In order to determine whether defendants violated the Act, we must first establish whether the mansard roof plaintiff used to reach the flat roof could be classified as a support under the Act. This question can be resolved by applying a three-prong analysis set forth in Ashley. According to this analysis, a court must ascertain (1) the intended use of the device at the time of injury, (2) whether the injury has some connection with the hazardous nature of the device, and (3) the element of danger in the use of the device, and whether this is the type of danger that the legislature intended to alleviate by the Act.

Defendants acknowledge that a roof or other permanent structure could sometimes function as a scaffold or support depending on the intended use of the structure at the time of the injury. However, in this instance defendants claim that the mansard roof did not serve as a support because plaintiff was not working on this section of the roof but was only using it as a pathway to get to the flat roof, which was his work area. Defendants further argue that, because there was a separate contractor hired to shingle the sloped roof and plaintiff’s employer was only hired to construct the flat roof, this was further evidence that plaintiff was only using the mansard roof as a pathway

In support of their argument, defendants first rely on Bolsmo v. Mark V Roofing Co. (1989), 190 Ill. App. 3d 334, 546 N.E.2d 634, which was a case where a roofing company had suspended work because of the onset of winter weather. Several months later the plaintiff, on the instructions of the building owner, ascended to the roof through a hatchway in order to inspect an exhaust fan in another section of the roof. As the plaintiff exited the hatchway, he slipped and fell. The court held that the roof was not a support under the circumstances of that case because the plaintiff was only using it as a means of access to get to the exhaust fan and that inspection or electrical work on the fan was- not the kind of extrahazardous activity covered by the Act. Bolsmo, 190 Ill. App. 3d at 337.

Defendants also rely on Vuletich (117 Ill. 2d 417, 512 N.E.2d 1223), where the plaintiff had been hired to clean and repair a furnace. After completing his work on the furnace, the plaintiff was returning a broom and shovel to a tool storage trailer when he slipped and fell on the trailer steps. The supreme court held that the stairs were not a support under the Act in that instance because at the time of plaintiff’s injury, he was not engaged in any hazardous activity or any work that could be described as being of a hazardous nature. (Vuletich, 117 Ill. 2d at 424.) Similarly the court in Latronica v. Commonwealth Edison Co. (1988), 171 Ill. App. 3d 202, 524 N.E.2d 1186, also relied upon by defendants, held that the plaintiff, who had been employed to operate a drill rig and who was injured when he fell as he tried to climb down from the rig, was not engaged in an extra-hazardous activity contemplated by the Act. Rather, “it was one of the myriad of routine and nondangerous activities which occur on every construction site but which are not intended to be protected by the Act.” Latronica, 171 Ill. App. 3d at 207.

Defendants also cite Carnevale v. Inland Ryerson Building Systems (1988), 169 Ill. App. 3d 740, 523 N.E.2d 1056, where a plumber while carrying steel pipes was injured when he fell over bar joists in a doorway of a construction site. Although the court did state that a platform over the bar joists would not have been a support because it would only have been used as an access route by the plaintiff, the court also held that the platform would not have been a support because it would not have been used by the plaintiff to perform an extrahazardous activity intended to be covered by the Act. In Harper (159 Ill. App. 3d 542, 510 N.E.2d 1061), an iron-worker was injured when he tripped on a depression in the ground while walking backward and dragging cable. Like the court in Carnevale, the Harper court also concluded that, had a support been provided to cover the depression, the plaintiff was not engaged in the kind of hazardous activity contemplated by the Act.

Defendants appear to take the position that if a support is used as a pathway, there is no coverage under the Act. However, we conclude that where a worker is using a support to perform his work and is injured as a result of a dangerous condition contemplated by the Act, the fact that the support also serves as a pathway does not exclude the worker from coverage. While some of the cases relied upon by defendants involve workers using a support as a pathway, the denial of coverage in those cases was based on a determination that the worker was not on a support or was outside of his work area when he was injured or that the occurrence was not the kind of hazardous condition contemplated by the Act.

Returning to our discussion of the three-prong test in Ashley as applied to the facts of this case, we conclude that the unshingled mansard roof which plaintiff attempted to climb while carrying a mop and bucket in order to gain access to the flat roof was a support pursuant to the Act. The first prong of the Ashley test focuses on the intended use of the device at the time of plaintiff’s injury. Unlike the plaintiff in Harper, cited above, the plaintiff in this case had not completed work but was in the process of bringing supplies up the roof in order to perform work. Although defendants argue that the mansard roof was not plaintiff’s work area, because he was employed to construct the flat roof, the only way that plaintiff could perform construction work on the flat roof was to bring the necessary supplies to the area by carrying them over the top of the upper mansard. As the court in Ashley stated:

“In order for plaintiff to perform his duties as a roofer, he needed materials and equipment *** [which] could not be delivered directly to the site. *** Defendants would have us believe that plaintiff was a roofer while at the building itself, and a delivery man (hence, not covered by the Act) when it became necessary for him to carry equipment from his truck to the building. This is an untenable contention and one that runs counter to the very purpose of the Act.” (Ashley, 114 Ill. App. 3d at 299-300.)

In Ashley, the condition which prevented delivery of supplies directly to the site was the muddy condition of the ground. In this case it was the fact that plaintiff was told by his supervisor to deliver supplies over the mansard roof so that the tar would not be dripped on the flat roof. As in Ashley, defendant’s contention that plaintiff was only delivering equipment while he was on the mansard roof but performing work when he reached the flat roof was also contrary to the purpose of the Act, especially where he needed the equipment to perform his work and was told that the mansard roof was his only means of access to the work site.

Addressing the second and third prongs of the Ashley test, the plaintiff was engaged in an extrahazardous activity which was connected with his injury when he had climbed a ladder while carrying a five-gallon bucket with a mop covered with hot tar, and he was holding these items as he continued to climb the lower mansard and tried to climb the upper one. It was at this point that he fell to the ground. The situation was made even more hazardous by virtue of the fact that there was a kettle containing 500 gallons of hot tar which had been heated to 600 degrees located near the area where plaintiff had ascended the ladder and which presented an even greater danger when plaintiff fell. We further conclude that the danger involved in this situation was the type of danger intended to be covered by the Act, which is the protection of workers engaged in extrahazardous activities from certain risks inherent in their jobs. (Vuletich, 117 Ill. 2d at 423; Harper, 159 Ill. App. 3d at 548.) The plaintiff’s job in this case was hazardous by virtue of the fact that he had to transport hot tar to a roof. The risk of being able to perform this task without injury was greatly increased when plaintiff had to climb two levels of a sloped plywood roof while carrying a mop and bucket without the aid of a ladder, in order to bring these items to the work area.

Defendant next contends that the evidence that plaintiff was warned of the slippery condition of the metal flashing should not have been excluded because it was evidence of the proximate cause of plaintiff’s injury which is one of the elements of a claim under the Act. (Stonitsch v. Laredo Construction Co. (1991), 221 Ill. App. 3d 902, 905, 583 N.E.2d 49.) However, there was sufficiént evidence presented at trial based on the testimony of McDonald’s witnesses as well as plaintiff’s expert that the mansard roof without a ladder was an unsafe support and that plaintiff’s use of this unsafe support was the proximate cause of his injury. Therefore, any conduct by plaintiff which allegedly might have increased plaintiff’s risk, such as his failure to heed a warning by his supervisor, was only evidence of plaintiff’s contributory or comparative negligence, which is not applicable in a cause of action under the Act. Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 460, 473 N.E.2d 946.

Defendants rely on Marine Bank v. Archer Daniels Midland (1987), 156 Ill. App. 576, 509 N.E.2d 163, in support of their argument that the evidence of a verbal warning was improperly excluded. In Marine Bank, the decedent fell from a feedhouse roof he was attempting to cross in order to inspect a roof of another building. The court noted that the decedent had been instructed to use a safer route and held that the fact that he chose to take a more dangerous one, contrary to instructions, “[did] not convert the roof into a support or scaffold.” (Marine Bank, 156 Ill. App. 3d at 579.) The issue was not that the decedent’s conduct was evidence of the proximate cause of the accident.

Defendants next argue that they were also entitled to present evidence of the warning because there was evidence of an alternative pathway. The alternative pathway to which defendants refer was the direct route to the flat roof on the south side of the building. Plaintiff testified at the trial that his supervisor told him that he had to get to the flat roof from the east side of the building because they could not get any “stuff” on the finished product. When asked where his supervisor got that information, plaintiff replied that it was his understanding that the general contractor had said that the roofers were not to walk across the flat roof in order to avoid tracking tar on the “finished product.” Defendants argue that the admission of these statements was error because they were hearsay. However, neither the plaintiff’s reference to his supervisor’s statement nor those of the general contractor to his supervisor were statements offered for the truth of the matter asserted but only to provide an explanation for plaintiff’s presence on the east side of the building. Defendants claim that plaintiff’s testimony was contradicted by that of his supervisor, Louis Redler. When asked the specific question by defense counsel, Redler did acknowledge that he was never told by the superintendent of Schwabe that he could not use the south side of the building to reach the flat roof, but he also stated that he had spoken with the superintendent about being very neat and not dropping, spilling or in any way getting asphalt on the finished roofing material. Redler further testified that he had moved the tar kettle and the ladder to the east side of the building on the day of the accident because “bringing the tar up on the unfinished roof, you eliminate those problems [tracking or dripping tar].” We conclude that, even without plaintiff’s alleged hearsay statements, the fact that Redler had placed the ladder and tar kettle on the east side of the building with the expectation that the unfinished mansard roof was to be used as a route to the flat roof was sufficient evidence to support the determination that plaintiff had no alternative pathway.

Defendants’ remaining arguments regarding other measures the plaintiff could have used to avoid the accident would only be additional evidence of plaintiff’s contributory negligence. Also without merit is defendants’ argument that the warning regarding the metal flashing could have made the otherwise unsafe mansard roof safe. In this case, the mansard roof was unsafe because no ladder was provided for plaintiff to climb from the lower mansard to the top of the upper one. The situation became even more hazardous when plaintiff had to perform this task while carrying a bucket and mop. A warning regarding the metal flashing did not make this situation any less dangerous.

Defendants contend that it was error to allow plaintiff’s expert to testify regarding a type of ladder that should have been provided as well as safety programs and inspections where these opinions were not disclosed in discovery. Under Supreme Court Rule 220(d) (107 Ill. 2d R. 220(d)), which governs expert testimony, an expert’s trial testimony cannot be inconsistent with or go beyond the scope of the facts known or the opinions disclosed in discovery. (Zajac v. St. Mary of Nazareth Hospital Center (1991), 212 Ill. App. 3d 779, 792, 571 N.E.2d 840; Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 69, 540 N.E.2d 770.) However, Rule 220(d) provides in relevant part that the expert “shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (107 Ill. 2d R. 220(d).) Furthermore, the admission of evidence is within the sound discretion of the trial court, and its decision will not be reversed absent a clear abuse of discretion. Swaw v. Klompien (1988), 168 Ill. App. 3d 705, 715, 522 N.E.2d 1267.

During a side-bar conference, it was brought to the attention of the trial judge that during his deposition Pulchalski had testified regarding the Associated General Contractors’ Manual, which contained the safety standards at issue. At that time, Pulchalski stated that the manual was authoritative and that it was one of the materials he would be relying on for this case. Thus, defendants had the opportunity to question Pulchalski regarding the specific safety standards that were part of the expert’s trial testimony, and they cannot now claim that they were surprised or prejudiced. Swaw, 168 Ill. App. 3d at 715.

Defendants also contend that it was error to admit Pulchalski’s trial testimony regarding the design of a suitable ladder because it was different than the type of ladder he identified at his deposition. Plaintiff argues that Pulchalski did not describe a different ladder during his deposition and that defendants would have recognized this fact if they had questioned Pulchalski more extensively regarding the ladder at that time. While it is difficult to determine how dissimilar the ladders were, we note that defendants’ liability was based on the fact that they failed to provide any ladder that would have made the mansard roof a safer support, not that they failed to provide a proper one. Therefore, we fail to see how defendants were prejudiced by the trial court’s ruling. In any event, given the limited description of the two ladders, we conclude that the trial court’s ruling was not an abuse of discretion.

Defendants finally contend that the trial court erred in denying them the right to cross-examine plaintiff’s expert witness on relevant OSHA provisions when the expert had been relying on OSHA provisions during his direct testimony. The specific regulations at issue are 29 C.F.R. §§1910.11, 1910.12, and 1926.450 (1983). Regulation 1926.450 provides requirements and specifications for ladders and scaffolding. Regulations 1910.11 and 1910.12 present the scope and purpose of the guidelines and how they are applied. Defendants claim that because plaintiff’s expert relied on section 1926.450 during his direct testimony, they should have been permitted to cross-examine him regarding these other two provisions.

A construction expert may testify that OSHA regulations were violated on a jobsite for the limited purpose of establishing a standard of care. (Ryan v. Mobil Oil Corp. (1987), 157 Ill. App. 3d 1069, 1077, 510 N.E.2d 1162; LePage v. Walsh Construction Co. (1984), 126 Ill. App. 3d 1075, 1076, 468 N.E.2d 509.) Defendants argue that they should have been allowed to cross-examine plaintiff’s expert on the other provisions of OSHA because the expert testified that the provision pertaining to ladders and scaffolds was a code which had been violated. The provisions that defendants started to address in cross-examination contained the language that OSHA was applicable to employees, places of employment and employers. Defendants sought to present these provisions as evidence that OSHA was not a code which a nonemployer could violate.

In support of their argument that they should have been given an opportunity to cross-examine plaintiff’s expert on sections 1910.11 and 1910.12, defendants cite Foster v. Devilbiss Co. (1988), 174 Ill. App. 3d 359, 366, 529 N.E.2d 581, and Hall v. Archer-Daniels-Midland Co. (1986), 142 Ill. App. 3d 200, 491 N.E.2d 879, rev’d on other grounds (1988), 122 Ill. 2d 448, 524 N.E.2d 586. In Foster v. Devilbiss Co., the court held that cross-examination of defendant’s expert was proper because the expert, on direct examination, had stated that OSHA regulations were not applicable. Therefore cross-examination was within the scope of the expert’s direct testimony. (Foster, 174 Ill. App. 3d at 366.) In Hall v. Archer-Daniels-Midland Co., the issue determined by the court was that the testimony of two of defendant’s expert witnesses on OSHA was admissible on the ultimate issue of whether defendants violated the Act as long as the testimony assisted the jury in understanding the evidence or determining the facts at issue. (Hall, 142 Ill. App. 3d at 213-14.) We conclude that both cases are factually dissimilar to this case.

In this case, the testimony presented by plaintiff’s expert as well as the prior witnesses all related to the OSHA provision regarding ladders and scaffolds, and defendants were allowed to cross-examine the expert regarding this provision. In addition, although plaintiff’s expert testified that the regulation pertaining to ladders and scaffolds had been violated, he did not testify regarding the legal duty to follow the regulation. Furthermore, whether or not defendants had a duty to follow the OSHA regulations because they were in charge of the project, defendants had agreed and had included in the construction contract provisions that the project would be performed according to OSHA regulations. Therefore, we conclude that the trial court’s restriction of defendants’ cross-examination on the regulations not addressed in the witness’ direct testimony was not an abuse of discretion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and McNULTY, JJ., concur.

       Justice Rosemary LaPorta participated in oral argument before her death. Justice McNulty was substituted on the panel. She has listened to the oral argument tape and has read the briefs.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    WENDOLYN J. HULL, Adm’r of the Estate of Ernest Hull, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1—91—0011
    Opinion filed October 2, 1992.
    Rehearing denied October 15, 1992.
    Michael W. Rathsack, of Chicago (Philip F. Maher and Michael W. Rathsack, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Wendolyn J. Hull, as administrator of the estate of Ernest Hull (decedent), filed a second amended complaint against defendant City of Chicago (City) for the fatal injuries decedent suffered as a result of an automobile accident. The trial court granted defendant’s motion to dismiss the complaint and plaintiff appeals.

On September 28, 1979, Ernest Hull was driving northbound at 4900 Lake Shore Drive as Ronald Drain was driving southbound on Lake Shore Drive. Drain lost control of his car, hit the north end of the median guardrail and struck decedent’s car.

Plaintiff’s second amended complaint alleged that defendant was negligent in failing to extend the guardrail and in failing to make the guardrail “crashworthy.” The trial court granted defendant’s motion to dismiss plaintiff’s second amended complaint, finding that the City owed no duty to plaintiff. For the following reasons, we affirm.

It is well settled that a municipality is not liable for failing to undertake public improvements of the roadways. (Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 385 (the City had no duty to provide a median barrier in order to prevent a crossover collision on Lake Shore Drive).) However, once the municipality undertakes such a project, it is liable when the improvement creates an unreasonably dangerous condition. Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 339 N.E.2d 779.

Applying these principles to the case at bar, we find that the City had no duty to take steps to prevent the accident which occurred here. Plaintiff has alleged that the City was negligent in failing to extend the barrier. However, because the City had no duty to erect a median barrier, it certainly has no duty to extend the existing barrier. (See Best v. Richert (1979), 72 Ill. App. 3d 371, 389 N.E.2d 894 (because the municipality has no duty to install sidewalks, it would be unreasonable to require the village to continue existing sidewalks).) We find no distinction between erecting a barrier and extending an existing barrier.

Nor do we find that the City had a duty to construct the barrier in a manner that would have prevented Drain’s car from crossing over Lake Shore Drive. Plaintiff merely alleges that the end of the barrier failed to stop a crossover from taking place. The law is clear, however, that the City has no duty to construct its median barriers in a way that insures that no crossover accidents will occur. (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215.) In order for liability to attach, the plaintiff must allege that the barrier actually caused the accident by creating a new danger, not merely that the barrier failed to prevent a crossover accident. Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, 459 N.E.2d 1131 (guardrail which had a sharp exposed end that amputated plaintiff’s leg after it pierced plaintiff’s car created a new hazard more dangerous than the conditions that existed when nothing was there before). See also Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227 (municipality erected a streetlight that caused glare which was not present before the light was installed).

There is no allegation that the barrier here did anything other than permit a crossover. Plaintiff has not alleged that the barrier itself was inherently dangerous. Nor has plaintiff alleged that the barrier itself caused the death of plaintiff’s decedent. Rather, what killed the plaintiff’s decedent was Drain’s bad driving. The erection of the median did not make Lake Shore Drive any more dangerous than .it would have been had the City left the area undisturbed.

Accordingly, we affirm the order dismissing plaintiff’s complaint.

Affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE MURRAY

text:
    JANICE KUGELMAN, Adm’r of the Estate of John Kugelman, Deceased, Plaintiff-Appellee, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellants (David S. Melind et al., Defendants).
    First District (5th Division)
    No. 1—91—4110
    Opinion filed October 2, 1992.
    Rehearing denied October 22, 1992.

      Robert B. Baal and Paul G. O’Toole, both of Baal & O’Connor, of Chicago, for appellants.
    Michael H. Berman, of Berman & Trachtman, P.C., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

The Village of Hoffman Estates and two of its police officers, Westly Schultz and T. Bos (collectively referred to herein as Hoffman Estates), appeal from an order of the circuit court which dismissed plaintiff’s cause of action and required the performance of an alleged oral settlement agreement. The facts are as follows.

On November 10, 1986, David S. Melind, while fleeing from police in a high-speed chase, struck and killed John Kugelman (Kugelman), an Hlinois State Trooper, as Kugelman stood on the shoulder of Route 53 in the Town of Addison. Janice Kugelman (plaintiff), surviving spouse and administrator of Kugelman’s estate, filed a negligence action on July 9, 1987, naming Melind as a defendant. Also named as defendants in the complaint were the Village of Hoffman Estates and certain of its police officers, for negligently initiating and failing to terminate the high-speed chase, as well as the Villages of Elk Grove and Schaumburg and their various police officers, for joining in the high-speed chase.

On October 2, 1987, Hoffman Estates filed an appearance through counsel, Robert Baal. Baal was retained by National Casualty Company, the insurance company which provided Hoffman Estates with a comprehensive law enforcement liability policy covering its police department. On July 12, 1991, after extended negotiations, Baal contacted plaintiff’s attorney and offered $400,000 to settle Hoffman Estates’ portion of the negligence action. According to a letter dated that same day, Baal informed plaintiff’s attorney that the offer was nonbinding and “contingent upon the approval of the village and the insurance company.”

Plaintiff, understanding that the settlement offer was contingent upon the approval of the Village of Hoffman Estates, believed that the contingency was satisfied when it was learned that the village approved the settlement offer. In reliance upon the settlement agreement with Hoffman Estates, plaintiff then entered into settlement agreements with the remaining defendants. Subsequently, plaintiff learned that Hoffman Estates was refusing to honor the settlement agreement. Plaintiff then filed a motion seeking to enforce the Hoffman Estates settlement offer.

Hoffman Estates, through counsel, opposed plaintiff’s motion to enforce the agreement. Although Hoffman Estates admitted that the settlement offer was made to plaintiff, it contended that there were three contingencies placed upon the offer: (1) that the Board of Trustees of the Village of Hoffman Estates approve the settlement, (2) that the village attorney approve the settlement, and (3) that the automobile insurance carrier for Hoffman Estates approve and agree to contribute to the settlement. According to Hoffman Estates, the settlement agreement never became final and enforceable because, although the village board and corporation counsel approved the settlement, the village’s insurance carrier did not. This was because National Casualty was unable to procure an agreement and contribution from the village’s automobile liability insurance carrier.

On November 14, 1991, the circuit court heard argument on plaintiff’s motion to enforce the settlement agreement and found that a settlement existed between the parties. On November 21, 1991, the circuit court entered an order approving the settlement agreement and dismissing plaintiff’s cause of action with prejudice. Then, on December 16,1991, Hoffman Estates filed this present appeal.

The only issue before this court is whether the circuit court erred when it found that a settlement existed between the parties and granted plaintiff’s motion to enforce the settlement agreement. Hoffman Estates contends that the circuit court should not have enforced the settlement and that the summary proceeding was improper because (1) plaintiff’s motion to enforce the settlement was unsupported by an affidavit, (2) the trial court failed to apply the proper standard of review with respect to whether a settlement agreement existed, (3) evidence did not establish that there was a meeting of minds as to the terms of the agreement, and (4) that even if there was sufficient evidence to show that an oral agreement to settle existed, the settlement was not enforceable because Hoffman Estates had the legal right to withdraw from the agreement prior to judgment being entered.

Initially, we note that there appears to be a serious conflict of interest in this case. According to the record one might conclude that it is the insurance carrier and not the defendant, Village of Hoffman Estates, which has rejected the settlement agreement. In a letter dated October 31, 1991, from National Casualty to the State of Illinois Department of Insurance, the insurer states that after Baal contacted plaintiff’s attorney with the settlement offer and sent the file to it for authority to settle, the insurer then “noted that because of the nature and circumstances of the case, it was our belief that the Village’s auto liability carrier shared concurrent coverage with National Casualty in this matter.” After reaching this conclusion the insurer “instructed” defense counsel “to discontinue any further settlement negotiations” while National pursued the auto liability insurer.

Thus, it appears that the attorney who allegedly represents Hoffman Estates in this appeal is, in actuality, representing the interests of the insurance carrier. We have some serious reservations about the propriety of this situation.

Furthermore, we are concerned by the fact that defendants’ refusal to go forward with the settlement is apparently due to the alleged lack of cooperation of an auto liability insurer which was never involved in the proceedings below and is not before this court in this appeal. We have been made aware during oral argument, however, that a declaratory action has been filed against the auto liability insurer and that action presently pends in the courts below.

Notwithstanding our reservations and concerns expressed above, and despite the fact that settlement of claims is encouraged as a matter of public policy (Stone v. McCarthy (1990), 206 Ill. App. 3d 893, 565 N.E.2d 107), we find that we must reverse the order of the trial court and remand for further proceedings. As noted by defendants, where an agreement of settlement is relied upon, the burden of proving the existence of the settlement is on the party alleging it (Harris v. Handmacher (1989), 185 Ill. App. 3d 1023, 542 N.E.2d 77) and the evidence that a settlement existed must be clearly established in order for summary judgment to be granted. Janssen Brothers, Inc. v. Northbrook Trust & Savings Bank (1973), 12 Ill. App. 3d 840, 299 N.E.2d 431.

We note that we are unable to determine what facts were relied upon by the trial court nor is the able trial judge’s reasoning or basis for finding a settlement before this court because neither party submitted any report of the proceedings on the motion to enforce settlement. We believe, however, that plaintiff uses circular reasoning, contending that we should accept her attorney’s representation that he was not made aware of certain contingencies upon the settlement offer simply because he proceeded as if the settlement were final. Furthermore, on appeal plaintiff attempts to support her argument that the settlement existed by submitting documents to this court which were apparently not before the trial court and which she has not moved to be made a part of the appellate record. Therefore, these documents are arguably not properly before this court.

Even if considered, however, these documents do not support plaintiff’s position since they establish instead that Baal did not have the authority to finalize the settlement of the matter without the approval of the insurance company and that the insurance company refused to grant that authority until it was able to explore the possibility of obtaining contribution from the village’s auto liability insurer.

At the very least, whether Baal represented the situation differently to plaintiff when the settlement offer was made was a question of fact for the trial court to resolve. It appears that some sort of evidentiary hearing would have been appropriate and that a summary-type proceeding should not have been conducted. As stated earlier, without a report of the hearing on the motion to enforce settlement, we have no way of knowing what materials the trial court considered and what findings of fact were made.

For all the reasons cited above, we reverse the judgment of the circuit court and remand for further proceedings.

Reversed and remanded.

McNULTY, P.J., and GORDON, J., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL MISZKIEWICZ, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0067
    Opinion filed October 5, 1992.

      J. Scott Arthur, of Olympia Fields, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Stanislaus Gonsalves, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant Daniel Miszkiewicz was charged in three indictments with delivery of less than 15 grams of cocaine on three separate occasions. (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(a)(2).) The three indictments were consolidated for trial, although the record is silent upon whose motion they were consolidated. Following a bench trial, defendant was convicted on all three indictments and sentenced to six years in the Illinois Department of Corrections.

On appeal defendant argues that: (1) he was denied effective assistance of counsel; (2) he was deprived of a fair trial where the three offenses were joined for prosecution; and (3) the State did not disprove beyond a reasonable doubt that he was entrapped.

Prior to trial, the court admonished defendant that his attorney had pleaded guilty to charges which were generally referred to as “Greylord charges,” and that he was scheduled to be sentenced in the future. Defendant was further advised that his attorney had testified in one trial and would possibly be testifying in others, and that the attorney had entered an agreement with the Attorney Registration and Disciplinary Commission (ARDC) to surrender his license. Defendant stated that he understood and was satisfied with the attorney’s representation of him. Defendant also stated that “I haven’t found him to be preoccupied with his problem. He has been putting forth a good effort for me.”

The record reveals the following testimony was adduced at trial. Agent Lloyd, the State’s principal witness, testified that on January 13, 1987, Anthony Shipanik (Shipanik or Tony) became a government informant. He signed written documents wherein he agreed to cooperate with the Metropolitan Enforcement Group (MEG) in their effort to prosecute drug dealers. Shipanik was assigned to work with Agent Lloyd.

Lloyd testified that Shipanik was given a written document which explained that he could never become involved in any activity that would constitute entrapment. Shipanik read this document in Lloyd’s presence. At that time Lloyd also explained to Shipanik that he could not force anyone to sell drugs to them, nor could he convince anyone to enter the narcotic business in order to introduce that person to Lloyd. Lloyd testified further that Shipanik verbally indicated that he understood the rules and signed the document.

Between January 15 and April 1, 1987, Shipanik provided Lloyd with defendant’s name as a drug dealer. Lloyd contacted the Orland Park police department and was advised by Detective Muller that he had uncorroborated information that defendant dealt cocaine in the southwest suburbs.

On April 1, 1987, Shipanik arranged a meeting between Lloyd and defendant. Lloyd instructed Shipanik to have defendant bring two grams of cocaine to the meeting. Lloyd and Shipanik drove in an undercover vehicle to a Burger King restaurant where Lloyd was introduced to defendant. The three left the restaurant and entered Lloyd’s car in the parking lot where defendant produced a small clear plastic bag containing white powder. Lloyd testified that defendant told him the cocaine was of “very high quality” and that no dilutants had been added. Lloyd gave defendant $180 and asked him what his usual prices were for cocaine. Defendant then gave Lloyd prices for an eighth, quarter, and half ounce and an ounce of cocaine. Lloyd testified that he then asked defendant how he could contact him in the future for additional purchases. Defendant advised Lloyd to call Shipanik and that Shipanik would contact him.

On April 9, 1987, Shipanik gave defendant Lloyd’s telephone number and suggested that he contact Lloyd. Defendant called Lloyd and asked whether he wanted to purchase more cocaine. Lloyd testified that defendant told him the price was $275 for an eighth of an ounce and arranged for the two to meet at the same Burger King restaurant where the first contact took place. Lloyd drove the undercover vehicle to the restaurant, arrived about 8:30 p.m. and waited inside for about 20 minutes, at which time defendant arrived. Lloyd and defendant walked back to Lloyd’s car, where the money and cocaine were exchanged. Lloyd testified that he again asked defendant how he could contact him in the future to make more purchases, but defendant refused to give Lloyd his telephone number. Lloyd stated that defendant told him that he would call on a weekly basis between 6:30 and 8:30 p.m. to take Lloyd’s cocaine order. Lloyd then gave defendant his undercover telephone number.

Defendant called Lloyd on April 13, 1987, and Lloyd told him that he wanted to purchase another “eight ball.” Defendant suggested that they meet at a Venture store in Orland Park. After defendant arrived at the store, he called Lloyd, stated the price was $275 and told him to drive to the store where they would make the exchange. Lloyd met defendant, who was accompanied by a female, at the entrance to the store. They entered Lloyd’s vehicle and defendant instructed Lloyd to drive out of the parking lot. Lloyd testified that defendant told his female companion to “give Joe the stuff,” and she handed Lloyd a clear bag containing a white powder. Lloyd then gave defendant $275 and asked him the price for various quantities of cocaine. Defendant quoted a price of $500 for a quarter of an ounce and $1,650 to $1,750 for an ounce. Lloyd told defendant he would be interested in purchasing additional quantities in the future, gave defendant his telephone-pager number and told him to call that following week.

On May 11, 1987, defendant called Lloyd and asked whether he wanted to purchase an ounce of cocaine, and Lloyd stated “yes.” Defendant told Lloyd that the price would be $2,000, but Lloyd was dissatisfied with the price and asked defendant to lower the cost. Lloyd testified that defendant said he would check with his drug connection and would contact him at a later time.

Defendant called Lloyd on May 15, 1987, with a lower price of $1,900 and made arrangements to again meet at the Venture store parking lot. Lloyd contacted his surveillance personnel to discuss the anticipated delivery. Lloyd drove his undercover vehicle to the store’s entrance and defendant exited the store, walked to Lloyd’s car and entered. Defendant directed Lloyd to drive westbound through the parking lot to defendant’s car. Lloyd and defendant exited Lloyd’s car and entered defendant’s car. Defendant then drove out of the lot and returned about two minutes later. At that point, he handed Lloyd a clear plastic bag containing white powder and told Lloyd that the cocaine had not been “stepped on” and that the cost was $1,900. Lloyd gave defendant the money and told him that he wanted to purchase three to four ounces of cocaine every week. After defendant placed the money in his pocket, Lloyd gave a prearranged arrest signal. Once the vehicle stopped, the surveillance team converged on defendant’s car and arrested him. Defendant’s car was searched and a clear plastic bag containing white powder was recovered. The contents of both bags were tested and the field test was positive for the presumptive presence of cocaine.

The parties stipulated that if Deborah Jurisic, Karl Larsen and Aurelin Lynn Rizzo, chemists employed by the Maywood Forensic Sciences Laboratory and the Illinois State Police Crime Lab, were to testify their testimony would establish that on April 13 and 14, 1987, and June 15, 1987, they received packets of white powder from Agent Lloyd seized from defendant, and after analyzing the white powder, determined that the powder was cocaine. It was further stipulated that the weight of the four bags of cocaine was 37.3 grams.

Defendant testified that he was employed and had matriculated at DeVry Institute, from which he had received a diploma as a certified electronic technician and an associate of applied science degree. He testified that he had never been arrested or convicted of any criminal offense other than traffic. He explained that he first met Anthony Shipanik (Tony) when he sought a job at Crown Buick while he was also attending school. Tony was a manager at Crown Buick and was responsible for defendant being hired. After leaving Crown Buick to accept his present position with Pitney Bowes, he did not see or hear from Tony until one day he returned to Crown Buick, where he had purchased a 1986 Buick, to obtain an extended warranty on his car. After conversing with Tony about the extended warranty, Tony asked defendant if he could ask defendant a personal question to which defendant responded yes. It was then that Tony approached him about securing some cocaine. Defendant asked Tony if he used cocaine and Tony responded that the cocaine was for a friend named “Joe.” Defendant initially refused to get involved in such an activity. However, Tony inundated defendant with telephone calls imploring him to just do this one favor. At one point Tony even threatened to divulge some information to the owner of the Buick dealership regarding some extra equipment which had been given to defendant when he purchased his car. Tony backed down on the threat and suggested that he was only kidding. After being bombarded with numerous telephone calls from Tony, defendant finally agreed to find a source. He remembered that his landlord’s brother was a drug dealer, and he looked up his telephone number, called him and conversed with him. Later Tony called defendant and defendant told Tony that he had found a source and sought to give the name and telephone number of the source to Tony. Tony rejected having the information given to him, explaining that the dealer would not sell to him. He told defendant that he needed defendant to make the purchase and deliver it to him. Defendant reluctantly agreed to this arrangement.

While he had been told that the drugs were for a friend of Tony’s, he considered this to be a personal favor for Tony, and he was visibly upset when Tony showed up for the delivery accompanied by the friend, “Joe.” After the delivery, he complained to Tony about bringing the friend to the meeting place. Two days later Tony called him and advised him that “Joe” wanted to do more business with him. At first, defendant balked and said there would be no more business. Tony persuaded him that one more delivery would make them “even.” He once again reluctantly agreed to it. Tony did not show up for the second delivery. “Joe” was there and that is with whom defendant transacted the delivery. He received the money and he then gave “Joe” the drugs. He testified that he was very nervous and denied engaging in any conversation.

He testified that thereafter Tony continuously called him exhorting him to continue dealing with “Joe.” Initially he said no. He complained to Tony that he had been spending his own money to purchase the drugs. Tony suggested to him that the dealer could “front” for him. Tony explained that meant the dealer would give him the drugs and collect from him after he had collected from the purchaser. Defendant called the dealer and the dealer agreed to “front,” but the first time, he sent a female friend with defendant in order to insure collection of his money. Defendant described the last two sales and he denied that he ever gave Agent Lloyd (Joe) various prices for various quantities of cocaine. He also denied that he described the drugs, i.e., pure rock without dilutents, stepped on, of very high quality, etc. He likewise denied that he told “Joe” that he would call him on a weekly basis between 6:30 and 8:30 p.m. to take his cocaine order. He denied that he promised “Joe” that if he became a regular customer he would see that the prices were lowered or that “if you have a head cold the stuff will do you right and clear it up right away.” Defendant testified that all of the sales, including the last two sales, were set up through Tony. Tony persuaded him that they had the perfect buyer, that defendant had the perfect supplier and they were the perfect team who could get rich together. Defendant’s testimony regarding the last sale of one ounce of cocaine to Agent Lloyd for $1,900 was substantially similar to what Agent Lloyd had testified except for the conversation, which defendant denied had occurred. Finally, he testified that upon being placed under arrest, Agent Lloyd offered to see that he received lenient treatment if he would assist MEG in obtaining the arrest and conviction of three individuals for delivery of one or more ounces of cocaine. He told Agent Lloyd that he knew only one such person, his supplier, and he offered to give his name to Agent Lloyd, which he did.

Defendant first argues that he was denied the effective assistance of counsel. This contention is predicated on three bases, i.e. (1) conflict of interest, (2) per se ineffectiveness, and (3) deficient representation resulting in actual prejudice. Specifically, he maintains that a special relationship existed between Cary Polikoff, his attorney, and Anthony Shipanik, the informant, who referred him to attorney Polikoff, and hence, his right to conflict-free counsel was violated. Additionally, he contends that because defense counsel had been convicted in “Operation Greylord,” was awaiting sentencing, was a witness for the prosecution in pending “Greylord” cases contemporaneously while defendant’s trial was ongoing, and the revocation of his license to practice law was imminent, counsel’s representation of him was per se ineffective. Finally, he argues that Polikoff’s representation of him was fraught with mistakes and omissions and was so deficient that it resulted in actual prejudice to the defense of his case.

We initially address defendant’s concerns regarding the alleged conflict of interest. Defendant retained Cary Polikoff to defend him based, according to him, on a referral by the informant, Anthony Shipanik. On appeal defendant contends that Shipanik and Polikoff were friends.

The sixth amendment guarantees to a criminal defendant the right to the effective assistance of counsel as a fundamental right. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708.) “The right to effective assistance of counsel under the sixth amendment entitles a criminal defendant to the undivided loyalty of counsel, free from conflicting interests or inconsistent obligations.” People v. Thomas (1989), 131 Ill. 2d 104, 111, 545 N.E.2d 654, citing People v. Flores (1989), 128 Ill. 2d 66, 83, 538 N.E.2d 481.

A per se conflict occurs when the tie between defense counsel to a person or entity — either counsel’s client, employer, or his own previous commitment — might subliminally affect counsel’s performance in ways difficult to detect and demonstrate. (People v. Spreitzer (1988), 123 Ill. 2d 1, 15, 525 N.E.2d 301; People v. Thomas (1989), 131 Ill. 2d 104, 111, 545 N.E.2d 654.) However, defendant’s contention of a special relationship in the instant case between Polikoff and Shipanik is pure conjecture since no evidence was ever presented that supported such a claim. At most, defendant presented evidence that Shipanik knew Polikoff sufficiently to recommend him to defendant. The record does not, however, bear out defendant’s conclusory speculation that Polikoff and Shipanik were “friends.”

Other than defendant’s unsubstantiated claim that Polikoff and Shipanik were “friends,” nothing in the record supports defendant’s contention regarding this alleged division of loyalty. Defendant, in his appellate brief, on one hand promises to supplement the record with an affidavit setting forth in detail the factual circumstances of this relationship, and on the other hand concedes in his brief “it is unknown from this record whether Polikoff actually had this type of relationship with Shipanik.” We fail to find nor have we been referred to any portion of the record which contains such an affidavit. It is the appellant’s responsibility to provide an adequate record on appeal. In the absence of a complete record, the court is compelled to assume that the missing' evidence supports the court’s or jury’s decision. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958; Dell’Armi Builders, Inc. v. Johnston (1988), 172 Ill. App. 3d 144, 149, 526 N.E.2d 409, 412.) The court of review is not obligated to search the record to find a basis for reversal, and unless reference is made to those portions of the record supporting reversal, the argument will not be considered. (Webb v. Angell (1987), 155 Ill. App. 3d 848, 854, 508 N.E.2d 508.) Accordingly, we decline to consider this aspect of defendant’s argument relating to an alleged conflict of interest.

Defendant next maintains that a per se conflict exists also because of Mr. Polikoff’s trouble with the law and his pending charges before the ARDC. We find this assertion to be without merit. Our supreme court has recently declined to create a per se conflict of interest rule in situations involving attorneys representing criminal defendants while disciplinary action by the ARDC is pending. People v. Szabo (1991), 144 Ill. 2d 525, 582 N.E.2d 173.

In Szabo, the defendant was convicted in a bench trial of multiple criminal offenses, including murder, for which the death penalty was imposed. After the judgment was affirmed on direct appeal, defendant alleged in a pro se post-conviction petition, in part, that his counsel was prevented from rendering effective assistance of counsel due to pending disciplinary charges before the ARDC. Szabo, as does defendant Miszkiewicz in the case at bar, relied primarily on People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, wherein the supreme court ordered a new trial for defendant Williams when, after initially affirming defendant’s conviction and sentence, and while a petition for rehearing was pending, the court was made aware that during the pendency of the trial, the defense attorney had pending charges before the ARDC. In Williams, a complex, multiple-defendant, death penalty case in which two juries were impaneled simultaneously and defense counsel represented three of the four defendants before the simultaneously impaneled juries, the supreme court ordered a new trial for defendant Williams. The supreme court in Szabo distinguishes the factual variances between the two cases and points out the uniqueness of the Williams case, which it found not to be duplicated in Szabo. Similarly, we find the factual matrix in the instant case to be unlike the facts in Williams and, hence, hold that Williams is inapposite.

Additionally, in considering a claim of per se conflict, the issue of waiver is pertinent. The right to conflict-free counsel may be waived. (People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E.2d 579, citing Holloway v. Arkansas (1978), 435 U.S. 475, 483 n.5, 55 L. Ed. 2d 426, 433 n.5, 98 S. Ct. 1173, 1178 n.5; People v. Kester (1977), 66 Ill. 2d 162, 166, 361 N.E.2d 569.) However, a waiver must be knowing. (Kester, 66 Ill. 2d at 168.) In the case at bar, the trial court meticulously admonished defendant of Mr. Polikoff s troubles, both with the law and with the ARDC. Specifically, he was told that his attorney was testifying in trials against other lawyers as well as judges, that his lawyer had pleaded guilty to “Greylord” charges, that his lawyer was scheduled to be sentenced in the near future and that his lawyer had agreed to surrender his law license. The record further reveals the defendant to be a literate individual who had matriculated at DeVry Institute and had received an associate degree. (See People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E.2d 579; People v. Washington (1984), 101 Ill. 2d 104, 114, 461 N.E.2d 393.) He responded to the court’s admonition by stating that he understood, was satisfied with the attorney’s representation, had found the attorney not to be preoccupied with his problems and found him to be “putting forth a good effort for me.”

Assuming arguendo there is a per se conflict in this case, we find there has been a knowing waiver thereof by the defendant, after a full and complete admonition by the court of any potential conflict. Kester, 66 Ill. 2d 162, 361 N.E.2d 569.

Defendant also suggests that Mr. Polikoff was in a race with the clock to conclude this trial very expeditiously and that such an objective was likewise a competing interest which constituted a per se conflict. He points to two alleged mistakes as evidence that Mr. Polikoff “hurried” the trial to his detriment in order to conclude it prior to being disbarred. The two alleged mistakes were (1) failure to take some remedial action after becoming aware of a statement defendant made to Agent Lloyd and (2) failure to object to joinder of the three indictments being consolidated for trial. We have combed the record, and after doing so, we reject defendant’s argument. We shall address the statement and the joinder later. While set forth in the record are references to time constraints faced by the attorney within which to complete the case, it does not appear that such constraints impacted on the time and effort expended by Mr. Polikoff on defendant’s behalf. Mr. Polikoff was available each time the court was able to accommodate the continuing trial of this case, and the ARDC even extended the time before revoking counsel’s license to allow the case to be concluded. Clearly, counsel had one foot in the prison door and wanted to expedite the completion of all his personal matters before the door was completely shut. However, we find nothing in this record that reflects that the case was hurried to completion to defendant’s detriment. Moreover, defendant acknowledged the “good effort” being put forth by defense counsel and stated that he was satisfied with his representation and “had not found him to be preoccupied with his problems.”

Defendant’s final contention regarding ineffective assistance of counsel is that Mr. Polikoff committed numerous errors at trial.

In sum, defendant sets forth eight instances of alleged substandard performance by Mr. Polikoff, i.e. (1) introduction of a fourth uncharged delivery of cocaine at trial without objection; (2) failure to object to the joinder of three unrelated indictments; (3) failure to object to the amendment of an indictment changing the date of occurrence after trial had commenced; (4) failure to move for a directed finding at the close of the State’s case in chief; (5) inability to lay the proper foundation to introduce character evidence; (6) failure to locate witnesses and failure to comply with discovery by notifying the State of witnesses’ names; (7) elicitation from a witness on cross-examination damaging hearsay evidence; and (8) failure to object to the admission of a statement allegedly made by defendant which was disclosed for the first time during trial and failure to take other action such as requesting a continuance or moving to bar its admission for failure to comply with discovery.

Having determined that defendant has failed to show that per se ineffectiveness or conflict of interest occurred, we must now look beyond the mere happenstance of counsel’s difficulties with the law and ARDC, and decide whether Mr. Polikoff’s performance was deficient and as a result whether defendant was prejudiced thereby.

The established test used to determine the deprivation of effective assistance of counsel is set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In Strickland, the Supreme Court stated that in analyzing a claim of ineffective assistance of counsel, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, a presumption that a defendant has to overcome. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) In order for a defendant to succeed on an ineffective assistance of counsel claim, he must show that counsel’s performance was so deficient that it fell below an objective standard of reasonableness and the performance prejudiced the defense of the case. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

In analyzing a case under the two-prong Strickland standard, it is not uncommon to first determine if the errors complained of resulted in prejudice to defendant which could have conceivably affected the outcome of the case. Our supreme court has adopted this practice in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. Accordingly, we examine each of defendant’s contentions to determine if defendant was prejudiced thereby.

With respect to counsel’s failure to object to the introduction of the fourth uncharged delivery and to the joinder of the three unrelated indictments, we view this as trial strategy. This becomes obvious upon perusal of counsel’s closing argument to the court where he stated, in pertinent part:

“What about the fact that there was more than one offense committed. Illinois courts have held that this may be used by the trier of fact as evidence of predisposition, that it can take into account that more than one offense was held. It has never stated, however, that this is outcome determinative. It has not issued a litmus test stating that a person can avail himself of an entrapment offense [sic] if he commits only one offense but he can’t if he does it for four offenses or three offenses, or if such were the case then clearly the blueprint would be open to law enforcement people and they would know exactly how many offenses to get in order for them to avoid the defendant interposing a defense of entrapment.
One court put it this way, that the fact that a defendant committed a second offense or a subsequent offense close in proximity to the first offense manifested a desire to become involved in the trade and a deliberate intent to do something and it stated that the jury was not wrong in finding that the defendant was predisposed to committing the crime. I would submit that the facts of that case are distinguishable from this case in many, many respects.
I would ask the court to consider whether in reality this is a case of multiple offenses. I think it is not. These three charges and the fourth one for which he is not charged constitutes [sic] one continuing course of conduct and should be judged by this court as such. I was very gratified when the State agreed to let all three of these charges be tried as a single — in a single trial because it certainly lessened the complications of having to bring out all his what would be extraneous if those cases were tried piecemeal.
I think the evidence is clear and is unrefutable that it was the intention of Officer Lloyd to commit as many — to have the defendant commit as many drug offenses as possible until he reached the point where and in the one instance he could charge him with a Class X felony and in the second instance that he could undermine any possible entrapment defense. I think his own testimony bears that out.
And I would call the court’s attention to a statement he made in cross-examination in response to the question why didn’t you arrest the defendant at that time. And his answer was, and I quote, ‘It was part of our investigative technique to conduct an investigation on a person such that the person must be proven in court to show a predisposition to deal the drugs and the way we do that is to show that the person is predisposed to deal the drugs over a period of time rather than just one short occasion.’
It’s quite clear that Investigator Lloyd was cognizant of the offense of entrapment and of course it’s reasonable that he should be because he’s working in an agency which is specially designed for covert operations where these police officers were undercover and it necessitates their use of informants. And they become educated over a period of time to know that when using informants there is a danger of entrapment.”

From the foregoing closing argument, defense counsel’s strategic intent is clear. Even if it was unsound strategy, it does not detract from the fact that it was strategy.

Moreover, the record fails to reveal the circumstances of the joinder or who initiated it. As pointed out earlier, it is the responsibility of the appellant to provide a complete record, and in the absence of a complete record, it is presumed that the trial court acted properly. Furthermore, defendant fails to show how he was prejudiced. Even if the charges had not been joined in one prosecution, they could have been received as other crimes evidence to show modus operandi, or a motive, or a plan or scheme of conduct. (People v. Lehman (1955), 5 Ill. 2d 337, 343, 125 N.E.2d 506 (subsequent act admissible to show plan); People v. Allen (1971), 1 Ill. App. 3d 197, 200, 272 N.E.2d 296 (subsequent act admissible to refute argument that the defendant lacked intent); People v. Knox (1967), 90 Ill. App. 2d 149, 160, 234 N.E.2d 1281 (subsequent act admissible to show plan, or to show criminal intent).) The testimony of Agent Lloyd led to the inescapable conclusion that a plan existed to furnish a continuing supply of cocaine to “Joe.” (People v. Wells (1989), 184 Ill. App. 3d 925, 931, 540 N.E.2d 1020.) Here we have a case where the defendant raises an entrapment defense. The United States Supreme Court in Sorrells v. United States (1932), 287 U.S. 435, 451-52, 77 L. Ed. 413, 422, 53 S. Ct. 210, 216, held that “if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.” We glean from the above-cited principle that both prior conduct and subsequent conduct are admissible if relevant to the issue of predisposition of the defendant to commit the crime charged. The door opens for the admission of evidence which might otherwise be inadmissible when one pleads the defense of entrapment. (People v. Tipton (1980), 78 Ill. 2d 477, 486, 401 N.E.2d 528.) We reject defendant’s contention that joinder and the admission of the fourth uncharged delivery constituted reversible error and that counsel’s ineffectiveness resulted in such error under the factual matrix here presented.

Defendant urges this court to find ineffective assistance of counsel by virtue of defense counsel’s failure to object to the court’s allowance of the State’s motion to amend two of defendant’s indictments changing the dates of the occurrences after trial had commenced. We note that appellate counsel concedes in his brief that such an amendment may have been legally permissible and points to no detriment suffered by defendant as a result of the amendments.

Section 111 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 5) provides that an indictment “may be amended on motion by the State’s Attorney or defendant at any time because of formal defects.” This very issue arose in the case of People v. Barlow (1989), 188 Ill. App. 3d 393, 402, 544 N.E.2d 947. In that case, the indictment alleged that the offense had occurred “on or about March 2, 1986, and continuing on through March 3, 1986.” The State’s bill of particulars revealed that the incident had occurred on or about March 1 through 3, 1986. Several months later the State filed an amended bill of particulars indicating the date of the offense as “on or about March 1st through the 5th, 1986.” The indictment was later amended to reflect the new dates set forth in the amended bill of particulars. The Barlow court held that in the absence of a statute of limitations issue, and in light of the fact that the amended dates preceded the return of the indictment, the incorrect dates on the original indictment constituted a formal defect which, pursuant to section 111 — 5 of the Code, could be cured by amendment. The court further pointed out that it found no deprivation of due process where “the charge was stated as definitely as possible, the date alleged in the indictment was not a material element of the offense, the date was sufficient to show that the offense charged was committed within the statute of limitations period and the date preceded the return of the indictment.” Barlow, 188 Ill. App. 3d at 402.

The case at bar is very similar to Barlow. While the original indictment alleged May 12, the bill of particulars filed by the State reflected May 15. As in Barlow, the date in this case is not an element of the offense, there is nothing to suggest a statute of limitations issue and the offenses occurred in 1986 and the indictments were returned in 1987. Hence, the date preceded the return of the indictment. Additionally, based upon the defense presented, there was no contest that the occurrences took place, only that there was an entrapment.

Accordingly, because the amended dates did nothing to modify the substance of the offenses charged and the dates comported to statutory requirements, we hold that the amendments were properly allowed by the court and any objections thereto would have been without merit.

Defendant further complains of Mr. Polikoff’s inability to lay a proper foundation for the introduction of character evidence, but once again concedes that the outcome would not have changed; hence, no prejudice obtained. Moreover, there is no showing of prejudice to defendant by Mr. Polikoff’s failure to locate witnesses or comply with discovery by notifying the State of witnesses’ names. The record does not reflect who the witnesses were, what they would have testified to, or that any witnesses ultimately presented were barred from testifying for failure to notify the State of their existence.

Defendant asserts that Mr. Polikoff’s failure to move for a directed finding constituted ineffective assistance of counsel. We disagree. We are unable to determine how the outcome would have differed. There was no argument then or now that the State’s evidence was legally insufficient at that stage of the proceedings. See People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089.

The next contention relates to defense counsel’s cross-examination of Agent Lloyd during which he elicited from Lloyd a conversation the agent allegedly had with Detective Muller of Orland Park about defendant’s reputation as a southwest suburban drug dealer. He contends on appeal that defense counsel rendered ineffective assistance of counsel when he elicited hearsay evidence which severely damaged his defense. The purported hearsay evidence which he complains of was a statement by Agent Lloyd that he had inquired of Detective Muller about what Muller knew of defendant’s activities and the detective told him that he had uncorroborated information that defendant dealt a substantial amount of cocaine in the southwest suburbs.

While in a nonjury case there exists a rebuttable presumption that the judge “sifted the wheat from the shaft” and considered only that evidence which was properly admitted (People v. Christiansen (1987), 116 Ill. 2d 96, 586 N.E.2d 1253), hearsay evidence which is admitted without objection is to be considered and given its natural probative effect. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 508, 475 N.E.2d 879; see also People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817.) In the case at bar, defense counsel’s actions were clearly strategic. In his vigorous cross-examination of Lloyd, Polikoff sought to impeach Lloyd. Lloyd had testified to the steps he took in trying to ascertain the reliability of his source of information (SOI). To that end he testified that he often called local police departments to obtain information about the criminal background of persons whose names were given to him as being involved in drug-dealing activities. He stated that he had called Detective Muller to find out about the defendant and Detective Muller told him that he had uncorroborated information that defendant was involved heavily in drug dealing in the southwest suburbs. In eliciting from Lloyd this alleged conversation with Muller, Polikoff was laying a foundation to later impeach Lloyd with testimony of Muller that no such conversation ever took place. He also was attempting to show the improbability of Lloyd having contacted Detective Muller on the same day as the first buy occurred, April 1, 1987.

Subsequently, during the defense’s case in chief, Polikoff called Detective Muller as a witness for the defense and elicited from him testimony that contradicted Lloyd’s earlier testimony. Detective Muller testified that he had no knowledge of any drug dealing by defendant and had not received an inquiry about defendant’s drug dealing activities from Agent Lloyd.

In light of the purpose for which this testimony was elicited, we fail to find counsel’s performance substandard. He succeeded in impeaching the testimony of the State’s star witness, and the testimony was obviously offered for the sole purpose of impeachment of Agent Lloyd. While this testimony was elicited by defense counsel, it is presumed that the trial judge considered it for the purpose for which it was offered. (See People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849.) While such a presumption may be rebutted, there must be an affirmative showing in the record of such rebuttal. (People v. Gilbert, 68 Ill. 2d at 258-59, citing People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143; People v. Grodkiewicz (1959), 16 Ill. 2d 192, 157 N.E.2d 143.) The record in the instant case is totally devoid of any such rebuttal. Nowhere in the record is there an indication that the court considered the testimony of Agent Lloyd regarding his conversation with Detective Muller as substantive evidence.

The State cites, in support of its position that defense counsel vigorously defended Daniel Miszkiewicz, People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. In that case the supreme court held that a reviewing court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies. (Albanese, 104 Ill. 2d at 527.) Albanese, similar to Miszkiewicz in the instant case, set forth numerous instances of alleged mistakes and omissions by defense counsel. He alleged that counsel erred by (1) eliciting, acquiescing in and stipulating to evidence that tended to indicate arsenic-poisoning deaths are more often the result of homicide than of any other cause; (2) failing to object to evidence of defendant’s finances and to references to other crimes in the confession and suicide notes; (3) failing to object to a statement in closing argument that defendant had been jailed for failure to pay child support; and (4) failing to examine the People’s financial exhibits in sufficient detail to expose alleged flaws in testimony from the People’s financial expert. It was Albanese’s contention that, but for the errors committed by his counsel at trial, he would not have been convicted. The Albanese court disagreed, finding that, even assuming arguendo that all of the alleged errors constituted substandard representation, the outcome of the case would not have been different. Albanese, 104 Ill. 2d at 527.

We, likewise, in the case at bar reject defendant Miszkiewicz’s contention that, but for the alleged errors committed by defense counsel at trial, the outcome would have been different. As in Albanese, defendant cannot show prejudice arising from the alleged errors. Defense counsel vigorously and forcefully cross-examined Agent Lloyd in all aspects of his testimony. He presented a strong entrapment defense, but lost because the trier of fact decided the credibility issue for the State. There was overwhelming evidence of defendant’s predisposition to engage in drug-dealing activities, and the court simply found the police officer to be a more credible witness, taking into account all of the circumstances presented.

The last contention regarding the issue of ineffective assistance of counsel relates to the defendant’s statement allegedly made to Agent Lloyd which admittedly was damaging to defendant’s case. After trial had commenced, a statement attributable to the defendant was produced. Mr. Polikoff was unaware of its existence. He reviewed it for five minutes and proceeded to allow the prosecution to present it without objection. The contents included an acknowledgment that defendant used drugs and had a supplier. The statement may have been detrimental to the defense of entrapment which defendant was asserting. However, most evidence against a criminal defendant is detrimental. We also note that defendant himself testified to the fact that he had a supplier in the context of his discussion with Lloyd about possibly becoming an SOI. The question is whether counsel rendered ineffective assistance by failing to take some affirmative action upon learning of the existence of a statement. He could have sought to bar its admission by either a motion to suppress or a motion in limine. However, there must be a legal basis to support such motions. Defense counsel is not required to file frivolous motions which have no legal basis.

We note that the defendant, prior to trial, filed an affidavit in support of a discovery motion wherein he acknowledged that he had a supplier. This acknowledgment suggested that the supplier was sought out after he was approached by Tony Shipanik. Defendant also testified at trial to his many contacts with his supplier in connection with the transactions which constitute the basis for those indictments.

The record, as well as the appellate brief, gives this court an insufficient basis upon which to conclude that the statement was erroneously admitted. There is no allegation that the defendant was not given his Miranda rights. Likewise, nothing in the record suggests that the statement was involuntarily made. Defendant in his brief acknowledges that it is not clear if there was a discovery violation. Assuming arguendo that such a violation did occur, defendant has waived any defects in the State’s response to a discovery motion by making a clear and unequivocal judicial admission of guilt in his attempt to raise an entrapment defense. (See People v. Coslet (1977), 67 Ill. 2d 127, 131, 364 N.E.2d 67, citing People v. Green (1959), 17 Ill. 2d 35, 42, 160 N.E.2d 814, cert. denied (1960), 361 U.S. 972, 4 L. Ed. 2d 551, 80 S. Ct. 605.) Taking into consideration the deficiencies noted in the record and the appellate brief, this court can only conclude the statement was properly admitted in the absence of that evidence to the contrary. Foutch, 99 Ill. 2d 389, 459 N.E.2d 958; Dell’Armi Builders, Inc., 172 Ill. App. 3d 144, 526 N.E.2d 409.

While taking no action regarding the statement may have been an error in judgment, such errors do not establish incompetency of counsel. People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, citing People v. Washington (1968), 41 Ill. 2d 16, 21, 241 N.E.2d 425; People v. Green (1967), 36 Ill. 2d 349, 223 N.E.2d 101.

Defendant’s final contention on appeal is that the State has failed to disprove beyond a reasonable doubt that he was entrapped in light of his uncontradicted testimony that Anthony Shipanik asked, begged, cajoled and threatened him into making the deliveries of cocaine. Defendant takes the position that the only evidence which could properly rebut his testimony would be from the mouth of Anthony Shipanik only. He asserts that the trial court erred by its finding that defendant was predisposed to commit these offenses in light of his alleged familiarity with drug terminology and telephone calls initiated by him to Agent Lloyd. He argues that these allegations were all uncorroborated testimony of Agent Lloyd as contrasted to his own corroborated testimony.

The State does have the burden to prove beyond a reasonable doubt that entrapment did not occur once defendant raises it as a defense. (People v. Dollen (1972), 53 Ill. 2d 280, 284, 290 N.E.2d 879.) The issue is a factual determination unless the court can find as a matter of law that entrapment took place. As Justice Clark stated in his dissenting opinion in People v. Tipton (1980), 78 Ill. 2d 477, 489, 401 N.E.2d 528, “[t]he crucial inquiry in disproving entrapment is whether the defendant was predisposed to commit the offense.” The facts in Tipton, in a general sense, are remarkably similar to the facts in the instant case. Defendant Tipton’s help was solicited by a former girlfriend (who, unbeknown to Tipton, had become a paid informer) to secure some cocaine for her and her “boyfriend” (the undercover agent). In an effort to do her a favor, according to his testimony, he found a source and took her and the agent to meet the source where the transaction took place. In that case, however, Tipton never handled the drugs. While the record revealed the lack of any prior history of drug abuse, he did take another individual to this same source at a subsequent date for the purpose of securing cocaine. In upholding Tip-ton’s conviction and rejecting his defense of entrapment, the supreme court stated that because the evidence indicated to the fact finders defendant’s familiarity with drugs, his knowledge of a supplier, and his willingness to accommodate those seeking drugs, that evidence was adequate to sustain a verdict of guilty. (Tipton, 78 Ill. 2d at 488.) In Tipton, as in this case, defendant points out that the State failed to call the informer as a trial witness. Consequently, defendant Tipton argued, as does defendant Miszkiewicz, that his testimony of inducement by the informer was uncontradicted, and hence, his defense of entrapment must be accepted. The supreme court rejected that argumerit, pointing out that such an argument overlooks a consideration of predisposition which is a factor to be considered when the defense of entrapment is raised. (Tipton, 78 Ill. 2d at 488, citing People v. Cross (1979), 77 Ill. 2d 396, 406-07, 396 N.E.2d 812.) The court further held that any inference arising against the State because of its unexplained failure to call the informer would be negligible in light of the evidence of predisposition. Tipton, 78 Ill. 2d at 489, citing People v. Cross (1979), 77 Ill. 2d 396, 406-07, 396 N.E.2d 812.

In the case at bar, defendant Miszkiewicz was solicited by a former co-worker, Anthony Shipanik (Tony) (who, unbeknown to defendant, had become an informer for the Metropolitan Enforcement Group (MEG)) to secure cocaine for a friend named “Joe.” After being convinced that it would be a great favor to Tony, defendant agreed to obtain the drugs. While Miszkiewicz did not realize that Shipanik would be accompanied by “Joe” when he delivered the drugs to Shipanik the first time, he nevertheless continued to engage in transactions with “Joe” in Shipanik’s absence. According to defendant’s testimony, he located a source and purchased the drugs with his own money. Unlike the defendant in Tipton, however, defendant Miszkiewicz actually handled the drugs and the money. Like the defendant in Tipton, defendant Miszkiewicz had no prior record of drug dealing, and he performed subsequent acts after the initial delivery relating to drug dealing. Miskiewicz contends that because the State failed without explanation to call Anthony Shipanik as a witness at the trial, his uncontradicted testimony of Tony’s inducement of him is sufficient to uphold his defense of entrapment. We reject that contention. As the supreme court held in Tipton, defendant’s argument overlooks the overwhelming evidence of predisposition. In every one of the drug transactions, only defendant Miszkiewicz possessed the cocaine and collected the money. He was thoroughly familiar with the terminology of the drug culture. He assured Agent Lloyd of the high quality of the drug, he assured him that it had not been “stepped on,” he was able to quote prices for various quantities which confirms defendant’s access to a source and supply of drugs, and he offered to henceforth deliver pure rock cocaine uncut with dilutants for any future transactions between them. See People v. Darnell (1990), 214 Ill. App. 3d 345, 573 N.E.2d 1252.

After the initial introduction to Lloyd by Tony, all subsequent transactions were conducted out of the presence of Tony. Defendant performed as a salesman. He provided Lloyd with a laundry list of amounts of cocaine available to him and promised to seek lower prices from his supplier. All of these actions were indicative of defendant Miszkiewicz’s predisposition to traffic in drugs. The court’s finding of guilty of defendant on all indictments was based on credibility of the witnesses.

We fail to find an abuse of discretion by the trial court in finding that defendant was predisposed to engage in drug trafficking.

Accordingly, for the reasons expressed above, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.