author: JUSTICE McCORMICK

text:
    ANGELA SIMPSON, a Minor, by and Through her Parents and Next Friends, Gloria Simpson et al., et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—2883
    Opinion filed July 14, 1992.
    Rehearing denied September 16, 1992.
    Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Richard B. Rogich, and David A. Novoselsky, of counsel), for appellants.
    Kelly Welsh, Corporation Counsel (Robert Drummond and Jennifer Duncan-Brice, Assistant Corporation Counsel, of counsel), and Coffield, Un-garetti, Harris & Slavin (Brian L. Crowe and J. Timothy Eaton, of counsel), both of Chicago, for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiffs, Angela Simpson and her parents, Gloria and Kenneth Simpson, appeal from an order of the circuit court granting summary judgment for defendants. Plaintiffs argue that the trial court erred in finding that defendant John Salmassi was protected from liability under section 2—202 of the Local Governmental & Governmental Employees’ Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 2—202).

On June 29, 1986, 10-year-old Angela Simpson was seriously injured when her bicycle struck a police car driven by Chicago police officer John Salmassi. In September 1986, Angela and her parents filed suit against Salmassi and the City of Chicago (the City) alleging that Angela was injured as a result of Salmassi’s negligence. In their answer, both Salmassi and the City denied any liability for Angela’s injuries.

Salmassi appeared for a deposition on September 24, 1987. Salmassi testified that on the day of the accident he had been writing parking tickets near 5200 North Kenmore in Chicago, when he received a call from the dispatcher about a missing person at 1020 West Ardmore. Salmassi stated that he was on his way to that address when the collision occurred. Salmassi further stated that the call was not an emergency, his lights and siren were not on and he was not driving over the speed limit.

Subsequently, defendants filed an amended answer and affirmative defense and a motion for a partial summary judgment. Relying on Salmassi’s deposition testimony, defendants argued that Salmassi was immune from liability because he was engaged in the enforcement and execution of the law at the time of the accident.

After a hearing, the trial court granted defendants’ motion for summary judgment. In ruling for defendants, the court stated that “going to investigate a missing person [was] the type of a situation which would call for the immunity.” This appeal followed.

Section 2—202 of the Tort Immunity Act provides that a “public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” (Ill. Rev. Stat. 1985, ch. 85, par. 2—202.) Generally, the question of whether a police officer is executing and enforcing the law is a factual determination which must be made in light of the circumstances involved. (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144.) However, the question may be decided as a matter of law where the evidence is undisputed or susceptible to only one possible interpretation. Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292.

In the present case, plaintiffs contend that Salmassi’s deposition testimony established that at the time of the accident he was engaged in routine patrol duties: responding to a nonemergency call from the dispatcher. Plaintiffs argue that, therefore, the trial court erred in finding that, as a matter of law, Salmassi was engaged in the execution or enforcement of a law. We agree.

In Arnolt, the supreme court held that section 2—202 does not provide immunity for all the activities of a public employee during all the hours he is on duty. Rather, the supreme court stated that the immunity extends to only those acts or omissions done while in the actual execution or enforcement of a law. (Arnolt, 52 Ill. 2d at 33.) The supreme court recently reaffirmed this holding in Aikens v. Morris (1991), 145 Ill. 2d 273, 583 N.E.2d 487.

In Aikens the supreme court upheld this court’s ruling that the Tort Immunity Act did not bar a plaintiff from recovering for injuries incurred when her car was struck by a squad car as it was transporting a prisoner to a police department lockup. The supreme court agreed with our conclusion that transporting an arrestee did not constitute execution or enforcement of the law. See Aikens v. Morris (1990), 201 Ill. App. 3d 404, 559 N.E.2d 63; see also Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243 (holding that an officer who was transporting two prisoners when his car struck the plaintiff was not enforcing or executing any laws).

Here, at the time of the accident, Salmassi was responding to a call from a dispatcher about a missing person. Salmassi stated that he did not consider the call an emergency and there was no indication that any crime had been committed or that any law required execution or enforcement.

Defendants contend that Salmassi was executing the law at the time of the accident because he was required by law to fill out a missing persons report. However, as the supreme court noted in Aikens-.

“[Virtually every police function or duty is pursuant to some legal authorization in the broadest sense. [Citation.] Arguably, then the performance of any task while on duty is in enforcement or execution of the law. We do not believe, however, as we have previously stated, that the legislature intended such a result.” (Aikens, 145 Ill. 2d at 285.)

Thus, it is apparent that the fact that Salmassi’s activities were governed by some legal requirement is insufficient to raise them to the level of executing or enforcing the law. That such a conclusion is warranted is even more apparent when Salmassi’s activities are contrasted with the activities of the officers involved in those cases where the Tort Immunity Act was found to be applicable. Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292; Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086; Trepachko v. Village of Westhaven (1989), 184 Ill. App. 3d 241, 540 N.E.2d 342.

In Fitzpatrick, the officer was investigating an automobile accident when his squad car was struck by another car causing it to strike the plaintiff. In Thompson, the officer was attempting to break up an unruly crowd when he backed his squad car into the plaintiff. And in Trepachko, after stopping an individual on a highway for a traffic violation, the officer directed the individual to drive his car across several lanes of traffic toward the median strip; as the individual was doing so, he struck a motorcycle killing its two passengers.

We believe the activities of Salmassi bear more similarity to the activities of the officers in Aikins and Anderson than to those of the officers in Fitzpatrick, Thompson and Trepachko. For this reason, we find that the trial court erred in finding that Salmassi was executing and enforcing the law at the time of the accident. Accordingly, the trial court’s entry of summary judgment in favor of defendants is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

SCARIANO and DiVITO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH CULLEN, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—3342
    Opinion filed July 20, 1992.
    Rehearing denied October 1, 1992.

      Rita A. Fry, Public Defender, of Chicago (Richard E. Cade, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant Kenneth Cullen was found guilty of the murder of Raymond McCaffrey and sentenced to 25 years’ imprisonment. On appeal, defendant contends that: (1) the prosecutor improperly characterized a witness’ statement during closing argument as her opinion that he was guilty of murder; and (2) the State failed to prove him guilty of murder beyond a reasonable doubt. For the following reasons, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. Defendant was arrested on February 1, 1989, and charged with murder for the shooting death of Raymond McCaffrey. The facts disclose that McCaffrey was fatally shot in front of 5328 West Wellington, Chicago, Illinois, in the early morning of February 18, 1984. At trial, Carol Brown testified that she lived with defendant, a Chicago police officer, as his common law wife and that they had six children together. Brown stated that on January 31, 1989, she and defendant were at a tavern when they began an argument concerning financial matters. At 9 p.m., Brown left the tavern and went to the 25th District police station, where she told Watch Commander Egan about her problems with defendant. Egan had known defendant for approximately 23 years, the period defendant had been with the Chicago police department. Brown told Egan that she wanted defendant to leave the house, and Egan told Brown that there was nothing he could do because defendant had not done anything wrong. Brown became hysterical, and replied, “what about murder?” She then told Egan the details of the shooting on February 18, 1984, and later related everything she could recall about the shooting to Detective Richard Schak.

Brown stated that on the evening of February 17, 1984, she and defendant attended a wedding reception in Bensenville. At that time, Brown was seven months pregnant. She stated that they both drank beer at the reception, and that defendant had consumed five or six beers. In the early morning hours of February 18, Brown and defendant returned to Chicago. At approximately 2:30 a.m., defendant was driving south on Central Avenue toward Belmont when their car was cut off by another car headed east on Belmont, forcing defendant to drive into oncoming traffic. The other car turned left onto Wellington, and defendant followed directly behind it. On Wellington, the other car stopped abruptly approximately four to five feet in front of defendant’s car. The driver and a passenger got out and walked toward defendant. One of the men approached defendant with his hands up and yelled something to the effect of “What do you want?” and defendant stated, “Come on now, I got a pregnant woman in the car.” Then Brown heard a gun go off. The occupants of the other car returned to their car and sped off. Brown saw a person lying in the street. Defendant got back into the car and followed the other car, then stopped at a Golden Nugget restaurant on Wellington. After a few minutes, defendant and Brown returned to the scene of the shooting and saw an ambulance and police cars. Defendant walked over to the officers at the scene and then returned to the car, telling Brown that the officers told him to “get the hell out of there and quit standing around.”

Martin McCaffrey testified that on February 18, 1984, at 2:30 a.m. he, his brother Raymond and Donald Starzynski left Bullwinkles’ tavern at 5700 West Belmont in Starzynski’s four-door Oldsmobile Delta 88. Martin was seated in the front passenger seat and Raymond was in the back seat. Starzynski drove east on Belmont to Central Avenue. At the comer of Belmont and Central, he made a right-hand turn and began to drive south on Central when his car was cut off by another car. Starzynski slammed on the brakes to avoid hitting defendant’s car. At that point, defendant pulled his car over to the curb. Martin saw a man and a woman in the other car and thought that defendant had stopped because they were friends. When the three men realized that they did not know defendant or Brown, Star-zynski proceeded south on Central.

Raymond then stated to the others that defendant’s car was following closely behind them. Starzynski picked up the speed of his car and defendant drove into the lane of oncoming traffic. Martin thought defendant was trying to pass Starzynski’s car. The two cars drove side by side for about a block and a half.

When Starzynski reached Wellington, he hit the brakes and turned east toward his house at 5328 West Wellington. At that point, defendant’s car was in front of Starzynski’s car. As Starzynski drove east on Wellington, Raymond noticed that defendant made a U-turn and started to follow them again. Starzynski proceeded at a normal rate of speed and stopped his car in front of his house. Defendant stopped his car right behind Starzynski’s.

At that point, Raymond got out of the car from the rear, right passenger door. Martin yelled to Raymond not to walk in between the two cars because he was afraid defendant was going to try and crush Raymond between the cars. Raymond walked toward defendant with his empty hands up in the air. Raymond stopped at the driver’s side of defendant’s car. Martin noticed that defendant was out of the car. Martin saw defendant’s arm extended straight out and saw defendant shoot Raymond. At the moment the gun went off, Starzynski hit the gas and sped off. Martin saw defendant standing in the street looking down, then he looked up in the direction of Starzynski’s car.

Starzynski drove around the block to the alley behind his house. At that time, Martin saw defendant’s car headed north on Lockwood Street. Martin ran to the street to help Raymond while Starzynski called an ambulance. Raymond was bleeding from his forehead and was unable to speak. After Raymond was transported to Northwest Hospital, Martin rode around with police looking for defendant’s car, although Martin had not noted the license plate number.

In February 1989, Martin identified defendant in a lineup as the man who “looked like the guy” who shot Raymond, but stated that he was not positive. Martin described the gun defendant used as a “snubnose,” and identified a gun shown to him by police as similar in size, color and appearance to the gun used by defendant on February 18, 1984. On cross-examination, Martin testified that he viewed a lineup in March 1984 but did not identify anyone in the lineup as the shooter.

Donald Starzynski testified to the same essential facts as Martin, noting that he saw defendant get out of his car and “shoot Ray execution-style right in the head” from between one and four feet away, at arm’s length. Starzynski admitted that he was unable to identify defendant in a lineup because he did not get a good look at his face on the night of the incident.

Next, Jack Sedlarik testified that on February 18, 1984, he lived at 5336 West Wellington. At 2:30 a.m. he was on his way home and saw two cars coming down the street at a fairly rapid rate of speed, one right behind the other. He saw one person get out of each car and approach the curb, one man with his hands raised, palms forward. Then all of a sudden, the man fell down. On cross-examination, Sedlarik stated that he did not know Raymond, Martin or Starzynski.

Shaku Teas, a Cook County medical examiner, testified that on February 19, 1984, she performed an autopsy on Raymond McCaffrey. She determined Raymond’s cause of death to be a gunshot entry wound to the left side of his forehead.

Chicago police detective Richard Schak testified that at the time of defendant’s arrest, defendant was carrying a Colt .38 revolver. Schak stated that after Martin identified defendant in a lineup, Martin and Starzynski identified defendant’s Monte Carlo automobile as the car driven by defendant the night of the shooting. Sergeant James Gainer, a Chicago police department firearms examiner, testified that the bullet removed from Raymond’s head was shot from defendant’s Colt .38 revolver. At the close of the State’s evidence, defense counsel’s motion for directed verdict was denied.

John Boyce then testified on defendant’s behalf that on February 18, 1984, at 2:30 a.m. he was sitting in a parked car on Wellington Street. At that time, he saw two cars speed down Wellington Street, stopping three houses from where he was located. He heard a loud noise that sounded like one of the cars had backfired. Then he saw a man running, and although he did not see where he ran to, he thought he entered one of the two cars. Both cars sped away. The police arrived, and Boyce saw a man lying in the street bleeding from the head. He attempted to administer first aid to Raymond by wrapping a towel around his head.

The jury found defendant guilty of murder, and following a hearing in aggravation and mitigation, the trial court sentenced defendant to 25 years of imprisonment. This timely appeal followed.

Defendant first contends that the prosecutor’s reference to Carol Brown’s statement, “what about murder?” improperly treated the statement as an expression of Brown’s opinion that defendant had committed murder. In response, the State argues that the prosecutor properly quoted the statement as a rhetorical device in asking the jurors to return a guilty verdict for the offense of murder. We agree with the State.

Defendant objects to the following statement made by the prosecutor during rebuttal closing argument:

“[PROSECUTOR]: Based on the evidence, when you consider everything that was said, one would have to think of what Carol Brown said and that’s ‘How about murder?’ and that’s the verdict I’d ask you to return in this case.”

A prosecutor is granted wide latitude in closing argument and the propriety of his comments are within the trial court’s discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 184, 484 N.E.2d 329.) It is well settled that the prosecution has the right to comment on the evidence that has been adduced at trial and make all legitimate inferences therefrom. (People v. Batchelor (1990), 202 Ill. App. 3d 316, 332, 559 N.E.2d 948.) Even improper prosecutorial comments generally do not warrant reversal unless they are so prejudicial as to constitute such a material factor in defendant’s conviction that the jury likely would have reached a contrary verdict had the comments not been made. People v. Townsend (1985), 136 Ill. App. 3d 385, 394, 483 N.E.2d 340.

The cases relied upon by defendant are distinguishable and therefore unpersuasive. Defendant first relies upon People v. Brown (1990), 200 Ill. App. 3d 566, 558 N.E.2d 309. There, this court held that the trial court improperly allowed a State’s witness to testify as to what the defendant meant by a remark. (Brown, 200 Ill. App. 3d at 588.) Defendant further relies upon People v. Perry (1986), 147 Ill. App. 3d 272, 498 N.E.2d 1167, wherein this court reversed a murder conviction because a State forensic expert testified to the ultimate issue of the case, thereby compromising the jury’s fact-finding function. (Perry, 147 Ill. App. 3d at 275.) Finally, defendant contends that People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387, supports his contention. There, the court held that admission of defendant’s mother’s testimony regarding an alleged apology she made to the victim for defendant’s actions was error, because the only function of the testimony was to raise a prejudicial inference that she believed defendant guilty of the crimes charged. Davis, 130 Ill. App. 3d at 53.

The facts in the present case are not comparable. Carol Brown did not testify to the ultimate issue of the case. Defendant concedes that Brown’s testimony was elicited for the purpose of explaining the five-year delay in investigating the shooting of Raymond McCaffrey. Defendant did not object to Brown’s testimony at trial, but on appeal, objects to the prosecutor’s quoting of Brown’s statement in his closing remarks. In context, the prosecutor’s remarks were proper, as they were made at the end of a statement summarizing the evidence the jury had heard. The prosecutor did not argue that the jury should find the defendant guilty of murder because, in Brown’s opinion, defendant was guilty of murder, but based upon the evidence presented at trial. It is proper for the prosecutor to denounce the activities of defendants and urge that justice be administered. (Morrison, 137 Ill. App. 3d at 184.) Moreover, the trial court instructed the jury that closing argument is not evidence. Thus, the prosecutor’s comment was not improper.

Next, defendant contends that he was not proved guilty of murder beyond a reasonable doubt because the evidence established that defendant acted in self-defense and the prosecution failed to rebut that evidence. Although defendant concedes that it is not disputed that he “fired the single shot that caused Raymond McCaffrey’s death,” he argues that Raymond “advanced toward confrontation” when he got out of Starzynski’s car and walked toward defendant’s car, and that defendant’s reaction was “guarded and defensive.”

Self-defense is an affirmative defense, and unless the State’s evidence raises the issue involving the alleged defense, the defendant bears the burden of presenting evidence sufficient to raise the issue. (People v. Everette (1990), 141 Ill. 2d 147, 157, 565 N.E.2d 1295; Ill. Rev. Stat. 1987, ch. 38, pars. 3—2, 7—14.) Self-defense is raised when a defendant presents some evidence of each of the following elements of the defense: (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened actually believes (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) the above beliefs are reasonable. Additionally, the use of deadly force is limited to those situations in which the threatened force will cause death or great bodily harm. (People v. Guzman (1990), 208 Ill. App. 3d 525, 531, 567 N.E.2d 500.) A determination on the issue of self-defense is particularly within the province of the trier of fact, and a reviewing court will not disturb a decision regarding self-defense unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. Guzman, 208 Ill. App. 3d at 532.

In the present case, neither defendant’s evidence nor the State’s evidence raised the issue of self-defense. The record indicates that Raymond was unarmed when he approached defendant and that he did not threaten defendant with force. The record further shows that defendant used deadly force, shooting Raymond in the forehead from a distance of approximately four feet, while Raymond’s arms were raised and his hands empty. The manner in which Raymond approached defendant could not have caused death or great bodily harm to defendant. Therefore, defendant has failed to show that he acted in self-defense and that he was not proved guilty of murder beyond a reasonable doubt.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    MERL L. MARCY et al., Plaintiffs-Appellants, v. MERLIN L. MARKIEWICZ, SR., et al., Defendants-Appellees and Counterdefendants-Appellees (Inland Real Estate Corporation, Counterplaintiff-Appellant).
    First District (1st Division)
    No. 1—91—0256
    Opinion filed July 27, 1992.
    Rehearing denied October 2, 1992.

      Holleb & Coff, of Chicago (Michael A. Reiter and J. Michael Williams, of counsel), for appellants Merl L. Marcy and Gerald J. Marcy.
    Wolin & Rosen, Ltd., of Chicago (William S. Wigoda and Nancy L. Hirsch, of counsel), for appellant Inland Real Estate Corporation.
    Sonnenschein, Nath & Rosenthal, of Chicago (Richard L. Fenton, Steven M. Levy, and Lorie A. Chaiten, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an action brought by plaintiffs Merl and Gerald Marcy (Marcys) against Merlin L. Markiewicz, Sr., and Doris Markiewicz and their four children (collectively Markiewiczes) and Inland Real Estate Corporation (Inland) for breach of an alleged right of first refusal to purchase the Evergreen Court Apartments in Arlington Heights. Inland cross-claimed against the Markiewiczes for breach of warranties.

The circuit court granted the Markiewiczes’ motions for summary judgment against the Marcys and Inland on all claims. The circuit court held that the alleged right of first refusal was void because it violated the rule against perpetuities.

On September 17, 1964, the Marcys and the Markiewiczes entered into a partnership agreement for the purpose of developing and constructing buildings on two parcels of realty. The developments are now known as Shalamar (Parcel A) and Evergreen Court (Parcel B). On December 17, 1965, during the completion of Shalamar, but before developing Evergreen Court, the Marcys and the Markiewiczes signed a partnership dissolution agreement (Dissolution Agreement), which provided that the Marcys and their parents would take title of Shala-mar and the Markiewiczes would take title to the adjacent Evergreen Court. The Agreement contained the following paragraphs:

“(15) If at any time hereafter, MARKIEWICZ receives from a ready, willing and able purchaser an acceptable bona fide offer to sell to such purchaser, Parcel B or any part thereof, or any property which includes all or part of Parcel B, MARKIEWICZ shall give to MARCY and SONS notice, specifying the name and address of the purchaser and the price and terms of the offer accompanied by MARKIEWICZ’S affidavit that the proposed sale is in good faith. MARCY and SONS shall thereupon have the prior option to purchase Parcel B or the part thereof or the entire property covered by such offer at the price and on the terms of the offer, which option MARCY and SONS may exercise by giving MARKIEWICZ notice within 15 days after their receipt of MARKIEWICZ’S notice of the offer ♦ ♦ ♦
* * *
(19) This Agreement shall be binding upon and inure to the benefit of the respective heirs, devisees, legatees, personal representatives, executors, administrators and assigns of the parties hereto.”

Donald Staehlin, the attorney who represented Merlin Markiewicz, Sr., during the dissolution, testified at his deposition that he had advised Merlin Sr. against signing any document which contained a right of first refusal. Ignoring such advice, Merlin Sr. signed the Dissolution Agreement. Thereafter, Merlin Markiewicz, Sr., gifted a portion of the beneficial interest in the Evergreen Court land trust to his four children, Merlin Jr., Phillip, Susan Snyder and Sandra Staehlin. The Dissolution Agreement was not recorded until December 5, 1974.

On September 23, 1985, 19 years and 9 months after execution of the agreement, the Markiewiczes entered into a contract for the sale of Evergreen Court to Inland (Evergreen Contract). The Evergreen Contract contained the following provisions:

“The property is free of violations, and the interior and exterior structures are in a good state of repair, free of leaks and structural problems. The property is in full compliance with City and County ordinances, and no one has a lease that exceeds the normal one-year term at current market rents, nor has an option to purchase or extend.
* * *
The closing shall occur no later than December 31, 1985, at which time title to the above property shall be merchantable; and, as the case may be, the beneficial interest of the titlehold-ing trust shall be free and clear ***.”

On about December 15, 1985, Inland’s attorneys reviewed the commitment for title insurance on the Evergreen Court property. Inland’s attorneys noticed the following exception on page 3, item 14 of the commitment:

“TERMS, PROVISIONS AND CONDITIONS CONTAINED IN AGREEMENT RECORDED FEBRUARY 5, 1974 AS DOCUMENT NO. 22619924.”

Inland’s attorney contacted the Markiewiczes’ attorney and requested copies of the referenced agreement. After reviewing the Dissolution Agreement, Inland’s attorney noted that paragraph 15 disclosed a possible right of first refusal in favor of the Marcys. Inland’s attorney contacted the Markiewiczes’ attorney regarding the right of first refusal. The Markiewiczes’ attorney indicated that he did not know anything about the alleged right.

The sale of Evergreen Court to Inland was closed on December 20, 1985. Inland’s vice-president, Joseph Cosenza, and two attorneys representing Inland were present. Susan Snyder attended the closing on behalf of the Markiewiczes. One of Inland’s attorneys questioned Snyder about the agreement and the alleged right. Inland’s attorney testified that he recalled Snyder’s response as follows:

“She [Snyder] indicated to me that this paragraph arose in the context that the Marcys owned property next to the Evergreen Apartments, that they were family members, they were related, and that this whole document [Dissolution Agreement] was created for easements and so on between the two parcels, and that the Marcys no longer had any right to purchase the property, were not interested in purchasing the property and words to the effect, you know, basically there was nothing to worry about at this time.”

Snyder testified at her deposition that she knew of no right of first refusal. Further, Snyder testified that she did not read the Dissolution Agreement because it was taken away from her too quickly at the closing. Moreover, Snyder did not request her attorney review the Dissolution Agreement. Snyder did, however, sign an affidavit dated December 20,1985, which provides:

“The undersigned as a beneficiary under American National Bank and Trust Company of Chicago, Trust No. 56992 dated November 1, 1985, being first duly sworn on oath, deposes, states and warrants that there are no existing, pending or threatened liens, citations, assignments, claims or encumbrances effecting [sic] the beneficial interest or power of direction of, under or over the aforementioned Trust, and there are no past-due Trust fees outstanding with respect thereto.”

After obtaining the above affidavit, Inland closed the purchase of Evergreen Court.

About one month after the closing, the Marcys contacted Inland and the Markiewiczes asserting that their right of first refusal had been violated. Inland offered Evergreen Court to the Marcys on the same terms under which it had purchased the property, but the Mar-cys refused.

The Marcys filed their original complaint on April 11, 1986, seeking specific performance to have the sale of Parcel B to Inland declared void and to obtain title to that parcel. In January 1988, the Marcys voluntarily dismissed their equitable claims and filed the amended complaint, seeking compensatory and punitive damages against the Markiewiczes under the theories of breach of contract and conspiracy. The matter, therefore, was transferred to the law division in February 1988. The Marcys also sued Inland under the theory of tortious interference of a contract. Inland cross-claimed against the Markiewiczes for breach of purported title warranties and for negligent misrepresentation.

On March 17, 1989, the Marcys served the Markiewiczes with a supplemental request for production of documents. After the Markiewiczes failed to produce any documents pursuant to the request, the Marcys moved to compel the production of such documents. On June 9, 1989, the circuit court judge to whom contested motions were assigned entered an order compelling the Markiewiczes to produce all documents responsive to the Marcys’ request on or before June 19, 1989. Again, the Markiewiczes failed to produce any such documents. On July 10, 1989, the same judge ordered the Markiewiczes to produce the requested documents by July 20, 1989. At a status hearing on July 24, 1989, that judge was informed that the Markiewiczes had not produced any documents pursuant to the June 9 and July 10 orders. The judge struck the Markiewiczes’ pleadings and entered a default order in favor of the Marcys on the issue of liability.

On August 18, 1989, the Markiewiczes moved to vacate the default. At this time, the Markiewiczes still had not complied with the production request. On August 29, 1989, the judge granted the motion and entered an order vacating the default and reinstating the Markiewiczes’ pleadings based on their representation that they would produce the requested documents. The judge ordered the Markiewiczes to produce the documents within 45 days.

On October 12, 1989, the judge was informed at a status hearing that the Markiewiczes had still not complied with the June 9, July 10 and August 29 orders compelling them to produce documents. The judge, again, struck the Markiewiczes’ pleadings and entered a default judgment against the Markiewiczes on the issue of liability. On December 5, 1989, the Markiewiczes moved to vacate the default judgment on grounds that they had produced some, but not all, of the documents required pursuant to the orders. On January 5, 1990, after reviewing the materials produced by the Markiewiczes as of that date, the judge denied the motion. On June 27, 1990, the Markiewiczes moved, again, to vacate the October 12, 1989, default judgment. On August 1, 1990, the circuit court judge conducted an evidentiary hearing on the matter. At the hearing, Snyder testified as manager of Evergreen Court prior to the sale to Inland. Snyder had kept the business books and records and personally searched for the documents requested by the Marcys. After hearing the evidence, the judge denied the motion to vacate. On August 10, 1990, the Markiewiczes filed an emergency motion to reconsider the denial of the June 27, 1990, motion to vacate. For the third time, the circuit court judge denied the Markiewiczes’ motion to vacate.

The matter was then set for prove-up of damages and transferred to a new judge. On November 9, 1990, in front of the judge newly assigned to the case for prove-up, the Markiewiczes renewed their motion to vacate the default judgment. This motion did not lay out any changed circumstances or additional facts regarding the Markiewiczes’ failure to comply with the other judge’s orders to compel them to produce the requested documents. The new circuit judge heard oral arguments on the renewed motion. On November 20, 1990, the new judge granted the Markiewiczes’ motion to vacate, stating that the entry of the default judgment “was, at law, a clear case of judicial overkill.”

Additionally, on November 9, 1990, the Markiewiczes moved for summary judgment as to liability against both the Marcys and Inland. The Markiewiczes argued that the right of first refusal provision contained in the Dissolution Agreement violated the rule against perpetu-ities. The Marcys filed a cross-motion for summary judgment against the Markiewiczes. On December 12, 1990, Inland filed a cross-motion for summary judgment against the Markiewiczes.

On December 17, 1990, the new judge granted the Markiewiczes’ motions for summary judgment against the Marcys and Inland, and denied the cross-motions. The Marcys appeal the vacation of the October 12, 1989, default judgment order, and additionally, along with Inland appeal the respective grants of summary judgment in favor of the Markiewiczes.

The Marcys first argue that the circuit court erred in vacating the default judgment entered against the Markiewiczes. The Illinois Supreme Court has indicated that prior interlocutory rulings should be modified or vacated by a successor judge only after careful consideration. (Balciunas v. Duff (1983), 94 Ill. 2d 176, 187, 446 N.E.2d 242, 247, citing Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121, 382 N.E.2d 1217, 1220; Leopold v. Levin (1970), 45 Ill. 2d 434, 446, 259 N.E.2d 250, 257.) The Illinois Supreme Court has also stated that “[i]n the context of discovery, where abuse is said to be widespread and delay phenomenal [citations], we think it is particularly appropriate for a judge before whom a motion for reconsideration is pending to exercise considerable restraint in reversing or modifying previous rulings.” (Balciunas, 94 Ill. 2d at 187-88, 446 N.E.2d at 247.) Balciunas requires that there be a change of circumstances or additional facts which would warrant reversing a discretionary discovery ruling made by a prior judge. Balciunas, 94 Ill. 2d at 188, 446 N.E.2d at 247.

The Markiewiczes argue that there were changed circumstances, and thus, the judge properly vacated the default order entered against them. The “changed circumstance” which the Markiewiczes claim negates the default is that the Marcys’ expert did not use the requested documents. This is not a changed circumstance. It would have been impossible for the Marcys’ expert to use the documents because they were not produced. Moreover, the Marcys were entitled to the documents which they requested; to what use or whether or not the Marcys use them at all is irrelevant.

Further, the Markiewiczes argue that the judge properly vacated the default judgment order because the Marcys were not prejudiced. As in Hall v. Jacobs, Camodeca & Timpone (1985), 134 Ill. App. 3d 516, 481 N.E.2d 5, this argument misses the point. The entry of the default resulted from the Markiewiczes’ refusal to comply with court-ordered discovery. Hall is directly analogous to the case at bar. In Hall the defendants engaged in a

“program of deliberate defiance of the court’s authority and rules of discovery. They completely ignored various court admonitions, sanctions and orders compelling discovery. Even after [the judge] ordered their answer stricken and entered the default order, defendants did not cease their contumacious conduct. Instead, they repeatedly sought reconsideration of the sanctions until they obtained a vacation of the sanctions from a successor judge.” Hall, 134 Ill. App. 3d at 521, 481 N.E.2d at 9.

In the case at bar, after violating the circuit court judge’s June 9 and July 10, 1989, orders compelling the Markiewiczes to comply with the Marcys’ production request, the judge entered a default judgment on July 24, 1989, against the Markiewiczes on the issue of liability. Then, the Markiewiczes moved to vacate the judgment. On August 29,

1989, the judge granted the motion to vacate based on the Markiewiczes’ representation that they would produce the requested documents pursuant to the August 29 order. After receiving 45 days in which to produce the documents, the Markiewiczes still had yet to produce any such documents. Therefore, on October 12, 1990, the judge again entered a default judgment against the Markiewiczes on the issue of liability. Two months later, after producing some of the documents, the Markiewiczes moved to vacate the judgment. On January 5, 1990, the judge denied the motion. Then, again, on July 27, 1990, the Markiewiczes moved to vacate the default judgment. After an evidentiary hearing on August 1, 1990, the circuit court judge denied the motion. On August 10, 1990, the Markiewiczes filed an emergency motion to reconsider the denial of their motion to vacate the default. The circuit court also denied that motion.

After the matter was assigned to a new judge for prove-up on the issue of damages, on November 9, 1990, the Markiewiczes renewed their motion to vacate the default. On November 20, 1990, the new judge granted the motion, although no new facts were presented, stating that the default judgment was “judicial overkill.” These facts show blatant forum shopping, which we will not tolerate. Accordingly, we reverse the prove-up judge’s vacation of the default judgment order and reinstate the October 12, 1989, default order. Since the default order against the Markiewiczes on the issue of liability is reinstated, summary judgment cannot be entered against the Marcys and in favor of the Markiewiczes. We, therefore, also reverse the circuit court’s grant of summary judgment against the Marcys.

Next, we address whether summary judgment was properly granted against Inland and in favor of the Markiewiczes. A party is entitled to summary judgment only where there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) In deciding whether a material fact exists, the pleadings, depositions, admissions, exhibits and affidavits on file must be construed strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) “Where the trial court has determined the construction of a contract as a matter of law, the reviewing court may independently construe the contract unrestrained by the trial court’s judgment.” Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 240, 494 N.E.2d 830, 833.

The circuit court found that the Markiewiczes were entitled to summary judgment against Inland because the Marcys’ right of first refusal was void as violative of the rule against perpetuities (Rule). The Rule, as applicable to this case, is a common law doctrine which operates to prevent the remote vesting of contingent interests in property. (Continental Illinois National Bank & Trust Co. v. Llewellyn (1966), 67 Ill. App. 2d 171, 193-94, 214 N.E.2d 471, 481.) The Rule provides that no interest in property is valid unless such interest vests, if at all, within 21 years of a life or lives in being at the time of the creation of the interest. (McKibben v. Pioneer Trust & Savings Bank (1937), 365 Ill. 369, 373, 6 N.E.2d 619, 621.) No interest which is vested at the time of the creation of the instrument is subject to the Rule. Deiss v. Deiss (1989), 180 Ill. App. 3d 600, appeal denied (1989), 126 Ill. 2d 558, 541 N.E.2d 1105.

Relying on Martin v. Prairie Rod & Gun Club (1976), 39 Ill. App. 3d 33, 348 N.E.2d 306, the circuit court stated that the right in the Dissolution Agreement violated the Rule because it might ripen beyond the time permitted by the Rule. Martin is easily distinguished from the case at bar. In addition to boilerplate language, the contract in Martin contained the following very specific language:

“If after the death of [Charles and Rena Pence], [the defendant] shall wish to sell all the [farm] or any part thereof, then the [defendant] promises and agrees to give to the heirs of [Charles and Rena Pence] the option to purchase said lands or any part thereof, upon the conditions and terms to be prescribed by [the defendant].” (Emphasis in original.) (Martin, 39 Ill. App. 3d at 34-35, 348 N.E.2d at 307.)

The above language expressly gave the Pences’ heirs the right of first refusal; thus, the right was not personal. In contrast, the right of first refusal in the present case contains the express language that only “MARCY and SONS” are entitled to notice of a proposed sale and have the right of first refusal. Clearly, the paragraph did not allow the right to be conveyed, by devise or sale or in any manner, to anyone. Since the right was personal to the Marcys, it does not violate the Rule.

The circuit court held that the right could be exercised by the Marcys’ heirs pursuant to paragraph 19 of the Dissolution Agreement. The court further concluded that since a decision to sell Parcel B might be made in the future, beyond the time permitted by the Rule, the exercise of the right of first refusal by the Marcys’ heirs would be outside the period of time prescribed by the Rule.

The cases cited by the Marcys concerning this issue are persuasive and on point. In Vogel v. Melish (1964), 31 Ill. 2d 620, 203 N.E.2d 411, the shareholders of a close corporation entered into a stockholders’ agreement which created a right of first refusal in each shareholder if the other shareholder ever received a bona fide offer from a third party to purchase such shares at a price at which the other shareholder was willing to sell. The stockholders’ agreement also contained a paragraph which stated that the agreement would be binding and inure to the benefit of the parties and their administrators, heirs, executors, etc. Following the death of one of the shareholders, the plaintiff shareholder sought a declaratory judgment that he was entitled to exercise his right of first refusal with respect to the decedent’s shares. The Illinois Supreme Court held that the right of first refusal was personal to the parties to the agreement and that it terminated upon the death of either shareholder. Further, the court held that the right of first refusal, in view of the personal nature of the agreement, does not negate the implied condition that death of either party excuses the survivor from further performance and is properly construed as applying only where the parties during their lifetimes contract for the sale of shares pursuant to the agreement. Vogel, 31 Ill. 2d at 626-27, 203 N.E.2d at 414.

The Illinois Supreme Court in Galler v. Galler (1964), 32 Ill. 2d 16, 203 N.E.2d 577, similarly held that a clause in a shareholders’ agreement providing that the agreement “shall be binding upon and shall inure to the benefits [sic] of [the parties’ heirs, etc. was] intended to be operative only as long as one of the parties is living.” (Galler, 32 Ill. 2d at 31, 203 N.E.2d at 586.) Similarly, an agreement to arbitrate a dispute was held to have terminated upon the death of either of the parties, notwithstanding a provision that the agreement be binding on the parties’ heirs. Aldrich v. Aldrich (1931), 260 Ill. App. 333, 343-45.

Paragraph 19 does not create a power in the Marcys’ heirs to exercise the right of first refusal because such right is personal. We hold that the circuit court erred in finding that the right of first refusal was void as against the Rule.

The above holding, however, does not necessitate that we reverse the circuit court’s grant of summary judgment against Inland and in favor of the Markiewiczes. Inland cross-claimed against the Markiewiczes for breach of warranty, namely, merchantable title. Merchantable title is “ ‘a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person; one that persons of reasonable prudence and intelligence, guided by competent legal advice, would be willing to take and pay the fair value of the land for.’ ” Sinks v. Karleskint (1985), 130 Ill. App. 3d 527, 529, 474 N.E.2d 767, 769, quoting Eggers v. Busch (1895), 154 Ill. 604, 606-07, 39 N.E. 619, 620.

Even though we hold that the right of first refusal in the present case is not void, we affirm the circuit court’s grant of summary judgment against Inland. Inland admits that at least two weeks prior to the closing, it was informed of the right of first refusal contained in the Dissolution Agreement. “[A] purchaser of real estate who enters a contract to buy real estate with actual knowledge of certain restrictive easements or encumbrances, waives any objection as to those encumbrances.” (Rock Island YWCA v. Bestor (1977), 48 Ill. App. 3d 761, 765, 363 N.E.2d 413, 416.) Inland should have rescinded the contract when it learned of the right of first refusal or required the Markiewiczes to obtain a waiver of the right from the Marcys prior to closing on the property. (See Rock Island YWCA, 48 Ill. App. 3d at 765, 363 N.E.2d at 416.) We hold that Inland waived its right to object to the merchantability of title on the basis of the Marcys’ exercise of their right of first refusal.

Inland attempts to hide behind the beneficial interest affidavit executed by Snyder. The beneficial interest in and power of direction over the land trust was wholly unaffected by any right of first refusal. The Markiewiczes owned the entire beneficial interest, free and clear, and were entitled, without restriction, to direct the trust’s affairs. Even Inland concedes that the right of first refusal is not an interest which encumbers the power of direction of the trust.

Inland also attempts to rely on the following clause:

“The property is free of violations, and the interior and exterior structures are in a good state of repair, free of leaks and structural problems. The property is in full compliance with City and County ordinances, and no one has a lease that exceeds the normal one-year term at current market rents, nor has an option to purchase or extend.”

The clause clearly indicates that the phrase “option to purchase or extend” refers back to the word “lease.” Since the Marcys’ right of first refusal was not part of a lease, this clause does not protect Inland. We, therefore, affirm the summary judgment granted against Inland.

For the foregoing reasons, we reverse the vacation of the default judgment order entered against the Markiewiczes as to liability and reinstate that order and we reverse the summary judgment granted in favor of the Markiewiczes and against the Marcys and affirm the summary judgment granted in favor of the Markiewiczes and against Inland.

Affirmed in part; reversed in part and remanded.

CAMPBELL and MANNING, JJ., concur.


text:
    MYRA STENNIS, as Mother and Next Friend of Marcus Stennis, a Minor, Plaintiff-Appellee, v. CHRIS REKKAS, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0471
    Opinion filed July 27, 1992.
    Rehearing denied October 2, 1992.

      Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Ellen Keefe-Garner, Mary Elisabeth Ruether, and John M. Stalmack, of counsel), for appellant.

      John G. Phillips & Associates, of Chicago (John F. Klebra and J.W. Mitchell, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Myra Stennis, as mother and next friend of minor Marcus Stennis, brought suit in the circuit court of Cook County against defendant Chris Rekkas, M.D., for injuries Marcus sustained during his birth. Following a jury trial, a verdict was rendered in favor of plaintiff; defendant now appeals. For the reasons which follow, we affirm.

The record on appeal contains the following facts. On December 29, 1979, plaintiff filed a medical malpractice action against defendant, arising out of treatment provided to Myra and Marcus on September 8, 1976. The initial complaint alleged that as a result of Dr. Rekkas’ acts or omissions, Marcus suffers from a permanent paralysis in his right arm. The complaint was later amended to include a count alleging res ipsa loquitur. Dr. Rekkas denied all of the above allegations.

During the course of pretrial discovery, Dr. Rekkas requested the names and opinions of any experts plaintiff intended to call as witnesses at trial. Plaintiff eventually identified Dr. Allan Charles as her liability expert.

Dr. Charles was deposed on September 16, 1983. At his deposition, Dr. Charles testified that he was an obstetrician and gynecologist and that the medical background provided to the defense in his curriculum vitae was current. Dr. Charles testified that in connection to this lawsuit, he had reviewed delivery records from Saint Mary of Nazareth Hospital, nursery records, records from Children’s Memorial Hospital and Dr. Rekkas’ deposition transcript. He had also reviewed certain texts and articles in forming his opinions about the case. He had not relied on verbal information outside these records, including information provided by plaintiff’s counsel.

Dr. Charles opined that Dr. Rekkas had deviated from the standard of care in delivering Marcus because the records he reviewed indicated that Marcus had a permanent brachial plexus injury. Dr. Charles explained that the injury indicated lack of the proper maneuvers for delivery of a “tight shoulder.” Dr. Charles identified two maneuvers which could be performed in such a case. The first maneuver, according to Dr. Charles, was the “tight ring,” in which the child’s position is rotated — similar to a corkscrew effect — to move the child’s shoulders into a position conducive to delivery. The second maneuver would be to reach into the mother’s vagina and sweep the child’s posterior arm across the child’s chest, thereby reducing the diameter of the shoulder girdle.

Dr. Charles also opined that Marcus had a fractured humerus as well as the extensive brachial plexus injury, and that these injuries indicated that excessive force was applied during the delivery of the shoulders. Dr. Charles indicated that he had no other opinions relating to a deviation from the standard of care in this case.

Following a motion for partial summary judgment, the case was allowed to proceed to trial on the theories of: (1) failure to perform proper maneuvers; (2) exertion of excessive force during delivery; and (3) res ipsa loquitur. The trial court also considered a number of motions in limine. The trial court ruled that Dr. Rekkas could have an order barring criticism of the use of fundal pressure during delivery. The trial court denied Dr. Rekkas’ motion in limine to bar testimony concerning the fact that Marcus bit his nails, accepting plaintiff’s argument that the fact that Marcus did so until he bled showed the loss of feeling in Marcus’ fingers. The trial court granted Dr. Rekkas’ motion to bar testimony that Marcus suffered brain damage or cognitive difficulties as a result of the delivery, for there was no expert testimony on the subject.

The case proceeded to trial on September 28, 1989. Myra Stennis testified that while pregnant with Marcus, she noticed labor pains and contractions in the early morning hours of September 8, 1976. She called Dr. Rekkas at about 8:30 or 9 a.m. Dr. Rekkas advised her to stay home and call him when the contractions were five minutes apart. Myra testified that the contractions were five minutes apart at about 6 p.m. that evening.

Myra and her husband arrived at the hospital at about 7:40 p.m. that evening. Myra was taken to the delivery room and prepared for the delivery. Dr. Rekkas arrived at about 8:10 p.m. About 5 or 10 minutes later, Dr. Rekkas stated that he could see the child’s hair. Dr. Rekkas told Myra to push and told two nurses to push down on Myra’s stomach. Marcus was delivered; Myra testified that she could not see what Dr. Rekkas did during the delivery due to a sheet placed over her legs.

The next morning, a nurse brought Marcus to Myra for a feeding. After unwrapping Marcus, Myra noticed that his right eye was partially closed and his right arm was lying by his side. Myra asked the nurse what was wrong with Marcus’ arm; the nurse said that she did not know and referred Myra to the doctor.

Myra testified that she saw Dr. Rekkas later that same morning and asked him about the problem with Marcus’ arm. When Myra was asked what Dr. Rekkas said, Myra did not complete an answer, and a short recess was called at the request of plaintiff’s attorney. Outside the hearing of the jury, the trial judge asked Myra if she would try not to cry on the stand. The trial judge acknowledged that this must be difficult for Myra and stated that he did not like to tell a witness how to act on the stand because credibility is an issue in every case. However, the trial judge opined that the appellate court sometimes held that a weeping witness may unduly influence a jury and grant a retrial. Myra indicated that she would try not to cry again.

Continuing her testimony before the jury, Myra stated that Dr. Rekkas told her that it was a hard delivery and that he had to pull on Marcus to get him out. Dr. Rekkas recommended to Myra that she take Marcus to a pediatrician after she was discharged from the hospital. Myra took Marcus to a pediatrician the day after her discharge. The pediatrician advised Myra to take Marcus to Children’s Memorial Hospital. Myra stated that she has taken Marcus to a number of doctors, therapists and hospitals over the years. Myra testified that Marcus has a condition called Klumpke’s paralysis and that the condition of his arm has remained basically the same since birth.

Myra further testified that as a child, Marcus used to bite his hand and fingers. On three occasions, Marcus bit a plug of skin out of the palm of his hand. His hand became infected twice. Marcus would bite his fingernails completely off and would bite them until they bled. His fingernails have become infected at least 30 or 40 times over the past 13 years. Marcus had difficulty learning to write; he held the paper in place with the bottom part of his right forearm. He can hold a toothbrush with the thumb and index finger of his right hand, but he cannot hold heavy objects in those fingers. At age 13, Marcus cannot tie his shoes by himself; Myra assists him. Myra washes Marcus’ hair, which remains dirty when Marcus attempts to wash it himself. Marcus helps with household chores, such as vacuuming and putting dishes in the dishwasher. Marcus can eat with his left hand, but Myra still cuts his food because Marcus accidentally cut his arm on one occasion.

According to Myra, when Marcus first started school, the other children made fun of Marcus and he would come home crying; this was no longer a problem. Marcus plays basketball, football and baseball with the other kids, albeit with limitations. If Marcus swings his right arm, he can get it over his head, but can only raise it himself to chest level. Once, Marcus told Myra he did not want to go to therapy and that he wanted a doctor to remove his right arm because it did not serve any purpose.

Dr. Rekkas testified as to his professional background, including the fact that he has been board certified in obstetrics and gynecology since 1969. On September 8, 1976, Dr. Rekkas was called at home in the evening regarding Myra’s pending delivery. Dr. Rekkas testified that he drove to the hospital, went to the delivery room and prepared for the delivery. As he entered the delivery area, Dr. Rekkas could see that a large part of the fetal scalp was visible at the vagina. Dr. Rek-kas gave a regional anesthetic to numb the area around the birth canal, then made an incision in the vulva to enlarge the vaginal opening and prevent tissue tearing during delivery. Myra gave a push; Marcus’ head delivered. Dr. Rekkas suctioned mucus from Marcus’ nose and mouth and told Myra to push again.

Dr. Rekkas testified that at this point in the delivery, Marcus rotated in the birth canal; Marcus’ right shoulder was pointed toward the ceiling, his left toward the floor. Dr. Rekkas asked Myra to push while he gently pressed down on Marcus’ head. Dr. Rekkas repeated this maneuver after asking Myra to push harder and asking a nurse to apply pressure over the upper uterus. These efforts were unsuccessful attempts to get Marcus’ shoulder under the arching bone structure which ties Myra’s pelvic bones together in the front.

Dr. Rekkas realized that this was a case of shoulder dystocia. He then attempted to rotate Marcus to an oblique angle which would facilitate delivery. Marcus, however, did not move and was beginning to turn blue. Dr. Rekkas then reached into the underside of the birth canal in an attempt to extract Marcus’ left arm. During part of this attempt, Dr. Rekkas applied suprapubic pressure to Myra’s lower abdomen, while nurses applied lateral pressure to her upper abdomen. Marcus then rotated 180 degrees in the birth canal and was delivered.

On cross-examination, Dr. Rekkas testified that he touched Marcus’ right shoulder only during the unsuccessful first attempt at delivery. Dr. Rekkas denied that he ever put his fingers underneath Marcus’ right arm. Dr. Rekkas testified that to do so might cause damage to the child’s nervous system.

Dr. Charles testified as to his professional qualifications as an obstetrician and gynecologist. Dr. Charles stated that the incidence of shoulder dystocia is somewhere between 1 in 500 and 1 in 1,000. He also stated that the incidence of Klumpke’s paralysis is very rare, occurring in about 2% or 3% of all brachial plexus injuries, resulting in an incidence of about two cases out of every 100,000 births.

Dr. Charles then testified that he had reviewed hospital records of the delivery, records from Children’s Memorial Hospital and Dr. Rek-kas’ deposition in connection with this case. Dr. Charles also stated that he later received other documents, at which time an objection was heard outside the presence of the jury. The trial court ruled that Dr. Charles could not be asked about matters not disclosed to the defense in discovery interrogatories. The trial court also ruled that Dr. Charles could not testify to opinions based on Dr. Rekkas’ trial testimony.

Resinning his testimony before the jury, Dr. Charles opined that Dr. Rekkas deviated from the standard of care required of Marcus’ delivery. Dr. Charles testified that Marcus’ injury was such that it had to be sustained as the result of an improper maneuver. When asked what there was about the injury that led Dr. Charles to conclude that an improper maneuver had been performed, Dr. Charles stated that Marcus sustained an injury to the lower part of the brachial plexus, resulting in Klumpke’s paralysis, which only occurs in 2% to 3% of brachial plexus injuries. Dr. Charles explained that the brachial plexus is a group of nerves located in the neck area which run under the muscles of the chest into the wall of the armpit and then spread out into the muscles of the arm and hand.

Dr. Charles opined that the only way Marcus’ injury could have been caused was if fingers were hooked into Marcus’ armpit, at which time defense counsel objected. In a sidebar, defense counsel argued that Dr. Charles did not give anything specific in his deposition and never mentioned hooking fingers into Marcus’ armpit as a cause of the injury. Plaintiff’s attorney responded that Dr. Charles was asked in his deposition only whether he saw anything specific in Dr. Rekkas’ deposition or records which indicated a deviation from the standard of care. Plaintiff’s attorney also noted Dr. Charles’ deposition testimony regarding excessive force. The trial court overruled the objection.

Dr. Charles then testified that the only plausible explanation for the injury was that fingers were hooked into Marcus’ armpit from below and that excessive force was used to pull Marcus down, rather than pushing against the chest wall. In response to a hypothetical question, Dr. Charles opined that Marcus’ injuries could not have occurred if the right arm delivered itself naturally while the delivering physician manipulated only the left arm. Dr. Charles also opined that suprapubic pressure could not have caused the injury. Over objection, Dr. Charles further opined that if the nurses had provided fundal pressure during the delivery, this would not have caused the injury. Dr. Charles also ruled out lateral pressure and the natural forces of childbirth as causes of the injury.

Dr. Charles then testified as to the maneuvers that should be performed in a case of shoulder dystocia. First, the doctor should attempt to rotate the child’s shoulders to an oblique angle. Second, the doctor should attempt to rotate the child 180 degrees with a corkscrew maneuver. Finally, the doctor should slide his or her hand into the hollow of the mother’s sacrum and attempt to deliver the lower shoulder.

On cross-examination, Dr. Charles admitted that Marcus did not have a fractured humerus after delivery, as Dr. Charles had stated in his deposition testimony. Dr. Charles agreed that his deposition did not contain specific criticisms of Dr. Rekkas. Dr. Charles also admitted that the pediatrician’s report and a pediatric neurologist’s report in this case carried indications that Marcus probably suffered from Erb’s palsy. Dr. Charles further admitted that Erb’s palsy is not always the result of negligence.

On redirect examination, Dr. Charles stated that he was mistaken in his prior testimony regarding whether Marcus’ humerus was fractured. Dr. Charles then explained the difference between Erb’s palsy and Klumpke’s palsy. An Erb’s palsy involves the upper brachial plexus and results in paralysis of the entire arm. A Klumpke’s palsy involves the lower brachial plexus and results in a loss of nerves to the hand itself. Dr. Charles stated that Klumpke’s palsy is likely to result from forceful hyperextension of the arm during delivery.

Dr. Robert Eilers testified that during an examination of Marcus performed in September 1985, he concluded that Marcus had a Klumpke’s palsy. Dr. Eilers testified that Marcus’ injury included a loss of sensation in the middle and ring fingers and a loss of muscle function in terms of wrist extension. Dr. Eilers stated that with this type of injury, grip strength is possibly gone, wrist extension is impaired and the ability of the triceps muscle to push out is injured. He also testified that Marcus will have problems with fine motor coordination, including using the fingers to appropriately grasp objects such as knives or to button buttons. He further testified that Marcus will have trouble pushing open a door with the injured arm and will have a problem pushing himself up from a chair. Dr. Eilers testified that Marcus cannot straighten his arm beyond a 45 degree angle; surgery would allow the arm to hang more cosmetically, but would not restore the function of the arm. Dr. Eilers stated that the injury was permanent. He also stated that physical therapy would be required to maintain the range of motion and to avoid further contracture of the arm and osteoporosis. On cross-examination, Dr. Eilers admitted that in a prior deposition, he had stated that Marcus may also have Erb’s palsy.

Marcus Stennis testified that he was then 13 years old. Marcus testified that he played football, basketball and baseball. In baseball, Marcus would catch the ball with his glove on his left hand, palm the ball with his right hand, pull the glove off with his arm and then throw the ball to the right person. Marcus grips the baseball bat with his left hand on the bottom and the right on top. Marcus catches a football by extending his arms and not letting the ball hit his chest. Marcus cannot shoot a basketball using only the right hand.

Marcus testified that other kids at school used to tease him and call him a cripple, but it didn’t bother him and it did not happen as often today. Marcus demonstrated how he removes his jacket and unsuccessfully attempted to tie his shoelaces. Marcus also demonstrated the range of use of his arm and hand. He later demonstrated how he uses a toothbrush. Marcus testified as to a reduction in feeling in his right hand and portions of his right arm. Marcus also testified about infections resulting from biting his fingers and hand. Marcus stated that he once burned himself while cooking because he felt the heat of the pan, but did not feel pain. There was no cross-examination.

The parties stipulated that Marcus could expect to live for another 55.6 years, based on the Vital Statistics of the United States 1980 tables.

After plaintiff rested her case, Dr. Rekkas moved for a directed verdict. The motion also sought to strike Dr. Charles’ testimony for giving opinions beyond the scope of his deposition. The trial court denied the motion both at this time and when the motion was renewed at the close of the case.

Defendant called another obstetrician and gynecologist, Dr. Robert Bouer, as his expert witness. Dr. Bouer agreed that Marcus suffered from a brachial plexus injury. However, Dr. Bouer testified that in evaluating whether Dr. Rekkas had met the applicable standard of care, it did not matter whether Marcus had Erb’s or Klumpke’s palsy, because they are the same type of general injury, resulting from a stretching of the nerves. Dr. Bouer testified that brachial plexus injuries have occurred in cases of hard contractions of the mother and in cases of normal delivery, but plaintiff’s objections to testimony concerning Caesarean section deliveries and cases other than shoulder dystocia were sustained. Dr. Bouer testified that the mere occurrence of a brachial plexus injury does not mean that the delivering physician was negligent. Dr. Bouer opined that Dr. Rekkas had not deviated from the applicable standard of care and that the maneuvers Dr. Rek-kas had described were proper.

On cross-examination, Dr. Bouer admitted that Klumpke’s palsy only occurs in about 3% of all brachial plexus injuries. Dr. Bouer stated that a drooping of the eye on the affected side is more associated with Erb’s palsy than Klumpke’s palsy. However, Dr. Bouer admitted that Dr. Greenhill’s book on obstetrics, which Dr. Bouer had looked at in regard to this suit and which Dr. Bouer had seen people use in medical school, stated that a drooping of the eyelid on the affected side is associated with Klumpke’s palsy. Dr. Bouer testified that he did not believe that Klumpke’s palsy was especially apt to result from forceful hyperextension of the shoulder during delivery. However, after plaintiff’s counsel directed Dr. Bouer’s attention to a contrary opinion in Dr. Greenhill’s book, Dr. Bouer stated that he did not have knowledge of that neurological position.

Following closing arguments, the jury deliberated and returned a verdict on October 3, 1979. The jury found for the plaintiff in the amount of $1,875,000. On November 14, 1989, the trial court granted Dr. Rekkas’ motion for setoff, thereby reducing the verdict to $1,850,000. On January 17, 1990, the trial court denied Dr. Rekkas’ post-trial motion for judgment notwithstanding the verdict or new trial. Dr. Rekkas timely filed a notice of appeal to this court.

I

On appeal, defendant seeks a new trial or remittitur. A trial court’s ruling on whether a new trial should be granted will not be reversed unless the verdict is against the manifest weight of the evidence. (See Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969, 973.) A verdict is deemed to be against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based on any of the evidence. (Villa, 202 Ill. App. 3d at 1089, 560 N.E.2d at 973.) This court may consider whether any errors in the exclusion or admission of evidence were sufficiently serious and prejudicial errors to warrant a new trial. (See Bartlett Bank & Trust Co. v. McJunkins (1986), 147 Ill. App. 3d 52, 63, 497 N.E.2d 398, 406.) A general verdict will not be set aside so long as one ground suffices to sustain the verdict “unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.” Ill. Rev. Stat. 1987, ch. 110, par. 2—1201(d); see Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.

A

Defendant contends that the trial court erred in admitting a number of Dr. Charles’ opinions, arguing that they were inconsistent with or beyond the scope of Dr. Charles’ deposition testimony. Illinois Supreme Court Rule 220 provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (134 Ill. 2d R. 220(d).)

(See also Friedland v. Allis Chalmers Co. of Canada (1987), 159 Ill. App. 3d 1, 7, 511 N.E.2d 1199, 1204 (trial court barred testimony that expert reviewed X ray and myelogram films where expert stated the contrary at deposition).) This rule also requires the parties to seasonably supplement answers to interrogatories as additional information becomes known to them or their attorneys. (134 Ill. 2d R. 220(c)(3).) This court has applied this requirement to expert witnesses. (Ramos v. Pyati (1989), 179 Ill. App. 3d 214, 228, 534 N.E.2d 472, 480.) Typically, decisions regarding sanctions for violations of discovery rules rest within the discretion of the trial court. See 134 Ill. 2d R. 219(c).

The restrictions of Rule 220 may be enforced by a motion in limine, a potent weapon which seeks to exclude inadmissible evidence at trial. However, oral in limine motions and orders provide fertile ground for confusion; consequently, motions and orders in limine should be clearly and specifically outlined in writing. An order in limine, like any other interlocutory order, is subject to reconsideration by the court throughout the trial. The trial court should correct or interpret the order to allow a party to present his or her case while excluding inadmissible evidence. (See Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 340-41, 514 N.E.2d 532, 538.) A violation of an order in limine may warrant a new trial only where the order is specific and the violation is clear. See In re Estate of Loesch (1985), 134 Ill. App. 3d 766, 770, 481 N.E.2d 32, 35.

1

Defendant first objects to Dr. Charles’ testimony that Marcus suffers from Klumpke’s palsy. The record indicates that defendant did not object to this opinion when it was given at trial. Thus, defendant has waived this objection on appeal. Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 472, 558 N.E.2d 216, 225.

Even if defendant had preserved the argument, it is not clear that the opinion should have been excluded. Defendant has not identified the relevant order in limine and admits in his brief that the motion on which it was based does not appear in the record on appeal. The record indicates that during a sidebar at trial, the trial court limited the opinions Dr. Charles could give. Nevertheless, the record also indicates that Dr. Charles’ deposition testimony was that Marcus suffered from a brachial plexus injury. It is undisputed that Klumpke’s palsy is such an injury. Thus, the trial opinion appears on its face to be an elaboration on the deposition opinion, which would not violate Rule 220. See McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 1001, 548 N.E.2d 461, 474.

Defendant contends that the opinion should not have been admitted because Dr. Charles could not have opined that Marcus had Klumpke’s palsy, based on the records and evidence supplied to him at the time of the deposition. Thus, unlike McGuckin, the opinion could not have been elicited at the deposition through the use of more specific questions. This argument appears to be supported by the record. Nevertheless, the record also indicates that Myra had already testified that she had taken Marcus to numerous physicians and therapists and that Marcus had Klumpke’s palsy. Although this statement was possibly hearsay, defendant did not object to it, thus allowing it to be given its natural probative effect. (E.g., Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 508, 475 N.E.2d 879, 883.) Moreover, the record shows that Dr. Eilers also diagnosed Marcus as having Klumpke’s palsy. Thus, even if Dr. Charles’ opinion was based on facts and data obtained after his deposition, the opinion was merely cumulative of other testimony and not unfairly prejudicial.

2

Defendant next contends that the trial court erroneously allowed Dr. Charles to testify that there are two types of brachial plexus injuries, Erb’s palsy and Klumpke’s palsy, and that the former is not always caused by negligence of the delivering physician, but the latter is always caused by negligence. Again, defendant failed to object to such testimony when it was given and appears to have waived the objection on appeal. Hunter, 200 Ill. App. 3d at 472, 558 N.E.2d at 225.

Even if defendant had not waived the argument, the record indicates that Dr. Charles’ opinion on this point was not inconsistent with his deposition testimony, for defendant did not ask Dr. Charles about the different types of brachial plexus injuries. Moreover, the opinion that Klumpke’s palsy is always caused by negligence is general in nature and would not depend on which records Dr. Charles reviewed in this case. Thus, this opinion did not violate Rule 220.

3

Defendant’s third evidentiary objection is to Dr. Charles’ opinion that the only way the injury logically could have occurred was if Dr. Rekkas had hooked his fingers into Marcus’ armpit and used force to pull Marcus down during the delivery. Defendant contends that this opinion should have been barred because plaintiff’s attorney had represented to defendant and the trial court that Dr. Charles did not have a specific criticism about the maneuvers Dr. Rekkas used in delivering Marcus. A misrepresentation by an attorney regarding the scope of expert testimony may serve as a basis for limiting or striking a witness’ surprise testimony. See Ramos, 179 Ill. App. 3d at 229-31, 534 N.E.2d at 482.

The record indicates that the following discussion was had during a sidebar at trial:

“[DEFENSE COUNSEL]: You had his [Dr. Rekkas’] discovery deposition. He [Dr. Charles] reviewed his [Dr. Rekkas’] discovery deposition, he relied on it. He didn’t have any specific criticism about it either at the time he took this deposition.
[PLAINTIFF’S ATTORNEY]: That’s right. And he still doesn’t.” (Emphasis added.)

The record therefore indicates that plaintiff’s attorney represented that Dr. Charles had no specific criticism based on Dr. Rekkas’ deposition and did not represent that Dr. Charles had no specific criticism of Dr. Rekkas’ performance whatsoever.

Nevertheless, the record shows that Dr. Charles’ deposition testimony contained no specific criticism of Dr. Rekkas. Moreover, it is unclear from Dr. Charles’ deposition whether his opinion that excessive force had been used stemmed solely from his mistaken impression that Marcus’ arm had been fractured or whether this opinion also related to the brachial plexus injury itself. It therefore seems possible that Dr. Charles’ trial testimony that Dr. Rekkas must have slipped his fingers into Marcus’ armpit may have surprised Dr. Rekkas.

Yet even if this court were to assume both that this opinion should have been disclosed before trial and that the admission of that opinion was error, a new trial would not be required. It is undisputed that one of the theories advanced by plaintiff at trial was res ipsa loquitur. The record shows that evidence was admitted from which a jury could conclude that: Marcus suffers from Klumpke’s palsy; the injury was received while the delivery of the shoulder dystocia was under defendant’s control and management; and in the normal course of events, the injury would not have occurred if the defendant had used ordinary care during the delivery of the shoulder dystocia. Given this record, the jury may have based its verdict for plaintiff on the res ipsa loquitur theory. Thus, even if admitting the opinion regarding excessive force applied to Marcus’ armpit were deemed error, a new trial would not be mandated in this case. Ill. Rev. Stat. 1987, ch. 110, par. 2—1201(d).

4

Fourth, defendant objects to a number of opinions that the following could have not caused the injury in this case: (1) fundal pressure; (2) suprapubic pressure; (3) lateral pressure; and (4) the natural forces of childbirth. The record indicates that defendant’s sole objection to these opinions at trial was to the opinion regarding the nurses’ use of fundal pressure during the delivery. Accordingly, the other objections are waived.

Even assuming arguendo that they were not waived, defendant’s argument is not persuasive. The record shows that Dr. Charles was not asked about these topics at his deposition; thus, Dr. Charles could render an opinion on these topics at trial without violating Rule 220. (Crawford County State Bank, 161 Ill. App. 3d at 342, 514 N.E.2d at 538-39.) Moreover, the record indicates that the trial court stated in a hearing on the motions in limine that defendant could have an order barring criticism of the use of fundal pressure, not that a written order was entered. Even if such an order had been entered, the record indicates that Dr. Charles testified that these techniques could not have caused the injury, which does not appear to be a criticism of their use.

In sum, defendant has waived a number of the evidentiary objections he has raised on appeal by failing to object at trial. Defendant also has failed to show that the admission of Dr. Charles’ opinions was reversible error.

B

Defendant also claims that the trial court erroneously admitted speculative testimony on damages. Defendant claims that the verdict was influenced by testimony concerning Marcus’ nail biting and his desire to have his arm cut off.

Defendant relies on Lauth v. Chicago Union Traction Co. (1910), 244 Ill. 244, 251, 91 N.E. 431, 434, in which our supreme court stated that evidence of future damages cannot be admitted unless the consequences relied upon are reasonably certain to result. However, defendant’s premise—that the testimony in this case that Marcus bit his fingers, hand and fingernails until they bled and became infected was introduced to show that the injury caused the nail biting—is flawed. The evidence could be introduced to show the extent of the loss of feeling in Marcus’ hand, which is a current disability. Thus, the trial court did not err in permitting this testimony, even if the nail biting was a voluntary habit.

As for Myra’s testimony that Marcus once told her that he would like the injured arm removed because it served no purpose, the record indicates that defendant’s motion in limine to bar this testimony was denied, but that the trial court indicated that it would rule on any hearsay problems as they came up. The record further indicates that defendant did not object to this testimony at trial. Thus, the argument is waived on appeal.

II

Defendant next contends that the trial court erred by allowing plaintiff’s attorney to make misstatements of law and prejudicial remarks regarding the issue of damages during closing arguments. Although it is the function of the trial court to instruct the jury as to the law, attorneys can, and necessarily must, state what they believe the law to be and base their factual arguments on that interpretation. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 748-49, 464 N.E.2d 866, 868.) Nevertheless, an attorney may not mislead the jury with such remarks. (See Lounsbury, 124 Ill. App. 3d at 749, 464 N.E.2d at 868.) In general, the permissible scope of argument rests within the discretion of the trial court and will not be reversed absent a clear abuse of that discretion. (Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 1043, 510 N.E.2d 1208, 1212.) Although improper closing arguments may warrant a new trial, this court generally grants a new trial only where the arguments were clearly improper, prejudicial and denied the complaining party a fair trial when that trial is viewed in its entirety. See Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 581-82, 573 N.E.2d 1315, 1334.

Defendant claims that plaintiff’s attorney misstated the burden of proof in a civil case and improperly mentioned the burden of proof applicable in civil cases. The transcript of proceedings indicates the following argument was made:

“[PLAINTIFF’S ATTORNEY]: Now, the term burden of proof sounds like it might be something insurmountable. And in some cases it might be. But in this case it’s not. All that burden of proof means is that the plaintiff has to show you evidence from which you conclude that a particular thing is more probably true than not true.
After the plaintiff does that, the plaintiff has met the burden of proof that the law requires.
If you think of it in terms of a balance beam scale—
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Overruled.
[PLAINTIFF’S ATTORNEY]: Where both sides start out even, you place all of Marcus’ evidence on one side and you place any of Dr. Rekkas’ evidence on the other side. If that scale moves at all, at all, towards the plaintiff, then you must find in the plaintiff’s favor.
This isn’t a case where you have to be convinced of something beyond any doubt or beyond a reasonable doubt as is required in TV shows and in criminal cases.
The law says that in a civil case, some doubt is all right.
[DEFENSE COUNSEL]: Objection, your honor.
THE COURT: The objection to that is sustained. I’ll instruct them as to the law.
[PLAINTIFF’S ATTORNEY]: As long as you are convinced that a particular proposition or a particular fact is probably more true than not true.”

On appeal, defendant claims that the reference to “all” of plaintiff’s evidence as against “any” of defendant’s evidence misstates the civil burden of proof. The record shows that defendant objected to the “balance beam scale” metaphor before plaintiff’s attorney referred to “any” or “all” of a party’s evidence. Yet in Lounsbury, upon which defendant relies, this court held that a trial court erred in preventing an attorney from using a similar “scales of justice” metaphor. (Lounsbury, 124 Ill. App. 3d at 749, 464 N.E.2d at 869.) Consequently, the trial court’s ruling was correct when it was made.

Even if this court were to assume that defendant was presciently objecting to the “all”/“any” comparison, and were to assume further that the comparison was improper, the portion of the record quoted above indicates that plaintiff’s attorney correctly stated the burden of proof both before and after the disputed comment. (See Lounsbury, 124 Ill. App. 3d at 751, 464 N.E.2d at 870.) The record also indicates that this comment was brought to the trial court’s attention in defendant’s post-trial motion. Generally, this court will defer to the decision of the trial court, which heard the argument and observed any effect it had upon the jury, as to whether the argument was so prejudicial as to warrant a new trial. (See Carlasare v. Wilhelmi (1985), 134 Ill. App. 3d 1, 7, 479 N.E.2d 1073, 1077.) Given the record on appeal, defendant has failed to demonstrate reversible error in this instance.

Plaintiff’s attorney’s reference to the burden of proof in criminal cases was not proper because it is immaterial and may confuse the jury. (Lounsbury, 124 Ill. App. 3d at 750, 464 N.E.2d at 869.) Even so, this court will not reverse the jury’s verdict unless the argument unduly prejudiced defendant or unduly affected the outcome of the trial, especially where defendant has not claimed that the verdict is against the manifest weight of the evidence. (Lounsbury, 124 Ill. App. 3d at 750-51, 464 N.E.2d at 869-70.) The record indicates that defendant’s objection to this argument was sustained. Although the trial court did not specifically instruct the jury to disregard the remark at the time it was made, the trial court did state that it would instruct the jury as to the law at that time. Moreover, defendant explicitly states in his reply brief that he is not claiming that the verdict was against the manifest weight of the evidence. Consequently, the remark does not warrant a new trial.

Defendant next claims that plaintiff’s attorney misstated the law regarding future lost wages. The record indicates that defendant did not object to this argument at trial. Accordingly, defendant has waived the argument on appeal.

In any event, the argument is not persuasive. The comment to which defendant objects was: “From the mere fact that a minor was injured, the law allows you to infer that it’s going to affect his em-ployability.” Defendant notes that the applicable jury instruction allows this inference when the injury is permanent. However, the record indicates that Drs. Charles and Filers testified that the injury was permanent and defendant has failed to identify any evidence to the contrary. Thus, the remark did not affect the outcome in this case.

Defendant further argues that plaintiff’s attorney improperly referred to an unrelated case on the issue of damages. Defendant’s objection on this point was overruled.

The record indicates that plaintiff’s attorney referred to a case involving Texaco and Exxon, mentioning a verdict of $60 billion “or whatever it was they came up with.” Plaintiff’s brief identifies this as a reference to a case involving Pennzoil and Texaco concerning a breach of contract. It would appear that plaintiff’s attorney meant to refer to the litigation encompassing Pennzoil Co. v. Texaco, Inc. (1987), 481 U.S. 1, 95 L. Ed. 2d 1, 107 S. Ct. 1519, which involved a verdict closer to $10 billion. It is typically improper to refer to judgments awarded in other cases. (See Dotson, 157 Ill. App. 3d at 1042, 510 N.E.2d at 1211, citing Richardson v. Nelson (1906), 221 Ill. 254, 77 N.E. 583, overruled on other grounds by People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780.) Nevertheless, the record indicates that the comment was brief and the verdict, while significant, was not in the $60 billion range. Thus, the comment does not warrant a new trial.

Defendant’s next argument in this vein is that plaintiff’s attorney attempted to circumvent a prior ruling of the trial court by implying that Marcus had suffered brain damage. The record indicates that the trial court barred testimony that Marcus suffered brain damage because there was no expert testimony as to causation. The transcript of proceedings indicates that plaintiff’s attorney argued that if Marcus had been born with incapacitating brain damage due to Dr. Rekkas’ negligence, he would be suggesting $30 or $40 million in damages. This argument does not appear to imply that Marcus had brain damage; indeed, the argument suggests that he did not.

Defendant’s final objection to closing arguments is that plaintiff’s attorney improperly expressed his own opinion on the issue of damages. (See, e.g., Robinson v. Wieboldt Stores, Inc. (1982), 104 Ill. App. 3d 1021, 1027, 433 N.E.2d 1005, 1010; Goad v. Grissom (1944), 324 Ill. App. 123, 127-28, 57 N.E.2d 514, 516.) However, argument which merely suggests possible figures to the jury is not always inflammatory or improper. (See Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 391, 420 N.E.2d 232, 238.) The record indicates that plaintiff’s attorney argued: “What would somebody pay not to have to put up with that injury? You say it all the time, I won’t take five million dollars to have my arm like that.” This argument, unlike the argument disapproved in Goad, does not appear to reflect the attorney’s own personal opinion; rather, it refers to “somebody” or “you.” Such argument could be considered improper insofar as the use of “you” could be construed as an attempt to place the jurors in plaintiff’s shoes. (See Robinson, 104 Ill. App. 3d at 1027, 433 N.E.2d at 1010.) On the other hand, the use of “somebody” suggests that counsel meant to refer to the reasonable person standard rather than the attorney’s personal predilection. Such argument would be proper. (See Bruske v. Arnold (1969), 44 Ill. 2d 132, 137-38, 254 N.E.2d 453, 456.) Given this record, we cannot say that this comment warrants a new trial.

In sum, the record indicates that some of the plaintiff’s closing arguments in this case were not proper. However, given the record on appeal, we cannot conclude that these comments warrant a new trial, even when considered in the context of the trial as a whole.

Ill

Next, relying on Stephans v. Chicago Transit Authority (1960), 28 Ill. App. 2d 229, 171 N.E.2d 229, defendant argues that he was prejudiced when Myra began to cry during her testimony, requiring a recess. However, the record indicates that defendant did not move for a mistrial at the time, nor did he object or otherwise indicate that he believed he was prejudiced at the time. Thus, the argument is waived on appeal.

Nor would the argument have persuaded this court if it had been preserved. The question of whether a crying witness prejudiced the complaining party rests within the discretion of the trial court. (German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 986, 451 N.E.2d 903, 909.) Given the record on appeal, which indicates that the trial court was aware that a crying witness can be prejudicial, but was also concerned that unduly restricting Myra might make her appear less credible to the jury, defendant has failed to show an abuse of discretion.

IV

Finally, defendant argues that the damages awarded were excessive. A reasonable balance between the damages awarded and injury suffered should be struck; however, there is no precise rule for awarding damages in personal injury cases because compensation of this sort does not lend itself to mathematical computation. (Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 155, 509 N.E.2d 1295, 1305.) Assessment of damages is a function of the jury; thus, a court will generally not substitute its judgment for that of the jury on this issue. (Haid v. Tingle (1991), 219 Ill. App. 3d 406, 410, 579 N.E.2d 913, 916.) Accordingly, the test for whether a judgment or verdict is excessive is whether the total amount falls within the necessarily flexible limits of fair and reasonable compensation or whether the award is so large as to shock the conscience of the court. (See Lewis v. Cotton Belt Route—St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 123, 576 N.E.2d 918, 940.) Whether the damage award is excessive must be determined from a consideration of the permanence and extent of the injury, possible future deterioration, medical expenses and any restrictions on daily activities imposed by the injury. Young v. Hummel (1991), 216 Ill. App. 3d 303, 310, 576 N.E.2d 1072, 1077.

In this case, the record indicates that the jury awarded damages as follows: (1) $975,000 for disability and disfigurement; (2) $500,000 for loss of earning capacity; and (3) $400,000 for pain and suffering. This $1,875,000 verdict was reduced to $1,850,000 upon Dr. Rekkas’ motion for setoff.

The record in this case shows that plaintiff presented evidence to the jury of the sort required by case law. Given the record, the damages awarded do not shock the conscience of this court.

For the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

O’CONNOR and MANNING, JJ., concur.