author: JUSTICE UNVERZAGT

text:
    MARIA MADEO, Plaintiff-Appellant, v. TRI-LAND PROPERTIES, INC., et al., Defendants-Appellees.
    Second District
    No. 2—91—1448
    Opinion filed December 29, 1992.

      Theodore J. Ansani, of Ansani & Ansani, of Park Ridge, for appellant.
    Peter J. Crowley, of Crowley, Ross & DeMeo, Terence R. Selby and Michael J. Ortyl, both of French, Kezelis & Kominiarek, P.C., and Francis A. Spina, of Tressler, Soderstrom, Maloney & Priess, all of Chicago, for appellee G.B. Maintenance Service, Inc.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Maria Madeo, filed this personal injury lawsuit against defendants, Tri-Land Properties, Inc. (Tri-Land), and G.B. Maintenance Service, Inc. (G.B. Maintenance). Plaintiff alleged in her complaint that she suffered injuries after slipping on a patch of ice in a parking lot that defendant Tri-Land owned and defendant G.B. Maintenance plowed. Plaintiff appeals from the trial court’s grant of summary judgment in favor of defendants. Plaintiff also appeals the trial court’s grant of defendants’ motion to strike portions of plaintiff’s witnesses’ affidavits. We affirm.

On December 29, 1988, plaintiff’s daughter, Marie Wagner, drove plaintiff to the Dominick’s grocery store in Bloomingdale, Illinois. Ms. Wagner parked the car in the lot adjacent to the store. As plaintiff exited the passenger side of the car, she slipped and fell, breaking her arm and sustaining other injuries. In her complaint, plaintiff claimed that defendants negligently plowed the lot, causing an unnatural accumulation of snow and ice to form. According to plaintiff, defendants placed a pile of snow at the high point of the sloped lot. She claimed that when the snow melted during a thaw, the water flowed through the lot toward the drain. She then claimed that the water refroze once the temperature dropped below freezing, causing her to fall.

Defendants moved for summary judgment. According to defendants, plaintiff failed to produce evidence that she slipped on an unnatural accumulation of ice or snow. In opposition to summary judgment, plaintiff presented her own deposition, the deposition of Ms. Wagner, and the deposition of Andrew Lago, who plaintiff claims is an expert in the field of snowplowing. She also presented the affidavits of Ms. Wagner and Mr. Lago. The trial court struck portions of Ms. Wagner’s and Mr. Lago’s affidavits on the ground that they violated Supreme Court Rule 191 (134 111. 2d R. 191). The trial court found that the remaining depositions and affidavits supplied by plaintiff created no genuine issues of material fact and granted summary judgment in favor of both defendants.

A property owner generally owes no duty to its customers to remove snow or ice that accumulates naturally on its premises. (Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 1017.) However, where a property owner undertakes to remove ice or snow, it must exercise ordinary care in doing so. (Webb v. Morgan (1988), 176 Ill. App. 3d 378, 382.) A party who contracts with a property owner to remove snow or ice also owes the customers of that property owner a duty of reasonable care. (Crane v. Triangle Plaza, Inc. (1992), 228 Ill. App. 3d 325, 329; Eichler v. Plitt Theatres, Inc. (1988), 167 Ill. App. 3d 685, 691-92.) Therefore, both G.B. Maintenance and Tri-Land could be liable in this case for either creating an unnatural accumulation of ice or snow or aggravating a natural accumulation of ice or snow. Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 557.

Plaintiff first claims that the trial court was in error for granting defendants’ motion to strike portions of plaintiff’s affidavits. Supreme Court Rule 191 provides:

“Affidavits in support of and in opposition to a motion for summary judgment *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; *** shall not consist of conclusions but of facts admissible in evidence ***.” (134 Ill. 2d R. 191.)

The trial court struck paragraphs 6 and 7 of Marie Wagner’s affidavit where she stated:

“6. When the plowed snow melts, it flows toward the sewer.
7. Prior to December 29, 1988, there had been snow which was plowed, then the snow began to melt, and then the water froze.”

Elsewhere in her affidavit, Ms. Wagner stated that the snow was plowed to the east end of the lot, that the lot was sloped, and that plaintiff slipped on a patch of ice on the slope.

We conclude that paragraphs 6 and 7 of Ms. Wagner’s deposition were conclusions in violation of Rule 191. Ms. Wagner stated no facts within her personal knowledge to support her statement that the snow from the snow bank melted and refroze prior to the date of the accident. As we discuss below, however, even if allowed to stand, these statements do not create a genuine issue of material fact.

The trial court also struck paragraphs 3 and 4 of Andrew Lago’s affidavit where he stated:

“3. The parking lot in question was improperly plowed so that melting snow and water would have to cross the parking lot.
4. That the melting snow and water would travel through the parking area after the snow was plowed to where it was plowed [sic].”

Elsewhere in his affidavit, Mr. Lago stated that the snow was placed at the “pitch of the lot.” Once again, even if paragraphs 3 and 4 were allowed to stand, they do not create a genuine issue of material fact. These statements merely indicate that snow can melt and flow down an incline. As we discuss below, such evidence does not prove that the plaintiff’s injuries resulted from an unnatural accumulation of ice or snow.

Plaintiff next claims that the trial court improperly granted summary judgment in defendants’ favor. A trial court should only grant summary judgment when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Because summary judgment is a drastic remedy, the court should construe the evidence “strictly against the movant and liberally in favor of the opponent.” Purtill, 111 Ill. 2d at 240.

In Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, the plaintiff slipped on a patch of ice in the defendant’s parking lot. As in this case, the defendant in Fitzsimons had plowed the snow: to the high end of a sloped parking lot. Subsequently, alternating periods of thawing and freezing occurred, causing melted snow to flow down the lot’s incline and refreeze. In Fitzsimons, “the defendant’s store manager admitted that ice accumulated in the path of that melting snow [and] that it was on some of this ice that the plaintiff fell.” (29 Ill. App. 2d at 313.) The court in that case found that the plaintiff had produced sufficient evidence to prove that the defendant had negligently caused ice to accumulate unnaturally.

In this case, defendants nowhere admit that the ice that caused plaintiff to slip came from the pile of plowed snow at the east end of the lot. We must decide, therefore, whether plaintiff has produced any evidence that she slipped on ice that had accumulated unnaturally after defendants plowed the snow. Plaintiff supplied meteorological data which indicated that on December 26, 1988, between 6 p.m. and 9 p.m., the temperature climbed above freezing. The data also indicated that the temperature remained above freezing until between noon and 3 p.m. on December 27, 1988. The temperature reached a high of 39 degrees on December 27, 1988. Marie Wagner stated in her deposition that the lot slopes very slightly from east to west. She also stated that on December 29, 1988, the day of her mother’s injury, there was a pile of snow on the east end of the lot. She stated that she “assumes” that melted snow would drip down into the parking lot.

Andrew Lago stated in his deposition that when he viewed the lot a couple of months after the accident, the snow was piled up on the side of the lot farthest from the sewer. This corresponds with Ms. Wagner’s testimony as to how the snow was piled on the day of the accident. Mr. Lago stated that in his opinion the snow should have been piled closer to the sewer so that it would not melt, flow across the lot, and refreeze. He did not know, however, where plaintiff actually fell in relation to the piles of snow. He also admitted that he did not know what caused her to fall.

It is possible in this case that plaintiff slipped on ice that formed when snow from the pile at the east end of the lot melted, flowed across the lot, and refroze. We hold, however, that plaintiff has not supplied any concrete evidence linking that snow pile to the ice that caused her to slip. Plaintiff presented no evidence that could lead a reasonable trier of fact to conclude that the ice resulted from unnatural, rather than natural, conditions.

In Crane v. Triangle Plaza, Inc. (1992), 228 Ill. App. 3d 325, 330-31, we held that the plaintiff’s assumptions about the cause of her injury could not constitute facts in opposition to summary judgment. In Crane, the plaintiff slipped on a patch of ice in the defendants’ parking lot as she exited her car. The defendant in Crane had plowed the snow into a pile adjacent to where the plaintiff had parked her car. The plaintiff claimed that she was “99 and 99/100% sure” that she slipped on ice which had formed when the piled-up snow melted, collected in depressions in the defendant’s lot, and refroze. We found that the plaintiff’s belief as to how the ice formed did not constitute a sufficient “factual basis [for her] assertion that the ice was created by an unnatural accumulation of snow.” (228 Ill. App. 3d at 330.) Summary judgment in favor of the defendant was appropriate because the plaintiffs had failed to show any “nexus,” other than “complete speculation” between the defendants’ piles of snow and the ice where the plaintiff slipped. 228 Ill. App. 3d at 330-31.

In Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217, the plaintiff also slipped on a patch of ice in the defendant’s parking lot. The lot in that case was sloped slightly downward, with the defendant’s store located at the top of the slope. On the day of the accident, the high temperature was 11 degrees Fahrenheit and a light snow had fallen. The plaintiff argued that the salt which defendant placed near the entrance of the store caused snow to melt, flow toward the drain at the low end of the lot, and refreeze by the plaintiff’s car. The court found that the plaintiff’s theory of the case was far too speculative. The plaintiff had not provided evidence that the salt by the entrance to the store produced or could have produced the ice that had formed by the plaintiff’s car. 39 Ill. App. 2d at 225-26.

Webb v. Morgan (1988), 176 Ill. App. 3d 378, 381, illustrates the type of evidence that plaintiff would need to produce in order to defeat defendants’ motion for summary judgment. In Webb, the plaintiff presented expert testimony that the runoff from the piles of plowed snow on the defendant’s lot would likely accumulate in the spot where the plaintiff slipped. The jury, therefore, could reasonably infer that the piles of plowed snow caused the plaintiff’s fall. The plaintiff here might also have defeated summary judgment by producing evidence that the ice where plaintiff slipped formed a sheet extending from the snow pile to the place where she fell. Instead, however, Ms. Wagner stated that her mother fell on a two-foot by three-foot patch of ice.

Plaintiff in this case failed even to present evidence that the piles of snow defendants placed at the east edge of the parking lot could have caused ice to form in the parking lot. Plaintiff has supplied meteorological data which indicated that the temperature was slightly above freezing from the evening of December 26, 1988, until about midday on December 27, 1988. There was also evidence that G.B. Maintenance plowed the lot sometime on December 27. However, there is no evidence that it plowed the lot prior to when the temperature fell below freezing.

Furthermore, plaintiff’s expert failed to provide any evidence that plaintiff slipped on an unnatural accumulation of ice or snow. Mr. Lago stated that he visited the lot a couple of months after the accident. There is evidence that the snow on the day of his visit was piled similarly to the way in which it was plowed on the day of the accident. There is no evidence, however, that the weather conditions on the day of Mr. Lago’s visit were similar to the weather conditions on the day of the accident. Nor did Mr. Lago state that the snow piles he observed appeared to cause an accumulation of ice in the parking lot. Plaintiff also failed to provide expert testimony concerning the steepness of the grade in the lot. Other than stating, in essence, that “water flows downhill,” plaintiff provided no evidence as to how the grade in the lot could have caused water from the snow bank to reach the spot where plaintiff slipped.

Although plaintiff need not prove her case in order to defeat a motion for summary judgment, she must “present some facts to show that the ice was unnatural or caused by defendant.” (Crane, 228 Ill. App. 3d at 332; Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 558.) She must either show a direct link between defendants’ snow piles and the ice that caused her to slip, or she must provide circumstantial evidence through an expert. (See Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 1018.) It is not enough that the plaintiff invites speculation as to the cause of the ice. (Byrne v. Catholic Bishop (1971), 131 Ill. App. 2d 356, 359.) Therefore, the trial court properly granted summary judgment in favor of defendants.

The only defendant to file a brief in this case was G.B. Maintenance. Tri-Land failed to file a brief. However, as a property owner, Tri-Land has no duty to remove natural accumulations of ice and snow from its property. (Burke v. City of Chicago (1987), 160 Ill. App. 3d 953, 956; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 548.) Since plaintiff has not presented facts which would show that an unnatural accumulation of ice and snow caused her injuries, the trial court correctly granted summary judgment in Tri-Land’s favor.

The order of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD P. KAISER, Defendant-Appellee.
    Second District
    No. 2—91—0453
    Opinion filed December 29, 1992.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, Lawrence M. Bauer, and Cynthia N. Schneider, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Dennis Brown and Mark Sikora, both of Driscoll & Driscoll, of Schaumburg, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), the State takes an interlocutory appeal of the circuit court’s order of April 8, 1991, which quashed the State’s subpoena ckices tecum, and resulted in the suppression of the evidence sought by the subpoena. Defendant, Donald P. Kaiser, had moved to suppress the subpoena and suppress the evidence sought on the basis that the State’s use of the subpoena procedure to obtain his medical records was improper and sought to obtain privileged matter. The question presented on review is whether the court’s order granting defendant’s motion to quash and suppress was proper under the circumstances. We affirm.

Defendant was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501), improper backing up (Ill. Rev. Stat. 1989, ch. 95½, par. 11—1402), and improper lane usage (Ill. Rev. Stat. 1989, ch. 95½, par. 11—709). According to the record, defendant was arrested by the Carpenters-ville police for DUI on July 26, 1990. Sometime after his arrest, he was taken to Sherman Hospital in Elgin, Illinois, by the police for a mental evaluation. On February 6, 1991, the State caused to be issued a criminal subpoena duces tecum, commanding the keeper of the records of the hospital to produce the following to be used as evidence: “Any and all medical records pertaining to the hospitalization to Donald P. Kaiser on July 26, 1990. D.O.B. 8/19/36. In lieu of appearance, please send medical records to Joseph Rago, Kane County State’s Attorney’s Office, *** Geneva, Illinois.” The subpoena was served on February 11,1991.

Defendant filed a motion to quash and suppress evidence on March 21, 1991. The motion averred that the State did not apprise defendant of the material sought through the use of the subpoena in the form of a discovery request or motion for discovery prior to the issuance of the subpoena, nor did the State send notice of the issuance of the subpoena. The State apparently received and reviewed the records from the hospital which were alleged to be protected (privileged) under the Mental Health and Developmental Disabilities Confidentiality Act (Act or Confidentiality Act) (Ill. Rev. Stat. 1991, ch. 91½, par. 801 et seq.). On March 21, defendant also filed a motion in limine to bar the introduction of any evidence regarding the test results of defendant’s blood alcohol.

Defendant averred that the State obtained his medical records from the hospital using a subpoena without any knowledge of the existence of any chemical tests and did so without notice to defendant. Because defendant’s records were obtained without his knowledge, he was precluded from objecting on the ground of privilege or as to the manner in which the records were received by the State. Among other things, defendant argued in his motion that the use of the subpoena is not intended as a means of discovery in criminal cases (citing People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259) and that where documents are delivered directly to the State’s Attorney, the subpoena is defective as it improperly circumvents judicial review, particularly as to privileged information, until after the matter has been disclosed (citing People v. Hart (1990), 194 Ill. App. 3d 997).

On March 25, 1991, defendant’s motion to quash and suppress was granted. The cause was continued on the State’s motion for a hearing. The order recited that a second subpoena was issued in accordance with Hart and that all medical records regarding the treatment of defendant were to be returned to the court on April 8, 1991.

The State issued a second subpoena commanding the hospital’s keeper of the records to appear in court and to produce “[a]ny and all medical records, blood test results, etc. regarding the care and treatment of Donald P. Kaiser, DoB 8-19-36, on or about 7-26-90.” The second subpoena was served on March 26, 1991.

Defendant again moved that the subpoena be quashed and the evidence suppressed. In support of his motion, defendant noted that, had defendant been given the opportunity to object to the receipt of the records initially obtained through the improper use of a subpoena duces tecum, the State would have had no knowledge or opportunity to use the information contained in those records and that the present use of the subpoena sought records which were now “tainted.” Further, defendant stated that the demand for all records was overly broad and was not specified in reasonable detail. The State was seeking to obtain privileged medical records through the issuance of a second subpoena initially obtained through an improper “search and seizure,” and defendant characterized the second attempt as one seeking evidence which should be suppressed as the “fruit of the poisonous tree” (citing People v. Davis (1980), 86 Ill. App. 3d 557). Defendant renewed his argument that, in any case, because the material was obtained in the course of treatment, it was the product of a physician-therapist relationship; the material was thereby privileged or protected from disclosure under the Act.

Defense counsel’s affidavit in support of the motion stated that he had a telephone conversation with Helen Stowe, an employee of the hospital. Counsel learned that, in response to the (second) State’s subpoena of March 1991, the hospital gave defendant’s records to the State’s carrier, Wayne Henke, when the subpoena was tendered. The defendant had not authorized the release of the records.

On April 8, 1991, after a hearing, the court impounded the records and quashed the subpoena in reliance on Village of Arlington Heights v. Bartelt (1991), 211 Ill. App. 3d 747. Among other things, Bartelt stands for the following proposition: as an exception to the physician-patient privilege, even though section 11—501.4 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.4) permits the written results of blood-alcohol tests to be admissible in DUI prosecutions when the tests are conducted in the regular course of providing emergency treatment under the enumerated criteria, the nature of the physician-patient relationship is such that the patient has a right to expect that his or her medical records will only be disclosed pursuant to judicially authorized methods of discovery. Bartelt, 211 Ill. App. 3d at 750, citing Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581 (barring ex parte conferences between a physician and the patient’s legal adversary, even where the exception for malpractice cases applies).

The State first argues that the subpoenaed records were admissible under section 11 — 501.4 of the Code and that the trial court improperly relied on Bartelt in quashing the subpoena. In that case, the DUI arrest was not made until some time after the defendant was treated at the hospital and the nurse orally disclosed the results of a blood-alcohol test to the officer; the officer lacked probable cause to arrest until he was made aware of the test results, and the officer had not ordered the test. The State appears to read the holding of Bartelt narrowly to mean that the results were barred solely because they were used to develop probable cause for the arrest. The State urges that Bartelt is distinguishable from the facts of the case at bar because the defendant here had already been arrested on the basis of probable cause.

The State ignores the further holding of Bartelt which states that, even where the Code provides for an exception to the the statutory physician-patient privilege, the privilege will be deemed to apply, rather than the exception for written blood-alcohol tests, because the patient has the right to expect that his or her records will only be disclosed pursuant to judicially authorized methods of discovery. Citing Mapp v. Ohio, the Bartelt court concluded that, absent the improperly disclosed information, there was no probable cause to arrest defendant and affirmed the defendant’s motion to quash. See Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (fourth amendment right of privacy is enforceable against the States through the due process clause and all evidence obtained by unconstitutional searches and seizures is inadmissible in a State court).

In the case at bar, at the hearing on defendant’s second motion to quash and suppress, the court made the following observations:

“THE COURT: I take it that in our case there was no formal request for the blood test similar to the Arlington Heights case?
THE COURT: I have looked at the case. One of the things that makes it fall within all fours in this case is that it was taken not pursuant to a request by the police ordering that the test results be submitted. There is no formal request for a blood test by the police.
MR. BURSH [assistant State’s Attorney]: Correct, your Honor. There is no request by a police officer. That would fall under Chapter 95V2 11 — 501.2 where there is a specific request by the police officer as to the blood results.
THE COURT: Or even if you follow up that test by the administrator at the hospital.
All it seems to say is that normally these results are made available providing that an arrest is made pursuant to the proper statutory section and pursuant to a request for the results of a blood test to be utilized. That was not made in this case. There was never any request for a blood test substantiated under an 11 — 501 charge, counsel, to subpoena the results. ***
THE COURT: But now are we bootstrapping ourself into a conviction or substantiation by the results of a blood test administered sometime after the arrest was made and not pursuant to a request by the police department?”

The State then argued that the results of the blood test were admissible under the Code (section 11 — 501.4) if certain foundational requirements were met.

The court replied:

“THE COURT: Then this [Bartelt] court goes on to say that even if the exception did apply, the nature of the patient-client privilege is such that, unless it was disclosed properly pursuant to an act on behalf of the police department requesting the results of the test at that time, or sometime when it was administered, then it is subject to a Motion to Quash because of the physician-patient privilege.
THE COURT: Well, I am going to quash the results of the blood test and the authority for that is the Village of Arlington Heights case, and to proceed without the existence of a blood test.
That is the ruling of the court.”

The State made an offer of proof in anticipation of the appeal of this ruling. Mary Henry testified that she was present in court in response to the second subpoena and that she was responsible for maintaining the records at the hospital. She brought with her the medical records pertaining to defendant’s treatment on or about July 26, 1990. She acknowledged that the records contained information regarding the mental health treatment of defendant.

On cross-examination, in response to defense counsel’s question whether the records were again released to a State’s Attorney’s carrier that morning, Henry said:

“A. I am sorry, I don’t know the carrier. I know they were released.
Q. Prior to coming here this morning?
A. Yes.
Q. And you have released those records twice; is that correct?
A. Well, yes — once.
Q. And neither time did you have a court order; is that correct?
A. No, not a court order.”

On redirect examination, the following colloquy took place:

“Q. Ma’m, are you aware of the fact that the State’s Attorney’s office, as soon as they received the hospital records that counsel is referring to, that they were immediately returned and that you were advised that you must appear and present the documents to the court?
A. Yes, I do.”

Henry also stated that the records were emergency room records and the matter concerned the diagnosis of defendant. At the conclusion of the hearing, the trial court ordered the records sealed and sustained the motion to quash.

Although the record is less than crystal clear, it appears that defendant’s records were released twice to the State, once each in response to the subpoenas. It is clear from the court’s comments that the ruling was made on the basis that the State’s subpoena procedure was improper and the motion to quash was allowed on the basis of privilege. We believe that there is sufficient evidence in the record to show that the records were in fact privileged. The protection of the Confidentiality Act is broader than the physician-patient privilege, and all communications and records generated in connection with providing mental health services to a recipient are protected unless excepted by law. (Ill. Rev. Stat. 1989, ch. 91½, pars. 802, 803; see R. Ruebner, Illinois Criminal Trial Evidence 131 (2d ed. 1992).) The State has not shown that the matter in question was not privileged. See People v. Sanders (1982), 111 Ill. App. 3d 1, 13, and we analyze this case based on that premise.

The State fails to separate distinctly the potential issues encompassed by the court’s ruling. First, the question of admissibility of the blood-alcohol evidence once foundational requirements have been met is distinct from the question whether the materials were obtained by an improper procedure in the first place or whether the subpoena was otherwise defective because it was “oppressive, unreasonable or overbroad” (Carey, 77 Ill. 2d at 270). In addition, those questions are distinct from whether the court applied the appropriate remedy under the circumstances.

First, it is established law in Illinois that, unlike discovery material, subpoenaed material is ordinarily to be delivered directly to the court because the subpoena is a judicial process or writ of the court. (Carey, 77 Ill. 2d at 265; People v. Walley (1991), 215 Ill. App. 3d 971, 974.) The court then determines the relevance and materiality of the subpoenaed materials, whether they are privileged, and whether the subpoena is unreasonable or oppressive. Walley, 215 Ill. App. 3d at 974.

In People v. Hart (1990), 194 Ill. App. 3d 997, 1002, this court determined that the use of the subpoena procedure similar to the one initially used here was defective in several respects. First, the procedure provided for extrajudicial delivery and inspection of the materials in violation of the principles stated in Carey. By that procedure, the State effectively circumvented any judicial review, particularly as to privileged matter until after it had been disclosed to the State.

Furthermore, the defendant was never made aware of the materials sought by the subpoena duces tecum and was thereby denied any meaningful opportunity to object. (In Hart, the State also failed to cite any authority permitting it to issue a subpoena duces tecum for a nonexistent court date.)

In Walley (215 Ill. App. 3d 971), based on facts similar to those in the present case, this court again addressed the issue of the State's improper use of the subpoena duces tecum in obtaining the defendant’s emergency room medical records. The trial court quashed the original subpoena and barred the State from using evidence obtained as a result of the original improper procedure — including records obtained from a second hospital which only became known through the examination of the records of the first hospital. The trial court found that the sanction was necessary to protect the rights of the defendant and to prevent further abuses by the State.

On appeal, the State contended that the trial court’s ban on the use of evidence obtained, revealed or tainted by the original, admittedly improper, subpoena duces tecum was an excessive and inappropriate sanction. In Walley, we found no abuse of discretion on the part of the trial court and affirmed the exclusion of the evidence as a sanction without determining whether the physician-patient privilege applied as there was another motion pending in the trial court on that issue.

Based on the circumstances of this case, it is clear that the first subpoena was improper and the court properly quashed it and suppressed the evidence derived from that procedure. As to the second ruling, we believe that the trial court was attempting to perform — belatedly because of the State’s improper procedure — the evaluation of the same material sought by the first subpoena. The second subpoena again resulted in the delivery of any and all records regarding the treatment of defendant, who was admitted to the hospital for mental health reasons. Because the court relied on Bartelt in sustaining the motion to quash, it is also clear that the trial court found these records to be privileged and that the privilege applied over the Code’s exception in the absence of a judicially recognized method of discovery.

Except for the citation to section 11 — 501.4 of the Code which pertains to the admissibility of written results of a blood-alcohol test generated during the course of treatment in an emergency room if the foundational requirements are met, the State offers no authority supporting the procedure it used to obtain the records in this case. Indeed, the overall thrust of Hart, Bartelt, and Walley is to the contrary. But for the first subpoena, the very existence of any blood-alcohol test would not have been known to the State since the police brought defendant to the hospital for a mental evaluation and not for the purpose of conducting blood-alcohol tests.

For all practical purposes and effects, the court’s hearing following the issuance of the second subpoena was a continuation of the matter to sustain the quashing of the original subpoena and the fruits thereof. The same material was in question and all of defendant’s records were requested. There was apparently a second delivery of the material to the State. The State argues that the second subpoena should not have been quashed as the tainted fruit of the first subpoena and urges that the second subpoena was not affected by the first. We disagree. Our courts have rejected this type of argument. The sanctions imposed in Walley were premised at least in part on the notion that the evidence revealed was the result of an improper initial subpoena.

Because of the importance of the confidential relationship that exists between a treating physician and patient, ex parte communication regarding the patient without the patient’s consent between the patient’s treating physician and the patient’s legal adversary has been strongly condemned as violative of public policy, and courts will not hesitate to remedy improper disclosures; the use of such “tainted” evidence may result in reversible error. (See Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 202-04, relying on Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581.) The same principle would apply to the therapist-patient relationship. An “after-the-fact” ruling to remedy a breach of trust may not be sufficient to repair the damage done to the confidential physician- or therapist-patient relationship. See Yates, 160 Ill. App. 3d at 203.

There is nothing in the record to show that the State’s issuance of the subpoena in the first instance was anything other than a “fishing expedition” based on speculation that the privileged records might be relevant. (See People v. Williams (1985), 131 Ill. App. 3d 597, 607.) Although the State complains for the first time on appeal that the trial court did not make an in camera inspection, there is no indication that the State ever specifically requested a confidential in camera inspection of the records as provided by the Confidentiality Act (Williams, 131 Ill. App. 3d at 607; Ill. Rev. Stat. 1991, ch. 91½, par. 810). Although the trial court did not explicitly state that the evidence was suppressed as a sanction, there is no doubt that the court could protect its processes in that manner in order to ensure that the defendant has a fair trial. (See Walley, 215 Ill. App. 3d at 974-75.) Our supreme court has emphasized that a court must not hesitate to act on motions to quash subpoenas which are “oppressive, unreasonable or overbroad.” Carey, 77 Ill. 2d at 270.

We cannot say that second ruling was error or that the evidence sought was untainted by the issuance of the first subpoena. At least three recent appellate decisions have put the State on notice that this type of subpoena procedure is impermissible. The State should not now complain that it will not be allowed the use of evidence improperly obtained. To conclude otherwise would be to open the door to further abuses by the State and to deprecate the importance of the defendant’s privacy rights.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
    JEFFERY D. GUY, Plaintiff-Appellant, v. RUBY L. STEURER, Defendant-Appellee.
    Second District
    No. 2-92-0284
    Opinion filed December 31, 1992.

      John M. Driscoll, of Driscoll & Driscoll, of Schaumburg, for appellant.
    John W. Gilligan, Esther Joy Schwartz, Richard W. Schumacher, and Donald E. Stellato, all of Stellato & Schumacher, Ltd., of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Jeffery D. Guy, plaintiff, filed a complaint for damages arising out of an automobile collision with Ruby L. Steurer, defendant. The jury returned a general verdict in favor of defendant. Plaintiff filed a motion for judgment notwithstanding the verdict and a motion for a new trial. Both motions were denied and plaintiff appealed. On appeal, plaintiff seeks a remand for a new trial. For the following reasons, we affirm.

The collision occurred on November 17, 1988, at approximately 4 p.m. at the intersection of Larkin Avenue and Jane Drive in Elgin, Illinois. Larkin Avenue consists of five lanes; two lanes running east, two lanes running west, and a center turn lane. There are no traffic control signals or devices for traffic on Larkin. Jane Drive consists of two lanes, one in each direction running north and south. Traffic travelling south on Jane is controlled by a stop sign at its intersection with Larkin.

Immediately prior to the collision, plaintiff was travelling in his Ford truck in an easterly direction on Larkin Avenue, a preferential road, at approximately 30 miles per hour. Defendant was travelling southbound on Jane Drive in her Chevrolet Celebrity. She approached the intersection at Larkin Avenue, stopped at the stop sign, and looked both ways down Larkin before proceeding into the intersection. Defendant began to cross the intersection very slowly, travelling no more than 10 miles per hour. She slowly accelerated and proceeded across two lanes of westbound traffic and as far as the curb lane of eastbound traffic on Larkin when plaintiffs vehicle struck defendant’s vehicle in the rear of the passenger’s side.

Plaintiff filed a complaint alleging that defendant was negligent in failing to yield the right-of-way, remain stopped at the stop sign when danger was imminent, and keep a proper lookout while operating her vehicle. The jury returned a general verdict in favor of defendant. Plaintiff’s motions for a judgment notwithstanding the verdict and for a new trial were denied, and this timely appeal followed.

There are different standards used in determining whether a judgment n.o.v. should be entered or a new trial granted. Although the trial court denied both plaintiff’s motions for a new trial and for a judgment n.o.v., plaintiff’s notice of appeal states that he only seeks a remand for a new trial. It is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of witnesses, and to decide what weight to attribute to the witnesses’ testimony. (People v. Holmes (1990), 141 Ill. 2d 204, 243.) A reviewing court cannot usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence. (Maple v. Gustafson (1992), 151 Ill. 2d 445, 452-53.) Thus, a jury’s verdict will not be disturbed on appeal and remanded for a new trial unless it is against the manifest weight of the evidence. (Maple, 151 Ill. 2d at 454.) A verdict is against the manifest weight of the evidence when the opposite conclusion is clearly evident or the jury’s findings are arbitrary, unreasonable, and not based upon the evidence. Maple, 151 Ill. 2d at 454; Hays v. Fabian (1992), 231 Ill. App. 3d 203, 206.

In this case, the jury returned a general verdict in favor of defendant. This means that the verdict is silent as to the jury’s reasons for finding in favor of defendant since the jury did not answer any special interrogatories or enter any specific findings of fact. Thus, the jury could have entered judgment for defendant on the basis that (1) defendant was not negligent in proceeding past the stop sign and onto the preferential highway; (2) defendant was negligent, but plaintiff was greater than 50% negligent, thus barring his claim for damages altogether under the modified form of comparative negligence (Ill. Rev. Stat. 1989, ch. 110, par. 2—1116); or (3) defendant’s negligence did not proximately cause plaintiff’s injuries. To sustain his burden of proving that the jury’s verdict was against the manifest weight of the evidence, plaintiff must show that each of the above scenarios is not supported by the evidence.

Under section 11—904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—904(b)), a driver at a stop sign on a road intersecting with a preferential highway must yield the right-of-way to any vehicle approaching so closely on the highway that it constitutes an immediate hazard to his vehicle’s travel across the intersection. This provision has not been construed to impose absolute liability upon a party approaching a stop sign on a nonpreferential road such that he must stop long enough to permit any car he observes on the highway to pass, regardless of its distance from the intersection. (Pennington v. McLean (1959), 16 Ill. 2d 577, 583; Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 721-22.) Rather, the statute requires the motorist confronted by the stop sign to exercise reasonable care and proceed across the intersection after he has stopped and yielded the right-of-way to vehicles on the highway that constitute an “immediate hazard.” Pennington, 16 Ill. 2d at 583.

Likewise, a driver on a preferential road does not have an absolute right-of-way to proceed into obvious danger. (Johnson v. May (1992), 223 Ill. App. 3d 477, 484.) He has a duty to keep a proper lookout, observe due care in approaching and crossing intersections, and drive as a prudent person would to avoid a collision when danger is discovered, or should have been discovered by the exercise of reasonable care. Salo v. Singhurse (1989), 181 Ill. App. 3d 641, 643.

There is no precise formula for determining whether a particular vehicle has conformed to the above standards. The issue involves considerations as to the relative speeds and distances of the vehicles from the intersection and must be determined by the trier of fact. (Hays, 231 Ill. App. 3d at 206; Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 625.) The jury’s findings on such issues are not against the manifest weight of the evidence unless a contrary conclusion is clearly evident. Hasty v. Kilpatrick (1985), 130 Ill. App. 3d 859, 863.

In denying plaintiff’s motion for a new trial, the trial court stated that the principles of Pennington v. McLean applied. In Pennington, the plaintiff’s intestate proceeded across a preferential highway after having stopped at an intersection and was hit by defendant in the rear passenger’s side of his vehicle. At issue before our supreme court was whether plaintiff’s intestate exercised due care when proceeding from the stop and crossing the preferential highway. Based on the position of the vehicles after impact and the damaged portions of the vehicles, the court found sufficient evidence from which the jury could conclude that the collision occurred at an advanced stage of the truck’s crossing of the intersection. According to the Pennington court, the length of time the plaintiff’s vehicle was in the intersection and the defendant’s speed while approaching the intersection created a question of fact for the jury concerning whether the plaintiff’s intestate should have seen or regarded the defendant as an “immediate hazard” at the time he entered the intersection. (Pennington, 16 Ill. 2d at 585.) Pennington was decided when the test for directing a verdict was whether there was “any evidence” of negligence, which was rejected in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, and is no longer applicable. However, as determined in Fincham (42 Ill. App. 3d at 721), the Pedrick decision did not change the standard of care required of a driver on a preferential highway as enunciated by the Pennington court. (Pennington, 16 Ill. 2d at 583; see also Twait v. Olson (1982), 104 Ill. App. 3d 191, 194.) Therefore, the facts of Pennington are instructive concerning a preferential driver’s conformance to the applicable standard of care.

In this case, defendant testified that traffic was moving in both directions on Larkin and that she did not see plaintiff’s truck until after impact. Plaintiff, however, testified that he first observed defendant’s vehicle proceed across Larkin when he was six to seven car lengths away from the intersection. As in Pennington, plaintiff watched defendant slowly cross two westbound lanes of traffic and at least one eastbound lane on Larkin while continuing to travel at a steady rate of 30 miles per hour. He did not sound his horn, swerve behind defendant’s vehicle, or attempt to brake until immediately prior to impact. Although plaintiff believed defendant was going to stop and allow his vehicle to pass, he stated that he observed her vehicle slowly proceed from the intersection and accelerate across Larkin without any hesitation. When he realized that defendant was not going to stop, he swerved in the direction defendant’s vehicle was travelling and struck her automobile on the rear passenger’s side. Based on this evidence, the jury could have found that plaintiff’s vehicle was not an “immediate hazard” when defendant proceeded from the stop sign.

Plaintiff’s complaint alleges that defendant crossed in front of and in the path of his eastbound vehicle and failed to yield the right-of-way and remain stopped at the stop sign while oncoming traffic on Larkin required her to do so. In support of this contention, plaintiff cites several cases where a driver was negligent in failing to yield the right-of-way to a driver on a preferential highway. In each of those cases, the court reasoned that the motorist on the preferential road had the right to expect that the vehicle approaching on the secondary road controlled by a stop sign would obey the stop sign and yield the right-of-way. When the motorist drove into the path of the preferential driver, the circumstances afforded no opportunity to avoid the collision. Salo, 181 Ill. App. 3d at 643; First National Bank v. Douell (1987), 161 Ill. App. 3d 158, 161-62; Romero v. Ciskowski (1985), 137 Ill. App. 3d 529, 534; Marsh v. McNeill (1985), 136 Ill. App. 3d 616, 619-20.

This has also been referred to as an “unavoidable collision.” A driver’s failure to observe speed appropriate to conditions and maintain a proper lookout, or any other acts or omissions, do not render that driver negligent if those acts are not the proximate cause of a plaintiff’s injuries. (Chevrie v. Gruesen (1991), 208 Ill. App. 3d 881, 885.) As stated in Chevrie, an “unavoidable collision” is without proximate cause, and a driver’s acts or omissions in breach of a duty are not material. (Chevrie, 208 Ill. App. 3d at 885.) An unavoidable collision normally occurs when a motorist is confronted with a sudden swerve into his right-of-way by an approaching vehicle. Thus, the driver has insufficient time to react and take evasive action. Chevrie, 208 Ill. App. 3d at 886.

Plaintiff’s only explanation for failing to decrease his speed is that he believed defendant was going to stop. Phrased another way, plaintiff believes he was without negligence because the collision was unavoidable. However, the evidence in this case fails to support plaintiff’s contention that he had insufficient time to react to defendant’s vehicle and was faced with an “unavoidable collision.” Rather, plaintiff admittedly observed defendant travel across four lanes of traffic and into his path without reducing his speed. Further, the evidence does not indicate that defendant hesitated or otherwise drove in a manner which would reasonably lead plaintiff to believe she was going to stop before proceeding into the intersection. Contrary to the cases cited above, plaintiff had an opportunity to avoid the collision by decreasing his speed, sounding his horn, or changing lanes. This is significant in that it bears on whether plaintiff observed his own duty to exercise due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when danger is discovered, or should have been discovered by the exercise of reasonable care. As stated in Haight v. Aldridge Electric Co. (1991), 215 Ill. App. 3d 353, 364, a driver on a preferential highway does not have an absolute or unqualified right-of-way that can be asserted regardless of circumstances, distances or speed. He may not plunge blindly ahead in reliance on the assumption that the other motorist will obey the law and yield the right of way. (Haight, 215 Ill. App. 3d at 364, quoting Fincham, 42 Ill. App. 3d at 721.) We find the evidence sufficient to indicate that the jury could have found plaintiff was more than 50% negligent, thereby barring any recovery (Ill. Rev. Stat. 1989, ch. 110, par. 2—1116), and defendant’s negligence did not proximately cause plaintiff’s injuries. For these reasons, we find that the jury’s verdict was not against the manifest weight of the evidence.

Next, plaintiff contends that the jury was improperly instructed on the issue of plaintiff’s comparative negligence. The following instruction was given to the jury over plaintiff’s objection:

“The defendant claims that the plaintiff was contributory [sic] negligent in one or more of the following respects:
A. Failed to keep a proper lookout;
B. Failed to yield the right-of-way;
C. Failed to stop or take evasive action;
D. Failed to give audible warning.
The defendant further claims that one or more of the foregoing was the sole proximate cause of the plaintiffs injuries.”

(See Illinois Pattern Jury Instructions, Civil, No. 20.01 (3d ed. 1992) (hereinafter IPI Civil 3d).) Plaintiff objects to the instruction on the basis that defendant’s affirmative defense did not allege that plaintiff failed to give an audible warning and also on the basis that there was no evidence that plaintiff had the duty to give an audible warning.

Defendant’s affirmative defense states that plaintiff failed to maintain a proper lookout, to yield the right-of-way to traffic in the roadway, to avoid an imminent collision, and was otherwise careless and negligent. It does not specifically allege that plaintiff failed to give an audible warning. At trial, however, plaintiff admitted that he did not sound his horn. Thus, defendant seeks an amendment to the pleadings on review to conform to the proofs in the trial court.

Supreme Court Rule 366(a)(1) allows the appellate court, within its discretion, to exercise any of the powers of amendment of the trial court. (134 Ill. 2d R. 366(a)(1).) The party seeking an amendment to the pleadings or the record on appeal must present a written application supported by an affidavit which shows that the amendment is necessary, that no prejudice will result if the amendment is permitted, and that the issues raised by the amendment are supported by the facts in the record on appeal. (134 Ill. 2d R. 362.) The record fails to indicate that defendant sought an amendment in the trial court or followed these procedures in seeking an amendment to the pleadings to conform to the proofs on review. Accordingly, defendant erred by failing to allege that plaintiff did not give an audible warning in her affirmative defense and by failing to follow Supreme Court Rule 362 in seeking an amendment to the pleadings on review.

The Illinois Vehicle Code requires the driver of a motor vehicle to give an audible warning with his horn “when reasonably necessary to insure safe operation.” (Ill. Rev. Stat. 1989, ch. 95½, par. 12—601(a).) When there is evidence that the driver saw the other vehicle prior to the collision, a question of fact exists concerning whether the driver breached his statutory duty to give an audible warning, and an instruction is justified. (See Tucker v. Illinois Power Co. (1992), 232 Ill. App. 3d 15, 33; Forney v. Calvin (1975), 35 Ill. App. 3d 32, 40.) The trial court has discretion in deciding which issues are raised by the evidence, which will not be disturbed on review absent a clear abuse of discretion. Johnson v. Owens-Corning Fiberglas Corp. (1992), 233 Ill. App. 3d 425, 436.

In this case, plaintiff testified that he first saw defendant when he was six to seven car lengths away. He observed defendant’s vehicle cross four lanes of traffic on Larkin and did not sound his horn, decrease his speed, or attempt to brake until immediately prior to impact. Under these circumstances, we found sufficient evidence from which the jury could have found that defendant was not negligent, that defendant’s negligence did not proximately cause plaintiff’s injuries, or that plaintiff was more than 50% negligent. Thus, any error which occurred by instructing the jury on the failure to give an audible warning was not prejudicial. Without any prejudicial error occurring due to the instruction, an amendment to defendant’s affirmative defense is a moot issue. Thus, the trial court did not abuse its discretion in giving the instruction concerning the possibility of plaintiff’s comparative negligence in failing to give an audible warning. Accordingly, no amendment to defendant’s affirmative defense is necessary.

Lastly, plaintiff contends that the court erred by giving the following instruction concerning a driver’s statutory obligation to decrease speed when approaching and crossing an intersection:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent before and at the time of the occurrence.” (IPI Civil 3d No. 60.01.)

(Ill. Rev. Stat. 1989, ch. 95½, par. 11—601(a).) Plaintiff contends that the instruction, as proffered, “totally ignores the fact that this was a controlled intersection and that the plaintiff had the right of way and that the defendant had the duty to yield the right of way.”

Section 11—601 of the Illinois Vehicle Code imposes a duty to maintain a proper lookout for other cars travelling on the road. (Chevrie, 208 Ill. App. 3d at 884.) This duty applies even when driving under the maximum limit. (Williams v. Garmane (1992), 226 Ill. App. 3d 1021, 1026; Masotti v. Console (1990), 195 Ill. App. 3d 838, 843-44.) The duty to maintain a proper lookout imposed by section 11— 601 includes the duty of a driver on a preferential road to keep a proper lookout, observe due care in approaching and crossing intersections, and drive as a prudent person would to avoid a collision when danger is discovered, or should have been been discovered by the exercise of reasonable care. Salo, 181 Ill. App. 3d at 643.

An instruction concerning the violation of a statute should be given only when the evidence supports a finding that a violation actually occurred. (Mayol v. Summers, Watson & Kimpel (1992), 223 Ill. App. 3d 794, 810; Harris v. Day (1983), 115 Ill. App. 3d 762, 773; Blake v. Tri-State Crane Service, Inc. (1983), 114 Ill. App. 3d 1059, 1065.) In this case, plaintiff admittedly observed defendant’s vehicle cross at least four lanes of traffic on Larkin prior to impact. Based on this evidence, we previously determined that the jury could have found no liability on the part of defendant based on the three issues previously discussed. We believe plaintiff’s testimony is sufficient to support a finding that his failure to keep a proper lookout proximately caused the collision. Thus, the instruction concerning plaintiff’s failure to keep a proper lookout and decrease speed when approaching an intersection was not an abuse of discretion.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY FORD, Defendant-Appellant.
    Fifth District
    No. 5—92—0187
    Opinion filed December 28, 1992.

      Paul M. Storment III, of Storment Law Offices, of Belleville, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Anthony Ford, was found guilty by a jury of residential burglary on February 13, 1992, and he was sentenced to a term of eight years’ imprisonment. On appeal he asserts that he was not proven guilty beyond a reasonable doubt and that an improper hearsay identification of the defendant as the perpetrator of the crime warrants reversal of his conviction. We affirm.

The following evidence was presented at trial. On February 14, 1989, the complainant, Marie Yoch, left her home at approximately 4:30 p.m. to have dinner with a friend. When she returned between 7:30 and 8 p.m., she found that someone had kicked in the front door to her home and that it had been ransacked. When the police officers responded, they found a stereo record player set-up, TV, microwave oven, watch, and two pairs of gloves had been removed from the home. An antique silver jewelry box had been moved from the complainant’s dresser, where it had been prior to the complainant’s departure for dinner, and placed at the top of the stairwell. The crime scene unit investigator took photographs of the crime scene and developed latent fingerprints on various surfaces in the dwelling. One latent print on the corner of the lid of the silver jewelry box was suitable for comparison.

On January 16, 1990, defendant was charged with the burglary of the Yoch residence. Due to the lapse of time between the burglary and defendant’s arrest on September 20, 1991, no comparison was made between defendant’s footwear and photographs of footprints from the scene of the crime. Defendant’s fingerprints were taken, however, and a positive match was made between defendant’s left index finger and the latent print lifted from the corner of the lid of the jewelry box in the Yoch residence.

Gerold Warner, a forensic scientist employed by the Illinois State Police, testified that in his expert opinion the latent print developed from the jewelry box matched the left index finger of the defendant. He compared the print taken from the scene of the crime with the exemplar of the defendant -with a magnifier of between four and five power. He testified that based on his experience and training the fingerprint lifted from the silver jewelry box was the defendant’s and could belong to no other person. The witness testified that no set number of any characteristics was required for him to come to the conclusion that a lifted print was made by the person who made the inked standard. He also testified that it was not his practice to make notations of the number of ridged characteristics he found to correlate between a latent print and an exemplar. He testified that the crime lab seldom used “blowup prints” for demonstrative purposes and that blowup prints of fingerprint evidence were never used to make an analysis or a comparison.

Sergeant Willie Smith, a patrolman with the St. Clair County sheriff’s department, also testified for the State. When asked about his involvement in the investigation, he stated: “I received information that an Anthony Ford may have committed the burglary —Defense counsel objected immediately. The State informed the court in chambers that while it was willing to divulge the name of the confidential source who had supplied the defendant’s name, it was unable to produce him for trial because he had fled. The State asserted that Officer Smith’s testimony was for the sole purpose of explaining why the focus of the investigation turned to the defendant. Ultimately, the court denied the defendant’s motion for mistrial, sustained the defendant’s objection to Smith’s testimony, and ordered the jury to disregard Smith’s answer.

Defendant presented testimony from his estranged wife, Sharon Ford, who testified that on February 14, 1989, the defendant arrived at her home between 6 and 6:30 p.m. She recalled the date well because it was Valentine’s Day, and defendant brought her a box of chocolates and a single wilted rose. She and the defendant laughed about it because she found it amusing that her husband would bring her a “dead flower” for Valentine’s Day. She testified that the defendant left a little before midnight.

The jury returned a verdict of guilty of residential burglary on February 13, 1992, and defendant was sentenced to eight years’ imprisonment.

Defendant raises two issues on appeal. He first asserts that his conviction was against the manifest weight of the evidence because the only evidence which connected him with the crime was a single fingerprint. He maintains that the testimony of Gerold Warner, the forensic scientist employed by the Illinois State Police, was insufficient to establish that the print at the scene of the crime was that of the defendant. Defendant attacks the fingerprint expert’s testimony because: (1) Warner did not state the number of similar characteristics between the latent print and the standard, (2) he could not make a comparison of the latent print and the standard while on the witness stand without a magnifying glass, and (3) he did not have the print blown up to serve as a demonstrative exhibit. Additionally, he cites Warner’s concession that two fingerprint experts could disagree on a particular comparison.

On review, the evidence adduced at trial is to be viewed in the light most favorable to the prosecution, and the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The Collins standard is applicable to all criminal cases, whether the evidence presented is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 348.) As the Illinois Supreme Court noted in People v. Campbell (1992), 146 Ill. 2d 363, 375, 586 N.E.2d 1261, 1266, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, “the [Collins] standard gives ‘full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ”

Fingerprint evidence is circumstantial evidence which may serve as the basis for a conviction, and when a conviction is obtained based solely on circumstantial fingerprint evidence, fingerprints must satisfy both physical and temporal proximity criteria. (People v. Gomez (1991), 215 Ill. App. 3d 208, 216, 574 N.E.2d 822, 827.) Physical and temporal proximity criteria are satisfied by proving that the fingerprints were found in the immediate proximity of the crime under circumstances which indicate that they could have been made only at the time of the occurrence. Gomez, 215 Ill. App. 3d at 216, 574 N.E.2d at 827, citing People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605, 609.

The fingerprint on the silver jewelry box at the Yoch residence was undeniably in the immediate vicinity of the crime, which satisfies the physical proximity criterion. The complainant testified

that the box had been in her family for many years, that she had never taken it out of her home, and that she had never given anyone permission to remove her jewelry box from its place on the dresser. She also stated that she did not know the defendant and had never given him permission to be in her home or to touch the jewelry box. Defendant’s fingerprint on the jewelry box and proof that the jewelry box had never been out of the complainant’s home satisfy the time/proximity requirement of Rhodes. (See People v. Donahue (1977), 50 Ill. App. 3d 392, 394, 365 N.E.2d 710, 712.) A logical inference from the evidence is that defendant’s fingerprint was made on the corner of the jewelry box at the time he committed the burglary. See People v. Malmenato (1958), 14 Ill. 2d 52, 62, 150 N.E.2d 806, 810-11 (flashlights were used in attempted burglary, and defendant’s fingerprint was found on flashlight discovered in path of felon’s flight, about 150 feet west of burglary site); People v. Taylor (1965), 32 Ill. 2d 165, 168, 204 N.E.2d 734, 736 (defendant’s fingerprints found on interior side of window at site of rape and burglary without explanation); People v. Reno (1975), 32 Ill. App. 3d 754, 758, 336 N.E.2d 36, 39 (defendant’s thumbprint found on cigarette pack in purse stolen from murder site, and presence of defendant’s prints unexplained); People v. Watts (1983), 98 Ill. 2d 70, 74, 456 N.E.2d 56, 58-59 (defendant’s fingerprints found on bottom of desk drawer at the scene of the crime); People v. King (1985), 135 Ill. App. 3d 152, 154-55, 481 N.E.2d 1074, 1076 (the defendant’s palm print found on car which had been cleaned day before and driven in places which would exclude defendant’s contact with the auto except during burglary); People v. Talley (1987), 152 Ill. App. 3d 971, 976-77, 504 N.E.2d 1318, 1321 (defendant’s fingerprints lifted from box lids thrown on complainant’s bed during burglary of house sufficient to convict despite defendant’s denials); People v. Woods (1992), 225 Ill. App. 3d 988, 994-95, 588 N.E.2d 1224, 1228 (defendant’s fingerprint found on piece of broken glass immediately outside window through which access to burglarized dwelling was gained sufficient to convict despite the fact defendant lived in neighborhood and had been seen near burglarized dwelling several days prior to burglary).

Defendant’s attack upon the expert testimony of the fingerprint specialist must also fail. As the supreme court noted in People v. Campbell (1992), 146 Ill. 2d 363, 384, 586 N.E.2d 1261, 1270, no Illinois case expressly states a requisite number of points of similarity between a latent print and an exemplar to be sufficient: “fingerprint evidence of identity has been held admissible in some cases [in which] the expert found five points of similarity, and in another in which the expert found only four. The courts, in those cases, took the position that the paucity of points of similarity went to the weight accorded to the evidence.” Here, the expert testified that based on his experience and expertise the latent print lifted from the silver jewelry box was that of the defendant. His opinion was based on his comparison of the latent print and the exemplar of defendant’s fingerprints. Although the expert stated that some other fingerprint expert might have a differing opinion, defendant did not introduce any testimony which would contradict the identification of the defendant as the person who left the latent print on the jewelry box. Any doubts raised by the defendant in regard to the expert’s testimony concerning the comparison were ones which the jury apparently decided against him. This court will not substitute its judgment for that of the fact finder on questions regarding the weight of the evidence or credibility of witnesses. People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461, 474.

Defendant’s second contention is that the court erred when it denied his motion for mistrial based on the comment made by Officer Smith that he “received information that an Anthony Ford may have committed the burglary.” The State argues that Sergeant Smith’s testimony did not constitute hearsay identification because the officer’s statement was directed toward explaining why the defendant was asked to provide fingerprint exemplars. The State maintains that it was a proper statement concerning the conduct of the investigation, not an improper hearsay identification of the defendant as the perpetrator of the crime.

People v. Mitchell (1990), 200 Ill. App. 3d 969, 975, 558 N.E.2d 559, 563, held that testimony regarding investigatory procedures is not improper hearsay where that testimony is directed toward demonstrating why the police officer acted as he did. In Mitchell, a police officer testified that upon arriving at the crime scene, he met the brother of the victim and was told that a short black man he knew only as Curtis had raped, robbed, and cut his sister, and the brother pointed out the apartment in which he believed the defendant lived. The Mitchell court stated that if the description provided by the victim’s brother and the provision of the name “Curtis” did not fall within the ambit of the hearsay exemption, it was nevertheless not reversible error because it did not serve as a substitute for courtroom identification and was not used to strengthen and corroborate a weak identification. In Mitchell, the trial court overruled the defense counsel’s hearsay objection. Here, the trial court sustained the hearsay objection and instructed the jury to disregard the comment. Where a timely objection is made at trial, the court may remedy any error by sustaining the objection and/or instructing the jury to disregard the answer. (People v. Whitfield (1986), 140 Ill. App. 3d 433, 488 N.E.2d 1087.) We presume, absent a showing to the contrary, that the jury followed the trial judge’s instructions to disregard the testimony in reaching their verdict. People v. Simms (1991), 143 Ill. 2d 154, 174, 572 N.E.2d 947, 955.

The conviction and sentence of the defendant is affirmed.

Affirmed.

W.A. LEWIS and WELCH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY W. REDDICK, Defendant-Appellant.
    Fifth District
    No. 5—91—0287
    Opinion filed December 31, 1992.

      Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Jerry W. Reddick, appeals from an order of the circuit court of St. Clair County denying his post-conviction petition.

On appeal, defendant contends that the cause must be remanded to the circuit court for a hearing to determine whether the State used unreliable testimony at defendant’s sentencing hearing, denying him due process, where defendant’s daughter, M.R., recanted her testimony against him. We affirm.

In September 1986, defendant was tried and convicted of two counts of aggravated criminal sexual assault against his daughter, P.R., a child under the age of 13. On November 7, 1986, the trial court held a sentencing hearing. As a factor in aggravation, the State presented defendant’s other daughter, M.R., who testified that defendant had kissed and manually penetrated her vagina numerous times and attempted vaginal penetration with his penis more than once. The State also presented two of M.R.’s friends who testified that defendant kissed them and touched their breasts while they were overnight guests of M.R. The court sentenced defendant to two concurrent 25-year terms of imprisonment. Defendant appealed the convictions and sentences, and this court affirmed the trial court’s judgment in an unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23) on August 19, 1988. (People v. Reddick (1988), 172 Ill. App. 3d 1175, 544 N.E.2d 1354.) On October 12, 1989, M.R. signed an affidavit recanting the testimony at defendant’s sentencing hearing. On December 13, 1989, defendant filed a motion to reduce sentence. In that motion defendant asserted his sentence was excessive because it was based on M.R.’s recanted testimony and did not consider defendant’s rehabilitation while incarcerated. On December 21, 1988, defendant filed a pro se petition for post-conviction relief and was appointed post-conviction counsel. On February 27, 1990, defendant requested that his post-conviction counsel withdraw and that new counsel be appointed. The court appointed new counsel on July 9, 1990. On March 12, 1991, counsel filed an amended petition for post-conviction relief. The amended petition stated that defendant was denied due process and equal protection under the United States and Illinois Constitutions because of trial errors. Defendant argued that he received ineffective assistance of counsel and that trial counsel failed to call certain witnesses defendant requested and failed to properly cross-examine the State’s witnesses. Defendant also alleged that his constitutional rights were violated because (1) the trial court allowed the State to amend the information on the day of defendant’s trial; (2) defendant was convicted of two Class X felonies arising out of the same crime; (3) the court allowed inflammatory testimony at trial and evidenced hostility toward defendant and defense counsel; (4) the court allowed a victim impact statement at sentencing; (5) defendant’s rehabilitative potential was not considered; and (6) appellate counsel was ineffective by not consulting defendant before submitting the brief to this court. The trial court held an evidentiary hearing on defendant’s petition on March 12, 1991. On March 14, 1991, defendant wrote a letter to the court stating that important information concerning his petition had not been offered, namely, M.R.’s affidavit recanting her previous testimony, which was attached to defendant’s motion to reduce sentence. On March 19, 1991, defendant refiled the motion for reduction of sentence, reminding the court of the existence of M.R.’s affidavit. On April 8, 1991, the trial court entered an order denying defendant’s petition for post-conviction relief, noting that any inflammatory testimony was not prejudicial error but not specifically addressing M.R.’s retraction. Defendant now appeals that order, claiming that the trial court failed to consider M.R.’s affidavit.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.) provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trials. (People v. Owens (1989), 129 Ill. 2d 303, 307, 544 N.E.2d 276, 277; People v. Silagy (1987), 116 Ill. 2d 357, 507 N.E.2d 830.) A post-conviction proceeding is not an appeal per se but a collateral attack upon a final judgment and, in the scope of post-conviction review, is limited to issues which have not been and could not have been previously adjudicated. (Owens, 129 Ill. 2d at 307-08, 544 N.E.2d at 277.) To be entitled to post-conviction relief, defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack. (People v. Enoch (1991), 146 Ill. 2d 44, 50, 585 N.E.2d 115, 118.) Although recantation of testimony can be addressed in a post-conviction petition, defendant in the present case failed to make any reference to M.R.’s affidavit in either the text of his amended petition or in his testimony at the evidentiary hearing. The affidavit itself was not presented as evidence in the hearing. Instead, defendant wrote a letter to the trial court two days after the hearing to implore the trial court to consider M.R.’s recantation before entering judgment on the matter. The court entered an order that did not specifically address M.R.’s affidavit, and defendant filed this appeal arguing that he is entitled to another hearing.

The State argues that the issue was waived since defendant failed to present the affidavit in his amended petition. The law is clear with regard to waiver of claims in post-conviction petitions: “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” (Ill. Rev. Stat. 1991, ch. 38, par. 122—3.) Defendant acknowledges his failure to raise the issue of M.R.’s affidavit in either his original or amended petition but asserts that this court should consider the issue as plain error affecting his substantial rights under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Our supreme court has repeatedly stated, however, that the plain error rule may not be invoked when a defendant collaterally attacks his conviction or sentence under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.). (People v. Owens (1989), 129 Ill. 2d 303, 316-17, 544 N.E.2d 276, 281; People v. Free (1988), 122 Ill. 2d 367, 377-78, 522 N.E.2d 1184, 1189.) The United States Supreme Court and our supreme court have observed that once the defendant’s conviction and sentence are reviewed and affirmed on direct appeal, the State has a legitimate interest in preserving the finality of that affirmance. A post-conviction remedy, by its very nature, threatens the State’s interest in finality by allowing a defendant to launch a collateral attack upon his criminal conviction and sentence. (United, States v. Frady (1982), 456 U.S. 152, 164, 71 L. Ed. 2d 816, 827-28, 102 S. Ct. 1584, 1592; People v. Owens (1989), 129 Ill. 2d 303, 316, 544 N.E.2d 276, 281; People v. Free (1988), 122 Ill. 2d 367, 377-78, 522 N.E.2d 1184, 1189.) Application of the waiver rule is not an absolute bar to review of procedurally defaulted claims, however, and where fundamental fairness requires, the rule of waiver will not be applied in post-conviction proceedings. Owens, 129 Ill. 2d at 317, 544 N.E.2d at 281.

In analyzing the cases aforementioned, we find them applicable to the facts of this case, however, and hold that defendant waived the issue by not presenting it in the petition.

The question now becomes whether fundamental fairness requires us to consider defendant’s argument that he was prejudiced and that his constitutional rights were substantially denied at his sentencing hearing because the State presented a witness who testified that defendant sexually assaulted her but recanted that testimony several years later. We conclude the answer to that question is no. M.R. was not the complaining witness at defendant’s trial. Defendant was tried on two counts of aggravated criminal sexual assault against RR. M.R. did not testify at defendant’s trial but was one of three witnesses at defendant’s sentencing hearing who stated they had been sexually assaulted by defendant. There was absolutely no indication that P.R., the victim on whose behalf the charges were filed, was not truthful at trial or later recanted her testimony. Nor have the other two witnesses at defendant’s sentencing hearing recanted their testimony. This court finds that such evidence supports the trial court’s imposition of defendant’s sentence. Defendant was convicted of two Class X felonies. The law provides that the sentence for a Class X felony “shall be not less than 6 years and not more than 30 years.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(3).) In sentencing defendant to concurrent terms of 25 years, the trial court emphasized the jury’s finding of guilt and society’s interest in protecting itself from people who commit sexual acts on children. There was no direct reference to M.R.’s testimony or whether it influenced the court to impose a longer sentence. After reading the trial court’s comments in their entirety, however, we determine that the trial court focused more on the trial testimony than on the testimony heard at the sentencing hearing. Even if M.R.’s testimony was false, we do not find it likely that the trial court would have reached a different result without her testimony. Such a conclusion defeats defendant’s argument that he is entitled to another evidentiary hearing to determine the significance of M.R.’s affidavit recanting her previous testimony. Defendant has failed to affirmatively show that any prejudice resulted from M.R.’s now-questionable testimony at his sentencing hearing. This court, therefore, finds that it would not be fundamentally unfair to deny defendant another evidentiary hearing on the waived issue.

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.