author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ZENON WEGIELNIK, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—0057
    Opinion filed October 5, 1990.
    Rehearing denied November 7, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Kevin T. Noonan, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County which granted defendant’s petition to rescind the statutory summary suspension of his driver’s license pursuant to section 11— 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.1). The circuit court held for defendant on the grounds that he had not received the required statutory warnings before suspension because he could not understand the language in which the warning had been given. We affirm.

Although defendant has not filed a brief, where the record is simple and issues may be disposed of easily, we may consider the merits of any appeal solely on the appellant’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On October 12, 1988, defendant Zenon Wegielnik was stopped by police in Kenilworth, Illinois, arrested for driving under the influence of alcohol pursuant to section 11 — 501(a)(2) (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)) and transported to the police station. There an officer read Wegielnik a statement that he must take an intoxilyzer breath test or his driver’s license would be suspended. He signed a document refusing to take the test.

On November 2, 1988, defendant filed a petition for rescission of the statutory summary suspension on the grounds that he had not been properly warned under the statute.

At the hearing, Wegielnik testified through a Polish interpreter that his country of origin is Poland and that he had been in the United States for five years. He said that he is a mechanic, works in a Polish neighborhood, and does not read or write English although he understands it a little bit. He stated that his original Illinois driver’s license exam as well as a recent renewal were in the Polish language. Defendant also stated that, when a copy of the warnings was given to him on the night of his arrest, it “was read to me but I didn’t know what [the police officer] was saying *** I signed it because I wanted to go home *** I wanted to leave the Police Station; and if I would refuse, I probably would be locked up.” Arresting Officer Bennett testified that he conversed with defendant in English, that defendant responded to several questions and eventually refused to take the test. Bennett stated that it was not obvious that English was not the defendant’s native tongue. He admitted on cross-examination, however, that defendant spoke with an accent and that his arrest report reflected that in response to some questions defendant gave half answers. Further, in response to the officer’s question “Are you ill?” defendant answered, “No, I’m arrested.” The trial court then sua sponte examined defendant without the aide of an interpreter, stated “I am not convinced that [defendant] understood this warning,” and granted defendant’s petition to rescind the suspension.

Under section 11 — 501.1 (Ill. Rev. Stat. 1987, ch. 95½, par. 11-501.1):

“(a) Any person who drives *** upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol *** content of such person’s blood * * *
* * *
(c) A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle ***.”

It is settled law that the due process clause applies to the suspension of driving privileges, and any statutory scheme for summary suspension of a driver’s license must meet the standards for due process under both the Illinois and United States constitutions. (In re Summary Suspension of Driver’s License of Rakers (1989), 187 Ill. App. 3d 27, 31-32, 542 N.E.2d 1311.) These standards require a hearing. But, because of the State’s great interest in taking intoxicated drivers off the road, the required hearing may be a post-suspension hearing rather than a presuspension one. Rakers, 187 Ill. App. 3d at 32, citing Mackey v. Montrym (1979), 443 U.S. 1, 17-19, 61 L. Ed. 2d 321, 333-35, 99 S. Ct. 2612, 2620-21.

The State cannot suspend a driver’s license without some reasonable grounds to believe that the driver was intoxicated. (People v. Honaker (1984), 127 Ill. App. 3d 1036, 1039, 469 N.E.2d 1120.) With reasonable cause, however, the State can require a breathalyzer test and suspend a license pending a post-suspension hearing. See Honaker, 127 Ill. App. 3d at 1039-40.

Under section 2 — 118.1(b) (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1(b)), a defendant may request a hearing to determine whether (1) he was arrested for an offense under section 11 — 501; (2) the arresting officer had reasonable grounds to believe the licensee was driving under the influence; (3) the licensee, “after being advised *** that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse;” or (4) the licensee did submit and the test revealed an illegal concentration of alcohol in his blood.

This hearing on summary suspension is a civil one, and the burden of proving grounds for rescission rests on the petitioner. (People v. Orth (1988), 124 Ill. 2d 326, 337-38, 530 N.E.2d 210.) Furthermore, Illinois courts have consistently held that section 11 — 501.1 (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.1) “should be liberally construed to accomplish its purpose of protecting the citizens of Illinois upon the highways.” People v. Doty (1987), 164 Ill. App. 3d 53, 56, 517 N.E.2d 338.

Defendant does not dispute that the arresting officer had reasonable grounds to believe that he was driving under the influence, that he was arrested for that offense, or that he did not submit to a test. The issue is whether defendant can be considered to have refused to submit to a test that he did not understand he was being asked to take.

This question is one of first impression in Illinois.

The court below relied on the standard set by People v. Niedzwiecki (1985), 127 Misc. 2d 919, 487 N.Y.S.2d 694, which required a knowing refusal based on a warning in the driver’s language “[notwithstanding the daily practicalities and the financial and logistical problems involved in preparing the police for all the various languages and dialects that surface in New York.” (Niedzwiecki, 127 Misc. 2d at 922, 487 N.Y.S.2d at 696.) The court based its ruling on a New York statute which required that a driver be warned about possible license suspension in “clear and unequivocal” language. That case is distinguishable from the situation here, however, because unlike Illinois the New York statute explicitly required “a showing that the person was given sufficient warning, in clear and unequivocal language of the effect of such refusal and that the person persisted in his refusal.” N.Y. Veh. & Trad. Law §1194, par. 4 (McKinney 1988). See also Commonwealth v. Kyong Rok Yi (1989), 128 Pa. Commw. 117, 562 A.2d 1008.

The State relies on a Minnesota case, Yokoyama v. Commissioner of Public Safety (Minn. App. 1984), 356 N.W.2d 830, in which the court held that the statutory right to refuse consent to testing is limited by reasonableness and that a driver need only understand that he was asked to take a test. In this case, a motorist who spoke only Japanese submitted to a test but later claimed that his consent to a breath test was involuntary because he did not understand the implied-consent warnings. The police had tried to find an interpreter before administering the test. The court held that “finding an interpreter is not absolutely necessary and should not ‘interfere with the evidence-gathering purposes of the implied consent statute.’ ” (356 N.W.2d at 831, quoting State v. Wiehle (Minn. 1979), 287 N.W.2d 416, 419.) The court held further that when the defendant applied for and received a Minnesota driver’s license, he gave his implied consent to the testing procedures. The court stated:

“ ‘[T]he only understanding required by the licensee is an understanding that he had been asked to take a test. There is no defense to refusal that he does not understand the consequences of refusal or is not able to make a reasonable judgment as to what course of action [he should] take.’ ” Yokoyama, 356 N.W.2d at 831, quoting Martinez v. Peterson (1982), 212 Neb. 168, 171, 322 N.W.2d 386, 388.

See also State v. Tosar (1986), 108 Ga. App. 885, 350 S.E.2d 811.

Yokoyama is distinguishable because the court found that the defendant did understand that he was being asked to take a test and willingly blew into the machine. In this case, Wegielnik claims that he did not take the test because he did not understand it was required of him.

In State v. Hurbean (1970), 23 Ohio App. 2d 119, 261 N.E.2d 290, the licensee claimed that she had refused to take the test because she did not understand why the officers wanted to test her and she did not understand the consequences of refusal. The court examined the implied consent statute of Ohio which, like the Illinois statute, penalizes a licensee who refuses to take the test but does not specify any mental process of this refusal, and then held:

“All the understanding requisite to a refusal to take the test is an understanding that one has been asked to take a test. One who does not understand he has been asked to take a test cannot, of course, be said to have refused to take a test. Whether one who has been asked to take a test has understood that such a request has been made is a question of fact to be determined by the court from all the evidence. *** But an understanding of the consequences of the refusal to take the test is not an element of understanding that a request to take the test has been made, nor a precondition of refusal.” Hurbean, 23 Ohio App. 2d at 126, 261 N.E.2d at 297.

The Ohio court also found that minimum language skills were inherent in the ability to drive safely and essential to passing the license written exam. On cross-examination, in English, the licensee admitted that she knew she had been asked to take a test but did not understand why. The court held that: “[A] person who voluntarily operates a motor vehicle upon the highways of this state is estopped *** to assert insufficient language skill to comprehend the request and advice provided in [the Ohio consent statute], when received in the statutory manner and form.” Hurbean, 23 Ohio App. 2d at 127, 261 N.E.2d at 298.

In this case, like in Hurbean, the driver refused to take the test. However, the estoppel argument of Hurbean does not apply here. In that case, the driver had taken the driver’s test in English. Wegielnik, by contrast, has functioned as a driver in Illinois solely with the use of Polish. He was given the Rules of the Road in Polish and took both his initial exam and his renewal in that language. It would be draconian indeed to estop Wegielnik from asserting insufficient language skills under these circumstances.

Thus, the estoppel argument does not apply to non-English speaking drivers in Illinois. Public policy in Illinois permits drivers who speak languages other than English to secure a license using those languages at the discretion of the Secretary of State. (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 109(b).) In practice the Secretary of State’s office provides exams in Spanish, Polish, and Korean, and also allows drivers who speak other languages to bring translators to the exam. Whether this is as it should be is not within our province. We agree that there are benefits from a system which would require a minimum understanding of the English language in order to operate a vehicle in Illinois. Illinois, however, does not have such a requirement.

All of the cases we have reviewed here require that a driver understand that he had been asked to take a test. In this case Wegielnik testified, and the trial court found, that he did not understand that he was being asked to take a test. We must conclude then that the public policy which allows drivers to function absent an understanding of the English language also requires that such a driver cannot have his license suspended for refusing to take a chemical test unless the request for a test was given to him in a language or manner which he understands.

The State also contends that Wegielnik did in fact understand English well enough to comprehend that he was asked to take the breathalyzer test.

The Martinez case is similar to the factual situation here. Martinez was asked to take a chemical test and he refused. The trial court found that Martinez did not understand English well enough to understand that the police wanted him to take a test. On appeal, the State contested that fact and the court held:

“ ‘Where there is irreconcilable conflict in the evidence on a material issue, the reviewing court will, in determining the weight of the evidence of the witnesses, consider the fact that the trial court observed them and their manner of testifying and must have accepted one version of facts rather than [another].’ ” (Martinez, 212 Neb. at 172, 322 N.W.2d at 388, quoting Zadina v. Weedlun (1971), 187 Neb. 361, 362, 190 N.W.2d 857, 858.)

The court held further:.

“The inability of the appellee to understand and communicate in the English language was observed by the trial court. The fact that a person may understand simple words or statements in English which are spoken slowly does not necessarily mean that he is proficient in the English language. The trial court obviously concluded from the testimony of the appellee that he understood neither that he was being asked to submit to a test nor the consequences of refusing to submit to the test.” Martinez, 212 Neb. at 172, 322 N.W.2d at 389.

In this case, Wegielnik refused to take the test and claimed later that he had not understood that a chemical test was required. At the suspension hearing, the police officer testified that he conversed with Wegielnik in English but also admitted that Wegielnik often gave half answers to the questions. Wegielnik himself testified through an interpreter. The court listened to the testimony, questioned Wegielnik sua sponte, and found that he did not understand English well enough to understand what the police wanted him to do.

Finally, the State contends that Illinois courts have consistently found that a knowing refusal to take the test is not required in many other circumstances and, therefore, a knowing refusal is not required under the facts in this case. In People v. Goodman (1988), 173 Ill. App. 3d 559, 527 N.E.2d 1055, police apprehended the defendant after a hit-and-run offense when he appeared dazed from either alcohol or the effects of the accident. He refused to take a blood test when arrested but later argued in court that his mental condition had rendered him incapable of withdrawing his consent. The court stressed the fact that police did have probable cause to stop the defendant. Under those circumstances:

“ ‘For the statute to have any meaning, a police officer must be able to rely upon the objective fact of refusal without regard to a suspect’s subjective intentions. Voluntary intoxication, or any other condition which might render a refusal “unknowing,” cannot save a motorist from the consequences of refusing to be tested for intoxication.’ ” People v. Goodman (1988), 173 Ill. App. 3d 559, 563, 527 N.E.2d 1055, quoting People v. Kirby (1986), 145 Ill. App. 3d 144,147, 495 N.E.2d 656.

A Pennsylvania court, however, has rejected a State argument that failure to understand English is like a physical impairment and, therefore, cannot be used as an excuse for refusing to take the test. In Kyong Rok Yi, (128 Pa. Commw. at 119, 562 A.2d at 1009), the court held there is no basis for this contention in case law and the two situations are “obviously different.” In Illinois, these two situations are obviously different because drivers can function legally without understanding English but cannot drive legally when too intoxicated or dazed to understand a simple police request.

For these reasons, we hold that the State could not properly suspend Wegielnik’s driver’s, license if he did not understand English well enough to comprehend that he had been asked to take a test. Furthermore, we do not find any reason to overturn the factual finding of the trial court that Wegielnik did not understand English well enough to receive the statutory warning.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    CHARLENE PEDERSON et al., Plaintiffs, v. JAMES WEST et al., Defendants and Third-Party Plaintiffs-Appellants (Charles W. Mercier, Third-Party Defendant-Appellee).
    First District (6th Division)
    No. 1—89—2061
    Opinion filed October 5, 1990.

      Allen L. Wiederer, of Chicago, for appellants.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Donald R. McGarrah, Timothy W. Heath, and Ellen Keefe-Garner, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The issues in this case are whether an action for equitable apportionment is subject to the statute of limitations and repose applicable to medical malpractice claims (Ill. Rev. Stat. 1987, ch. 110, par. 13— 212(a)) and whether the defense of the statute of limitations and repose was itself timely raised in the trial court.

On November 20, 1981, Charlene Pederson (Pederson) and John Norton (Norton) were passengers in a taxicab owned by Yellow Cab Company (Yellow Cab) and driven by James West (West); they were injured when the taxicab in which they were riding collided with another taxicab. On December 29, 1981, Pederson saw Dr. Charles W. Mercier (Mercier) for treatment of a neck injury suffered in the accident. Mercier prescribed two drugs, Prednisone and Indocine. Pederson developed a bleeding ulcer allegedly as a result of taking these drugs in combination; she was hospitalized on January 5, 1982, and underwent emergency surgery during which a portion of her stomach was removed.

On April 8, 1982, Pederson and Norton filed suit against Yellow Cab and West seeking damages for their injuries, including the aggravation “of a previous condition of [Pederson’s] stomach, [which] caus[ed] it to ulcer and require surgery.” Yellow Cab was served on May 4, 1982, and West was served on May 5, 1982. Yellow Cab appeared and answered the complaint on May 18, 1982. West, represented by the same attorneys as Yellow Cab, eventually filed his appearance and answer on May 16, 1985.

Apparently, after Yellow Cab had taken Pederson’s discovery deposition, it filed supplemental interrogatories on December 7, 1982. These interrogatories were directed at the drugs prescribed by Mercier, seeking “the full name of the drug to which the plaintiff is allergic,” the substance of any conversations with Mercier after her appointment with him but before she was admitted to the hospital, and any advice rendered to her by Mercier. On September 9, 1983, the judge ordered that a subpoena issue requiring Mercier to appear for a discovery deposition by Yellow Cab. On April 6, 1984, the judge granted leave for issuance of subpoenas for depositions of the two doctors who treated Pederson at the hospital, and the one doctor who examined her. On June 4, 1985, Yellow Cab and West indicated in their response to a request for production that they had transcripts of the depositions of the plaintiffs, Mercier, and the other doctors.

On January 17, 1986, Yellow Cab and West filed their third-party complaint for equitable apportionment against Mercier. This filing was made 4 years and 12 days after Mercier’s allegedly negligent conduct occurred and three years, nine months and nine days after the plaintiffs’ original complaint was filed. The third-party complaint alleged that Mercier was negligent in prescribing Indocine and Prednisone in combination, thus causing a new and different injury to Pederson. The third-party plaintiffs asked that Mercier “be obliged to pay those sums that the trier of fact would equitably apportion as to his conduct in causing the upper GI distress suffered *** by [Pederson].”

On October 28, 1986, Mercier filed his answer to the amended third-party complaint in which he denied the allegations of negligence.

On April 13, 1989, Mercier orally moved for leave to file the affirmative defense of the statute of limitations and repose to the amended third-party complaint; a written motion was filed on April 17, 1989. On June 7 the case was set for trial on July 7. On June 16, before the court had ruled on the motion for leave to file the affirmative defense, Mercier filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) based on the statute of limitations and repose in section 13 — 212 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13— 212). On June 26 the trial judge granted Mercier leave to file his affirmative defense. On July 10 the judge dismissed the plaintiffs’ underlying action, which apparently was settled, and granted Mercier’s motion for summary judgment against Yellow Cab and West on the ground that the third-party complaint was time barred under section 13 — 212(a) of the Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).

The first issue is whether the trial judge erred in concluding that the statute of limitations and repose in section 13 — 212(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a)) applies to equitable actions in general and to an action for equitable apportionment in particular. Section 13 — 212(a) provides:

“[N]o action for damages for injury or death against any physician ***, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).

We judge that Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, is dispositive and is a clear rejection of the argument of Yellow Cab and West. In Hayes the underlying plaintiff sued several defendants including a physician. The physician was dismissed pursuant to a stipulation with the plaintiff. The other defendants filed third-party complaints “in contribution” against the physician almost 4 years and 10 months after the injury to the underlying plaintiff allegedly caused by the physician. The appellate court affirmed the dismissal of the third-party complaints on the ground that they were1'barred by the four-year period of repose governing medical malpractice claims. (Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill. App. 3d 441, 535 N.E.2d 1137.) After oral argument in this court, the supreme court affirmed the appellate court, making the following observations:

“We believe that the medical malpractice statute of repose bars any action after the period of repose seeking damages against a physician or other enumerated health-care provider for injury or death arising out of patient care, whether at law or in equity.
Because we find that the statute of repose is not limited to actions at law, we need not address the plaintiffs’ argument that this court’s decision in Doyle v. Rhodes, 101 Ill. 2d at 1, established the principle that an action for contribution is a suit in equity.” (Emphasis added.) 136 Ill. 2d at 456.
“[W]e believe that the term ‘or otherwise’ in the medical malpractice statute of repose includes actions for contribution against a physician for injuries arising out of patient care. *** The inclusion of the term ‘or otherwise’ following more restrictive language in the statute seems to us to indicate that the legislature intended the term to be all-inclusive. We believe that the term demonstrates the General Assembly’s desire at the time it originally enacted the statute to limit a physician’s exposure to liability for damages for injury or death arising out of patient care under all theories of liability, whether then existing or not.” (Emphasis added.) 136 Ill. 2d at 458-59.

We must express recognition that the third-party complaint before us is for “equitable apportionment” and the third-party complaint in Hayes was for “contribution.” In our judgment, the entitlements of the complaints are immaterial. The character of a pleading is to be determined from its contents rather than its label. (Barnes v. Southern Ry. Co. (1987), 116 Ill. 2d 236, 507 N.E.2d 494.) Both third-party complaints maintain that the underlying plaintiff was allegedly injured due to the negligence of the third-party plaintiffs and that the underlying plaintiff suffered additional injury later due to the negligence of medical personnel; both third-party complaints seek money from the medical personnel. An action for “contribution” under the facts alleged in the Hayes complaint is just as “equitable” in nature as is an action for “equitable apportionment” under the facts alleged in this complaint. The Hayes court identified Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, as a holding that an action for contribution was an equitable action. (Hayes, 136 Ill. 2d at 456; see also Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 422 N.E.2d 979 (complaint couched in terms of equitable apportionment alleged a claim for contribution).) For these reasons, we conclude under the authority of Hayes that the trial court properly dismissed the third-party complaint on the ground that it was not timely filed.

The third-party plaintiffs maintain, alternatively, that Mercier waived the defense of the statute of repose by failing to assert it timely in the trial court.

The third-party complaint was filed on January 17, 1986. On May 21, Mercier filed a motion to dismiss, but the motion was not based on the statute of limitations. The motion to dismiss was granted. On October 1, 1986, Yellow Cab and West filed an amended third-party complaint. On October 30, Mercier filed his answer. The answer did not include an affirmative defense based upon the statute of limitations. Up to July 1987, eight depositions were taken in connection with the third-party complaint, including the retaking of the depositions of both third-party plaintiffs and two doctors. On April 17, 1989, the case was called on the special call of cases to be set “must go” for trial. At that time Mercier filed a motion for leave to file an affirmative defense based upon the statute of limitations. Thus, 39 months elapsed between the filing of the third-party complaint and the filing of the affirmative defense.

The third-party plaintiffs maintain that since Mercier engaged “in plenary discovery,” including filing interrogatories, requests for production and answers to their requests for written discovery and the taking of eight depositions, Mercier has waived the defense of the statute of limitations.

In support of their position the third-party plaintiffs rely on Turner v. Cosmopolitan National Bank (1989), 180 Ill. App. 3d 1022, 536 N.E.2d 806. In Turner, the plaintiff filed a complaint for personal injuries exactly two years after the injuries suffered in 1974. A little over a month later the defendant trustee, apparently under a land trust, was dismissed; and the plaintiff was given leave to amend the complaint to name as defendants two individuals, apparently the beneficiaries of the land trust. Over five years later, the plaintiff added the two individuals as defendants, voluntarily dismissed his action and refiled it two months after that. The defendants filed their answer five months later without asserting the statute of limitations as an affirmative defense.

Thereafter, numerous pleadings and motions were filed, extensive discovery was had and the case was placed on the trial court for November 13, 1984. The defendants did not raise the issue of the statute of limitations until March 1986, when they filed a motion for summary judgment. By that time the case had been called for trial nine different times, but had been continued each time at the request of the defense counsel. The defendants’ motion for summary judgment was denied by one judge, and another judge later granted a second motion for summary judgment filed by the defendants. After settlement negotiations were unsuccessful, the judge granted the plaintiff’s motion for reconsideration of the grant of summary judgment, and the case was tried.

The appellate court noted the 3x/2-year delay between the service of summons on the trustee and the filing of the motion for summary judgment which first raised the affirmative defense, the “plenary discovery” engaged in by the defendants in the meantime as well as the fact that the case had been continued nine times at the defendants’ request. The court affirmed the trial court, noting that decisions to permit the late filing of an affirmative defense “are best left to the informed discretion of the trial court.” 180 Ill. App. 3d at 1029.

We do not agree with Mercier’s contention that Turner is “strikingly unsimilar” to this case or that the facts of Turner are “without application or analogy to the facts of this case.” We believe that Turner is respectable authority, but we do not think that it compels a reversal of the trial judge’s determination.

As noted in Turner, the timeliness of a request to amend pleadings is a discretionary determination by the trial judge, and the trial judge’s exercise of discretion will not be disturbed absent a showing of an abuse of that discretion. (Schenker v. Chicago Title & Trust Co. (1984), 128 Ill. App. 3d 488, 470 N.E.2d 1264.) The explanation given by Mercier for the delay in filing the affirmative defense is that, until the appellate court decided Hayes v. Mercy Hospital & Medical Center in March 1989, he was not aware that the statute of limitations and repose applicable to medical malpractice claims embraced actions for contribution (and thereby actions for equitable apportionment).

The third-party plaintiffs respond that section 13 — 212(a) was first enacted in 1979 (as section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1)). Therefore, the third-party plaintiffs argue, Mercier knew or should have known that section 13 — 212 was applicable to their third-party complaint. The third-party plaintiffs also respond that the same law firm representing Mercier represented one of the defendants in Hayes and, therefore, the law firm that filed a motion to dismiss in Hayes on September 25, 1987, on the ground that the actions were barred by section 13 — 212(a) should have filed a similar motion in this case at or near the same date.

The third-party plaintiffs’ arguments are subject to counter arguments. First, the question of what statutes of limitations are applicable to third-party complaints has been the subject of a large number of opinions. The parties in those other cases have approached the problem on the basis of many different theories. Some of the opinions have been conflicting. For example, as the third-party plaintiffs themselves point out, the appellate court opinion in Hayes is directly contrary to the opinion of the Second Appellate District in Antunes v. Sookhakitch (1989), 181 Ill. App. 3d 621, 537 N.E.2d 333, decided two months after the First District Appellate Court decided Hayes. Moreover, the supreme court opinion itself, a four-to-three decision, illustrates that the answer to the question is not obvious. Under the circumstances, we cannot say that it should have been clear to Mercier at the time the third-party complaint was filed that section 13 — 212 applied.

Second, we cannot accept the third-party plaintiffs’ argument that Mercier should be charged with knowledge that section 13 — 212 was applicable to this case because the same law firm that represented him had urged that argument in Hayes (and in Antunes as well). Ruth E. Van Demark was one of the attorneys from the firm of Wildman, Harrold, Allen and Dixon who represented the physician in Hayes in the appellate court. She was also one of the attorneys for the physician in Antunes. She is lead counsel on the brief in this court, and she has orally argued here on behalf of Mercier. But she was not involved in this case in the trial court. The firm of Wildman, Harrold, Allen and Dixon has offices in five States and consists of over 140 lawyers. If we were to accept the argument of the third-party plaintiffs, we would be required to impute to Mercier the knowledge possessed by all the lawyers in the firm. It is the general rule that knowledge of an attorney may be imputed to a client. (Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 381 N.E.2d 423.) But we know of no case, and the third-party plaintiffs have cited none, extending the general rule to the extent required if we were to accept the third-party plaintiffs’ argument. Our research discloses one case on the question, McIntyre v. Cox (1975), 68 Wis. 2d 597, 229 N.W.2d 613. In that case one partner in a law firm represented an estate and knew of an agreement between a son and his mother. The son maintained that that partner’s knowledge of the agreement was to be imputed to a second partner and, therefore, to be also imputed to the second partner’s client. The supreme court of Wisconsin spoke thus:

“While knowledge on the part of [the client] is alleged, the allegation is one of law, i.e., the knowledge is only by imputation because a former partner of the lawyer conducting the transaction had actual knowledge. We decline to give validity to this far-fetched imputation and conclude that knowledge will not be imputed as a matter of law under these circumstances.” 68 Wis. 2d at 603.

One final observation on this point: the third-party plaintiffs do not urge imputation of knowledge of facts; they ask that we impute the thought processes of one lawyer, who recognized a possible legal theory, to another lawyer and thereby to the client. In other words, the third-party plaintiffs conclude that Mercier should have known that some court of review would accept the legal argument that section 13 — 212 was applicable to third-party actions for equitable apportionment. We cannot accept that argument, and we cannot say that the trial judge abused her discretion in permitting Mercier to file the affirmative defense. For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J, concur.


author: PRESIDING JUSTICE LaPORTA

text:
    DAVID ROSENGARD, Plaintiff-Appellant, v. C. JOHN McDONALD et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—90—0775
    Opinion filed October 5, 1990.

      Steven J. Rosenberg, P.C., of Chicago, for appellant.
    Davis, Miner, Barnhill & Galland, P.C., of Chicago (George E Galland, Jr., of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff David Rosengard appeals from an adverse judgment in his common law negligence action against a broker-dealer who arranged his purchase of limited partnership stock, stock which later became worthless. The trial judge denied plaintiffs motion to file a third amended complaint against the broker-dealer, Ogilvie & Taylor Securities Corp., finding plaintiff failed to state a valid cause of action.

At issue here is whether the trial judge erred when he refused to permit plaintiff to file his third amended complaint because it failed to plead facts showing: (1) a legal duty of ordinary care running to plaintiff from defendant and (2) defendant’s acts were the proximate cause of plaintiff’s alleged damages.

In 1985, plaintiff David Rosengard invested as a limited partner in Gateway Center Building Investors, Ltd., a partnership formed to buy and rehabilitate a building in St. Louis. Ogilvie & Taylor sold interests in the project to Illinois residents. The project was financed by a loan from Mellon Bank and by $6 million in limited partner assets. Each limited partner was asked to provide to the bank a guarantee in the amount of his investment along with an investor subscription document. The subscription document contained personal financial information about the prospective investor. Rosengard invested $48,475.23 and executed a guarantee to the bank that would make him personally liable to Mellon for that same amount if Gateway defaulted on the loan. Rosengard contends that Ogilvie & Taylor incorrectly filled out the investor profile on him by including an item that stated he already had an interest in another limited partnership worth $200,000. Rosengard contends he never told Ogilvie & Taylor this information and that it was untrue. He contends further that Ogilvie & Taylor erred in including this information in his investor subscription form. When it was submitted to the bank, the bank relied on it as a basis for qualifying him as a limited partner. Rosengard sued when the investment went sour.

On December 17, 1987, Rosengard filed a common law negligence suit against four defendants: Michael Bansley, Rosengard’s accountant; Ogilvie & Taylor Securities Corp., the broker-dealer through which Rosengard purchased his partnership interest; Ameritas, Inc., the general corporate partner for Gateway; and C. John McDonald, the developer, president, director and sole shareholder of Ameritas, Inc.

Default orders were entered against defendants McDonald and Ameritas, Inc., and the case against them is not at issue here.

On June 16, 1988, plaintiff’s case was dismissed with leave to amend. Plaintiff filed a first amended complaint August 5, 1988, and defendant Ogilvie & Taylor subsequently filed a motion to dismiss.

On January 10, 1989, the trial judge entered an order granting Ogilvie & Taylor’s motion to dismiss the first amended complaint filed against it. The order provided that plaintiff could take additional discovery and seek leave to file a second amended complaint. The order also stated that the dismissal would become final July 8, 1989. A similar order was entered February 23, 1989, after Bansley moved to dismiss the complaint against him.

On February 24, 1989, a second amended complaint was filed, naming only McDonald and Ameritas as defendants. No further pleadings were filed against Bansley.

On September 21, 1989, plaintiff moved to file a third amended complaint against Ogilvie & Taylor. We note here that the parties and the trial court call this document a “third amended complaint” when in fact plaintiff merely sought to add an additional count to the second amended complaint. This count named Ogilvie & Taylor as a defendant and was therefore a supplement to the second amended complaint. Since it was called a third amended complaint at the trial court level, however, we use that term here for the sake of simplicity.

On February 6, 1990, the trial judge denied plaintiff’s motion to file a third amended complaint. The court order stated: “[Fjinal judgment is entered in this matter against plaintiff and in favor of Ogilvie & Taylor. The court expressly finds pursuant to Supreme Court Rule 304(a) that there is no just reason for delay and directs that final judgment enter as above specified.”

On appeal, plaintiff contends the trial judge erred in denying plaintiff’s motion to file a third amended complaint.

It is within the sound discretion of the trial court to permit or refuse an amendment to pleadings at any time before final judgment, and its decision will not be disturbed on review absent an abuse of discretion. Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 187, 542 N.E.2d 402, 410.

On February 6, 1990, the trial judge held that plaintiff failed to plead facts that showed a legal duty of ordinary care running to plaintiff from Ogilvie & Taylor. The court also found the third amended complaint, “like the previously-dismissed Count II of the first amended complaint, fails to plead facts showing that the alleged acts of Ogilvie & Taylor were the proximate cause of the damage alleged.”

We note here, however, that when the trial judge dismissed the first amended complaint, he ordered that a transcript of his reasoning be added as part of the record. The transcript is not part of the record. It is the appellant’s responsibility to make sure the record on appeal is complete. A reviewing court will not consider anything that is not contained in the record. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 564, 532 N.E.2d 493, 498.

Plaintiff cites two cases in support of his right to amend his pleading to add a claim of common law negligence, Duhl v. Nash Re alty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267, and Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 214 N.E.2d 612. In Duhl, the court reinstated a dismissed cause of action for negligent misrepresentation where plaintiffs alleged they justifiably relied on information supplied by a real estate broker concerning the value of their home and how quickly it might sell. In Citizens, the court found defendant liable on a theory of negligent misrepresentation when a salesman for a construction company was ordered by the company president to advise purchasers that the homes were free of construction loans when in fact they were not.

In both cases, the court looked to the Restatement of Torts to help it determine the requirements for common law negligence. The Restatement (Second) of Torts has similar wording. It states: “One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Restatement (Second) of Torts §552 (1977).

Defendant argues at the outset that the amended complaint contains no allegation of damages as do other counts in the complaint. To determine whether a cause of action has been stated, the whole complaint must be considered, rather than taking a myopic view of a disconnected part. Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438, 546 N.E.2d 580, 585.

The threshold question we must consider is whether plaintiff’s complaint alleges a duty of care running from defendant to plaintiff.

Plaintiff contends his third amended complaint was sufficient to show the required duty of care. In the third amended complaint, plaintiff alleged Ogilvie & Taylor “supplied information to plaintiff for his guidance in connection with an investment” and “owed a duty to plaintiff to exercise due care and competence in obtaining and communicating information to plaintiff.” Plaintiff further contends he was seeking expert guidance and trusted and relied on defendant. Plaintiff argues he was never told to be wary of the fact that defendant was no more than a selling agent for Gateway. Plaintiff argues that defendant, just like the real estate broker in Duhl and the salesman in Citizens, owed a duty to exercise reasonable care.

Defendant argues, however, that to impose a common law duty of ordinary care from salesman to potential purchaser would violate the principles courts use to determine whether a duty of care should be implied. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) To impose such a duty, plaintiff urges, would invite negligence suits whenever a purchase does not turn out to the buyer's satisfaction.

Instead, defendant contends a more recent Illinois case controls the court’s interpretation of what allegations are required to support a cause of action for common law negligence. (Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp. (1982), 109 Ill. App. 3d 132, 440 N.E.2d 282.) In that case, the plaintiff consulted IBM and a software company on equipment and software it wanted to purchase. Based on representations by the two companies’ representatives, plaintiff bought computer hardware and software that was unsatisfactory. The plaintiff sued, but the court, using the Restatement (Second) of Torts in its analysis, held that lawsuits for negligent misrepresentations “are limited to situations involving one who in the course of his business or profession supplies information for the guidance of others in their relation with third parties.” Black, Jackson & Simmons, 109 Ill. App. 3d at 136.

Defendant Ogilvie & Taylor argues that it is no different than the sales officials in Black for it was acting as Gateway’s Illinois sales office, soliciting investors for its principal. Defendant argues that this “third party” approach also is supported in Federal court cases (National Can Corp. v. Whittaker Corp. (N.D. Ill. 1981), 505 F. Supp. 147; Rankow v. First Chicago Corp. (7th Cir. 1989), 870 F.2d 356). We need not go into these cases here because we have adequate controlling State law.

As further proof that Ogilvie & Taylor’s actions were solely as a sales official for Gateway, defendant notes that plaintiff hired his own accountant to help him deal with third parties and never paid Ogilvie & Taylor for its advice. Plaintiff’s complaint does not allege he went to defendant for advice. Defendant also urges the court to consider the public policy ramifications of imposing a duty of ordinary care from sellers to buyers.

Plaintiff argues in response, however, that Black is distinguishable because defendant here went further than did the computer sales officials. Defendant here prepared false subscription documents, plaintiff argues, and he relied on defendant’s expertise in both recommending an investment and in filling out the documents.

Plaintiff also distinguishes Black from this case by arguing that computer sales people collect no commissions as a securities broker-dealer would. Plaintiff argues that “a broker-dealer will be looking to him for his commission insofar as securities customers typically expect to pay a commission to the broker.” Plaintiff admits he paid no commission but argues that defendant still should not be considered Gateway’s sales official.

Plaintiff’s argument on this point is unpersuasive, particularly in light of the fact that he admits defendant was a selling agent for the limited partnership and that he paid no commission to defendant. We find Black to be the controlling law. The trial judge’s decision was not in error when he found plaintiff failed to allege that defendant owed him a duty of ordinary care.

Even assuming a duty existed, plaintiff fails to show that he would not have been injured but for defendant’s actions.

Plaintiff alleges defendant violated its duty by negligently filling out his investors subscription document and by failing to describe the risks he might face, particularly his exposure to Mellon Bank. Plaintiff alleges he never provided to anyone information on the phantom $200,000 limited partnership investment and did not have such an investment. The erroneous information prompted his acceptance as a limited partner when in fact he was not otherwise qualified, plaintiff alleges.

In its order, the trial court found the third amended complaint, “like the previously-dismissed Count II of the first amended complaint, fails to plead facts showing that the alleged acts of Ogilvie & Taylor were the proximate cause of the damage alleged.” Pleadings are to be liberally construed with a view to doing justice between parties, but that does not lessen the obligation of the plaintiff to set out facts necessary for recovery under the theory asserted in the complaint. Kirk, 117 Ill. 2d at 516.

Defendant argues that its conduct did not cause plaintiff’s losses, but rather that a subsequent event caused any damage plaintiff may have suffered. Defendant contends it did no more than sell Gateway as an investment. The amended complaint fails to allege any connection between defendant’s conduct and Gateway officials’ subsequent alleged misconduct or conversion which caused the partnership to fail 18 months after plaintiff invested in the project.

Where a negligent act or omission does nothing more than furnish a condition which makes an injury possible, but the injury is caused by the subsequent independent act of a third person, the two acts are not concurrent and the condition is not the proximate cause of the injury. (Storen v. City of Chicago (1940), 373 Ill. 530, 533-34, 27 N.E.2d 53, 79.) A more recent case, which relied on Storen, noted that in Illinois, a distinction is made between the proximate cause of an injury and a condition which provides an opportunity for the causal agency to act. Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 275, 533 N.E.2d 75, 79.

Defendant urges this court to find Lane and Storen dispositive of the proximate cause issue. Defendant argues further that Federal cases interpreting Federal securities law say a plaintiff must prove both “transaction causation” and “loss causation.” A Seventh Circuit Court of Appeals decision describes the two terms: transaction causation proves that defendant’s conduct caused plaintiff to enter into the transaction whereas loss causation proves defendant’s conduct “touches upon the reasons for the investment’s decline in value.” (LHLC Corp. v. Cluett, Peabody & Co. (7th Cir. 1988), 842 F.2d 928, 931.) Where plaintiff is induced to purchase securities in reliance on conduct which, however deceitful, is immaterial to the operative reason for the pecuniary loss, he has failed to prove the requisite loss causation. Currie v. Cayman Resources Cory. (11th Cir. 1988), 835 F.2d 780, 785.

Defendant further argues that plaintiff fails to show how any of its alleged omissions about Gateway’s potential risk are connected with mismanagement or conversion alleged in other parts of the complaint against Gateway officials. In fact, defendant argues, plaintiff does not specify any potential risk defendant could have warned him about.

In response, plaintiff argues that the Federal cases involve Federal securities law and are therefore inappropriate for comparisons. With regard to Lane, plaintiff distinguishes the case, noting that plaintiff there was a private security guard who sued the City of Harvey for not providing him with training, as it had done voluntarily in the past with other private security guards. There, plaintiff argues, no relationship existed between the city and the security guard. Here, plaintiff notes, the defendant and Gateway “worked hand in glove.” But this comparison is in error. To properly compare the parties in the two cases, plaintiff should also match plaintiff and defendant in this case and consider their relationship, not compare the relationship of two defendants. In this case, plaintiff contacted defendant to purchase a limited partnership, but the record reveals no further relationship.

Our review of the complaint shows plaintiff failed to state what defendant could have done differently to warn him of any potential risks or even what risks existed. Plaintiff does, however, allege that he believes he would not have been accepted as an investor if defendant had not negligently filled out the investor subscription form.

This court must determine whether the trial court’s denial of leave to file a third amended complaint was in error. Absent a clear abuse of discretion, the decision will be upheld. Twice the trial court found plaintiff failed to allege a proximate cause between his alleged injury and defendant’s actions. Plaintiff has not shown how that decision was in error.

We also point out that after plaintiff’s second amended complaint was dismissed, the trial court stated that plaintiff could seek leave to file an amended complaint before the order became final July 8, 1989. It was not until September 21, 1989, that plaintiff moved to file a third amended complaint. Timeliness is a factor to be considered in allowing an amendment to be filed, though leave to file an amendment should not be denied on the sole basis that it is not timely. Tamalunis, 185 Ill. App. 3d at 187.

Finally, defendant notes that plaintiff seeks damages in the amount of Rosengard’s guarantee to Mellon Bank. Plaintiff’s complaint, however, speaks only of a lawsuit pending against him brought by Mellon Bank. The record does not show a judgment against plaintiff. His complaint states that he “may now be liable to the Mellon Bank for an amount equal to his investment in the limited partnership.” Even if we were to find defendant liable, plaintiff failed to allege any pecuniary loss, only potential pecuniary loss.

We find no abuse of discretion by the trial court and therefore affirm its decision to deny plaintiff leave to file his third amended complaint.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    JAMES S. LADIS, Plaintiff-Appellant, v. OLCOTT VISTA CONDOMINIUM ASSOCIATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—2445
    Opinion filed October 9, 1990.
    Rehearing denied November 20, 1990.— Modified opinion filed November 26, 1990.

      Spencer W. Schwartz & Associates, of Chicago (Paul Armstrong, of counsel), for appellant.
    O’Connor, Schiff & Myers, of Chicago (Loretta M. Griffin, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

James Ladis brought a negligence action against Oleott Vista Condominium Association (Association) for injuries received when he fell and landed on a fence erected by the Association. The trial court granted the Association’s motion to dismiss. For the reasons below, we reverse.

James Ladis, 23, alleged that he stumbled on a broken public sidewalk and fell onto the sharp end of a metal pole, about 20 inches high, which was part of a fence owned by the Association. The fence had been erected by the Association to keep pedestrians off its property and was situated entirely on the Association’s property, abutting the sidewalk.

Ladis sued the Association for negligence and violations of the Chicago Municipal Code, sections 193 — 14 and 61 — 5.4, which require fences with spikes or barbed wire to be over six feet high. (Chicago Municipal Code §§193 — 14, 61 — 5.4 (1984).) The Association moved to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), arguing that it owed Ladis no duty of care because Ladis’ injuries were not reasonably foreseeable. The trial court dismissed. Ladis appeals.

The Association also argues that because it owed no duty to persons injured on the adjacent public sidewalk, it owed Ladis no duty of care. The Association relies on a correct legal principle, but Ladis’ injuries were caused by the Association’s fence and occurred on Association property. Thus, the legal principle is inapposite, and the Association’s conclusion is without merit.

The Association also argues that it owed Ladis no duty because his injuries were not reasonably foreseeable as a matter of law, citing Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, where the plaintiff was thrown from an automobile collision and landed 30 feet away, impaling his leg on an abandoned drainpipe on the defendant’s land. The Association maintains that the instant facts are identical to Cunis, because Ladis was involuntarily propelled onto its property, and therefore, the Association owed no duty as a matter of law.

But Cunis did not hold that a landowner owes no duty to a person who enters his land involuntarily. Rather, Cunis held that the defendant owed no duty of care because the injury was not reasonably foreseeable: “[T]he remote possibility of the occurrence did not give rise to a legal duty [by] the [defendant] to the plaintiff.” (Cunis, 56 Ill. 2d at 377-78.) Here, the facts alleged show that Ladis’ injuries were both reasonably foreseeable and likely.

Ladis alleged that he landed on the Association’s fence after stumbling on the broken public sidewalk. A public sidewalk is used by many people who vary greatly in age, disabilities, physical condition, and sobriety. Some will walk faster or slower than others, and some will pay more or less attention than others to where they step. Some people may ride bicycles or tricycles on the sidewalk, or use roller skates, roller blades, or skateboards. The condition of the sidewalk will also vary, tending to deteriorate with time.

Given the variety of users and uses, and the relatively low priority placed on maintaining public sidewalks, a pedestrian falling on the sidewalk adjacent to the Association’s property was foreseeable and likely. Common sense dictates that a person who stumbles generally will land somewhere nearby, with little control over where he lands. Thus, one who stumbles on a patch of broken sidewalk is likely to land on private property abutting the sidewalk, and equally likely to land on a fence built on that property very near the sidewalk.

The Association further argues that no duty of care has been imposed on the private landowner for injuries to persons who involuntarily came into contact with structures on the land, citing several cases where motorists collided with structures on private land adjacent to the public roadway. (See Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 517 N.E.2d 656 (motorist drove into pond); Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62 (motorist struck utility pole 6 to 12 inches from roadway); Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519 (motorist struck utility pole 12 to 16 feet from roadway); see also West v. Faurbo (1978), 66 Ill. App. 3d 815, 384 N.E.2d 457 (bicyclist struck concrete abutment four to five feet from sidewalk).) Those cases held that it was not reasonably foreseeable, in the normal course of events, that a motorist would leave the roadway and collide with the structure involved. The Association urges this court to follow the cited cases, and hold, as a matter of law, that it would not be reasonably foreseeable, in the normal course of events, that a pedestrian would leave the sidewalk and come into contact with the Association’s fence. We decline to so hold.

In the cases above, the utility poles, abutment, and pond existed for reasons wholly unrelated to motorist travel on the adjacent road. The structures were not built or placed to prevent motorists from entering private land, nor could such a purpose be inferred from their existence. Here, however, the Association’s fence was erected to prevent pedestrians from straying onto its property; the mere existence of the fence acknowledged the reasonable foreseeability that pedestrians, in the normal course of travel, would leave the sidewalk.

By erecting its fence where pedestrians might fall and land on it, the Association assumed a duty to exercise reasonable care to prevent, or reduce the seriousness of, injuries caused by the fence. Thus, the Association’s duty of care extended to the pedestrian Ladis, who was among those whose encounter with the fence was reasonably foreseeable.

The Association argues that common law analysis negates any duty of care, which depends on the foreseeability and likelihood of injury, the injury’s magnitude, and the burden imposed in guarding against the injury. (Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231; Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040, 545 N.E.2d 1014.) Assuming, however, for the reasons discussed above, that Ladis’ injuries were both reasonably foreseeable and likely, analysis of the remaining factors shows that the Association owed Ladis a duty of care.

The record indicates that when Ladis was injured, he was 23 years old, able-bodied, and sober. Had he stumbled and fallen on the grass, it is unlikely that he would have been very seriously hurt. But the Association’s fence was built where a person stumbling on the sidewalk could land on it, and due to its design, receive serious injuries. The Association could easily and economically have prevented or reduced potential injuries by blunting, padding, or capping the ends of the stakes, or by erecting a safer fence. Because the injuries Ladis suffered were both reasonably foreseeable and serious, and because the Association could have prevented or reduced Ladis’ injuries feasibly and economically, the Association owed Ladis a duty of care. We further note that the duty to Ladis was breached because the cause of Ladis’ injuries was totally in the control of the Association, which did nothing to prevent or reduce the seriousness of the injury.

Finally, Ladis argues that the Association violated Chicago Municipal Code sections 193 — 14 and 61 — 5.4. The ordinances, however, are clearly inapplicable, and it is unnecessary to extend their intent to the instant facts because the common law negligence analysis shows that the Association breached a duty owed to Ladis. Accordingly, we reverse and remand.

Reversed and remanded.

BUCKLEY, P.J., and MANNING, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH PATRICK, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3148
    Opinion filed October 10, 1990.

      Michael J. Pelletier and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Robert F. Heilingoetter, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant Keith Patrick was found guilty of two counts each of attempted murder and armed robbery and sentenced to concurrent terms of 25 years’ imprisonment on each count. On appeal, defendant argues that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in submitting Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) (hereinafter IPI Criminal 2d) defining circumstantial evidence to the jury; (3) his right to present a defense was prejudicially impaired by the State’s failure to disclose a potential witness’ name until near the end of the trial; (4) the State’s remarks in closing argument constituted reversible error; and (5) the trial court erred in denying his request to present an aggravated battery instruction to the jury. We affirm.

At trial, the following facts were revealed. Hyija Kim testified that her husband, Young Kim, owned a shoe store which she helped him operate on East 51st Street in Chicago. At approximately 10 a.m. on June 16, 1986, while Mr. and Mrs. Kim were working in the store, defendant entered alone. At his request, Mrs. Kim brought defendant a pair of shoes and watched as he tried on one shoe. After trying on the shoe, defendant stated that he wanted to buy the pair and approached the sales counter. At the counter, defendant placed his right hand into his pocket and removed his empty hand. Mrs. Kim told her husband that defendant was acting strange, and Mr. Kim told defendant he could have ánything that he wanted. When defendant pulled his hand out of his pocket again, it contained a gun. Mr. Kim described the gun as big and silver. Defendant pointed the gun at Mr. and Mrs. Kim and instructed them to walk to the rear of the store, where he made them lie down on the floor. Defendant removed Mr. Kim’s wallet from his pocket and took $250 in cash.

Defendant walked into the main store area for a moment, returned to the rear, and ordered both Mr. and Mrs. Kim into the warehouse located in the back of the store. As they proceeded into the warehouse, Mr. Kim turned around and tried to grab defendant’s gun. Defendant fired the gun twice, striking Mr. Kim in the stomach and Mrs. Kim in the chest. Defendant then left the store with the pair of shoes under his arm. While hospitalized, Mrs. Kim made a tentative identification of defendant from a photo array. On June 23, Mr. Kim positively identified defendant in a police lineup as the man who robbed and shot him and his wife. Both witnesses identified defendant in court.

Jimmy Rodgers, age 72, testified that on June 16, 1986, he was sitting outside a laundromat located across the street from the Kims’ shoe store. Mr. Rodgers testified that at about 10 a.m., he noticed a man running out of the shoe store just before Mr. Kim began screaming for help. When Mr. Rodgers crossed the street, he saw that Mr. Kim was bleeding from the stomach. Mr. Rodgers testified that he was able to see the profile of the man who ran from the store at a distance of approximately 25 to 30 feet. Rodgers positively identified defendant in a police lineup and at trial as the man he saw running from the Kims’ shoe store on June 16,1986.

Defendant testified on his own behalf and stated that on the date and at the time that the crime was committed he was with his girlfriend at her home. He testified that several members of his girlfriend’s family were also present. In addition, defendant’s aunt and grandmother both testified that defendant always treated them in a polite manner. Following closing arguments, the jury returned verdicts of guilty of two counts each of attempted murder and armed robbery. Defendant was subsequently sentenced to concurrent terms of 25 years’ imprisonment on each count in the Illinois Department of Corrections. This appeal followed.

On appeal, defendant first argues that the State failed to prove him guilty beyond a reasonable doubt. We disagree. The positive identification of an accused by a single eyewitness may be sufficient to sustain a conviction. (People v. Dean (1987), 156 Ill. App. 3d 344, 351, 509 N.E.2d 618, 622.) An identification is considered positive, and thus reliable, where (1) the witness had a sufficient opportunity to view the offender, (2) showed an adequate degree of attention to the characteristics of the assailant, (3) described the perpetrator with a reasonable degree of accuracy, (4) displayed a sufficient amount of certainty in identifying the offender, and (5) identified the accused within a reasonable period of time following the crime. (156 Ill. App. 3d at 351, 509 N.E.2d at 622.) On review, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73.

In the present case, three witnesses identified defendant. Mr. Kim’s identification was based on his observation of defendant in the store as he held him and his wife at gunpoint before robbing and shooting them. One week following the incident, Mr. Kim positively identified defendant in a police lineup. Mrs. Kim also testified with certainty that defendant was the man whom she waited on in her shoe store on June 16, 1986, before he pulled out a gun and robbed and shot her and her husband. Although Mrs. Kim’s initial identification of defendant from a photographic array was tentative, she positively identified him in court. Mrs. Kim testified that defendant was no more than five to six feet away from her during the entire ordeal. Mr. Rodgers testified that he observed defendant’s profile as he ran from the store, and he also positively identified defendant in a police lineup and in court. In sum, all three witnesses had a sufficient opportunity to view defendant, displayed sufficient certainty in identifying him and identified him within a reasonable period of time following the crime. Under these circumstances, it is clear from the record that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Defendant next argues that the trial court erred in submitting IPI Criminal 2d No. 3.02 defining circumstantial evidence to the jury. We disagree.

The failure to raise an allegation of error at trial and in a post-trial motion constitutes waiver of the alleged error. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Similarly, a defendant waives objection to jury instructions if he does not object or proffer alternative instructions at trial. (People v. Almo (1985), 108 Ill. 2d 54, 66, 483 N.E.2d 203, 208.) Although this court may consider an issue raised on appeal even where the objection has been waived, this procedure is utilized only when the alleged error so affects substantial rights that it rises to the level of plain error. Almo, 108 Ill. 2d at 66.

In the present case, defendant failed to object either at trial or post-trial to the introduction of the complained-of jury instruction. Defendant also failed to proffer an alternative instruction during the jury instruction conference. Under these circumstances, defendant’s objection is waived. Furthermore, any alleged error in the introduction of the instruction does not rise to the level of plain error. We nonetheless conclude that the trial court did not err in submitting the circumstantial evidence instruction to the jury.

Defendant next argues that his right to present a defense was prejudicially impaired by the State’s failure to disclose a witness’ name until near the end of the trial. We disagree.

The suppression by the prosecution of requested evidence favorable to the accused violates due process where the evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution. (Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97.) In the present case, defendant asserts that, prior to trial, his trial counsel made a request to examine the pictures used in connection with the photographic array from which defendant was identified. The State responded by informing the defense that the photographs would be made available for viewing prior to trial. However, defendant’s trial counsel did not obtain the photo array until the trial had begun.

When defendant finally viewed the photographs, he recognized one of the pictures to be that of a person known to him as Honeyboy. Defendant then requested that the State provide him with the real name and last known address of Honeyboy. Two days later, the State complied with defendant’s request. Defendant argued that the State’s late compliance precluded him from locating and interviewing Honey-boy or any of the other persons pictured in the photo array for use in his defense. On appeal, defendant asserts that the State’s failure to disclose the identity of Honeyboy at an earlier date prejudiced him because the witness may have provided exculpatory information useful to the defense.

At trial, Chicago police detective Szudarski testified that during his investigation of the incident someone from the neighborhood informed him that two persons named M.C. and Honeyboy were seen in the neighborhood on the date of the armed robbery. Szudarski located photos of these two men from police records and later placed their photos in the array that was shown to Mrs. Kim. Mrs. Kim identified defendant, who was also known as M.C., but did not identify Honeyboy. Further, neither Mr. Kim nor Mr. Rodgers identified Honeyboy as a participant in the incident. In addition, defendant testified at trial that he and Honeyboy were members of the same street gang and that he had once lived in the apartment building where Honeyboy currently lived. Under these circumstances, we conclude that since none of the witnesses identified Honeyboy as a participant in the offense, evidence of Honeyboy’s identity was not exculpatory in nature and did not clearly relate to defendant’s guilt or punishment. Further, because defendant was familiar with Honeyboy and knew where he lived, the State’s failure to provide the requested information at an earlier date, while improper, did not preclude defendant from locating, interviewing or calling him to testify at trial.

Defendant next argues that the State’s remarks in closing argument constituted reversible error. We disagree. A prosecutor is allowed wide latitude in closing arguments, and a misstatement by a prosecutor does not deprive defendant of a fair trial, unless such remark clearly affected the outcome of the trial. (People v. Davis (1982), 104 Ill. App. 3d 512, 516, 432 N.E.2d 1134, 1137.) Whether a prosecutor’s comments or arguments constitute prejudicial error is evaluated according to the language used, its relation to the evidence, and the effect of the argument on the defendant’s right to a fair and impartial trial. (People v. Radar (1988), 178 Ill. App. 3d 453, 462, 532 N.E.2d 1365, 1370.) Remarks in closing arguments must be examined in the context of the remarks made both by the State and the defense; but, all remarks made in the closing arguments must be based upon the evidence presented or reasonable inferences drawn therefrom. People v. Lewis (1990), 198 Ill. App. 3d 976, 982, 556 N.E.2d 697, 701.

Defendant contends that he was prejudiced by the State’s closing arguments wherein the prosecutor argued that defendant was not prejudiced by the alleged late disclosure of Honeyboy’s identity. Defendant admitted during his testimony both that he knew Honey-boy and that they belonged to the same street gang and saw each other two to three times per week before defendant’s arrest. The prosecutor argued that based on these facts, defendant had the power to subpoena Honeyboy to testify if he felt it would help his defense. The trial court overruled defendant’s objection to this portion of the State’s closing argument. In so doing, the court noted:

“Well, Mr. Patrick testified on both Direct Examination and Cross-Examination that he knows Honeyboy, that he is a Cobra Stone. And on Cross he said that he was a member of the gang for five years and Honeyboy is a member of the gang with him. Now, there was some conversation. There was a question on Cross as to how many times a week he saw him. I did not happen to write it down; I don’t know if he saw him two or three times a week.”

As the court noted, the State’s argument was based upon the evidence presented at trial and reasonable inferences therefrom. In addition, the State’s comments were invited response to defense counsel’s closing argument in which he stated as follows:

“Mr. Patrick testified that Detective Szudarski had told him that Honeyboy isn’t going to be there, you’re going to take the fall. Well, I think he knew more about Honeyboy than he told about him and perhaps Honeyboy has something to do with this matter. However, Honeyboy was not here-to testify or we don’t know where his whereabouts is [sic].”

Defendant also complains that the following portion of the State’s argument was prejudicial:

“You took an oath when you came into this courtroom, ladies and gentlemen, to do a duty, to listen to the evidence, to watch carefully what came from that stand. Don’t let smoke screens overshadow the real issue here. The real issue is whether this guy went into that store with that gun and tried to kill these people and took money from Mr. Kim in Mrs. Kim’s presence. That is the issue. That is the only issue.
Don’t let all of the clouds over all of this Honeyboy, and this and that, cloud the fact that these people identified this guy. This is the guy. This is the guy that tried to kill them. Don’t let mind games take over your common sense, ladies and gentlemen. Don’t let that happen.
You go in that jury room, ladies and gentlemen, you tell the Kims that what they did was not in vain by coming in here. You tell Mr. Rodgers as I told you before a man on a day when nobody wants to get involved came up here and testified and told you what happened and what he saw and pointed his finger at this man. You tell Mr. Rodgers that he didn’t waste his time when he did that and he didn’t waste his time and possibly his safety when he did that.”

Viewed in context, the State’s arguments did not prejudice defendant or clearly' affect the outcome of his trial. Both victims named defendant as the person who robbed and shot them on June 16, 1986. In addition, one witness testified that he saw defendant run from the store following the shooting. That evidence was not substantially contradicted by defendant’s uncorroborated alibi testimony. Under these circumstances, we conclude that the prosecutor’s closing argument did not deny defendant his right to a fair trial.

Finally, defendant argues that the trial court erred in denying his request to present an aggravated battery instruction to the jury. We disagree.

Where there is evidence in the record which would reduce the crime to a lesser rather than the greater offense, defendant is entitled to an instruction on the lesser-included offense. (People v. Smith (1981), 94 Ill. App. 3d 969, 973, 419 N.E.2d 404, 407.) In the present case, the trial testimony indicated that defendant shot both Mr. and Mrs. Kim at close range in vital areas of their bodies (i.e., the chest and stomach). A rational trier of fact could have. reasonably found that behavior to indicate an intent to kill. In addition, defendant failed to present any evidence which would reduce the conviction to the lesser offense. We therefore conclude that the trial court did not err in.denying defendants request to present an aggravated battery instruction to the jury.

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

Affirmed.

CERDA, P.J., and WHITE, J., concur.