author: JUSTICE WELCH JUSTICE GOLDENHERSH,

text:
    LEE ELLIS, Plaintiff-Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, INC., Defendant-Appellee.
    Fifth District
    No. 5—88—0390
    Opinion filed January 4,1990.

      GOLDENHERSH, J., dissenting.
    Kujawski, Rosen & Faerber, of Belleville (Fritz G. Faerber, of counsel), for appellant.
    John B. Gunn and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

In an action seeking recovery for personal injury, plaintiff, Lee Ellis, appeals from a judgment entered December 10, 1987, in the circuit court of St. Clair County, following the return of a jury verdict in favor of defendant, St. Louis Southwestern Railway Company.

Plaintiff, Lee Ellis, was employed by St. Louis Southwestern Railway Company (hereinafter Railway) in 1972 as a switchman-brakeman. Plaintiff was promoted to the position of assistant trainmaster in 1975. In 1979, the railway found it necessary that plaintiff return to his previous position as a switchman-brakeman. Approximately two years later, on December 20, 1981, while working in his capacity as a switchman-brakeman, plaintiff allegedly injured his back.

A brakeman-switchman works in the rail yards, where his duties require that he lift heavy objects, jump on and off of box cars, bend, squat and crawl. At the time plaintiff allegedly was injured, he was working in the trainyard as a pinlifter. A pinlifter walks beside a train of slowly moving railroad cars and disconnects certain cars from the train. To disconnect a railroad car, the pinlifter pulls up on a pin that disengages the knuckle coupling one railroad car to the next.

At trial, plaintiff testified that on the day he was injured, one of the pins on a railroad car did not release on the first pull. Since the pin did not release on the first pull as it was supposed to, plaintiff jerked on the pin three or four times, but was still unsuccessful in disengaging the knuckle. Plaintiff stated that on the third or fourth jerk, he “gave it all [he] had” and felt something snap in his back. After feeling a snap in his back, plaintiff testified, he stopped and went to inform the foot board yardmaster of the incident. Because only a small fraction of the railway cars remained to be uncoupled in the switching operation then in progress, the yardmaster asked whether the plaintiff could continue. Plaintiff responded that he would make an attempt, and continued working. In completing his accident report form, plaintiff stated that the accident happened “[w]hile pulling pins, on about 45th car, I started developing lower back pain on right side extending down right leg.”

Although the Railway had a program for mechanical inspections of the cars as they arrived at the trainyard, plaintiff knew of no inspection program which included a check to determine whether the pinlifters were working properly. Plaintiff stated that, by looking at a pinlifter, he could not determine whether a defect existed. Moreover, plaintiff knew that it was the Railway’s practice to inspect any reported defective conditions. However, plaintiff testified that he did not report the car which allegedly caused his injury because there was nothing unusual about a pinlifter sticking, and because he assumed that the foreman on duty was aware of the particular car which had an inoperative pinlifter.

James McAllister, the foot board yardmaster on duty at the time of plaintiffs alleged injury, was required to complete two accident forms. Neither of these forms reports any defective condition. In fact, in response to the portion of the report form requesting that he state how the accident occurred, McAllister responded “Don’t know.” Moreover, McAllister testified at trial that, although pinlifters have mechanical defects approximately 1% of the time, he recalled no particular problem with any pinlifters at the time of plaintiff’s alleged injury.

Ashley Spears was the assistant trainmaster on duty at the time of plaintiff’s alleged injury. At that time, Spears was working in the control tower and was informed that plaintiff wished to speak with him. Plaintiff informed Spears that, while pulling pins, his back began bothering him. In his capacity as trainmaster, it was Spears’ responsibility to investigate on-the-job accidents. As part of the preliminary investigation, Spears required plaintiff, and other members of plaintiff’s crew, to complete standard accident report forms used by Railway. In completing the accident report, plaintiff made no reference to a pinlifter sticking or being otherwise defective.

Also as part of Spears’ investigation, he was required to complete an accident investigation guide sheet. Spears testified that when a personal injury is reported it becomes a primary concern of the Railway to inspect the equipment which caused injury. When Spears asked plaintiff whether there was any particular car involved, plaintiff responded that there was none. When asked if he slipped, tripped, or fell, plaintiff responded that he had not. When asked if the inclement weather on the evening of the alleged injury, which included freezing rain and sleet, had anything to do with the alleged injury, plaintiff responded that it had not. Likewise, plaintiff stated that the speed of the cars had nothing to do with his alleged injury.

The first issue presented for our consideration is whether the trial court erred in failing to submit to the jury plaintiff’s tendered issue instruction related to the Railway’s potential liability for failing to provide plaintiff a safe place in which to work. Plaintiff tendered two issues instructions pertaining to the theories under which plaintiff believed he was entitled to recovery. These issues were that the Railway provided plaintiff with a defective pinlifter with which to work, and that the Railway failed to provide plaintiff with a reasonably safe place in which to work. Of these two issues instructions, the trial court allowed the former to be submitted to the jury and refused submission of the second. Upon review, we affirm the trial court’s determination that only the former issues instruction be submitted to the jury.

Under the Federal Employer’s Liability Act (45 U.S.C. §51 et seq. (1982)), it is required that Railway provide its employees with a safe place in which to work. In an instruction separate from the issues instructions, the jury was instructed on the Railway’s duty to provide plaintiff a safe place in which to work. On appeal, plaintiff argues that the safe place to work instruction should have been submitted to the jury as a separate issue instruction. We disagree.

On review, the proper inquiry is whether the instructions as a whole were sufficiently clear so as to not mislead the jury and to fairly and correctly state the law. (Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806.) A trial court has discretion in deciding which issues are raised by the evidence. (Black v. Peoria Marine Construction Co. (1987), 160 Ill. App. 3d 357, 513 N.E.2d 622.) In the case now before us, the record does not support an issue instruction on Railway’s failure to provide a safe place to work. Although Railway’s failure to provide a safe place to work was one theory of recovery alleged in plaintiff’s complaint, it does not necessarily follow that plaintiff is automatically entitled to have the jury instructed on this theory of recovery. The trial court is empowered with the discretion to refuse to submit to the jury an issue instruction based on a theory not supported by the record.

In the present case, the only theory of defendant Railway’s negligence arguably supported by the record is the Railway’s failure to provide the plaintiff with pinlifters in good working order. In the face of evidence that it was the policy of the Railway that its employees pull on the pinlifters only once, and not jerk the pinlifters, plaintiff testified that he pulled on the alleged injury-causing pinlifter two or three times, and then, after the knuckle did not uncouple, “gave it all he had.” This evidence indicates that plaintiff’s injury was a sudden snap of his back. Somewhat to the contrary, other evidence in the record, such as plaintiff’s complaint at the time of the accident that he began developing back pain, and his inability to assign his injury to any particular train car, indicates that the injury may not have been the result of any isolated pinlifting attempt, but rather, a cumulative effect of many pinliftings. Although there appears to be some inconistency in the evidence, this inconsistency affects only the weight to e assessed to the evidence by the jury, and not the admissibility of he evidence. Thus, the record does support the submission of the issues instruction relating to the defective pinlifters. However, we are unable to so find on plaintiff’s tendered safe workplace issue instruction.

When asked if the weather (which was cold and icy), the condition of the railway, or the speed of the train had anything to do with his injury, the plaintiff responded they did not. Nor do we find any other evidence to support a safe workplace issue instruction. Without making reference to any particular evidentiary support, plaintiff argues on appeal that the trial court’s failure to submit the tendered issue instruction regarding a safe place to work deprived plaintiff of any opportunity of enforcement of the law. We disagree.

The jury was instructed in more than one general instruction that the Railway, pursuant to the Federal Employer’s Liability Act, was required to provide its employees with a safe place to work. Although Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 1 L. Ed. 2d 493, 77 S. Ct. 443, the landmark case on causation in Federal Employer’s Liability Act cases, effectively reduces the causation requirement necessary to prove a negligence case, it is still necessary for a plaintiff to show that the defendant’s negligence played at least a slight part in producing the injury for which recovery is sought. Thus, it is not sufficient merely to state that the employer was negligent in providing a safe place to work and that the plaintiff was injured. Plaintiff must attempt to draw some causal relation between defendant’s negligence and plaintiff’s injury. It is at that point that plaintiff becomes entitled to an issue instruction on the underlying theory of negligence. Plaintiff, in the case sub judice, failed to present evidence to support a theory of negligence based on Railway’s failure to provide a safe place to work; therefore, the trial court properly denied submission of plaintiff’s tendered issue instruction based on a theory not supported by the evidence.

Plaintiff’s second argument on appeal is that the trial court erred in failing to enter judgment for plaintiff on plaintiff’s motion for directed verdict, or, in the alternative, erred in failing to set aside the verdict and ordering a new trial. Plaintiff argues that, pursuant to the Safety Appliance Act (45 U.S.C. §2 (1982)), Railway is strictly liable for plaintiff’s injuries which resulted from his attempt to correct a malfunctioning coupler.

Section two of the Safety Appliance Act provides:

“It shall be unlawfiil for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” (45 U.S.C. §2 (1982).)

Plaintiff relies on the holding of this court in Buskirk v. Burlington Northern, Inc. (1982), 103 Ill. App. 3d 414, 431 N.E.2d 410, where we held defendant railroad strictly liable for the injuries suffered by an employee while going between two train cars to straighten a misaligned drawbar. This reliance upon Buskirk is misplaced, because in that case the facts were undisputed that plaintiff was between two train cars attempting to straighten misaligned drawbars at the time he was injured. (103 Ill. App. 3d at 415, 431 N.E.2d at 412.) In the present case, the facts surrounding plaintiff’s injury are not undisputed.

Had the facts in the instant case unequivocally indicated that plaintiff was injured while going between two railway cars due to the cars’ failure to automatically couple, or uncouple, without it becoming necessary for an employee to go between the cars, then section 2 of the Act would be applicable. However, in this case, there is no evidence in the record to support a claim that plaintiff was injured while between two cars. At one point in his testimony, plaintiff claimed that, due to the varying size of train cars, it sometimes was necessary to position himself in front of or behind another car in order to handle a pinlifter. However, we find no evidence to support a claim that plaintiff was between the ends of two cars at the time of his injury. Therefore, a finding of strict liability pursuant to the Act would have been improper on these facts.

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

Affirmed.

RARICK, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

The majority in this opinion affirms the trial court’s refusal of laintiff’s tendered instruction on a safe place to work and in the ourse of the opinion reviews the evidence admitted on that question, differ with my colleagues, determining that on the record before us here is sufficient evidence to submit a safe place to work instruction nd that the trial court’s failure to give that tendered instruction was eversible error.

It is basic law that a jury should be instructed on all theories of a given case that have evidence in the record to support that particular theory. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500, stands for the proposition that a plaintiff has the right to have the jury “clearly and fairly instructed” on each theory of his case that is supported by the evidence. 65 Ill. 2d at 145, 357 N.E.2d at 503.

The majority opinion recites sufficient evidence to support plaintiff’s theory of failure to provide a safe place to work in its succinct recitation of the events on the day in question. The proper standard to be applied by the trial court is whether there is evidence in the record that arguably supports the theory in question. Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265.

As related in the majority opinion:

“At trial, plaintiff testified that on the day he was injured, one of the pins on a railroad car did not release on the first pull. Since the pin did not release on the first pull as it was supposed to, plaintiff jerked on the pin three or four times, but was still unsuccessful in disengaging the knuckle. Plaintiff stated that on the third or fourth jerk, he ‘gave it all [he] had,’ and felt something snap in his back.” (193 Ill. App. 3d at 359.)

This scenario, standing alone, is arguable support for the theory of failure to provide a safe place to work. A jury contemplating this evidence could reasonably conclude, if properly instructed, that a railroad’s duty of a safe place to work meant in this particular case that the railroad had the obligation to supply pins that would release on the first pull. As the majority opinion later notes, it was the policy of the railroad that its employees pull on these pinlifters only once. The trier of fact could reasonably conclude that the workplace, inclusive of its machinery, should properly meet the standards that the employer itself has set and that failure to do so was negligence.

In order to consider or reach these conclusions, however, the jury must be properly instructed and meet the Ervin test as stated above. The majority opinion notes that the instructions as a whole should not mislead the jury, citing Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806, but in this particular trial, the instructions as a whole did, in fact, mislead.

Initially, the jury was instructed as part of Illinois Pattern Jury Instructions (IPI), Civil 2d No. 1.01, that:

“The law applicable to this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction and disregarding others.” (Illinois Pattern Jury Instructions, Civil, No. 1.01[2] (2d ed. 1971).)

They were subsequently instructed in IPI Civil 2d No. 160.08 that:

“It was the duty of the railroad to use ordinary care to provide the plaintiff with a reasonably safe place in which to do his work.” (Illinois Pattern Jury Instructions, Civil, No. 160.08 (2d ed. 1971).)

Plaintiff tendered, and the court refused, IPI Civil 2d No. A20.01 (Modified) (Supp. 1986), noted as “Plaintiff’s Instruction No. 16,” which noted in part:

“The plaintiff claims that he was injured and sustained damage and that the defendant St. Louis Southwestern Railway Company was negligent in one or more of the following respects:
In that St. Louis Southwestern Railway Company: failed to provide plaintiff with a reasonably safe place in which to work; provided plaintiff with a defective pin lifter with which to work.
Plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.” (See Illinois Pattern Jury Instructions, Civil, No. A20.01 (2d ed. Supp. 1986).)

The trial court, in fact, instructed the jury with plaintiff’s instruction No. 16A, IPI Civil 2d No. A20.01 (Modified) (Supp. 1986), which read as follows:

“The plaintiff claims in Count I of his Complaint that he was injured and sustained damage and that the defendant St. Louis Southwestern Railway Company was negligent in one or more of the following respects:
provided plaintiff with a defective pin lifter with which to work.
The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.” See Illinois Pattern Jury Instructions, Civil, No. A20.01[l] (2d ed. Supp. 1986).

Defendant argues to this court that since the jury was told of the uty to provide a safe place within which to work, the jury was not misled. This is clearly not so when one considers the admonition of the court to consider the instructions as a whole and the standard cited above in Lundberg that the instructions taken as a whole should .ot mislead the jury. This jury was told to heed all the instructions as whole and not individually, was told that a duty existed and then vas not told that plaintiff was alleging a breach of that particular uty. The only fair and reasonable way to read these instructions as a hole is that defendant complied with the duty to provide a safe place to work and that the jury, being guided by these instructions as a whole, should not consider a possible breach of that duty. Since the evidence submitted in this case, as recited in the majority opinion, shows that there was arguable support for the theory of breach of the duty to provide a safe place to work, failure of the trial court to instruct the jury on this issue was error, and justifies reversal and remand.

For the foregoing reasons, I would reverse and remand this cause for a new trial.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
      In re MARRIAGE OF LINDA RAE ASHBY, Petitioner-Appellee, and DANNY RAY ASHBY, Respondent-Appellant.
    Fifth District
    No. 5—89—0009
    Opinion filed January 8,1990.

      Gerald S. Reed, of Reed, Heller & Mansfield, of Murphysboro, for appellant.
    Margaret J. Walsh, of Pessin, Baird, Belsheim & Wells, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Respondent, Danny Ray Ashby (hereinafter referred to as father), appeals from an order of the circuit court of Randolph County, entered December 15, 1988, terminating his visitation rights with respect to his two-year-old daughter based upon a finding of sexual abuse. He raises three issues on appeal: (1) whether the trial court erred in allowing into evidence testimony concerning out-of-court statements allegedly made by the two-year-old daughter regarding father’s alleged sexual abuse; (2) whether the trial court’s finding that father had sexually abused daughter was an abuse of discretion and against the manifest weight of the evidence; and (3) whether the trial court’s judgment terminating father’s visitation rights was an abuse of discretion and against the manifest weight of the evidence.

The instant proceeding was initiated in the trial court by father who, on October 26, 1988, filed a petition for rule to show cause against Linda Rae Ashby, n/k/a Linda Weber, his ex-wife and the mother of the two-year-old daughter herein involved, alleging that she had contumaciously refused him the visitation rights granted him by a judgment for dissolution of marriage entered by the circuit court of Randolph County on December 21, 1987. Linda Rae Ashby (hereinafter referred to as mother) filed an answer to the petition for rule to show cause in which she admits that she refused father his visitation rights, but alleges that she did so for the reason that father is mentally and emotionally unfit to exercise visitation with daughter in that he has sexually abused the daughter during periods of his visitation. Mother also filed a counterpetition for modification of father’s visitation rights alleging that daughter had been sexually abused by father while in his custody during his visitation, and that this environment seriously endangers her physical, mental, moral or emotional health. The petition prays that the court terminate father’s visitation rights with the two-year-old daughter.

Because mother admitted denying father visitation with daughter, the cause came on for hearing on the counterpetition for modification on December 12, 1988. The following stipulation of the parties was entered into evidence: “That on August 15, 1988, [daughter] was examined by Dr. Henry at the SAM Clinic, Cardinal Glennon Hospital at St. Louis, Missouri, and that Dr. Henry would testify after examining [daughter’s] vaginal and rectal area, it was her expert opinion that [daughter’s] vaginal hymenal findings are consistent and suggestive of sexual abuse, in that she observed evidence consistent with trauma and/or penetration, and that the rectal findings also are suggestive of abuse/trauma in the rectal area.”

Father was called to testify as an adverse witness. He testified that he resides with his parents; that he was divorced from mother on December 22, 1987, and that daughter was born on October 28, 1985. By the terms of the dissolution decree, father was granted visitation with daughter on alternate weekends, and on alternate Mondays from 8 a.m. to 8 p.m. Father believed that he separated from mother in February or March 1987. In January 1988, father left Illinois and moved to Florida, but returned to his parents’ home in May 1988. During the four months he was in Florida, father had no visitation with his daughter. He visited with daughter on May 8, 1988. During that visitation, father and daughter were at father’s parents’ house and father’s brother’s house. Father was alone with daughter only in the car when he picked her up from her mother. Father has not seen his daughter since August 1988. Father denied ever touching daughter’s genital area. During father’s visitation weekends, daughter and father would sleep in the same bed. Daughter would sleep in Pampers and father would sleep in shorts.

Laurie Johnson testified that she is 28 years old and baby-sits for daughter. She has known daughter a little over 21k years, and has baby-sat for her since February 1986, when daughter was only four months old. She baby-sits for daughter four or five days a week from 8 a.m. until 4 p.m. She described daughter as very smart.

Prior to mother and father separating, Laurie testified that daughter seemed to be a very well-adjusted, happy child. After the separation, in mid-summer 1987, daughter began to change. Following her weekend visitations with father, daughter would “be a different child” for three or four days. She would be ornery and hateful and would sometimes appear to be in a daze. She would object to having her diaper changed, and would clench her legs together so that they had to be pried apart. Daughter’s vaginal area would be a purplish-red color and would be sore. After three or four days, daughter would return to being a “nice, sweet little girl.” However, after every visitation with her father, daughter would exhibit the strange behavior described above.

In July or August 1987, Laurie discussed daughter’s strange behavior and physical symptoms with mother. Laurie was convinced that daughter was being sexually abused during her visitation periods with her father. In September 1987, Laurie and mother met with father’s parents to discuss their suspicions. After that meeting, daughter would no longer return from visitation with a sore vaginal area and exhibiting strange behavior.

On May 9, 1988, the day after daughter’s visitation with father upon his return from Florida, daughter was at Laurie Johnson’s house. That afternoon, Laurie placed daughter down for a nap. Shortly thereafter, daughter woke up crying and came out to the family room where Laurie was. As soon as daughter saw Laurie, she stopped crying, laid down on the floor by Laurie’s feet and went to' sleep. A short while later, when Laurie had left the room, daughter woke up “hysterical and screaming.” She ran outside looking for Laurie. Laurie picked her up and sat in a rocking chair with her while she cried. When daughter calmed down, she told Laurie that her father had “put candy down below,” indicating her genital area, and that “he ate it out of there,” and that her father had put candy on her feet and licked it off her toes. Daughter indicated that the candy was purple and that the incident had happened in a pink room or on a pink bed. Defense counsel objected to this testimony on the basis that it was hearsay. The trial court admitted the testimony under the spontaneous declaration exception to the hearsay rule.

In the first week of June 1988, Laurie’s two children and daughter were in Laurie’s family room. Laurie was in the living room. Laurie overheard daughter telling her children that father put candy “down here” and licks it out. Laurie did not know what prompted daughter’s statement. Again, defense counsel objected to the testimony as hearsay, but the trial court admitted it under the spontaneous declaration exception. Laurie testified that several times in the summer of 1988, when daughter returned from her father’s, her vaginal area would be pink. On one occasion, daughter’s vaginal area was puffy and pale or peaked. On one occasion, Laurie discovered purple candy near daughter’s left nipple. Since daughter had stopped seeing her father in August 1988, she had returned to being a happy child. Laurie also recited that in 1987, daughter had gone through a period when she was afraid to take baths or go in the bathroom.

On cross-examination, Laurie admitted that in August 1987 she started asking daughter whether anyone had been touching her genital area. She asked daughter this question two or three times. Daughter stated that her father had “put his finger down there.” Laurie stated that she never accused father to daughter; she merely asked if anyone was touching her. Laurie testified that on the morning of May 9, 1988, daughter did not appear upset or nervous. Daughter did seem more standoffish than usual. Laurie also testified that on May 9 daughter said that her cousin Mandy was present when father sexually abused her.

Mother Linda Rae Weber testified that in August 1987 she contacted the Illinois Department of Children and Family Services about her suspicion of father’s sexual abuse of daughter. Beginning in July 1987, mother began to notice that daughter’s vaginal area was very red when she returned from her father’s, and that she was afraid to take a bath or have her diaper changed. On August 15, 1988, mother took daughter to Cardinal Glennon Children’s Hospital for an examination to determine whether she had been sexually abused. On July 22, 1988, while mother was giving daughter a bath, daughter stated that her father put candy “in my other pee-pee hole and then he couldn’t find it.” Again, defense counsel objected on the ground of hearsay, but the court allowed the testimony under the spontaneous declaration exception. In the summer of 1987, mother began asking her daughter several times a month for two months whether anyone had been touching her genital area.

Mother’s husband, Craig Weber, testified that on May 8, 1988, when daughter returned from her father’s, she acted markedly different than she had in the morning. She stared blankly, almost as if she had been traumatized.

Mother rested her case on the cross-petition for modification, and the hearing was recessed until December 14, 1988. At that time, father testified that his bedroom at his parent’s home is blue. He denied ever having sexually molested or abused his daughter. He testified that when it came time for him to return his daughter to her mother, his daughter would become very upset. He has never had difficulty giving his daughter baths or changing her diapers. He testified that on occasion he had taken showers with his daughter as well as with both his daughter and her mother.

Daughter’s cousin, Handy, testified that she had never seen father commit any sexual acts upon daughter. Daughter usually cried and became upset when it was time for her to return to her mother’s home after visitation.

Father’s mother testified to the good relationship her son has with daughter. She testified that her bedroom has light pink curtains on the windows and her bedspread is “a coral salmon. It is not exactly pink.” On several occasions, she noticed a rash on daughter, and daughter complained of pain when urinating. Daughter became upset when it was time for her to return to her mother’s home after visiting with her father. Daughter never showed any fear or apprehension of her father.

Several witnesses testified to the good relationship between father and daughter, and that daughter cried and became upset whenever it was time for her to return to her mother’s home after visitation with her father. That concluded the evidence. Closing argument was heard and the court rendered its ruling.

The court found that the spontaneous declarations of the daughter were very significant. The court also found that daughter had been sexually abused by father or while in his custody, and terminated father’s visitation rights. The trial court’s written order was filed December 15, 1988, finding that daughter was sexually abused by father during the times father was exercising his visitation rights, that allowing the father future visitation would seriously endanger the daughter’s physical, mental, moral and emotional health, and that it was in the best interest of daughter to terminate father’s visitation rights. Father’s petition for rule to show cause was denied, and mother’s counterpetition for modification of visitation was granted.

The first issue raised by father is whether the trial court erred in admitting into evidence, under the spontaneous declaration exception to the hearsay rule, testimony regarding daughter’s out-of-court statements of sexual abuse by father. Courts have recognized a general liberalization of the spontaneous declaration exception in its application to the statements of children of tender years. (In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 1097, 460 N.E.2d 912, 916.) This is because, in child abuse cases, the eyewitness statement of the child may be the only direct link between the child and the offender. Any other evidence is generally circumstantial physical evidence that indicates only that abuse was committed. Furthermore, a young child may be unwilling or unable to testify at trial. (Theis, 121 Ill. App. 3d at 1099, 460 N.E.2d at 917.) Thus, child abuse cases demand an even greater respect for the reliability of the child’s statements, and the child’s welfare is best served by a liberal interpretation of the spontaneous declaration exception to the hearsay rule in order to provide the fullest record possible concerning the alleged abuse. Theis, 121 Ill. App. 3d at 1099, 460 N.E.2d at 917.

Three factors must be present before a statement can come within the spontaneous declaration exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 1097, 460 N.E.2d 912, 916.) As explained in Theis,

“the first factor, that the statement be spontaneous and unreflective, does not require that the event and the declaration be contemporaneous. The question is whether the circumstances exclude premeditation and design. [Citation.] If the statement occurs after the event, it can be considered ‘spontaneous’ where there is an indication that the stress created in the child by the event is still present at the time the statement is made. Under such circumstances, the stress activates the original sensations of the event in the memory of the child. Testimony that the child still appeared ‘nervous’ or ‘distraught’ and that there was a reasonable basis for continuing emotional upset will often suffice.” 121 Ill. App. 3d at 1097, 460 N.E.2d at 916.

With respect to the second factor, absence of time to fabricate, Theis explains that it is the motivation of the declarant rather than the declarant’s perception that is important. (121 Ill. App. 3d at 1098, 460 N.E.2d at 916.) The basic rationale for the admission of the out-of-court statement is that it is unlikely that a child of tender years will have any reason to fabricate stories of attack. Theis, 121 Ill. App. 3d at 1098, 460 N.E.2d at 916.

None of the three factors is singularly determinative. (People v. Hatfield (1987), 161 Ill. App. 3d 401, 409, 514 N.E.2d 572, 577.) Instead, courts employ a totality of the circumstances approach to determine whether a particular statement is reliable enough to be admissible. (Hatfield, 161 Ill. App. 3d at 409, 514 N.E.2d at 577.) Among the factors to be considered in making this determination are whether there was opportunity for reflection and invention, the declarant’s mental state at the time of the statement, the nature of the event, the influence of intervening occurrences, and the presence or absence of self-interest. (People v. Merideth (1987), 152 Ill. App. 3d 304, 316, 503 N.E.2d 1132, 1142.) The admissibility of spontaneous declarations should be determined on a case-by-case basis after considering all the relevant facts. (Hatfield, 161 Ill. App. 3d at 409, 514 N.E.2d at 577.) The general rule which has emerged from Illinois case law is that the statements of a nontestifying child-declarant to a witness identifying a person as having performed certain conduct which results in pain, or is stressful to the child-declarant, and made within a reasonable time of the complained-of conduct, meet the three-prong test of admissibility as spontaneous declarations. Hatfield, 161 Ill. App. 3d at 412, 514 N.E.2d at 578.

With regard to the first statement of May 9, father argues that it should not have been admitted because there was no evidence that a startling event occurred or of the length of time between the startling occurrence and the declaration. We disagree with father that there was no evidence of a startling occurrence. The parties stipulated to the statement of Dr. Henry of Cardinal Glennon Children’s Hospital that daughter showed physical signs of sexual abuse. Furthermore, daughter’s mother and baby-sitter testified to physical and emotional symptoms which indicated that some traumatic event had happened to daughter. Thus, there was evidence of a startling occurrence.

Father also argues that there is no positive evidence as to when this startling event occurred, or the time lapse between the startling occurrence and the daughter’s declaration. He argues that without such evidence, the second factor, absence of time to fabricate, cannot be established. However, father had seen daughter on May 8, and her declaration was made on May 9. Prior to May 8, father had not seen daughter since January, several months prior to the declaration. The trial court concluded that the daughter was abused during her visitation with father on May 8. We cannot say that this conclusion is against the manifest weight of the evidence.

In any event, elapsed time is not a controlling factor in determining spontaneity. (Merideth, 152 Ill. App. 3d at 316, 503 N.E.2d at 1142.) Instead, the court must look at the totality of the circumstances to determine whether the child’s statement is reliable. The question is whether the circumstances exclude premeditation and design. Regardless of the time lapse, the statement may be considered spontaneous where there is an indication that the stress created in the child by the event is still present at the time the statement is made. Theis, 121 Ill. App. 3d at 1097, 460 N.E.2d at 916.

Considering the totality of the circumstances in the instant case, we find several factors which indicate that the daughter’s declaration of May 9 was sufficiently reliable to be admitted under the spontaneous declaration exception to the hearsay rule. At the time of the declaration, daughter was very distraught. She had awakened from a nap hysterical and crying. Her state of mind at the time of the declaration was such as to preclude fabrication. The nature of the startling event also precludes fabrication. Daughter was only two years old at the time of the declaration. It is highly unlikely that a two-year-old child could fabricate an incident of her father placing candy on her genital area and feet and licking it off. Such an occurrence is both peculiarly childish and peculiarly adult. It is not likely that a two-year-old child could fabricate such an event, nor is it likely that a two-year-old child could be “coached” to make such a statement while in an emotionally upset state. (See In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 460 N.E.2d 912.) Finally, daughter’s statement that the abuse occurred in a pink room or on a pink bed was corroborated by father’s mother’s testimony that her bedroom had pink curtains and a coral salmon bedspread.

Whether to admit an out-of-court statement into evidence as a spontaneous declaration is within the sound discretion of the trial court. (People v. Fisher (1988), 169 Ill. App. 3d 785, 789, 523 N.E.2d 368, 370.) We think that the child’s declaration of May 9 is sufficiently reliable that the trial court did not abuse its discretion in admitting it into evidence as a spontaneous declaration.

We find differently with respect to the second and third out-of-court declarations of the daughter. The second declaration was made the first week of June, and the third statement was made July 22, 1988. There is no evidence that daughter was nervous or distraught at the time she made the declarations, or that the stress created in the child by the event was still present at the time the declarations were made. At the times of the second and third statements, daughter had had time in which to reflect and fabricate the statements, and her motivations in making the statements differed substantially from her motivation in making the first declaration, when she was emotionally distraught.

We think that the second and third statements of daughter are similar to those made in In re Marriage of Dunn (1987), 155 Ill. App. 3d 247, 508 N.E.2d 250, where the appellate court found error in the trial court’s admission as spontaneous declarations of statements of sexual abuse made by a child to her grandmother, her kindergarten teacher and a therapist more than 10 months after the alleged abuse. The appellate court found that there was no indication that stress created in the child by the alleged event was present at the time she made the statements. None of the witnesses testified that the child appeared nervous, distraught or emotionally upset at the time she made the statements. The court contrasted the facts of Dunn with those of Theis, where the child was emotionally upset and crying at the time she made the declaration.

We think that the first declaration in the instant case is more akin to that made in Theis, while the second and third statements made in the instant case are more akin to those made in Dunn. Thus, we find that the trial court erred in admitting the second and third out-of-court statements of daughter into evidence under the spontaneous declaration exception to the hearsay rule. However, in light of the proper admission of the first spontaneous declaration, and the similarity between that declaration and the other two, we find that the admission of the second and third declarations was harmless error.

We turn now to the second issue raised by father: whether the trial court’s finding that father had sexually abused daughter was an abuse of discretion and against the manifest weight of the evidence. Father does not not argue that the finding of sexual abuse is against the manifest weight of the evidence, but that the finding that he was the perpetrator of the sexual abuse is against the manifest weight of the evidence. Father argues again that the out-of-court declarations of daughter should not have been admitted into evidence, and that without these statements, there is no evidence to link the sexual abuse to father. We have already held that the first out-of-court declaration of daughter was properly admitted. This statement directly links father to the sexual abuse. There was also a great deal of circumstantial evidence linking father to the sexual abuse. Daughter’s baby-sitter and mother testified that daughter exhibited strange behavior and suspicious physical symptoms upon returning from her visitation periods with her father. The strange behavior and symptoms disappeared when daughter had no contact with her father. Finally, there is absolutely no evidence pointing to anyone other than father as the perpetrator of the sexual abuse.

For a finding to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. (In re J.H, (1987), 153 Ill. App. 3d 616, 630, 505 N.E.2d 1360, 1369.) The trial court’s finding that father had sexually abused his daughter is not against the manifest weight of the evidence.

The third issue raised by father is whether the trial court’s termination of father’s visitation rights was an abuse of discretion and against the manifest weight of the evidence. Most of father’s argument goes to whether the evidence was sufficient to support a finding that father sexually abused daughter. We have already determined that it was. Thus, the question becomes, given the finding that father sexually abused his daughter during his visitation with her, did the trial court abuse its discretion in terminating father’s visitation rights.

The Illinois Marriage and Dissolution of Marriage Act provides that a parent’s visitation rights may not be restricted on a petition for modification unless the court finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health. (Ill. Rev. Stat. 1987, ch. 40, par. 607(c).) This section states a strong public policy designed to preserve the relationship of parent and child, and the burden is on the parent seeking restriction of visitation rights to prove that the current visitation endangers the welfare of the child. (In re Marriage of Blanchard (1987), 162 Ill. App. 3d 202, 207, 514 N.E.2d 1208, 1211.) The endangerment standard in the statute is an onerous one. (Blanchard, 162 Ill. App. 3d at 207, 514 N.E.2d at 1211.) However, the matter of visitation privileges rests within the broad discretion of the trial court. Blanchard, 162 Ill. App. 3d at 207, 514 N.E.2d at 1211, quoting Frail v. Frail (1977), 54 Ill. App. 3d 1013, 1015, 370 N.E.2d 303, 304-05.

In the instant case, the trial court determined that sexual abuse of daughter by her father seriously endangered her physical, mental, moral and emotional health. This finding is not against the manifest weight of the evidence. Unlike other cases cited by father involving the question of termination of parental visitation rights (Frail v. Frail (1977), 54 Ill. App. 3d 1013, 370 N.E.2d 307 (mother incarcerated for murder of husband allowed visitation rights with minor children); In re Marriage of Blanchard (1987), 162 Ill. App. 3d 202, 514 N.E.2d 1208 (mother allowed visitation rights even though they were rarely exercised); In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 428 N.E.2d 1093 (mother allowed visitation rights despite hospitalization for mental illness)), the sexual abuse which occurred in the instant case involves a direct attack upon the child. Such an attack must seriously endanger the child’s physical, mental, moral or emotional health, regardless of how otherwise healthy and close the relationship is between parent and child. Under such circumstances, termination of father’s visitation rights was not an abuse of the trial court’s discretion.

Finally, father argues that the trial court could have taken a less drastic action than terminating visitation rights, such as allowing visitation under supervision. However, as we have said, the matter of visitation privileges rests within the broad discretion of the trial court. (Frail v. Frail (1977), 54 Ill. App. 3d 1013, 1015, 370 N.E.2d 303, 304.) Mother’s petition for modification of visitation rights asked for the termination of father’s visitation privileges; father did not seek any alternative or lesser disposition. The trial court did not abuse its discretion in terminating father’s visitation privileges with his two-year-old daughter on the basis that sexual abuse committed by father on daughter during those visitation periods seriously endangered daughter’s physical, mental, moral or emotional health.

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

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE HARRISON

text:
    RICHARD ROBBINS, Plaintiff-Appellant, v. THE CITY OF MADISON, Defendant-Appellee.
    Fifth District
    No. 5—88—0702
    Opinion filed January 10,1990.

      Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellant.
    Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Richard Robbins, appeals from a judgment of the circuit court of Madison County which dismissed, with prejudice, counts I through IV of his second amended complaint pursuant to section 2— 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The sole question presented for our review is whether the circuit court erred in concluding that those counts failed to state a cause of action upon which relief may be granted. (See Wooded Shores Property Owners Association, Inc. v. Matthews (1976), 37 Ill. App. 3d 334, 337, 345 N.E.2d 186, 189.) For the reasons which follow, we affirm.

In order to survive a motion to dismiss, a complaint must state a cause of action that is both legally and factually sufficient. A legally sufficient complaint is one which sets forth a legally recognized claim upon which the plaintiff is entitled to recover damages. A factually sufficient complaint must plead facts which are essential to the plaintiff’s alleged cause of action. Failing either factual or legal sufficiency, the complaint must be dismissed. Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 205-06, 529 N.E.2d 784, 785.

In ruling on a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint, as well as all reasonable inferences which can be drawn from those facts. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.) A cause of action should not be dismissed unless it clearly appears that no set of facts can be alleged and proven which would entitle the plaintiff to relief. (See Northrop Corp. v. Crouch-Walker, Inc., 175 Ill. App. 3d at 212, 529 N.E.2d at 789.) Where, however, a complaint is stricken and the plaintiff does not seek leave to amend, this will be considered an election to stand by the stricken complaint, and if the lawsuit is dismissed, the cause of action must stand or fall upon the contents of that complaint alone. Mlade v. Finley (1983), 112 Ill. App. 3d 914, 917, 445 N.E.2d 1240, 1243.

Such is the situation here. Accordingly, the viability of plaintiff’s cause of action turns solely on the sufficiency of the allegations set forth in his second amended complaint. In that complaint, plaintiff alleges that he was employed by defendant, the City of Madison, as a “senior alarm installer and maintenance person” for the city’s alarm department and as an emergency medical technician in the city’s ambulance department. Plaintiff held these two jobs simultaneously. Plaintiff’s complaint does not indicate how many hours per week he worked in the alarm department, but it does allege that his employment with the ambulance department required him to be “on duty” for 14-hour periods, five days per week, plus an additional weekend approximately once a month.

Plaintiff alleges that in September of 1985 he was told by a city alderman that he must either resign his position with the ambulance department or else continue his duties in that department without compensation. The alderman allegedly informed plaintiff, however, that if he continued performing his duties in the ambulance department without compensation, he would receive an increase of $1 per hour in the hourly wage rate he received in his job in the alarm department. Thereafter, plaintiff informed the alderman that he would “elect to resign from the Ambulance Department and continue at his same wage rate in the Alarm Department.” Plaintiff alleges that he was then discharged from his employment in the alarm department by the city’s chief of police, who stated that the basis for the discharge was that “plaintiff had refused to continue the ambulance position without compensation.”

Following his discharge, plaintiff brought this action against the city in the circuit court of Madison County. Counts I through III of plaintiff’s second amended complaint, which are essentially the same, seek recovery based on the tort of retaliatory discharge. Count IV alleges breach of contract. Plaintiff’s second amended complaint also included a fifth and final count, but summary judgment was entered in favor of the city on that count, and plaintiff has elected not to challenge the circuit court’s summary judgment order. Count V is therefore not before us on this appeal.

In bringing his cause of action against the city, plaintiff was required to allege facts which, if proved, would support a judgment in his favor. (Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App. 3d 642, 644, 307 N.E.2d 724, 726.) In reviewing the sufficiency of plaintiff’s second amended complaint, we shall consider first plaintiff’s claims for retaliatory discharge under counts I, II and III. Because the substantive allegations of those three counts are essentially the same, they shall be discussed together.

Our supreme court has held that a plaintiff states a valid claim for retaliatory discharge only if he alleges that he was discharged in retaliation for his activities and that the discharge violates a clear mandate of public policy. (Hinthorn v. Roland’s of Blooming- ton, 119 Ill. 2d at 529, 519 N.E.2d at 911.) As previously indicated, plaintiff here alleges that he was discharged from the city’s alarm department because he refused to continue working in the ambulance department with no compensation other than the $l-per-hour increase he would have received for his alarm department duties. According to plaintiff’s complaint, for the city to have required him to continue in the ambulance department under these terms would have been in direct contravention of the rules and regulations prescribed by the Department of Labor and the laws of the State of Illinois and would have been contrary to the public policy upon which those rules, regulations and laws are premised. Plaintiff therefore avers that he was, in effect, discharged for exercising the rights secured to him by the laws and public policy of this State. Accordingly, plaintiff argues that the discharge itself violated public policy and must therefore subject the city to liability.

Although plaintiff’s complaint makes reference to rules and regulations of the Department of Labor, as well as laws of the State of Illinois, and while it speaks generally of the public policy of this State, plaintiff’s arguments on appeal make clear that he is basing his retaliatory discharge claim specifically on the city’s alleged violation of public policy as expressed in the Illinois Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.). That statute provides, inter alia, that “[i]t is against public policy for an employer to pay to his employees an amount less than that fixed by this Act.” Ill. Rev. Stat. 1987, ch. 48, par. 1002.

In view of this express language, we believe that if an employee who is covered by the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.) is discharged by his employer because he refuses to work for wages less than those set forth in the statute, his discharge would, in fact, violate a “clear mandate of public policy” within the meaning of Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909, and entitle the employee to bring an action for retaliatory discharge. The pleading requirements for such a claim, however, are no different than in an ordinary civil action. Accordingly, an employee who wishes to bring such a claim must allege in his complaint specific facts which, if true, would establish a violation of the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.) and so, of the public policy which that statute was meant to advance. This is something which plaintiff here has failed to do.

In counts I, II and III of his complaint, plaintiff alleges that the city acted improperly in one or more of the following ways: (a) by requiring him to work in the ambulance department without compensation; (b) by requiring him to work in the ambulance department in excess of 40 hours per week; and (c) by requiring him to work in the ambulance department in excess of 40 hours per week for an alleged $1 per hour to be paid into his alarm department wages. With respect to item (b), we note that requiring plaintiff to work more than 40 hours per week offends no provisions of the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.). Although section 4a(l) of the statute provides that “no employer shall employ any of his employees for a workweek of more than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than IV2 times the regular rate at which he is employed” (Ill. Rev. Stat. 1987, ch. 48, par. 1004a(l)), section 4a(2)(D) (Ill. Rev. Stat. 1987, ch. 40, par. 1004a(2)(D)) provides that the foregoing rule is not applicable to any governmental body, and plaintiffs complaint here expressly alleges that he was employed by the City of Madison, which is, of course, a governmental body.

Items (a) and (c) are likewise insufficient to establish a violation of the law. The problem with those items is that they relate only to the hours plaintiff worked and the compensation (or lack thereof) which he received for his duties in the ambulance department. They do not take into account how many hours he worked or how much he was paid for the additional duties he performed in the alarm department. Although plaintiff alleges that these two departments operate independently of one another, his complaint clearly indicates that he had but one employer, defendant, the City of Madison. The alarm and ambulance departments are merely organizational subdivisions of that single governmental entity.

In determining whether the city violated the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.), how much plaintiff was paid or how much he had to work for one of these organizational subdivisions therefore cannot be viewed in isolation. Rather, one needs to know the total number of hours plaintiff had to work in each of his city jobs and the total amount of compensation the city paid him. Plaintiff, however, nowhere alleges what his hourly rate was or how many hours he worked in the alarm department, and his complaint contains nothing which suggests that the overall wage rate he would have received from the city would have been below that set forth in the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.). Given this, there is no factual basis in the complaint to support his allegation that the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.) would have been violated had he con-tinned his work in the ambulance department on the terms offered by the city. Counts I through III of plaintiff’s second amended complaint were therefore properly dismissed.

We turn then to count IV of plaintiff’s complaint. In that count, plaintiff does not allege that his termination violated public policy. Rather, he alleges that when defendant gave him the option of either resigning his position with the ambulance department or else continuing his duties in that department but without any compensation other than a $l-per-hour increase in his hourly wage in the alarm department, defendant impliedly agreed that if plaintiff resigned from the ambulance department, he could continue his job in the alarm department. The basis for count IV is that defendant breached this implied contractual obligation when it discharged him after he elected to exercise that option and quit his ambulance department job.

Although defendant may have agreed to allow plaintiff to remain in his job in the alarm department after he resigned from his ambulance department job, there are no allegations in count IV that plaintiff’s employment in the alarm department would continue for any specific duration if he accepted that offer. Under Illinois law, if an employment agreement does not specify a definite duration, it will last only for as long as is mutually satisfactory, and either the employer or the employee may terminate the employment “at will,” without liability for breach of contract. (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 600, 440 N.E.2d 998, 1002.) Under this common-law rule, an employee at will can be discharged at any time for a good reason, a bad reason, or no reason at all, subject only to the prohibition against discharges which contravene clearly mandated public policy. (Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 427, 530 N.E.2d 431, 435.) As previously indicated, count IV contains no allegations that the discharge at issue here violated such a public policy. Count IV therefore fails to state a claim upon which relief can be granted.

For the foregoing reasons, the judgment of the circuit court of Madison County dismissing counts I through IV of plaintiff’s complaint with prejudice is affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    PAT LANGFORD, Plaintiff-Appellant, v. SENTRY INSURANCE OF ILLINOIS, INC., Defendant-Appellee.
    Fifth District
    No. 5—88—0806
    Opinion filed January 10,1990.
    Bruce D. Stewart and Robert H. Rath, of Rath & Fornes, both of Harrisburg, for appellant.
    Jeffrey L. Warnick, of Crystal & Heytow, P.C., of Chicago, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Pat Langford, appeals from an order of the circuit court of Saline County granting the motion to dismiss with prejudice of defendant, Sentry Insurance of Illinois, Inc., pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). In this cause, plaintiff argues that the circuit court should not have considered the time before the expiration of the statute of limitations in determining reasonable diligence in serving defendant. In addition, plaintiff argues that even if the circuit court did not consider the time before expiration of the statute, it erred in dismissing the cause with prejudice. We reverse and remand.

As an aid to understanding the history of this case, we include the following chronology of its significant events:

July 6,1986

Defendant issued a fire insurance policy to plaintiff on her home in Saline County. The policy issued included the standard one-year contractual limitation during which plaintiff may file suit. Note: The limitation period tolled for 206 days from filing of the proof of loss statement until denial of the claim.

August 9,1986

Fire destroyed plaintiff’s home.

October 6, 1986

Plaintiff submitted a sworn proof of loss statement.

January 28, 1987

An examination under oath was conducted of plaintiff in Harrisburg. Plaintiff and her attorneys were present.

April 30, 1987

Defendant denied plaintiff’s claim on the grounds of misrepresentation regarding the cause of the fire and circumstances of loss. Plaintiff filed her complaint. (This was eight months prior to the expiration of the statute of limitations.) Plaintiff directed summons to the Director of the Illinois Department of Insurance. It was returned unserved.

June 29,1987

The contractual limitation period expired.

March 2,1988

Alias summons issued and mailed to the Sheriff of Du Page County. (This was 8V2 weeks after the expiration of the limitations period.)

April 28,1988

Service on defendant. (This is 10 weeks after the expiration of the limitations period.)

May 16, 1988

On June 14, 1988, defendant filed a motion to dismiss plaintiff’s complaint with prejudice. Defendant alleged that plaintiff failed to use reasonable diligence to serve defendant as required by Rule 103(b). The circuit court, without hearing or oral argument, dismissed the complaint on June 28, 1988. The order, in its entirety, states: “Defendant’s motion, filed 6-14-88, to dismiss the complaint is granted.”

In her motion to set aside the dismissal, plaintiff argued that the circuit court should examine only the time after the expiration of the limitations period to determine whether due diligence had been exercised. The parties submitted memoranda in support of their arguments. On December 19, 1988, the circuit court denied plaintiff’s motion.

Rule 103(b) states:

“(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 107 Ill. 2d R. 103(b).

The determination of reasonable diligence is traditionally left to the sound discretion of the circuit court. A reviewing court will only interfere when there is an abuse of that discretion. (Hebting v. Miller Brewing Co. (1980), 82 Ill. App. 3d 981, 983, 403 N.E.2d 671, 673; Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 885, 305 N.E.2d 389, 392; Mosley v. Spears (1970), 126 Ill. App. 2d 35, 40, 261 N.E.2d 510, 513-14.) The circuit court either did consider the time and actions before the expiration of the statute of limitations, or it did not. Either way, the circuit court abused its discretion.

In ruling on a Rule 103(b) motion, a court may not consider the period or activities before the expiration of the statute of limitations. This is self-evident in the rule itself. Rule 103(b) indicates a difference between actions before the statute of limitations runs and those after. The rule provides that prestatute dismissal will be without prejudice, and post-statute dismissal will be with prejudice.

The committee comments to the rule clearly state that the rule was revised in 1969 to provide:

“[A] dismissal with prejudice shall be entered only when the failure to exercise due diligence to obtain service occurred after the expiration of the applicable statute of limitations. Prior to the expiration of the statute, a delay in service does not prejudice a defendant.” (107 Ill. 2d R. 103(b), Committee Comments, at 296.)

The supreme court cited the comments in Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 619, 363 N.E.2d 796, 798; see Juechter v. Grace (1977), 55 Ill. App. 3d 606, 608, 371 N.E.2d 179, 181.

A public policy inherent in the rule and its application is to encourage the process of discovery before trial when the claim is not yet stale. To indicate that a court could consider the time and actions before the running of the statute would encourage the filing of claims at the tail end of the statute of limitations so the prestatute time would not be held against a plaintiff. This is clearly contrary to the policy and intent of the rule.

In People ex rel. Powell v. Luttrell (1970), 130 Ill. App. 2d 241, 264 N.E.2d 737, the First District Appellate Court implied a similar result. In Luttrell, the State commenced an action to recover a tax. Service occurred almost 12 ^2 years later. The court reasoned that as there was no applicable statute of limitations, there could be no failure to exercise diligence after the statute of limitations ran. Therefore, dismissal with prejudice was inappropriate. Luttrell, 130 Ill. App. 2d at 245, 264 N.E.2d at 740.

In Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 305 N.E.2d 389, the court found that the Department failed to exercise due diligence. The court dismissed with prejudice those charges for which the statute had run and dismissed without prejudice those charges for which the statute had not yet run. See also Juechter v. Grace (1977), 55 Ill. App. 3d 606, 607-08, 371 N.E.2d 179, 180-81 (dismissing with prejudice when statute had run; dismissing without prejudice when statute had not run).

Defendant cites Curtis v. Pekin Insurance Co. (1982), 105 Ill. App. 3d 561, 434 N.E.2d 555, for the proposition that a circuit court must consider the entire time period in a Rule 103(b) ruling. In Curtis, however, the fourth district never specifically addressed the issue whether or not to consider the time before the statute ran. Justice Mills points out that the main point of contention was whether the standard 12-month limitation period, required in all fire insurance policies, is a statute of limitations for Rule 103(b) purposes. (Curtis, 105 Ill. App. 3d at 565, 434 N.E.2d at 558.) We disagree with the implication that a circuit court must look at the entire time period when ruling on a Rule 103(b) motion. (Curtis, 105 Ill. App. 3d at 565-66, 434 N.E.2d at 558.) Of course, one could read Curtis to hold that the eight months after the expiration of the limitation are an unreasonable delay. On that, we do not rule.

If the circuit court did not consider the time before the expiration of the statute, it still abused its discretion in dismissing the case with prejudice. We hold that the passing of only 10 weeks after the running of the statute of limitations until actual service of an alias summons on defendant is not unreasonable. Further, the passing of only 8V2 weeks from the running of the statute until issuance of the alias summons is not an unreasonable delay. Therefore, dismissal with prejudice was an abuse of discretion.

For the foregoing reasons, this court reverses the order of the circuit court of Saline County and remands for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


author: JUSTICE RARICK

text:
    WILLIAM J. JINES, Plaintiff-Appellee, v. JAMES A. SEIBER, Defendant-Appellant.
    Fifth District
    No. 5—88—0251
    Opinion filed January 16,1990.

      William C. Evers III, of Collinsville, for appellant.
    Harry J. Sterling and John Long, both of Sterling, Kelley & Long, P.C., of Fairview Heights, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, William J. Jines, filed an action in the circuit court of St. Clair County against James Seiber, alleging assault and battery and seeking both compensatory and punitive damages. Seiber filed a counterclaim alleging, inter alia, assault and battery, trespass and defamation of character. Pursuant to a jury verdict, judgment was entered against Seiber in the amount of $8,500 on Jines’ complaint. The jury also found against Seiber on his counterclaim.

The record reveals that Seiber owned property adjacent to Jines’ property, but had no access from public roads. A private roadway ran between Jines’ property and that of an adjacent landowner, and Seiber could reach his property via this roadway. Seiber had requested an easement, but had not been given one. Nevertheless, Seiber continued to use the road for access. On September 1, 1986, as Seiber was using the road, he was confronted by Jines. During this confrontation, Seiber struck Jines over the head with a walking stick. Seiber was charged with the criminal offense of battery, but was acquitted. Jines also filed the present action seeking civil damages. The jury rendered a verdict in Jines’ favor, awarding him $2,000 in compensatory damages and $6,500 in punitive damages.

On appeal, Seiber argues that the claim for punitive damages should have been stricken and not sent to the jury, maintaining that the imposition of punitive damages in a civil case violates the eighth amendment to the United States Constitution because it imposes criminal sanctions without the protection of the Code of Criminal Procedure and therefore constitutes cruel and unusual punishment. Seiber also maintains that because of his acquittal of the criminal charge, the imposition of punitive damages violates the constitutional bar against double jeopardy.

We address Seiber’s double jeopardy argument first. Seiber maintains that the imposition of punitive damages in light of his acquittal on the criminal charge violates the prohibition against double jeopardy contained in the fifth amendment of the United States Constitution. He maintains that punitive damages are criminal in nature, that they are a form of punishment, and therefore subject to prohibition against double jeopardy. In support of his argument, Seiber cites Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554. In Kennedy, the Supreme Court held that the fifth and sixth amendments applied to all forms of punishment, not just traditional criminal actions. In Kennedy, the high court struck down a statute which divested a person of his citizenship for leaving or remaining outside the United States for purposes of evading the draft.

The critical distinction for purposes of double jeopardy, however, is that Kennedy dealt with the exercise of governmental power, whereas in this case we are dealing with litigation between private parties. In United States v. Halyer (1989), 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892, the Supreme Court held that civil as well as criminal sanctions constituted punishment where such sanctions serve the traditional goals of punishment — deterrence and retribution. Although punitive damages are penal in nature and serve to punish a wrongdoer, the court in Halyer went on to state that nothing in its opinion precluded a private party from seeking damages for conduct that previously was the subject of criminal prosecution and punishment and that the protection of the double jeopardy clause was not triggered by litigation between private parties. The double jeopardy clause of the fifth amendment applies to proceedings that are “essentially criminal” in nature. (Breed v. Jones (1975), 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779; Helvering v. Mitchell (1938), 303 U.S. 391, 82 L. Ed. 917, 58 S. Ct. 630.) Because punitive damages are not “essentially criminal” in nature, their imposition does not violate the fifth amendment prohibition against double jeopardy. (Hansen v. Johns-Manville Products Corp. (1984), 734 F.2d 1036.) Seiber also raises a double jeopardy argument under article I, section 10, of the Illinois Constitution. (Ill. Const. 1970, art. I, §10.) He cites no authority, however, supporting his argument that an award of punitive damages violates the Illinois Constitution’s prohibition against double jeopardy, and while we find no case law on point, we believe our analysis of his argument as to the United States Constitution is equally applicable to the Illinois Constitution.

We next address Seiber’s claim that the imposition of punitive damages constitutes cruel and unusual punishment. Again, he bases this argument on the premise that punitive damages are criminal in nature, and again we reject that premise. Seiber argues that because punitive damages are imposed without benefit of the protection afforded by the Code of Criminal Procedure, they constitute cruel and unusual punishment. Again, Seiber cites no authority supporting this proposition. In Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 106 L. Ed. 2d 219, 109 S. Ct. 2909, the Supreme Court considered whether to extend the excessive fines clause of the eighth amendment to awards of punitive damages. Though Seiber’s challenge to the punitive damages award is not made under the excessive fines clause, we believe the Supreme Court’s rationale for not extending the excessive fines clause to punitive damages is equally applicable in this case. We therefore hold that the eighth amendment, as applied to the States through the fourteenth amendment, in no way precludes the imposition of punitive damages in a suit between private parties. Based upon an examination of the history and nature of punitive damages and eighth amendment jurisprudence, the court concluded that the eighth amendment was intended to apply to the prosecutorial powers of government and that it “places limits on the steps a government may take against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and unusual punishments.” (Browning-Ferris, 492 U.S. at 275, 106 L. Ed. 2d at 238, 109 S. Ct. at 2920.) We therefore hold that the imposition of punitive damages does not violate the eighth amendment’s ban on cruel and unusual punishment.

We next consider Seiber’s argument that the amount of the punitive damage award, $6,500, was excessive. He argues that the amount of the punitive damage award bears no reasonable relationship to the actual damage award and that Jines’ injury was not serious. The amount of punitive damages to be awarded rests with the discretion of the trier of fact and will not be disturbed on review unless clearly excessive. (Smith v. Seiber (1984), 127 Ill. App. 3d 950, 469 N.E.2d 231.) In determining whether a punitive damages award is excessive, our courts have looked to: (1) the nature and enormity of the wrong; (2) the financial status of the defendant; and (3) the potential liability of the defendant. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.) In the present case, Seiber deliberately struck Jines over the head with a walking stick. Although he maintained that Jines was the aggressor and that he was merely defending himself, the jury clearly resolved that factual dispute against him. Regarding the second factor, although there was no indication of Seiber’s exact net worth, evidence was elicited that Seiber was a man of substantial financial means. Further, a punitive damages award may stand absent evidence of the defendant’s financial status as it is not the plaintiff’s burden to present such evidence. (Deal v. Byford (1989), 127 Ill. 2d 192, 537 N.E.2d 267.) As to the third factor, which deals with possible multiple awards, Seiber will not be subjected to further punitive damage claims as a result of his conduct in this particular case. A $6,500 punitive damage award is not excessive in light of the factors discussed above. As to Seiber’s argument that the amount of the punitive damages greatly exceeds the amount of the compensatory award, there is no requirement that a punitive damage award bear any proportional relationship to the amount of the compensatory damage award. (Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091; Smith v. Seiber (1984), 127 Ill. App. 3d at 957, 469 N.E.2d at 236.) We conclude that the punitive damage award is not excessive and decline to reduce the amount.

Seiber next argues that the trial court erred in refusing to give IPI Civil 2d No. 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971)), which states:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown.”

The witness in question was the emergency room doctor who Seiber maintains could have provided valuable insight into the nature and extent of Jines’ injury and whose testimony could have had an impact on the jury’s assessment of damages.

Seiber offers no evidence or argument that the witness was any more under Jines’ control than his or that he did not have equal access to the witness. Under such circumstances, the instruction is not required and no error can be assigned to the trial court for refusing to give it. J.L. Simmons Co. v. Firestone Tire & Rubber Co. (1984), 126 Ill. App. 3d 859, 467 N.E.2d 327, affd (1985), 108 Ill. 2d 106, 483 N.E.2d 273; Chuhak v. Chicago Transit Authority (1987), 152 Ill. App. 3d 480, 504 N.E.2d 875; Scattone v. Clark (1983), 120 Ill. App. 3d 290, 457 N.E.2d 1077.

Finally, Seiber argues that the trial court erred in several evidentiary rulings and that he was prejudiced thereby. Specifically, Seiber refers to plaintiff’s closing argument wherein he asked the jury, “How do you punish a millionaire?” and when plaintiff asked Seiber if he had been involved in litigation with people over the easement he claimed. Seiber maintains that there was no evidence of his net worth in the record and that plaintiffs unsupported characterization of him gave the jury the impression that he could pay a large punitive damage award. Even if erroneous, neither of these statements is such that Seiber would have been prejudiced and by no stretch of the imagination are they such that Seiber was denied the right to a fair trial. The trial as a whole was fair and the evidence clearly supports the jury’s verdict. Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 501 N.E.2d 830.

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

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL LAWSON, Defendant-Appellant.
    Fifth District
    No. 5—87—0766
    Opinion filed January 17,1990.

      Daniel M. Kirwan and Mary M. Menard, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Darnell Lawson was charged in the circuit court of St. Clair County with the murder of Winston Lewis. Following a trial by jury, Lawson was found guilty and sentenced to a term of 40 years’ imprisonment.

On the night of the murder, Lawson, Richard Davis, John Sherrill, Clifford Rowling, Rufus Thomas, and Kenneth Carlisle were standing outside Jay’s liquor store in East St. Louis when they saw Lewis walking across the street. Believing Lewis to be a member of the Disciples, a rival street gang, they began beating him. Lewis fled into the liquor store, and the group followed him. According to Davis, Lawson and Sherrill went into the store and continued beating Lewis. They were forced out by the store manager, but Lawson returned and shot Lewis. Other witnesses testified that they saw the group pursuing Lewis and that Lawson had a cap over his hand. One of the witnesses, Teresa Lockridge, testified that she saw a gun under the cap. Raymond Shumpert, the night cashier at the liquor store, positively identified Lawson as the person who shot Lewis.

The defense had intended to call John Sherrill and Rufus Thomas as witnesses, but was advised by the attorneys for these individuals that they would invoke their fifth amendment privileges. Defense counsel then requested the court to find that Sherrill and Thomas were unavailable witnesses and to allow into evidence their grand jury testimony. Sherrill had testified before the grand jury that it was Davis who shot Lewis, but Sherrill subsequently pleaded guilty to perjury in connection with such testimony. Thomas had testified that, while he had not seen the shooting, he saw Davis take a gun from his pocket before he and Lawson entered the store. Upon coming out, Lawson was carrying the gun.

The trial court ruled the grand jury testimony inadmissible. Lawson filed a post-trial motion, arguing that he was denied due process in that he was not allowed to present the testimony of Sherrill and Thomas, and that the State failed to disclose that witness Carlisle was under investigation for an unrelated shooting. At the hearing on the motion, William King testified that on June 27, 1987, a man whom he later identified as Carlisle broke into his home and shot him. An arrest warrant for Carlisle was issued on July 28, 1987. The court specifically found no evidence to support Lawson’s allegation of an agreement between the prosecution and Carlisle.

On appeal, Lawson argues that the trial court erred in denying the admission of the grand jury testimony of Sherrill and Thomas. As a general rule, testimony given at a prior proceeding, by a witness who is unavailable to testify at the subsequent proceeding, is admissible as an exception to the hearsay rule where the issues are substantially similar and where the party against whose interest the testimony is offered had an adequate opportunity to cross-examine. (People v. Doss (1987), 161 Ill. App. 3d 258, 514 N.E.2d 502.) Testimony from preliminary hearings have been admitted on this basis. (People v. Behm (1977), 49 Ill. App. 3d 574, 364 N.E.2d 636.) The difficulty with admitting grand jury testimony, however, arises from the defendant’s lack of opportunity to cross-examine the witness. In this case, however, it is the defendant who seeks to have the grand jury testimony admitted. Arguably, therefore, the confrontation requirement is not a bar in this case.

We need not resolve the issue, however, as we find any potential error arising from the failure to admit the grand jury testimony of Sherrill and Thomas to be harmless. A review of their testimony clearly demonstrates that had it been admitted and accepted as true by the trier of fact, Lawson would nonetheless be found guilty of murder.

Sherrill testified before the grand jury that Lawson and others attacked Lewis, who fled to a nearby liquor store. Lawson and Davis followed Lewis into the store, where they continued to beat him. Lawson and Davis left the store, whereupon Davis asked Lawson for his gun and Lawson gave it to him. Davis then reentered the store and shot Lewis. After giving the gun back to Lawson, the two fled.

Thomas testified that he observed a group of young men attack Lewis, who ran into the liquor store. Lawson and Davis pursued him, and prior to entering the liquor store, Thomas saw Davis take a gun from his pocket. As Thomas was walking away, he saw Davis and Lawson leaving the store, and Lawson was carrying the gun. Davis told Thomas, “We shot him,” and later told him that Lawson had shot Lewis.

Had the jury accepted as true Sherrill’s testimony, Lawson would still be guilty of murder under the theory of accountability. Lawson beat Lewis, chased him into the liquor store and, according to Sherrill, gave Davis a gun with which to kill Lewis. He then took the gun back and fled with Davis. The law on accountability incorporates the “common-design rule,” which provides that where two or more individuals engage in a common criminal design, any acts committed in furtherance of the design by any one party are considered the acts of all. (See People v. Fyke (1989), 190 Ill. App. 3d 713.) An indictment charging a defendant, as principal, with murder will support the introduction of evidence and the conviction of the defendant under the theory of accountability. People v. Nelson (1965), 33 Ill. 2d 48, 210 N.E.2d 212; People v. Heuton (1971), 2 Ill. App. 3d 427, 276 N.E.2d 8.

Regarding Thomas’ testimony, he did not see the shooting and nothing he said contradicts the testimony of the other State witnesses. Even if believed, his testimony would still support Lawson’s murder conviction.

We next address Lawson’s argument that the State failed to disclose pending unrelated criminal charges against State’s witness Kenneth Carlisle thereby denying him the opportunity to impeach Carlisle with a possible motive for his testimony. Lawson filed two pretrial discovery motions seeking to compel the disclosure of any criminal records of potential State witnesses and any agreements between the State’s Attorney’s office or other law enforcement agencies and any prosecution witness that could conceivably influence the witnesses’ testimony. On July 15, 1987, six days prior to Lawson’s trial, William King identified Kenneth Carlisle as the man who had broken into his home and shot him several weeks earlier. Carlisle was not arrested until July 28, 1987, six days after Lawson’s trial had concluded. The State did not reveal to Lawson that Carlisle was under investigation for the burglary and shooting of King.

At the hearing on his post-trial motion, Lawson argued that the delay in arresting Carlisle implies that a deal was made with him. The trial court specifically found no such agreement and denied the motion. Lawson argues on appeal that the State had a duty to disclose the investigation of Carlisle. Supreme Court Rule 412 (107 Ill. 2d R. 412) requires the disclosure of any prior conviction, and the trial court’s additional discovery orders in this case required the disclosure of any agreements between the prosecution and any of the State’s witnesses. As Carlisle had not been charged with a crime and as there is no evidence in the record of any agreement between the prosecutor and Carlisle, disclosure of the investigation was not required under Supreme Court Rule 412 (107 Ill. 2d R. 412) or by any order of the court. Even if disclosed, Lawson would have been unable to impeach Carlisle -with the investigation. Although a defendant is allowed wide latitude in cross-examining witnesses for bias, prejudice, or motive to testify falsely, this rule has not been extended to situations where the witness has simply been under investigation. People v. George (1971), 49 Ill. 2d 372, 274 N.E.2d 26; People v. Simmons (1981), 99 Ill. App. 3d 519, 425 N.E.2d 1168; People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853.

Finally, Lawson argues the cumulative effects of the exclusion of the grand jury testimony and the discovery violation denied him a fair trial. Having concluded that the exclusion of the grand jury testimony was at most harmless error, and that the State was not required to disclose the unrelated investigation of Carlisle, this argument is moot.

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

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.