author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CAMPBELL et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1 — 89—2484, 1—89—2485 cons.
    Opinion filed December 16, 1992.

      Rita A. Fry, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Michael J. Pugh, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendants Jerry Bogan and John Campbell were convicted by a jury of the robbery of Arthur Abrams and were sentenced to prison for 14 years and 6 years, respectively. On appeal, defendants contend that the trial court erred in finding that the State had offered sufficient race-neutral explanations for its exercise of peremptory challenges in excluding African-Americans from the jury.

We affirm the convictions.

During voir dire, the trial court questioned 19 prospective jurors before defendants joined in a motion based upon the United States Supreme Court’s holding in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which found that racial or ethnic discrimination in the exercise of peremptory challenges denied a defendant due process.

The trial court had excused 7 of the 19 people for cause. Although the record is somewhat confused, it appears that the trial court completed voir dire with respect to the first panel of 13 and the State was apparently satisfied with the panel. Counsel for defendant Bogan exercised a peremptory challenge to exclude one of the prospective jurors; counsel for defendant Campbell exercised peremptory challenges to exclude two prospective jurors; and the State then exercised a peremptory challenge to exclude a prospective juror, K.C. Lee, an African-American. During the questioning, the State had used a peremptory challenge to excuse another African-American, Anthony Jones.

After the Batson motion was made, this discussion followed:

“MS. FITZSIMMONS: The only remaining blacks on the venire panel, after the Court excused for cause Mr. Estes, over my objection, and Mr. Benson, who was not over my objection, he pretty clearly stated that he could not be fair, the only remaining blacks were Mr. Lee and Mr. Jones and those are the only two peremptories that the State has used at this point.
THE COURT: State, do you wish to give racially neutral reasons as to why Mr. Jones and Mr. Lee were excused?”

The State then gave its reasons and the trial court denied defendants’ motion, finding no Batson violation.

Defendants assert here that the trial court erred in its finding that the State gave racially neutral reasons for excluding the two African-American prospective jurors.

We are first concerned with the Batson process. Batson establishes a three-step analysis to determine whether the State used its peremptory challenges to remove venire members on the basis of race: (1) the defendant must demonstrate a prima facie showing of discrimination; (2) after such showing the State must then come forward with a race-neutral explanation for challenging African-American jurors; (3) the trial court determines if the defendant has established purposeful discrimination. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723; People v. Hope (1992), 147 Ill. 2d 315, 321, 589 N.E.2d 503.

To make a prima facie showing of purposeful discrimination, defendant must demonstrate that members of a racial group were removed from the venire by peremptory challenges and that the removal, in addition to other relevant circumstances, raises an inference of purposeful discrimination by the State in the selection of the jury. People v. Andrews (1992), 146 Ill. 2d 413, 424, 588 N.E.2d 1126.

Examples of relevant circumstances include (1) a pattern of strikes against African-American veniremembers; (2) a disproportionate use of strikes against black veniremembers; (3) whether the excluded jurors were a heterogeneous group sharing race as their only common characteristic; (4) the level of black representation in the venire as compared to the jury; (5) the prosecutorial questions and statements during voir dire and while exercising challenges; and (6) the races of defendant and victim or of defendant and witnesses. People v. Garrett (1990), 139 Ill. 2d 189, 203, 564 N.E.2d 784; People v. Coulter (1992), 230 Ill. App. 3d 209, 222, 594 N.E.2d 1163.

Each step in Batson ought to be considered only upon the completion of the preceding step. (People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.) The State argues that defendants have not fulfilled their burden as to “Step One”: establishment of a prima facie case of discrimination. Defendants contend that they were not required to do so, relying upon Hernandez v. New York (1991), 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866, which found that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”

However, defendants’ argument does not fully consider all of the implications of Hernandez. The Supreme Court stated that only where the prosecutor defends his use of peremptory strikes “without any prompting or inquiry from the trial court,” and the trial court then rules on whether there has been intentional discrimination, will the issue of defendants’ prima facie showing become moot. Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866; People v. Jackson (1991), 145 Ill. 2d 43, 582 N.E.2d 125, vacated on other grounds (1992),_U.S__, 121 L. Ed. 2d 5, 113 S. Ct. 32; Coulter, 230 Ill. App. 3d 209, 594 N.E.2d 1163.

Here, the question that the trial court posed to the State, whether it wished to give racially neutral reasons as to why the two African-Americans were excused, is certainly “prompting” or “inquiry” as Hernandez contemplates. Such an inquiry improperly collapses the Batson process into a two-step rather than a three-step process. See Jackson, 145 Ill. 2d at 101; Coulter, 230 Ill. App. 3d at 223.

In Jackson, our supreme court clearly stated its policy with regard to the three-step Batson process and expressed its frustration with the trial courts of our State in failing to follow its mandate. Furthermore, the Jackson court condemned the procedure established by the trial court that required the State to explain the nonracial character of each peremptory challenge at the time of the exercise of the challenge. (Jackson, 145 Ill. 2d at 99.) Such a procedure ignores the first-step requirement that the trial court find a prima facie showing of purposeful discrimination.

Coulter similarly distinguishes Hernandez and holds that the trial judge’s requirement that the State provide its explanation at the time of the exercise of the peremptory challenge is sufficient to ensure that the first step in the Batson process is not moot. However, in Coulter, the record provides other “relevant circumstances” which establish a prima facie showing of discrimination. Coulter, 230 Ill. App. 3d at 223-24.

Since the issue is not moot, we now examine whether defendants properly established a prima facie showing of discrimination. Defense counsel’s only evidence of discrimination was that the State’s two peremptory challenges were both made to African-American veniremembers. One of the two challenged veniremembers had apparently been tendered to defendants and was the victim of a backstrike.

We find that defendants’ statement, without more, fails to make the requisite showing of “relevant circumstances” which would indicate that racial discrimination was the motivation for the exercise of the challenge. See People v. Garrett (1990), 139 Ill. 2d 189, 203-05, 564 N.E.2d 784; People v. Beviel (1992), 250 Ill. App. 3d 361, 364.

Generally, a statement of the mere number of African-American veniremembers peremptorily challenged, without more, will not establish a prima facie showing of discrimination. Garrett, 139 Ill. 2d at 203; People v. Mahaffey (1989), 128 Ill. 2d 388, 413-14, 539 N.E.2d 1172; Beviel, No. 1—89—1800, slip op. at 4; People v. Lyles (1990), 208 Ill. App. 3d 370, 374, 576 N.E.2d 396.

In Garrett, the defendant failed to establish other relevant circumstances leading to the inference of purposeful discrimination required for a prima facie showing. The court explained, inter alia: (1) the mere fact that some African-American veniremembers are challenged and others accepted by the State, without more, does not constitute a pattern of improper challenges; (2) nor was there a showing that the State challenged black veniremembers disproportionately as compared to white members, or that the level of black representation in the venire exceeded that in the jury; (3) nor were prosecutors’ statements or questions during voir dire cited which would imply purposeful racial discrimination. Garrett, 139 Ill. 2d at 204.

In Beviel, this court similarly found that the defendant failed to offer any relevant evidence other than the fact that three blacks were challenged and only one black male remained on the jury. Beviel, No. 1 — 89—1800, slip op. at 6.

In the present case, defendants offered even less evidence of discrimination than did the defendants in Garrett and Beviel. Defendants here offer no facts other than simply stating that the State used its only two peremptory challenges to excuse two blacks.

All we are able to glean from the record is that the trial court excused seven persons for cause before defendants made their Batson motion. While the record establishes that defense counsel identified Jeffery Estes and Robert Benson as two African-Americans whom the court excused for cause, counsel did not identify the racial composition of the other excused veniremembers, the entire venire or the jury so that we may properly determine if a disproportionate number of African-Americans were excused, if a discriminatory pattern was established or if the level of African-American representation in the venire exceeded that of the jury.

Also, defense counsel failed to provide any other relevant evidence of racial discrimination, for example, that the two excused African-Americans were heterogeneous in every respect except for race; that the State made statements or asked questions during voir dire that would imply racial discrimination; or that white veniremembers with similar histories were accepted as jurors. Further, defendants offer no evidence or argument that the race of the defendants, the victim or the witnesses somehow implied racial discrimination.

While the trial court is silent as to whether defendants made a proper prima facie showing, we find that they failed to carry their burden in making such a showing.

For all of the foregoing reasons, the defendants’ convictions are affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.

      In Jackson, the supreme court stated: “We have previously cautioned trial courts against collapsing what ought to be a methodical Batson hearing procedure into an undifferentiated review of defense and State contentions. [Citations.] It appears we must now caution trial courts against a procedure whereby the first step in the Batson analysis is omitted altogether.” Jackson, 145 Ill. 2d at 98.

       Even if we were to find that defendants made a proper prima facie showing, we find that the trial court’s acceptance of the State’s explanations was proper and not against the manifest weight of the evidence. We find race-neutral the State’s reasons for excluding Anthony Jones: that Mr. Jones was trying to “stare down” the prosecutor by giving him the “evil eye” and that he wore a T-shirt bearing the name of an establishment known among police officers as one where narcotics are suspected of being used. The prosecutor stated that if defendant frequented such an establishment, it suggested little respect for the law. The trial court commented that “the record is clear that there are numerous reasons in the State’s mind” why Mr. Jones should have been excluded.
      We also find race-neutral the State’s explanation for its use of a peremptory challenge against K.C. Lee: that the State understood Mr. Lee to be unemployed (not a very cogent reason, but not necessarily racial), and that the State had, at one point, tendered Mr. Lee to defendants, and thus had been ready to accept him. The trial court recognized that the State backstruck Mr. Lee only after defendants exercised their own peremptory strikes and accepted the State’s explanation as race-neutral. We find that the record discloses no evidence that the State was racially motivated in exercising either of these peremptory challenges.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BENOIT, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—1157
    Opinion filed December 18, 1992.

      Michael J. Pelletier and Leslie Wallin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley State’s Attorney, of Chicago (Renee Goldfarb, Marie Quinlivan Czech, and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant John Benoit was found guilty of arson, aggravated arson, conspiracy to commit arson and conspiracy to commit aggravated arson. He was sentenced to seven years’ imprisonment on the aggravated arson charge. Defendant appeals, contending that: (1) the trial court erred in refusing to suppress defendant’s statement; (2) the prosecutor improperly referred to defendant’s failure to testify; (3) the trial court gave an issues instruction for aggravated arson which misstated the law; and (4) the trial court erred in allowing evidence of other unrelated misconduct by defendant into evidence.

Briefly stated, the incident giving rise to this case occurred on February 17, 1987, when Dorothy Stirgus’ home at 7924 South Fair-field Avenue in Chicago, was set aflame by two Molotov cocktails that were thrown through her window. John Benoit, John Waitman, William English and Patrick Doyle were arrested for the crime. This appeal concerns only defendant Benoit.

Defendant’s first contention is that the trial court erred in denying his motion to suppress. For the following reasons, we disagree. A valid Miranda waiver must be voluntary, knowing and intelligent. (People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958.) In determining the validity of the Miranda waiver, the court must consider the totality of the circumstances, including the characteristics of the defendant and the details of the interrogation. (People v. Lopez (1991), 222 Ill. App. 3d 872, 584 N.E.2d 462.) A reviewing court’s analysis of a ruling on a motion to suppress is limited to determining whether the trial court’s finding was against the manifest weight of the evidence. Lopez, 222 Ill. App. 3d 872, 584 N.E.2d 462.

The evidence adduced from the suppression hearing is as follows. Defendant was arrested at St. Lawrence High School. Defendant was advised of his Miranda rights while still at the high school and was informed that he was being accused of aggravated arson. Defendant’s father testified that as the police and defendant were entering the police car, he told Sergeant Lowe that he did not want his son speaking to anybody until his attorney was present. According to defendant’s father, Lowe responded “okay” or “all right.” Lowe testified that he could not recall whether this conversation occurred.

The officers and defendant then proceeded to the police station, with the defendant’s father following in his own car. While driving to 11th and State Streets, Sergeant Lowe received a radio message from his commander to call his office. Lowe flagged defendant’s father and told him to follow him to 79th and Western Avenue, where he was going to stop and make a phone call. Defendant’s father then indicated that he was concerned about his wife and wanted to go home and check on her. Sergeant Lowe testified that he left the car in order to make the phone call but that O’Meara and Gardner remained in the car with defendant. Defendant, however testified that the officers left him alone in the police car.

At 79th and California Avenue, the officers slowed down and pulled over. According to defendant, Officer O’Meara asked, “Does this area look familiar?” Defendant testified that he did not respond. He testified that he now knew the area to be the firebombing area. The officers, however, denied asking defendant whether the area looked familiar.

Defendant testified that as they were driving to the station, O’Meara said, “You’re looking at 60 years. All your friends told on you ***. If you talk now we can get you probation.” Defendant testified that he gave up hope and answered the officer’s questions. Sergeant Lowe, on the other hand, testified that it was defendant who began talking about the case, asking who had been arrested, and how they found out about his involvement, at which time O’Meara told defendant not to mention anything until they arrived at the station. Detectives O’Meara and Gardner testified that they did not threaten defendant, try to coerce a statement, or make any promises to him. Detective Gardner admitted that he asked defendant why he was involved in this investigation and defendant did not answer him.

Defendant testified that O’Meara said, “We have your friends,” and showed defendant a piece of paper with the names William English, Patrick Doyle, and John Whitman written on it. According to defendant, O’Meara asked, “What do you got to say?” and defendant responded, “I ain’t saying nothing until I get a lawyer.” The officers, however, testified (when the proofs were reopened nine months after the suppression hearing) that defendant did not make a request for an attorney.

At the station, Assistant State’s Attorney Warnick gave defendant his Miranda rights. Defendant indicated that he understood his rights and signed a written waiver. Defendant then gave a handwritten statement in which he implicated himself in the firebombing. Defendant reviewed the statement, initialled any corrections, and signed it.

Defendant contends that his Miranda waiver was unknowing, unintelligent and involuntary because the police falsely assured defendant’s father, within defendant’s hearing, that they would not interrogate defendant until he had an attorney but then proceeded to question him and coerce him into making a statement. Defendant also points out that he was 18 years old at the time of his arrest and he was a novice in the criminal justice system.

Defendant relies on People v. Starling (1978), 64 Ill. App. 3d 671, 381 N.E.2d 817, wherein the appellate court, affirming the trial court, found that defendant’s statement was not voluntarily given based on the fact that defendant was 18 years old, he was awakened at an early hour after only a few hours of sleep, had no prior experience with the criminal justice system, and defendant was told that the police already knew of his involvement in the crime.

The situation here is different. The trial court was faced with conflicting testimony, and after observing the demeanor of the witnesses, found the officers more credible. The resolution of conflicting testimony at a suppression hearing is the responsibility of the trial judge. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Spivey (1991), 209 Ill. App. 3d 584, 568 N.E.2d 327.) We find no reason to disturb the trial court’s determination. Despite defendant’s inexperience with the criminal justice system, defendant was an adult and fully capable of understanding his rights and the effect of waiving them. Based on the facts presented here, we cannot say that the trial court’s decision was against the manifest weight of the evidence.

Nor do we find that defendant invoked his right to counsel. When the right to counsel is invoked, all interrogation must cease, and it may not resume outside counsel’s presence unless the defendant initiates further communication with the police. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) Here, it was not until nine months after the suppression hearing, when the proofs were reopened, that the officers testified that defendant did not invoke his right to counsel while he was being transported to the police station. However, permitting the State to reopen its case to present additional proof rests in the sound discretion of the trial court and will not be interfered with on review except in cases of clear abuse of discretion. (People v. Cross (1968), 40 Ill. 2d 85, 237 N.E.2d 437.) We find no abuse of discretion in the trial court’s decision allowing the State to reopen its case nor do we find the trial court’s finding that defendant did not invoke his right to counsel to be against the manifest weight of the evidence.

Defendant next maintains that even if defendant did not invoke his right to counsel, defendant’s father invoked the right to counsel for the defendant. We are not persuaded by defendant’s argument. Even if defendant’s father did tell the officers not to question defendant until he obtained counsel, defendant was an adult and it was defendant’s obligation to exercise his right to counsel. (People v. Watson (1991), 223 Ill. App. 3d 143, 583 N.E.2d 1180.) Although defendant relies on People v. Spivey (1991), 209 Ill. App. 3d 584, 586 N.E.2d 327, and People v. Starling (1978), 64 Ill. App. 3d 671, 381 N.E.2d 817, these cases are distinguishable. In Spivey, the court found that not only defendant’s mother, but also defendant, stated that defendant did not want to answer any questions until he retained an attorney. The court found that because defendant had nodded affirmatively, to his father’s warning that he consult with an attorney before answering any questions, defendant’s response to his father’s statement could be interpreted as a request for counsel.

The next contention raised by defendant is that the prosecutor made comments which improperly drew attention to defendant’s failure to testify. A defendant has a constitutional right not to testify on his own behalf and it is improper for the prosecutor to refer directly or indirectly on defendant’s failure to testify. (People v. Arman (1989), 131 Ill. 2d 115, 545 N.E.2d 658.) The appropriate test for determining whether a defendant’s right to remain silent has been violated is whether the reference was intended or calculated to direct the attention of the jury to defendant’s failure to testify. People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743.

The first comment defendant takes issue with is as follows:

“Did you hear any testimony from this chair about anything that happened in any police car with him in it? Did you hear that? Did you hear any testimony from that witness stand about that statement [the defendant’s statement to the police] not being true? Did anybody get up and say, the statement is a lie, the statement was beaten from this guy?”

While this comment was indeed improper, defense counsel objected to the comment and the objection was sustained. Defendant also complains of the prosecutor’s statement that the jury heard no testimony regarding the time the assistant State’s Attorney interrogated defendant and the comment that the uncontradicted testimony was that defendant was not forced to sign anything. While these comments were of questionable propriety, they are of a more general nature than the first comment. Furthermore, any error was harmless beyond a reasonable doubt. Evidence of defendant’s guilt was overwhelming, particularly in light of defendant’s confession. See People v. Howard (1991), 147 Ill. 2d 103, 588 N.E.2d 1044.

Defendant next maintains that the issues instruction for aggravated arson misstated the law. The instruction given to the jury, which was virtually identical to Illinois Pattern Jury Instructions, Criminal, No. 15.04 (3d ed. 1992), states:

“To sustain the charge of aggravated arson, the State must prove the following propositions: First: That defendant *** in the course of committing an arson, knowingly damages, partially or totally, any building; and Second: That when the defendant *** did so he knew or should have known that one or more persons were present therein ***.”

Defendant points out that according to the aggravated arson statute, a person commits aggravated arson when he “knows or reasonably should know that one or more persons are present therein.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.1) Although we agree with defendant that the word “reasonably” should have been included in the jury instruction, the absence of this word certainly does not require reversal in this case. An error in instructions will be considered harmless if it is demonstrated that the result would not have been different if the proper instruction had been given. (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.) The instruction as tendered actually imposed a higher standard on the State to prove the defendant’s knowledge that one or more persons were present in the building he damaged. In light of the fact that the jury found that defendant “should have known” that the premises were occupied, then it logically follows this same evidence would establish that defendant “reasonably should have known” the premises were occupied.

The final contention raised by defendant is that the trial court erred in denying his motion in limine to exclude portions of his statement which amounted to evidence of other, unrelated misconduct. In the statement, defendant related that he went with Waitman and Doyle to Jill Jacque’s house. They were told by Jacque’s brother that she had gone to Taco Bell. Soon thereafter, defendant, Waitman, Doyle and English saw Jacque crossing the street near the Taco Bell. Jacque was crying and asked defendants for a ride. According to defendant’s statement, the defendants “joked with her and said [they would] leave her in a black neighborhood.” Jacque was crying and she went knocking on the door of a house. Defendant then got Jacque back in the car and took her home. Defendant’s statement then set forth defendant’s participation in the offense from purchasing gasoline, to returning to John Whitman’s home, where he filled a pop bottle with gasoline and later threw a brick through the victim’s window.

What defendant contends is that the portion of the statement referring to Jill Jacque, particularly the part about dropping her off in a black neighborhood, was irrelevant and prejudicial. We agree with the trial court’s decision not to redact that part of defendant’s statement referring to leaving Jacque in a black neighborhood. This statement was clearly relevant to show defendant’s motive for attacking the victim’s home. See People v. Williams (1985), 131 Ill. App. 3d 597, 610, 475 N.E.2d 1082 (“The racist references establish a possible motive for defendant’s commission of the crime and will not be rendered inadmissible simply because they are prejudicial”).

Accordingly, for the reasons set forth above, defendant’s conviction is affirmed.

Affirmed.

LORENZ and MURRAY, JJ., concur.

       Justice Lorenz concurred in this opinion prior to his retirement.


author: JUSTICE McNAMARA

text:
    KRAFT CHEMICAL COMPANY et al., Plaintiffs-Appellants, v. ILLINOIS BELL TELEPHONE COMPANY et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1 — 91—3071, 1—91—3592 cons.
    Opinion filed December 18, 1992.
    Rehearing denied February 2, 1993.

      Robert F. Lisco, of Lisco & Field, of Chicago (Jill Kline, of counsel), for appellants.
    Emily Nicklin and Michelle H. Browdy, both of Kirkland & Ellis, of Chicago, for appellee Illinois Bell Telephone Company.
    Thomas J. Platt, of Ott & Platt, of Chicago, for appellee Kellogg Construction Company.
    Eric L. Samore and Ellen S. Martin, both of Querrey & Harrow, Ltd., of Chicago, for appellee Big Trees, Inc.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Kraft Chemical Company, Inc., filed a class action suit against defendants, Illinois Bell Telephone Company (Bell), Kellogg Construction Co., Inc. (Kellogg), and Big Trees, Inc. (Big Trees), on behalf of all plaintiffs who sustained losses after Kellogg severed a fiber optic cable buried underground which caused a day-long cessation of telephone service in the western suburbs of Cook and Du Page Counties. Plaintiff, a chemical company, contended that the operation of its business necessitated the constant use of telephone lines and communications. Plaintiff sustained no property damage as a result of the severed cable.

Plaintiff’s second amended complaint included counts against Bell sounding in negligent violation of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/s, par. 1 — 101 et seq.) (the Act); willful violation of the Act; common law willful and wanton misconduct, and breach of contract. The causes of action against Kellogg and Big Trees included negligence, willful and wanton misconduct, and intentional interference with contractual relationships. (The case was never certified to proceed as a class action.) The trial court granted defendants’ motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) for failure to state a cause of action, with the exception of the count alleging breach of contract against Bell. (The breach of contract action is not at issue on review.)

In this consolidated appeal, plaintiff contends that the trial court erred in dismissing the negligence and willful and wanton misconduct claims as being too remote for recovery; that a sufficient cause of action was pled for intentional interference with a contractual relationship; and that the doctrine espoused in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, should not preclude plaintiff’s recovery.

The facts in this case are undisputed. Kellogg was engaged as a general contractor of commercial, residential and industrial buildings. Big Trees operated as a landscaping contractor in the business of excavating, grading landscapes and planting trees. At that time, the “Joint Utilities Location Information for Excavators,” more commonly known as “JULIE,” operated as a clearinghouse of information regarding the location of various utilities’ underground cables, lines, mains and pipes. On October 15, 1990, Big Trees, which had been hired as an agent of Kellogg to conduct landscaping excavation at 3521 Madison Street in Oak Brook, Illinois, operated a backhoe without first contacting JULIE, and severed a fiber-optic cable which was located approximately five feet below the surface. The cut cable interrupted service for part of one day for thousands of Bell customers.

Plaintiff’s second amended class action complaint sought damages against Bell, Kellogg and Big Trees. Counts I through III pertained to defendant Bell only. Count I alleged that Bell violated the Act’s requirement to provide adequate service because of its failure to warn of the placement of its cable, protect the cable, or provide back-up service; count II maintained that such violations of the Act were willful; and count III alleged willful and wanton misconduct at common law. Count V sounded in negligence against Kellogg and Big Trees only, contending that Big Trees, acting on behalf of Kellogg, carelessly and negligently severed the cable by digging in an area without first ascertaining the location of the telephone cables. Count VI alleged that the actions of Kellogg and Big Trees were willful and wanton. In count VII, plaintiffs allege that Kellogg and Big Trees intentionally interfered with its contract with Bell.

At the section 2 — 615 hearing, the trial court first found that Bell’s tariff governed its relationship with its customers and limited Bell’s liability to the charges for the period of interrupted service. The tariff provides in relevant part:

“The liability of the Company for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission occurring in the course of furnishing service or other facilities, and not caused by the negligence of the customer, shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during such mistake, omission, interruption, delay, error or defect in transmission occurs. No other liability shall in any case attach to the Company.” (Emphasis added.)

Relying upon this court’s holdings in J. Meyer & Co. v. Illinois Bell Telephone Co. (1980), 88 Ill. App. 3d 53, 409 N.E.2d 557, and the decision in Sarelas v. Illinois Bell Telephone Co. (1963), 42 Ill. App. 2d 372, 192 N.E.2d 451, the judge concluded that the tariff unambiguously limited plaintiff’s damages to the proportionate charge for its service during the period of interruption. Moreover, the court concluded that the tariff’s limitation of damages to charges for the period of interruption did not contravene sections 8 — 101, 8 — 401, and 5 — 201 of the Act, which require Bell to provide adequate, efficient, and reliable service, or be liable “for all loss, damage or injury caused thereby or resulting therefrom.”

The trial court further found that plaintiffs’ claim against Bell in tort for economic loss was barred by the economic loss doctrine as set forth in Moorman Mfg. Co. v. National Tank Co. In Moorman, the court precluded the plaintiff from recovering in tort for solely economic damages. The judge determined that application of Moorman was appropriate in the present case, and that it barred damages solely for economic loss for tortious breach of the duties imposed by the Act where no personal injury or damage to other property was alleged.

The trial court also determined that the purely economic losses sought by plaintiffs against Kellogg and Big Trees for cutting the cables causing the interruption of service were barred by the legal doctrine of remoteness. (Dundee Cement Co. v. Chemical Laboratories, Inc. (7th Cir. 1983), 712 F.2d 1166.) The doctrine of remoteness is not based upon a factual inquiry to determine whether the damages claimed were foreseeable or whether there was proximate cause; rather, it is a legal doctrine incorporating public policy considerations. While exceptions to the doctrine of remoteness exist in Illinois in instances where a tortfeasor may become liable to a third party if he holds a special relationship to a third party, the plaintiffs in the present case did not allege that Kellogg and Big Trees have such a relationship to Bell’s customers. The court concluded that to hold Kellogg and Big Trees liable for the losses incurred by all of Bell’s customers would place an entirely unreasonable burden on their activities.

The court further found that plaintiff failed to allege sufficient facts in count VII to support the claim of tortious interference with contract relations against Kellogg and Big Trees. Accordingly, the court dismissed counts I through III against Bell, and counts V through VII against Kellogg and Big Trees.

It is well established that a cause of action should be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle the plaintiff to recover. (DiBenedetto v. Flora Township (1991), 219 Ill. App. 3d 1091, 580 N.E.2d 647.) When the legal sufficiency of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the complaint must be taken as true, and “a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.” Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505, 565 N.E.2d 654.

We first address plaintiff’s contention that the trial court erred in dismissing the negligence and willful and wanton claims as being too remote for recovery. At the outset, we note that the question concerns legal, not factual, remoteness. (Dundee Cement Co. v. Chemical Laboratories Inc., 712 F.2d 1166.) While courts often refer to remoteness or lack of foreseeability, most cases that preclude a plaintiff from recovering against a defendant for economic losses actually are based on the legal policy that, regardless of foreseeability, a certain type of plaintiff should not be able to recover against a negligent defendant. Dundee Cement, 712 F.2d 1166.

In Dundee Cement, the court had occasion to interpret the remoteness doctrine. The Dundee court, applying Illinois law, dismissed a suit against a chemical company whose truck spilled flammable liquid on a highway, causing the road to be closed and blocking plaintiffs’ customer access. The court held that the economic losses resulting when customers could not gain access to plaintiffs’ property were, as a matter of law, too remote to allow recovery even where the losses are proved and shown to be proximately caused by the defendant’s tortious conduct. The award of lost profits is allowed in limited circumstances, such as instances where the defendant has intentionally harmed the plaintiff, or when the plaintiff or his property is physically harmed. Dundee Cement, 712 F.2d 1166.

The court in Dundee reasoned that the result of allowing such suits would, in effect, make a tortfeasor an insurer for the economic losses suffered by those inconvenienced by his negligent action. The court alluded to the potential difficulty such cases present for finding a sensible stopping point for liability, writing that:

“[T]here is a legitimate fear that a crushing burden of litigation would result from allowing recovery for economic damages like this. The multiversant possibilities of such litigation are staggering to the imagination.” Dundee Cement, 712 F.2d at 1172.

In its decision, the court in Dundee relied in part upon the rationale employed in Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148, wherein this court held that a handicapped child could not bring an action for loss of parental services, companionship, society and affection against the negligent owner and driver of a truck which collided with a car driven by the child’s father. The child alleged that the accident rendered her father unable either to provide her with needed special care or to drive her to school. The court in Koskela recognized:

“Requiring a defendant who has tortiously injured one person to pay for resulting losses experienced by every other person would place an entirely unreasonable burden on all human activity.” Koskela, 91 Ill. App. 3d at 572, 414 N.E.2d at 1151.

Plaintiff argues that this case is factually distinguishable from Dundee Cement, because vehicular accidents such as that which occurred in Dundee Cement produce such disparate and random consequences in terms of damages both to person or property, or in terms of ensuing economic loss, and generally involve strangers who cannot be foreseeably classified in any meaningful manner. Further, plaintiff urges that under Illinois law, a limited exception to the rule of nonliability exists when there is a special relationship between a negligent party and a third party who is economically injured. (Ogle v. Fuiten (1983), 112 Ill. App. 3d 1048, 445 N.E.2d 1344 (negligence action by nonclients against an attorney in preparing wills that had named the plaintiffs as beneficiaries).) However, we find plaintiff’s attempt to distinguish this case to be unavailing, in light of the holding in Dundee which unequivocally states that simply because plaintiff is a user of a particular service, it does not create a special relationship.

Applying the principles established in Dundee Cement as well as other instances cited above wherein the remoteness doctrine was invoked as sound public policy, we conclude that as a matter of law, the damages sought by plaintiff for the day-long cessation of service to an indeterminate class of plaintiffs is too remote to permit recovery.

Plaintiff next contends that a sufficient cause of action was pled for intentional interference with a contractual relationship against Kellogg and Big Trees. The five elements necessary to state a cause of action for this tort include: (1) the existence of a valid and enforceable contract between plaintiff and a third person; (2) defendant’s knowledge of the existing contract; (3) defendant’s intentional and malicious inducement of the breach; (4) a subsequent breach by a third person; and (5) damage to the plaintiff. (Skopp v. First Federal Savings (1989), 189 Ill. App. 3d 440, 545 N.E.2d 356.) The acts that form the basis of tortious interference must be directed at parties other than the plaintiff. (Scheduling Corp. of America v. Massello (1983), 119 Ill. App. 3d 355, 456 N.E.2d 298.) The trial court here concluded that plaintiff failed to allege sufficient facts to show that Kellogg and Big Trees intentionally and maliciously caused Bell to breach its agreement with plaintiff, or even that Kellogg and Big Trees were aware of the existence of the specific contract.

After close review of the record, we concur with the trial judge’s assessment that plaintiff failed to state a cause of action for the claim of intentional interference with contractual relations. We first note that plaintiff failed to demonstrate that Kellogg and Big Trees had knowledge of the existing contracts between Bell and members of the class. Plaintiff’s statement that the contracts at issue were “partially written, partially oral” is insufficient to sustain a cause of action. In order to establish the existence of a contract, a pleader must allege facts sufficient to indicate offer, acceptance, and consideration. J. Meyer & Co. v. Illinois Bell Telephone Co., 88 Ill. App. 3d at 53, 409 N.E.2d at 561, citing Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 341 N.E.2d 101.

Nor does plaintiff provide sufficient facts to demonstrate that Kellogg and Big Trees deliberately intended to breach the contract by excavating in the area without first contacting JULIE. Plaintiff’s assertions that defendants willfully and wantonly severed fiber optic cables and failed to contact JULIE before commencing digging in the area are unsupported by specific facts. Such conclusory allegations are insufficient to support a cause of action. In order to state a cause of action, a complaint must contain facts necessary to recover; mere allegations of legal conclusions are not sufficient. (Santelli v. City of Chicago (1991), 222 Ill. App. 3d 862, 584 N.E.2d 456.) We find, therefore, that the trial court properly concluded that plaintiff failed to state a cause of action for intentional interference with contractual relations.

In light of our ruling that the doctrine of remoteness precludes plaintiff’s recovery, we need not reach the merits of its argument suggesting that revision of the Moorman doctrine is a suitable alternative, or that Bell’s tariff should not have precluded plaintiff’s recovery of consequential damages.

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

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


text:
    LUCY GARCIA, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—3156
    Opinion filed December 18, 1992.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellant.
    Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Lucy Garcia, 27 years of age, brought this action against defendant, City of Chicago (the City), for injuries sustained while riding her bicycle on a City sidewalk. She charged that the City was negligent in the maintenance of its sidewalk. The City raised the application of section 9 — 52—020(b) of the Chicago Municipal Code (1992) prohibiting bicycle riding on the sidewalks by persons over 12 years of age as an affirmative defense in conjunction with section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102(a)).

The trial court, however, found that the ordinance was unconstitutional as violative of the equal protection clause. The case proceeded to a jury trial, with no mention of the ordinance to be made to the jury. The jury returned a verdict in favor of plaintiff in the amount of $37,074.35, but reduced the award to $21,255.96 due to her comparative negligence. The trial court entered judgment on the verdict and denied the City’s post-trial motion. The City appeals. The sole question before us is whether the trial court erred in finding the ordinance unconstitutional.

The facts are undisputed. At midday on July 17, 1984, plaintiff was riding her bicycle on a sidewalk in the City of Chicago. At one end of the sidewalk was a six-inch drop-off in the pavement. Plaintiff did not see the drop-off and rode her bicycle over it, causing her to tumble over her handbars and fall to the ground. Plaintiff fractured both of her wrists in the fall.

Section 9 — 52—020(b) of the Municipal Code states:

“No person 12 or more years of age shall ride a bicycle upon any sidewalk in any district, unless such sidewalk has been officially designated and marked as a bicycle route.” Chicago Municipal Code §9 — 52—020(b) (1992).

Section 3 — 102(a) of the Tort Immunity Act provides:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that it is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1989, ch. 85, par. 3— 102(a).

The trial court concluded that section 9 — 52—020(b) violated the equal protection clause of the Constitution because it arbitrarily treats people under the age of 12 differently than those over that age. Accordingly, the trial court held that defendant could not rely on the ordinance as a defense.

In Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748, 567 N.E.2d 592, this court, in determining the applicability of section 3— 102(a) of the Tort Immunity Act to that cause, addressed whether the plaintiff was an intended and permitted user of a City sidewalk, given the manner in which he had used it. As in this case, the plaintiff was a bicyclist over the age of 12 who was injured while riding his bicycle on a City sidewalk, in violation of section 9 — 52—020(b) of the Municipal Code. Noting the language of that section, this court held that “bicycle riding by adults on sidewalks is expressly prohibited and is, therefore, not a contemplated or permitted use by the plaintiff.” Accordingly, the court held that the City’s motion to dismiss should have been granted by the trial court. (Prokes, 208 Ill. App. 3d at 750, 567 N.E.2d at 593.) Thus, setting aside the constitutionality question, it is apparent that plaintiff here was not an intended or permitted user of the sidewalk, as she was over the age of 12 and was riding her bicycle on a sidewalk which had not been officially designated and marked as a bicycle route. However, because the constitutionality of the ordinance was not addressed by this court in Prokes, we must go one step further to address that issue here.

At the outset, we note that the trial judge did not specify whether he was relying on the United States Constitution or the Illinois Constitution in ruling that section 9 — 52—020(b) was unconstitutional. Nevertheless, Illinois courts use the same analysis in assessing equal protection claims under both the Federal and State Constitutions. People v. Reed (1992), 148 Ill. 2d 1, 591 N.E.2d 455.

Under Illinois constitutional law, it is well established that unless a legislative enactment impacts a fundamental right or discriminates against a suspect class, it is presumptively valid (Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 226, 545 N.E.2d 706, 709), and it will survive constitutional scrutiny if it is rationally related to a legitimate governmental purpose. (Triple A Services, 131 Ill. 2d at 226, 545 N.E.2d at 709; County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 335, 564 N.E.2d 1170, 1177.) Federal cases are in accord. (See Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562.) Moreover, the court need not inquire into what the legislature’s actual objective was; if the court can think of any set of facts that will sustain the legislative classification, the statute will be upheld. (Village of Oak Lawn v. Rosewell (1986), 113 Ill. 2d 104, 116, 497 N.E.2d 734, 737; Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 657, 422 N.E.2d 907, 913.) Further, the means chosen to achieve that governmental objective need not be the best possible means; they need only be measures that a rational person could believe might help in some way to achieve the objective. Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, 466, 66 L. Ed. 2d 659, 670, 101 S. Ct. 715, 725.

We note that a party who challenges an ordinance as failing this test of “minimum rationality” must prove “ ‘by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action; that there is no permissible interpretation which justifies its adoption, or that it will not promote the safety and general welfare of the public.’ ” Triple A Services, 131 Ill. 2d at 226, 545 N.E.2d at 709, quoting City of Decatur v. Chasteen (1960), 19 Ill. 2d 204, 210, 166 N.E.2d 29, 33.

Plaintiff has not contended that section 9 — 50—020(b) of the Municipal Code impacts a fundamental right or discriminates against a suspect class. Thus, the minimum rationality test applies, and the ordinance will be declared unconstitutional only if the distinction between those over the age of 12 and those below that age bears no possible rational relationship to any legitimate municipal objective. See Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 483 N.E.2d 1245; Triple A Services, 131 Ill. 2d 217, 545 N.E.2d 706.

As the City points out, there are several rational justifications for this ordinance. The ordinance seeks to protect pedestrians, for whose use sidewalks are primarily intended, by requiring teenage or adult bicyclists to use the streets along with other vehicular traffic. The ordinance protects young children just learning to ride bicycles by allowing them to ride on the sidewalks instead of on the street where they might be injured by other vehicles. Moreover, the inconvenience caused to pedestrians by allowing small children to ride on the sidewalks in residential neighborhoods is significantly outweighed by the danger created by forcing small children to ride in the street. It is reasonable to believe that smaller children — those under the age of 12 — ride at such slower speeds compared to teenagers and adults so that pedestrians would not be significantly endangered by having these smaller children ride on the sidewalks.

Furthermore, because of the relatively faster speeds traveled by older bicyclists, they are more likely to fail to see a curb and be injured if they ride over it, as in this case. By contrast, young children are more likely to travel at slower speeds and be supervised by adults who can help them negotiate curbs. Thus, another purported objective of the ordinance is to protect bicyclists over the age of 12 from being injured while riding on City sidewalks.

In Gregory v. Ashcroft (1991), 501 U.S. 452, 471, 115 L. Ed. 2d 410, 430, 111 S. Ct. 2395, 2406, the United States Supreme Court reiterated the longstanding rule that laws which distinguish different groups on the basis of age will not be overturned unless “ ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [government’s] actions were irrational.’ ” (Quoting Vance v. Bradley (1979), 440 U.S. 93, 97, 59 L. Ed. 2d 171, 176, 99 S. Ct. 939, 943.) That is not the case here. On the contrary, we find the objectives to be legitimate and the ordinance at issue to be rationally related to these objectives.

Since we have determined that the ordinance is rationally related to the achievement of one or more legitimate governmental objectives, we necessarily approve of the “bright line” distinction in the ordinance between bicyclists over the age of 12 and those under 12. As the City correctly points out, the ordinance must give notice of exactly what conduct is prohibited tó avoid a vagueness challenge, and a line must accordingly be drawn somewhere. Legislatures engage in line drawing at every turn, whether, for instance, in setting the speed limit, establishing the legal drinking age, or determining at what age a person may obtain a driver’s license. In Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536, the United States Supreme Court recognized that since “ ‘there is no mathematical or logical way of fixing [a line] precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.’ ” (Village of Belle Terre, 416 U.S. at 8 n.5, 39 L. Ed. 2d at 804 n.5, 94 S. Ct. at 1540 n.5, quoting Louisville Gas & Electric Co. v. Coleman (1928), 277 U.S. 32, 41, 72 L. Ed. 770, 775, 48 S. Ct. 423, 426 (Holmes, J., dissenting).) Indeed, we cannot say that the City’s decision to draw the line at the age of 12 is “very wide of any reasonable mark.”

In sum, we conclude that section 9 — 50—020(b) of the Municipal Code bears a rational relationship to one or more legitimate governmental objectives, and for this reason we find the ordinance to be constitutional. Accordingly, we do not find Garcia to be an intended and permitted user under section 3 — 102(a) of the Tort Immunity Act.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE GIANNIS

text:
    MELVIN SAXTON, Plaintiff-Appellant, v. TOUSSAINT G. TOOLE, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 91—3208
    Opinion filed December 18, 1992.
    Rehearing denied February 2, 1993.

      Joseph L. Goldberg and Keith A. Goldberg, both of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (William C. Anderson III, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff, Melvin Saxton, instituted this action seeking recovery for personal injuries allegedly sustained as a result of negligent medical treatment by defendant, Toussaint G. Toole, M.D. After the jury returned a verdict for defendant, the trial judge granted plaintiff’s motion for a new trial. During the subsequent trial, the court entered a directed verdict in favor of defendant at the close of the plaintiff’s case. This ruling was predicated upon the trial judge’s determination that plaintiff had failed to present sufficient evidence on the issue of proximate cause to warrant submitting the case to the jury. Plaintiff appeals, asserting that his claim against defendant should have been decided by the jury.

Plaintiff alleged that as of May 19, 1983, he suffered from hearing loss in his left ear and that this condition had existed for several years. He consulted defendant, an otolaryngologist who specialized in treatment of diseases of the ear, nose, and throat. After performing certain audiological tests, defendant performed an exploratory tympanotomy on plaintiff’s left ear. According to defendant, this procedure was necessary to rule out or to surgically repair ossicular discontinuity. Plaintiff asserted, however, that ossicular discontinuity was not the focus of the surgery. Plaintiff alleged that the purpose of the surgery was to determine the existence of stapes otosclerosis and that defendant knew that this condition would require a stapedectomy with insertion of a prosthesis.

During the subject surgery, the defendant ultimately concluded that a stapedectomy was required. Defendant further concluded that a standard 4.75-millimeter prosthesis was required to complete the stapedectomy. Although the defendant had ordered five different sizes of stapes prostheses prior to the surgery, not all sizes were available. The 4.75-millimeter prosthesis was one of those which were unavailable even though they had been ordered. Because the 4.75-millimeter prosthesis was not available at the time of the surgery, defendant terminated the surgery without completing the stapedectomy.

Plaintiff ultimately underwent two additional surgeries to correct his hearing loss.

Plaintiff asserted that defendant was negligent for his failure to ascertain and have available the proper prosthesis at the time of the subject surgery, thereby causing plaintiff to endure two subsequent surgeries to correct his hearing loss.

In the plaintiff’s case in chief, defendant was called as a witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1102). Defendant testified that after his initial examination, he concluded that plaintiff suffered from a conductive hearing loss in the left ear. Defendant then ordered an audiogram and an impedance test to be done by an audiologist. According to defendant, the results of these tests indicated that plaintiff’s hearing loss was caused by ossicular discontinuity. Defendant testified that prior to the surgery, he did not suspect that plaintiff’s condition was caused by a problem with his stapes bone.

Defendant stated further that the purpose of the subject surgery was to verify or to rule out the existence of ossicular discontinuity. During the surgery, defendant discovered that plaintiff’s hearing loss was not caused by ossicular discontinuity. When he opened plaintiff’s inner ear, defendant observed a condition which he believed to be a stapes fixation and which required a stapedectomy. After taking the proper measurement, defendant determined that a 4.75-millimeter prosthesis was necessary to perform the stapedectomy.

Defendant testified he had ordered five different sizes of stapes prosthesis because it was an opportunity to restock and because he thought it would be wise to have them available in the event that stapes replacement was necessary. As previously noted, some of the prostheses which had been ordered were unavailable. The 4.75-milli-meter prosthesis was among those which were unavailable. Because this device was unavailable, defendant terminated the surgery and closed plaintiff’s inner ear without completing the stapedectomy.

Plaintiff’s counsel did not ask defendant whether he observed any fibrosis of the malleus and the incus bones during the May 19, 1983, surgery on plaintiff’s left ear.

Plaintiff testified on his own behalf that prior to the surgery, defendant advised him that he suffered from a conductive hearing loss in his left ear which involved a fixation of the stapes bone. Plaintiff stated that defendant also advised him that he would perform surgery to free the fixed stapes bone or replace it with a wire prosthesis which would correct his hearing loss. Plaintiff stated that after the surgery was terminated, defendant told him on two different occasions that the wrong prosthesis had been sent by the manufacturer.

Plaintiff testified further that in September 1983, he consulted Dr. James Campbell, another otolaryngologist. On March 24, 1984, plaintiff underwent another corrective stapedectomy in order to cure his hearing loss. Although Dr. Campbell replaced plaintiff’s stapes bone with a 4.5-millimeter stapes prosthesis, this procedure failed to correct plaintiff’s hearing loss. In October 1984, plaintiff consulted Dr. Richard Buckingham. On October 18, 1984, plaintiff underwent a third surgery performed by Dr. Buckingham which resulted in a return of his normal hearing function.

Plaintiff also called Dr. Richard A. Buckingham, who testified that he first saw the plaintiff on October 5, 1984. After performing a tuning-fork test, an audiogram, and a hearing test, Dr. Buckingham proposed surgery in order to determine the cause of the hearing loss and to perform an operation to improve the hearing in plaintiff’s left ear.

At the time of this surgical procedure, Dr. Buckingham discovered that the prosthesis previously inserted by his former student, Dr. Campbell, was too short. Dr. Buckingham also discovered that two other bones in plaintiff’s middle ear, the malleus and the incus, were fixed by some form of fibrosis. Dr. Buckingham replaced the stapes prosthesis and did further surgery to free the malleus and the incus. Following this procedure, the hearing in plaintiff’s left ear was restored.

Dr. Buckingham also testified as to the standard of care which governed the conduct of reasonably well-qualified otolaryngologists practicing in Chicago, Illinois, in 1983. Dr. Buckingham stated that he believed it would be a deviation from that standard of care to proceed with a stapedectomy intended to correct a fixed stapes bone where only one prosthetic device was available, although five such devices had been ordered prior to the surgery. Dr. Buckingham acknowledged, however, that where the pre-operative diagnosis was ossicular discontinuity, it would be within the standard of care to perform surgery with only the devices needed to correct ossicular discontinuity available.

Dr. Buckingham stated further that he had not determined how long the plaintiff’s malleus and incus had been fixed, but he had to assume that this condition existed in May 1983. According to Dr. Buckingham, replacement of plaintiff’s stapes with a prosthetic device would not have cured plaintiff’s hearing problem because the malleus and the incus bones were also diseased. Dr. Buckingham testified that further surgery would have been necessary to correct this condition, and the stapes prosthesis would not have functioned properly in the absence of the additional surgical procedure. Buckingham concluded that, without freeing the malleus and the incus, the hearing in plaintiff’s left ear would not have been restored merely by inserting the appropriate prosthesis.

Dr. Buckingham was not asked and did not render any opinion as to whether defendant and Dr. Campbell had been negligent in failing to discover and to correct the fibrosis of the malleus and the incus.

After plaintiff rested his case, defendant moved for a directed verdict, asserting that plaintiff had failed to establish proximate cause. Specifically, defendant contended that plaintiff had presented no evidence that the two subsequent surgeries could have been avoided and plaintiff’s hearing would have been restored if defendant had inserted the proper stapes prosthesis on May 19, 1983.

In opposition to this motion, plaintiff’s counsel stated “[w]e don’t know what would have happened if he placed it in there, 4.75, whether he would have seen Dr. Buckingham or whether he would have developed this particular condition. There’s nothing in the testimony.”

The trial court initially denied defendant’s motion for a directed verdict. This ruling was predicated upon the court’s finding that Dr. Buckingham had not testified that, based upon a reasonable degree of medical certainty, the malleus and incus were fixed in May 1983 and that the insertion of a 4.75-millimeter prosthesis would not have corrected plaintiff’s hearing loss.

Counsel for defendant then stated his intention to recall Dr. Buckingham, who was still under subpoena, to elicit such testimony. Thereafter, the trial judge and counsel for both parties had a discussion off the record. Following this discussion, the trial judge stated that he and both attorneys had participated in a telephone conversation with Dr. Buckingham.

The trial judge stated on the record that during the conference call, he reminded Dr. Buckingham that he was still under oath to answer questions truthfully. The judge then asked the doctor whether he had an opinion, based upon a reasonable degree of medical and surgical certainty, as to whether the fibrosis of the malleus and the incus was present in the plaintiff’s left ear on May 19, 1983. Dr. Buckingham stated his opinion that the fibrosis must have existed at that time.

The trial judge then asked whether, based upon a reasonable degree of medical and surgical certainty, plaintiff’s hearing loss would have been corrected if the fibrosis had not been present on May 19, 1983, and a 4.75-millimeter prosthetic device had been inserted in plaintiff’s left ear. Dr. Buckingham responded that he believed plaintiff’s hearing would have been restored under those circumstances.

Defendant again moved for a directed verdict based upon the lack of sufficient evidence on the element of proximate cause. Plaintiff’s counsel opposed the motion, arguing that defendant’s testimony did not reflect whether the fibrosis was present when he operated on plaintiff’s ear.

Defense counsel then made an offer of proof which consisted of Dr. Buckingham’s sworn answers to the questions posed by the trial court during the conference call. Counsel for plaintiff did not object to this offer of proof and made no statement on the record that he had objected prior to the court’s questioning of the doctor over the telephone. Counsel for plaintiff also did not dispute or contradict the trial court’s recitation of those questions and answers. The trial judge specifically noted that he had asked both attorneys during the conference call whether they had any other questions for Dr. Buckingham.

Based upon the sworn statements of Dr. Buckingham, the trial court granted defendant’s motion for a directed verdict. This ruling was based upon the court’s finding that plaintiff had failed to present sufficient evidence to establish that defendant’s conduct had proximately caused plaintiff’s injuries.

Plaintiff appeals the directed verdict in favor of defendant.

Plaintiff initially asserts that the court erred in directing a verdict in favor of defendant because there remained a question of fact as to whether defendant’s conduct proximately caused plaintiff’s injuries. Specifically, plaintiff alleges that it was for the jury to decide whether the fixation of the malleus and the incus bones existed on May 19,1983.

The trial court’s entry of a directed verdict will be affirmed where the evidence, viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand. Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

The plaintiff must present at least some evidence on every element essential to his cause of action (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55, 407 N.E.2d 43; Pumala v. Sipos (1987), 163 Ill. App. 3d 1093, 1098, 517 N.E.2d 295), and a directed verdict in favor of the defendant is appropriate where the plaintiff has not established a prima facie case (Pumala, 163 Ill. App. 3d at 1098).

In order to prove a case of negligence in treatment against a medical professional, the plaintiff must establish (1) the proper standard of care against which the professional’s conduct must be measured; (2) a negligent failure to comply with the standard; and (3) that the injury for which the suit is brought had as one of its proximate causes the negligence of the professional. (Pumala, 163 Ill. App. 3d at 1098; Ingle v. Hospital Sisters Health System (1986), 141 Ill. App. 3d 1057, 1064, 491 N.E.2d 139.) Because jurors are not skilled in the practice of medicine, a plaintiff must present expert testimony to establish these elements. Addison v. Whittenberg (1988), 124 Ill. 2d 287, 297, 529 N.E.2d 552; Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42, 489 N.E.2d 867; Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 192-93, 560 N.E.2d 1113.

In the absence of expert testimony that any act by the defendant could be said, within a reasonable degree of medical certainty, to have caused the plaintiff’s injuries, it would be impossible for a jury verdict in plaintiff’s favor to stand, and a directed verdict would be appropriate. (First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 15, 448 N.E.2d 256.) A mere possibility is not sufficient to sustain the burden of proof of proximate cause. The causal connection must not be contingent, speculative, or merely possible. Pumala, 163 Ill. App. 3d at 1099.

In the instant case, plaintiff failed to present any evidence on the element of proximate cause. Our review of the record reflects that plaintiffs counsel never questioned defendant about the existence of fibrosis of the malleus and incus bones at the time of the first surgery. Dr. Buckingham testified on cross-examination that plaintiff’s hearing loss was caused by fibrosis which would not have been corrected by insertion of a stapes prosthesis and that he had to assume this condition was present on May 19, 1983. No evidence was presented to establish that there was no fibrosis of the malleus and the incus on May 19, 1983. Thus, plaintiff did not offer any expert testimony that, based upon a reasonable degree of medical certainty, insertion of a proper stapes prosthesis would have corrected plaintiff’s hearing loss and avoided further surgery. Because the record is devoid of any evidence on this essential element of plaintiff’s claim, no cause was presented for the jury’s consideration, and the entry of a directed verdict for the defendant was proper. See Mayer v. Baisier (1986), 147 Ill. App. 3d 150, 155, 497 N.E.2d 827; Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 48, 463 N.E.2d 216.

Plaintiff contends that the evidence presented a question of fact as to whether the fibrosis of the malleus and the incus bones existed on May 19, 1983, and the jury should have decided this issue. In support of this argument, plaintiff relies upon the report prepared by Dr. Campbell which indicated that on March 14, 1984, “the mobility of the malleus and incus were [sic] ascertained and noted to be essentially normal.” The record reflects, however, that Dr. Campbell was never called as a witness, and his report was never introduced into evidence. This report, which was attached as an exhibit to plaintiff’s post-trial motion, was inadmissible hearsay. (See Mayer, 147 Ill. App. 3d at 157.) We hold, therefore, that Dr. Campbell’s operative report does not provide an adequate basis to support reversal of the directed verdict entered by the trial court.

Plaintiff also contends that it was reversible error for the trial judge to consider information obtained during the conference call to Dr. Buckingham.

Initially, we note that there in no indication in the record that plaintiff’s counsel raised an objection prior to the court’s questioning of the doctor over the telephone. Counsel also did not object to the defendant’s offer of proof, which consisted of the sworn answers given by the doctor during that telephone conversation. The record also discloses that plaintiffs counsel did not dispute or contradict the trial court’s recitation of those questions and answers, and the trial judge specifically noted on the record that he had asked both attorneys during the conference call whether they had any other questions for Dr. Buckingham.

A party cannot assert as reversible error actions of the trial court which were committed pursuant to that party’s stipulation or acquiescence. (Thomas v. First National Bank (1985), 134 Ill. App. 3d 192, 212, 479 N.E.2d 1014.) Where a party has induced the trial court to make an error or has acquiesced in the making of an error, the party may not assign that same matter as error on appeal. Thomas, 134 Ill. App. 3d at 212.

In the case at bar, the record indicates that counsel for plaintiff acquiesced and participated in the trial court’s telephone conversation with Dr. Buckingham. Consequently, plaintiff cannot assert this matter as reversible error on appeal.

Yet, even if this issue had been properly preserved for appeal, it would not mandate reversal of the trial court’s ruling. The statements by Dr. Buckingham during the conference call were made after the trial court reminded the doctor that he was still under oath, and counsel for both parties were afforded an opportunity to question him. Careful examination of the record reveals that Dr. Buckingham’s answers to the court’s questions merely restated his prior testimony that the plaintiff’s hearing loss would not have been corrected by insertion of the appropriate prosthesis because of the fibrosis of the malleus and the incus. Thus, Dr. Buckingham’s answers to the trial judge’s questions did not constitute new or additional evidence not presented in open court. We find that, even in the absence of Dr. Buckingham’s statements during the conference call, plaintiff failed to make a prima facie showing on the element of proximate cause. We hold, therefore, that the trial court’s entry of a directed verdict for defendant was proper because it was supported by the testimony given in open court.

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

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.