author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN C. PIERCE, Defendant-Appellant.
    Second District
    No. 2 — 89—0741
    Opinion filed December 5, 1991.
    Modified on denial of rehearing January 24, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Anna Ahronheim and Michael J. Pelletier, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Calvin C. Pierce, was found guilty of five counts of first degree murder. A jury found defendant guilty of two counts of felony murder predicated upon the commission of an aggravated battery, one of which involved causing harm to a person over the age of 60 years (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3)), and three counts of first degree murder creating a strong probability of death or great bodily harm (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(2)).

On appeal, defendant presents the following issues for review: (1) whether defendant was denied his constitutional right to the effective assistance of counsel; and (2) whether the court improperly relied upon the death of the victim in imposing a 60-year sentence. We affirm in part, vacate in part, and remand the cause for resentencing.

At approximately 9 a.m., November 2, 1988, the body of 80-year-old Carrie Duncan (Duncan) was discovered near a road in southeastern Lee County. Carrie Duncan was 4 feet 10 inches tall and weighed approximately 100 pounds. She received multiple stab wounds to her abdomen, chest, and back. She also received multiple blows to the head, including both sides of the forehead, the ears, and the back of the head under the scalp. Her death was caused by blood loss due to an incised wound of the liver resulting from stab wounds to the abdomen, and blunt trauma to the head, resulting in swelling of the brain and hemorrhaging around the brain. Her body was in a grassy area surrounded only by grain bins and utility poles and not immediately apparent from the main road. Her purse rested 60 feet south of her body and could be seen from the road. A broken dental plate and a common serrated steak knife were in the same area as the purse.

The facts below provide a brief history of this case. Additional facts will be provided in order to understand the individual issues as they are discussed.

While investigating the circumstances surrounding the death of Duncan, a detective with the Lee County sheriff’s department (Blake) learned that defendant was friends with the victim and did yard work for her. Based upon this information, the detective decided to speak with defendant about Duncan’s death. Defendant agreed to speak with the police and shortly thereafter gave an oral confession, signed a Miranda waiver and repeated a confession on a tape recording.

In his taped confession, defendant stated that he and his girlfriend, Kathy Bennett (Bennett), drank beer at two taverns during the late evening and early morning of November 1 and 2. After leaving the taverns, defendant and Bennett stopped to pick up Duncan in order to take her out for breakfast. On the way to the restaurant, an argument took place, and defendant pulled off the road to get things straightened out. Defendant then stated that he kicked Duncan with his boot and stabbed her in the back once.

At defendant’s trial, defendant’s story differed from his taped confession. He testified that he pulled off the road simply to go to the bathroom. At that time, Bennett emerged from the rear of the truck they were driving in and pushed Duncan to the ground. Defendant stated he then saw Bennett kicking and stabbing Duncan. Defendant testified that the attack continued for approximately 15 to 20 minutes and that he did not intervene. Defendant testified that Bennett told him to take the blame. Defendant testified that after Duncan had been stabbed defendant took the knife from Bennett, but then gave it back to her. Defendant stated that when he and Bennett left the scene, Duncan was still alive, lying on the ground and moaning.

Defendant first argues that he was denied his constitutional right to the effective assistance of counsel. Defendant sets forth nine reasons which, he argues, indicate that he was denied his constitutional right to the effective assistance of counsel. These reasons are based upon defense counsel’s: (1) failure to object to a taped confession; (2) stipulation that the confession was given without improper inducement; (3) failure to suppress statements made in the absence of a knowing and intelligent Miranda waiver; (4) failure to object to an arrest allegedly made without probable cause; (5) failing to suppress an incriminating statement allegedly obtained by a police informer; (6) failure to use impeachment evidence to attack the credibility of a witness; (7) failure to tender Illinois Pattern Jury Instructions (IPI) accomplice instructions; (8) failure to seek self-defense and second degree murder instructions; and (9) failure to make other relevant objections throughout the trial. Ordinarily, the issues raised would not be reviewed because they were not properly preserved for appeal. However, phrased in terms of effectiveness of counsel, we deem it necessary to address each of them.

To succeed on a claim that counsel’s assistance was so defective as to require reversal of a conviction, defendant must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; see also People v. Chandler (1989), 129 Ill. 2d 233, 242.) The purpose of the effective assistance guarantee of the sixth amendment is to ensure that criminal defendants receive a fair trial. Strickland, 466 U.S. at 683, 80 L. Ed. 2d at 690-91, 104 S. Ct. at 2062.

The Strickland test is a benchmark used to determine whether a defendant received a fair trial. Defendant must overcome a strong presumption of outcome reliability and show that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2069.

Both prongs of the Strickland test must be proved by defendant. However, we need not determine whether counsel’s performance was deficient before examining the prejudice allegedly suffered by defendant. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69.

According to Strickland, “a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) Such a prejudice inquiry does not seek to determine whether the outcome of the case would have been different absent the error. Instead, it is the “confidence in” and “reliability of]” the outcome that is in question. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 697-98, 104 S. Ct. at 2068.) In making this inquiry, Strickland dictates that we must consider the “totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

Applying the standard set out in Strickland in the context of all the evidence before the trial court, we find that defendant was not denied a fair trial due to the alleged errors of counsel. This finding rests on our determination that the findings at the trial level would not have been affected had trial counsel acted as defendant claims counsel should have.

To begin with, defendant states that trial counsel was ineffective for failing to file a motion to suppress a taped confession. Defendant argues that the taped statement was obtained after he expressed a desire to discontinue interrogation in violation of his fifth amendment right to remain silent. We do not agree. Defendant correctly states the general rule that once an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. (Miranda v. Arizona (1966), 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28.) However, the demand to end the interview must be specific. (People v. Aldridge (1979), 68 Ill. App. 3d 181, 187.) The defendant in Aldridge used statements similar to those used by defendant in the present case during the confession. For example, the defendant in Aldridge stated, “I think you got enough,” and, “Okay now have you got enough,” and “there’s nothing I want to add to it,” and “you’ve got everything you need here now.” (Aldridge, 68 Ill. App. 3d at 186-87.) The court in Aldridge found such language insufficient to trigger Miranda. In affirming this case, the Illinois Supreme Court stated that, “[r]ather than attempting to terminate the questioning altogether, defendant [was] merely resisting] answering questions concerning particular details of the offense to which he had confessed.” People v. Aldridge (1980), 79 Ill. 2d 87, 95.

The defendant in People v. Brown (1988), 171 Ill. App. 3d 993, 995, also stated, “I already told you what happened.” However, defendant’s statement was made subsequent to an unambiguous “No” response to a question asking him to speak. Thus, the Brown court held that defendant’s responsive “No” to the State’s corresponding question was a clear invocation of defendant’s right to remain silent which the State should have scrupulously honored.

In the present case, Blake informed defendant that he was looking into the death of Carrie Duncan. Defendant said that he and Kathy Bennett picked up Duncan a little after midnight in order to go to breakfast. Defendant stated that the last time he saw Duncan she was alive. At this time, Blake ended the conversation and advised defendant of his rights under Miranda. Defendant then proceeded orally to confess to the crime. After this statement, which lasted approximately 10 minutes, Blake asked defendant if he would consent to repeating his statement on a tape recorder. Defendant agreed. Blake obtained a Miranda waiver form and asked defendant to follow along as it was read to him. Defendant signed the Miranda waiver form. The following statements were made when defendant was asked whether he understood his right to cut off questioning:

“Q. Okay, ‘knowing and understanding these rights, I waive them at this time and agree to talk to the officers. Knowing and understanding also that if I desire to stop talking to the officers at any time, I am free to do so.’ You put your initials there and you understand ...
A. Well, if I’m free to do so, then what happens? If I don’t want to answer any more questions, then what happens?
Q. Okay, if you don’t... it’s just what it says, right?
A. Uhm, uh (affirmative).
Q. Okay, it says that nobody can make you ... we’re not here to browbeat you or anything else. If you want to stop and you decide, hey, I don’t want to talk anymore, you don’t have to, CALVIN.
A. You got all the stuff there right now. You don’t need no more really.
Q. Well, but that’s up to you. If you want to talk to us, okay. If you don’t, okay. I want your words, not my words, okay. That’s why I’m asking you if you will consent to putting this on tape, because I want what you tell me to come from you and not to come from me. Do you understand that? Okay, that’s why we’re asking you to do this, okay. And it says here, T make this waiver free, voluntary without any force, promises, or threats.’ Now, we haven’t made any promises or threats or used any force against you whatsoever, is that true?
A. True.
Q. And this is your signature. You signed it and you’re willing to talk to us.
A. Uh-huh (affirmative).
Q. CALVIN, I’m going to ask you again to tell me in your own words what took place last night. But before I do that, the date today is November 2nd, correct?
A. Yup.
Q. And the time is 5:14 p.m.?
A. Uh-huh (affirmative).
Q. Okay. And I just want you to tell KEANE and I who you were with last night and what you did.
A. Okay.
Q. Okay.
A. I told you, though, once that...
Q. Okay, well just go ahead and tell me again.
A. All right. Uptown in Paw Paw, drank beer at the tavern. Bowling alley.”

In this manner, the detectives obtained a tape-recorded version of defendant’s earlier oral confession.

While we recognize that language less strong than a “no” could be used to invoke a defendant’s right to remain silent, defendant’s language in this case did not rise to that level. As in Aldridge, defendant here failed to use language sufficiently strong to invoke his constitutional right to remain silent, and the police adequately informed defendant that he did not have to talk if he did not want to. Therefore, the failure of defendant’s attorney to file a motion to suppress the taped confession did not prejudice defendant and render his trial unfair because such a motion would not have been successful.

Defendant next argues ineffective assistance where trial counsel stipulated that defendant gave a tape-recorded confession “voluntarily and without improper inducement.” Defendant asserts that such a stipulation was inconsistent with the core of the defense. We do not agree.

We find nothing in the record which would indicate that defendant’s confession was involuntary. The evidence indicates that defendant made his confession of his own volition and that the police neither promised anything in return nor threatened him to prevent noncompliance. In addition, defendant’s testimony at trial indicates that he falsified his confession but does not indicate the presence of improper inducement. In light of these facts, we are not convinced that the defense counsel’s stipulation to the voluntariness of defendant’s confession had the effect of prejudicing defendant’s case. As a matter of trial strategy, the defense counsel recognized that the statement would have been properly admitted without the stipulation. Therefore, he could have used the stipulation to minimize the harmful effect of the confession and, at the same time, enhance the credibility of aspects of the defense.

Defendant next contends that his trial counsel proved ineffective by failing to move to suppress statements based on the absence of a knowing and intelligent Miranda waiver. Defendant argues that the record affirmatively shows that he did not possess the requisite level of understanding required by an individual who is waiving his rights to remain silent under Miranda. Defendant cites People v. Bernasco (1990), 138 Ill. 2d 349, in stating the general rule that a Miranda waiver must be knowing and intelligent. Our review of the record fails to support defendant’s claim that his Miranda waiver was unknowingly or unintelligently made.

Defendant argues that testimony by a psychiatrist establishes that he has low mentality and low intelligence and is highly suggestible. However, one need not have a high IQ in order to waive Miranda rights. One need only understand basically what those rights encompass and minimally what their waiver will entail. Bernasco, 138 Ill. 2d at 363.

Defendant also argues that his confusion surrounding his decision to waive a preliminary hearing indicates his inability to understand what it means to waive a legal right. Defendant attempts to draw upon his confusion regarding this decision in order to support the generalization that he could not understand what it meant to waive his Miranda rights. In Bernasco, the court stated that “intelligent knowledge” does not mean “the ability to understand far-reaching legal and strategic effects of waiving one’s rights.” (Bernasco, 138 Ill. 2d at 363.) Thus, we determine that defendant’s confusion with regard to the legal and strategic effects of waiving a preliminary hearing is unrelated to his decision to waive his Miranda rights. We are not convinced that defendant lacked the capacity to understand the Miranda waiver or Lieutenant Blake’s explanation of its contents. Furthermore, we are not convinced that defendant lacked the intelligence to understand Blake when he said that, “[i]f you want to stop and you decide, hey, I don’t want to talk anymore, you don’t have to, CALVIN.”

In Bernasco, the defendant was found not to have understood fundamental terms contained in the Miranda warnings, not to have been able to form an intent to weigh those rights, and not to have a normal ability to understand questions and concepts. In Bernasco, a school psychologist testified that the defendant probably would not have understood many of the terms contained in the Miranda waiver. No such direct evidence of defendant’s inability to understand the Miranda waiver was presented in the present case. Furthermore, defendant was involved in financial transactions with a bank and with the victim in order to obtain funds to purchase vehicles for the purpose of fixing and selling them. Such abilities clearly surpass those of the defendant in Bernasco. Therefore, defense counsel’s failure to move to suppress, based upon an ignorant or incompetent Miranda waiver, neither prejudiced defendant nor denied him a fair trial.

Defendant next argues that counsel’s performance was ineffective because of counsel’s failure to recognize an arrest without probable cause and counsel’s failure to file a motion to quash the arrest and suppress defendant’s subsequent statements. The fourth and fourteenth amendments to the United States Constitution dictate that an individual cannot be seized or arrested without probable cause. Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

An arrest occurs when the police inform defendant of a violation, defendant submits to their control, and it is clear that the police intend to arrest defendant and that defendant understands he is being arrested. (People v. Avery (1989), 180 Ill. App. 3d 146, 152.) The test for whether a person has been seized is “whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Avery, 180 Ill. App. 3d at 153.) According to Avery, the “coercive effect of police conduct taken as a whole” must be examined and not “each particular detail of the police conduct in isolation.” (Avery, 180 Ill. App. 3d at 153.) In Avery, the appellate court held that the trial court erred in finding that no arrest occurred when defendants were first taken into custody for questioning. The court pointed to several factors which tended to indicate that an arrest had taken place. For example, the police located defendants at or near their homes and brought them to the station for interrogation about their involvement in the murder, defendants were not told they were free to leave, defendants could reasonably believe that they could not leave, defendants were kept in interrogation rooms for 8 and 10 hours, and defendants were left alone for hours at a time.

In the present case, four officers went to defendant’s home; two officers identified themselves as law enforcement officials. Defendant was informed that the officers wanted to talk to him about Duncan’s death. Defendant was asked if he would be willing to accompany the officers to the fire station in order to answer questions about Duncan's death. Defendant, accompanied by his girlfriend and her son, drove himself to the station. Defendant switched cars at the fire station and was accompanied by two officers to go to the village hall for the interview. Defendant gave an oral confession within the first few minutes of the interview, and defendant gave a taped confession approximately 15 minutes later.

Thus, defendant was not interviewed for a lengthy period of time as was the defendant in People v. Townes (1982), 91 Ill. 2d 32. Further, defendant was asked if he would be willing to accompany the officers and was thus given the impression that he could leave. (See People v. Cooney (1985), 136 Ill. App. 3d 989.) Defendant points out that the defendants in Cooney were asked if they wanted to return home. Defendant argues that no similar confirmation of freedom was conveyed here. However, we view defendant’s option to drive in the present case as being equally indicative of the absence of coercion.

Finally, defendant was never handcuffed and was not a suspect until later in the interview. (People v. Collins (1989), 182 Ill. App. 3d 362.) We find that these facts, taken as a whole, do not indicate sufficiently coercive conduct on the part of the police to cause a reasonable man to believe that he could not leave. Therefore, we conclude that defendant was never seized or arrested during the time period leading up to his confession. Because defendant’s counsel would have been unsuccessful in attempting to quash defendant’s arrest and suppress defendant’s subsequent statements, neither was defendant prejudiced nor was his trial unfair.

Defendant next argues that trial counsel was ineffective for failing to file a motion to suppress an incriminating statement obtained by a police informant in violation of defendant’s sixth amendment right to counsel. The United States Supreme Court has held that the “Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” (Maine v. Moulton (1985), 474 U.S. 159, 176, 88 L. Ed. 2d 481, 496, 106 S. Ct. 477, 487.) In Moulton, the Supreme Court held that the sixth amendment is not violated “whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” (Moulton, 474 U.S. at 176, 88 L. Ed. 2d at 496, 106 S. Ct. at 487.) However, the State is forbidden from knowingly exploiting an opportunity to confront the accused without counsel being present. Moulton, 474 U.S. at 176, 88 L. Ed. 2d at 496, 106 S. Ct. at 487.

In the present case, defendant telephoned a friend (Schmidt) from prison. Defendant related that he and Bennett played equal roles in the killing. A detective who was interested in learning more about defendant’s motive asked Schmidt whether defendant had mentioned a car title during this conversation. Evidence of defendant’s possession of the car title would tend to show that defendant killed Duncan in order to obtain the title and, thus, avoid paying off a debt defendant owed to Duncan, who purchased the car for defendant. Schmidt answered that defendant did not mention a car title. Upon receiving a subsequent phone call from defendant, Schmidt proceeded to ask about the title. After this call, Schmidt conveyed the information he obtained to the police. There is no evidence to indicate that the police told Schmidt to ask defendant about this matter. We find that there is insufficient evidence in the record to suggest that the State knowingly exploited an opportunity to confront the accused without counsel. Furthermore, even if we did assume that the evidence obtained was improper, its admission would be harmless because other evidence was introduced to establish that defendant was indebted to Duncan. For example, defendant himself testified that he was indebted to Duncan for well over $2,500.

Defendant next argues that trial counsel was ineffective for failing to use available impeachment evidence to attack the credibility of Bennett and for failing to tender IPI instruction No. 3.17 (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d)).

Defendant’s girlfriend, Bennett, was called to testify against defendant during his trial. At this time, Bennett had already been convicted of the murder of Duncan in a previous trial. She was sentenced to 55 years’ imprisonment, and her case was on appeal. On direct examination, Bennett was impeached when she admitted that she had already been convicted of and sentenced for the murder of Duncan. Such an admission was consistent with defendant’s testimony at trial that Bennett was the sole actor.

Defendant now claims that defense counsel should have tendered IPI Criminal 2d No. 3.17. The instruction reads:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” (IPI Criminal 2d No. 3.17.)

We do not believe that submission of IPI Criminal 2d No. 3.17 is essential when applied to the present set of facts.

The purpose of the instruction is to warn the jury that there may be a strong motivation for a witness to provide false testimony for the State in return for immunity or some form of lenient treatment by the State. (People v. Carreon (1987), 162 Ill. App. 3d 990, 993.) In the present case, Bennett had already been convicted of and sentenced for the murder of Duncan. Therefore, her expectation of leniency or favoritism on the State’s behalf was virtually nonexistent. As a result, the rationale underlying the application of the instruction is not present, and trial counsel’s failure to tender such an instruction cannot be deemed ineffective. The claim that defense counsel was deficient relative to any further impeachment of Bennett than that actually presented lacks merit.

Defendant next argues that trial counsel was ineffective for failing to introduce evidence or tender jury instructions on the theories of self-defense and second degree murder. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 2(a)(2), 7 — 1.) We find trial counsel’s actions in this regard neither prejudiced defendant nor denied him a fair trial.

As previously stated, Duncan was severely beaten and stabbed repeatedly. She was under 5 feet tall, weighed approximately 100 pounds, and was over 80 years old and was unarmed, whereas defendant stood over 6 feet tall and weighed well over 200 pounds. Defendant stated that he thought Duncan had a gun in her purse. However, the amount of force used against her was clearly disproportionate to the amount necessary to take her purse and “disarm” her. Given these facts, there is insufficient evidence to submit the issue to the jury.

Defendant also argues that defense counsel should have tendered second degree murder instructions based on evidence that the killing was provoked by “conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1989, ch. 38, par. 9— 2(b).) Defendant cites People v. Austin (1989), 133 Ill. 2d 118, for the proposition that “mutual combat” can give rise to “intense passion” which will justify a second degree murder instruction. Defendant uses the definition of “mutual combat” supplied by Austin and attempts to characterize the facts in the present case as a struggle entered willingly by both parties or a mutual fight upon equal terms. (Austin, 133 Ill. 2d at 125.) In the instant case, we find that the facts defy such an interpretation.

The evidence which defendant relies upon to establish the existence of “intense passion” must “rise above the level of a mere factual reference or witness’ comment, for otherwise defendant could force the trial court to include unlimited instructions which are not related to the case.” (Austin, 133 Ill. 2d at 125.) Here, the only evidence of provocation in the record is that Duncan was arguing with defendant and that defendant thought Duncan had a gun in her purse. In Austin, the defendant shot and killed an unarmed bus driver in the course of a fist fight where the driver provoked defendant by speaking gruffly to her and striking her on the hand with a transfer punch. Our supreme court found that shooting the driver was an act completely out of proportion to the provocation and that mutual combat cannot apply where the bus driver did not enter the struggle willingly and where the fight was not on equal terms. Austin, 133 Ill. 2d at 125-27.

Likewise, we find that the mutual combat aspect of provocation would be wholly inappropriate here. (People v. Ford (1987), 163 Ill. App. 3d 497, 503.) Where the perceived danger to defendant could have been removed by discarding the victim’s purse (which did not contain a gun), and where the evidence shows that the 80-year-old victim was stabbed 11 times and kicked with sufficient force to cause death, a claim of mutual combat cannot apply. Therefore, defendant suffered no prejudice as a result of trial counsel’s failure to seek second degree murder instructions.

Defendant next argues that he received ineffective assistance of counsel based upon defense counsel’s failure to make several objections. Specifically, defense counsel failed to: (1) make a hearsay objection with respect to testimony given as to the extent of defendant’s indebtedness to the victim; (2) make a relevancy objection with respect to testimony to the effect that had Duncan received immediate medical care, she would have survived; (3) object to improper voir dire questioning by the prosecutor; (4) object to the trial court’s decision to bar evidence indicating that Bennett regularly carried a small knife; and (5) object to improper statements made by the prosecutor at closing and to improper peremptory challenges made by the prosecutor during the early stages of trial. At this point, we reiterate the Strickland test, which requires a defendant to prove that counsel’s unprofessional errors effectively undermined confidence in the outcome. Furthermore, the test places the burden on defendant to show that, absent counsel’s errors, “the factfinder [sic] would have had a reasonable doubt respecting guilt.” (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) In light of the totality of the circumstances, we find that successful objections to the items above would not have given rise to a reasonable doubt of defendant’s guilt.

First, defendant disputes the extent of his indebtedness to the victim at the time of her death. Defendant claims he owed about $2,500 on a car purchased by Duncan for defendant’s use. Defendant also claims that trial counsel admitted hearsay evidence which inflated the amount of money defendant owed to Duncan to somewhere between $4,000 and $8,000. Defendant argues that this hearsay evidence of the inflated debt made his motive to kill her seem greater. We find nothing on the record indicating that the testimony as to defendant’s indebtedness was indeed hearsay. Further, we do not see the difference in values as being so great that it unduly distorts defendant’s motive to kill.

Second, we recognize the limited relevancy of the testimony to the effect that Duncan may have survived had she received immediate medical attention. However, we fail to see how defendant would benefit had the jury been left with the impression that Duncan’s death was immediate.

Third, the central focus of defendant’s argument about prosecutor behavior during voir dire is on questions which sought to determine whether potential jurors understood that the proof beyond a reasonable doubt standard was the same in criminal cases as in traffic violations. In this respect, we note that “[wjhere violation of the Motor Vehicle Act is charged, the burden of proof required to sustain a conviction is the same as in any other criminal case.” (People v. Min-dock (1970), 128 Ill. App. 2d 196, 199.) Although the prosecutor’s statements were, to some extent, improper, they do not work to trivialize the applicable burden of proof. Therefore, trial counsel’s failure to object to these questions was harmless error at most.

Fourth, we find meritless defendant’s claim that the prejudice resulted from the defense counsel’s failure to object to the prosecutor’s questions asking the jury if it can distinguish between right and wrong and to the prosecutor’s use of peremptory challenges. There is no evidence that the jury corrupted the laws of the State of Illinois with its own moral compunctions, and there is no claim that the prosecution violated the rule in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, by making a race-based peremptory challenge.

Fifth, defendant argues that defense counsel should have objected when the trial court barred evidence that Bennett always carried a knife and holster at her waist and that she once threatened defendant with a knife similar to the one allegedly used to kill Duncan. We note the record shows that, when threatened by Bennett with a knife in the past, defendant successfully disarmed her and bent the knife. Therefore, we fail to see how defendant was prejudiced by the absence of this evidence at the trial. Admittedly, the evidence might show Bennett’s ability to commit the crime. However, such evidence also shows both that defendant was not intimidated by an armed individual in general and was not intimidated by Bennett in particular. Such evidence would undercut the defense theory that defendant was influenced and intimidated by Bennett. In addition, evidence of the knife was not relevant because it was not claimed to be the murder weapon. Therefore, we refuse to find that the admission of this evidence would have given rise to a reasonable doubt on the part of the fact finder.

Finally, we reject defendant’s argument that the prosecutor improperly aligned himself with the jury by implying he was the thirteenth juror. To support this position, defendant correctly cites People v. Vasquez (1972), 8 Ill. App. 3d 679. (See also People v. Enoch (1989), 189 Ill. App. 3d 535, 552.) According to Vasquez, “the evil of the [thirteenth juror] argument is that in effect it tells the jury that the prosecutor is impartial, while such an argument flies in the face of our adversary system.” (Vasquez, 8 Ill. App. 3d at 681.) In Vasquez, the prosecuting attorney unambiguously identified himself as the thirteenth juror in the case. No such blatant impropriety existed here.

During his closing argument the prosecutor stated that “it would be nice if we could sit down around a big table and I could talk and answer questions.” But, the prosecutor then qualified his statement by saying, “[u]nfortunately our system does not allow us that opportunity.” The prosecutor also expressed the hope that the jury would think about how the prosecutor would have answered certain questions. While improper to some degree, these statements do not rise to the improper level of juror alignment warned about in Vasquez. Since the prosecutor’s actions did not prejudice defendant, defense counsel’s failure to object should not result in a finding that defense counsel was ineffective.

Defendant next argues that defense counsel was ineffective for failing to object to a statement made during the prosecutor’s closing argument that highlighted the absence of evidence which the prosecutor himself sought to keep out. The evidence sought to be excluded amounted to a statement by a psychiatrist regarding defendant’s mental condition. The prosecutor correctly sought to prevent the admission of such testimony on the ground of relevancy because there was no offer of defense of insanity or defense of guilty but mentally ill. At closing, the prosecutor apparently attempted to attack the implication of insanity on the part of defense. The prosecutor accomplished this by pointing out the absence of testimony that defendant could not control himself. We find these statements harmless because the defense of insanity was never raised. The prosecution is pointing out that insanity was not established. We see no prejudice resulting from these comments. The general rule is that the prosecutor must confine himself “to facts introduced in evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom.” (Vasquez, 8 Ill. App. 3d at 681.) Here, a reasonable deduction to be drawn from the defense presented was that an attempt was being made to excuse defendant from responsibility for the crime because he was easily influenced. The prosecution could fairly assume that this line of argument amounted to an implicit attempt to prove insanity. Given these circumstances we do not perceive that defendant was prejudiced. It is important to note there were no misstatements of facts or proof in the prosecutor’s closing statement.

In conclusion, defendant argues that he was denied effective counsel as a result of defense counsel’s failure to object to (1) the prosecutor’s statement during closing arguments that, “you [the jury] promised me that you would enforce the laws of the state of Illinois”; and (2) the prosecutor’s use of the properly admitted taped confession during closing arguments.

Defendant cites People v. Thomas (1986), 146 Ill. App. 3d 1087, for the proposition that the prosecutor must not present an argument that diminishes the presumption of innocence. In Thomas, the court remanded defendant’s case for a new trial where the prosecutor, during his closing argument, asserted that the central witness lied because she was afraid of the defendant. The prosecutor then told the jury that “[t]here’s nobody here for the People, just you.” (Thomas, 146 Ill. App. 3d at 1089.) The prosecutor’s statement in the present case is distinguishable. The prosecutor here was simply imploring the jury to enforce the laws of the State of Illinois. Such a comment does not improperly diminish the presumption of innocence. Instead, it is an attempt to urge the fearless administration of the law. According to Thomas, this is proper conduct during closing. Thomas, 146 Ill. App. 3d at 1089.

Defendant’s argument with respect to the prosecutor’s use of the taped confession during closing is equally unpersuasive. A primary purpose of the closing argument is to review the evidence for the jury. (People v. Davies (1977), 50 Ill. App. 3d 506, 514.) The use of properly admitted evidence during closing is permissible. (People v. Eckles (1980), 83 Ill. App. 3d 292.) The properly admitted tape recording at issue here does not unduly emphasize certain facts, but, rather, was presented in the context of a relation of the events surrounding the crime, the evidence of the crime, and the relevant prosecutorial theories regarding the crime. Because the presentation of the tape recording was relatively brief, we do not view its admission as prejudicial. In addition, by its very nature, the tape recording was an accurate repetition of the evidence. In Davies, concerns of accuracy and brevity were addressed in finding an absence of prejudice where trial transcript excerpts were read during closing argument. (Davies, 50 Ill. App. 3d at 514.) In light of the totality of the circumstances, we find that the prosecutorial conduct described above did not affect the fairness of defendant’s trial. Therefore, defendant was not prejudiced by counsel’s failure to object to that conduct.

Defendant’s final argument is that he must be granted a new sentencing hearing because the trial court relied on the death of the victim as an aggravating factor at the sentencing hearing. Even though trial counsel failed to preserve this issue, we may review a court’s reliance on an improper factor in aggravation in sentencing because it affects the defendant’s fundamental right to liberty and, thus, amounts to plain error. People v. Martin (1988), 119 Ill. 2d 453, 458.

The general rule is that a factor necessarily implicit in a crime should not be used as an aggravating factor when sentencing for that crime. People v. Conover (1981), 84 Ill. 2d 400, 404.

According to the policy underlying this rule, it is reasonable to conclude that the legislature already considered the death of the victim as a factor when establishing the penalties for murder. Therefore, the trial court should not consider the death of the victim as a factor which aggravates the statutorily prescribed penalty for murder. To do so would be to subject defendant to a harsher penalty than that envisioned by the legislature. People v. White (1986), 114 Ill. 2d 61, 66.

At the sentencing phase of the present trial, the trial judge stated that “[t]he factors that apply here [in aggravation] are one, the defendant’s conduct caused serious harm. Here the defendant’s conduct caused the most serious harm, death.” The judge then pointed out that the offense was committed against a person 60 years of age or older, and that deterrence was also an element in sentencing. The judge stated that “[tjhese are all serious aggravating factors.” The judge also highlighted the brutality of the crime, the character of the defendant, the nature and circumstances of the offense, the public interest in the punishment of the guilty, and the public interest in the protection of the innocent. Following the rule in Conover, the trial court should not have considered the death of the victim as a factor in aggravation when sentencing the defendant for murder. In addition, the judge should not have considered the age of the victim when sentencing defendant for a conviction on an aggravated battery count which is premised upon a battery committed against a person 60 years of age or older.

Having determined that the trial court considered an improper aggravating factor in imposing the sentence, we must now determine if remand for resentencing is required. In People v. Bourke (1983), 96 Ill. 2d 327, our supreme court held that, “[w]here the reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. [Citations.] However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.” (Emphasis added.) Bourke, 96 Ill. 2d at 332.

Because the trial court in the present case stated that the death of the victim was a “serious aggravating” factor, we cannot say that its reliance on this factor was so insignificant that it did not lead to a greater sentence.

One of the elements courts consider in determining the significance given to an improperly considered aggravating factor is the trial court’s own statements regarding the weight given to each of the factors. In People v. White (1986), 114 Ill. 2d 61, the judge improperly considered that the victim was a child under the age of 13 years when a necessary element of a conviction of aggravated battery of a child is that the victim is less than 13 years of age. In White, our supreme court found that reliance upon this aggravating factor was insignificant when considered in light of the fact that the trial judge recited three other factors which he found to be aggravating. More importantly, the judge placed primary importance on the need to deter crimes of a similar nature from occurring in the future.

The other side of this coin was illustrated in People v. Saldivar (1986), 113 Ill. 2d 256, 272. In Saldivar, the defendant was resentenced because the trial court inappropriately pointed to the death of the victim as the “number one” factor in aggravation.

In the present case, the trial judge did not point to the death of the victim as the number one aggravating factor. However, the judge did consider the death of the victim to be a “serious” aggravating factor. Therefore, we will follow the reasoning in Bourke and remand because we cannot determine how much weight the improper factor was accorded. Bourke, 96 Ill. 2d at 332.

Another element which courts examine in determining the significance placed upon an improperly considered aggravating factor is the actual length of the sentence imposed. Where the sentence is substantially below the maximum sentence permissible, the court is less likely to remand for resentencing. However, where the penalty imposed is near the maximum, the court is more likely to find that reliance was placed upon the improper aggravating factor. See Bourke, 96 Ill. 2d 327; see also White, 114 Ill. 2d 61; Martin, 119 Ill. 2d 453.

In the present case the defendant received a substantial penalty of 60 years. Therefore, we cannot say that the trial court's reliance on this “serious aggravating” factor was insignificant. Since we are unable to determine the weight given to these improperly considered factors, the case must be remanded to the trial court for resentencing. However, for the reasons previously stated, the judgment of the circuit court of Lee County concerning defendant’s conviction is affirmed.

We next address an issue that the parties failed to raise. As previously noted, defendant was convicted of five counts of first degree murder. However, only one murder was committed. The general rule is that when there is one person murdered, there can only be one conviction. (People v. Mack (1984), 105 Ill. 2d 103, 136-37.) Convictions of more than one offense cannot be carved from the same physical act. (People v. Szabo (1983), 94 Ill. 2d 327, 350.) We consider this issue even in the absence of proper preservation because an error in sentencing can affect defendant’s fundamental right to liberty and thus amount to plain error. People v. Martin (1988), 119 Ill. 2d 453, 458.

When multiple convictions are had for offenses arising out of a single act, the sentence is imposed on the most serious offense. (Mack, 105 Ill. 2d at 137.) Courts have used the length of penalties imposed (People v. Duszkewycz (1963), 27 Ill. 2d 257, 261) and the degree of mental culpability (Mack, 105 Ill. 2d at 137) in order to determine which offense is more serious. In Mack, the court explained that the mental culpability test is more useful in making the determination as to which of several murder charges is most serious where the penalty for each of the charges would be the same. Mack, 105 Ill. 2d at 137.

In the present case, we are unable to use the penalty provided in making our determination as to which conviction should stand, because all five murder charges involve identical penalties. Neither can we examine culpable mental states because all of defendant’s murder charges involve a knowing infliction of harm. Three of the counts involve an act which the defendant knows will create a strong probability of death or great bodily harm. The two other felony murder counts are predicated upon the commission of an aggravated battery in which the defendant knows that his acts will cause “great bodily harm” or “bodily harm to an individual of 60 years of age or older.” In our view, the section 9 — 1(a)(2) counts involving acts which create a strong probability of death are more serious than a situation where the defendant causes bodily harm or great bodily harm. Thus, we vacate the murder charges based on section 9 — 1(a)(3). Among the section 9 — 1(a)(2) counts are charges that defendant knowingly created a strong probability of death by (1) kicking Duncan in the head; (2) stabbing Duncan; and (3) kicking Duncan in the head and stabbing Duncan. We hold that the most serious among these section 9 — 1(a)(2) charges is the conviction of defendant based on acts which “knowingly created a strong possibility of death or great bodily harm by kicking Duncan in the head and stabbing Duncan” because it involves the greatest degree of damage. Therefore, we affirm the conviction and sentence for this count. The other convictions and sentences are vacated. See Mack, 105 Ill. 2d at 137 (where the single act/single crime rule was violated, both the offending conviction and sentence are vacated).

The judgment of the circuit court of Lee County is affirmed in part and vacated in part, and the cause is remanded to the circuit court for resentencing.

Affirmed in part; vacated in part and remanded.

DUNN and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    HARNISCHFEGER CORPORATION et al., Plaintiffs-Appellees, v. GLEASON CRANE RENTALS, INC., Defendant-Appellant.
    Fifth District
    No. 5 — 89—0717
    Opinion filed December 30, 1991.
    Rehearing denied January 31, 1992.

      John L. McMullin and T. Michael Ward, both of Brown, James & Rabbitt, P.C., of Belleville and of St. Louis, Missouri, for appellant.
    John W. Bell and William G. Beatty, both of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee Harnischfeger Corporation.
    Russell K. Scott, of Dunham, Boman & Leskera, of Belleville, for appellee H.H. Hall Construction Company.
    Karl D. Dexheimer and William J. Neihoff, both of Thompson & Mitchell, of Belleville, for appellee Union Electric Company.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal arises out of an action for contribution brought by Harnischfeger Corporation, H.H. Hall Construction Company, and Union Electric Company against Gleason Crane Rentals, Inc., for sums paid in settlement of the underlying claims of John and Cynthia Clark.

John Clark was severely injured when the crane he was operating for Keeley & Sons, Inc., contacted an energized power line. John and his wife Cynthia filed suit against Keeley Brothers Contracting Company, Keeley & Sons, Inc., Harnischfeger Corporation (Harnischfeger), H.H. Hall Construction Company (Hall), Union Electric Company (Union Electric), and Gleason Crane Rentals, Inc. (Gleason). Plaintiffs settled their claims against Keeley Brothers Contracting and Keeley & Sons, Inc. (Keeley defendants) for $1.8 million. The trial court determined that the settlement was made in good faith and dismissed the contribution actions against the Keeley defendants; they are not involved in this appeal.

The matter proceeded to trial on October 12, 1988. After opening statements were made, the Clarks announced that a settlement had been reached with Harnischfeger, Hall and Union Electric for the following sums:

As part of the settlement, the Clarks’ claims against Gleason were dismissed with prejudice. Harnischfeger, Hall and Union Electric, none of which had any claims against one another, then tried their contribution actions against Gleason. The allegations in the Hall, Harnischfeger and Union Electric pleadings may be summarized as follows:

(a) Harnischfeger designed and manufactured the crane and sold it to Gleason in April 1977.
(b) After the sale and while the crane was still owned by Gleason, Harnischfeger sent Gleason a quantity of decals, which advised of the dangers associated with operating cranes near power lines. These decals were to be placed on Hamischfeger cranes owned by Gleason.
(c) In April 1981, Gleason sold the crane to Metro Construction Equipment Company which, in turn, sold the crane to Keeley Brothers Contracting Company in October 1981.
(d) Gleason had a duty to act with reasonable care in the application of warning signs provided by Harnischfeger as well as providing the purchaser with safety manuals provided by Hamischfeger.
(e) Gleason was negligent in failing to apply the warning decals supplied by Hamischfeger, in failing to furnish the crane at the time of its sale to Metro Construction Equipment Company (Metro) with the warning decals supplied by Hamischfeger, and in failing to supply the crane at the time of its sale to Metro with certain operator’s manuals which warned operators of the dangers associated with overhead power lines.
(f) One or more of Gleason’s negligent acts resulted in the Clarks’ injuries and damages.
(g) In settling with the Clarks, Hamischfeger, Hall, and Union Electric paid in excess of their pro rata share of liability.
(h) Hamischfeger, Hall, and Union Electric have a right of contribution against Gleason for the amount of money paid to the Clarks in excess of their pro rata share of liability.

The case was tried to a jury which returned separate verdicts in favor of Hamischfeger, Hall, and Union Electric. Fault was assessed as follows:

Based on these verdicts the trial court entered judgment in favor of Hamischfeger in the sum of $850,000, Hall in the sum of $1,900,000, and Union Electric in the sum of $450,000. Gleason’s motion for new trial or judgment notwithstanding the verdict was denied. Gleason appeals. We affirm.

Before addressing the merits of this case we note that defendant Hall suggests that because Gleason did not raise the issue of the legal sufficiency of the contribution allegations until its post-trial motion it has waived this argument. It is well settled that an appellant may not raise as grounds for reversal on appeal a defense not interposed before the trial court. (Downes Swimming Pool, Inc. v. North Shore National Bank (1984), 124 Ill. App. 3d 457, 464 N.E.2d 761; Washington v. Civil Service Comm’n (1983), 120 Ill. App. 3d 822, 458 N.E.2d 952; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 613.) “The test of whether a defense is affirmative and must be pleaded by a defendant is whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. The admission of the apparent right is inferable from the affirmative defense.” (Warner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635.) Because the defense of no duty imposed by law attacks the legal sufficiency of the plaintiffs’ claim and does not give color to the plaintiffs’ claim, it does not constitute an affirmative defense. Gleason raised the defense of the legal sufficiency of the contribution claims in its post-trial motion. A defendant’s failure to object to the complaint prior to filing a post-trial motion does not necessarily waive the question of whether the complaint fails to state a cause of action and is legally insufficient. (Swager v. Couri (1979), 77 Ill. 2d 173, 395 N.E.2d 921.) We conclude that Gleason did not waive the right to raise this issue on appeal.

The Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) focuses on the culpability of the parties. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14, 461 N.E.2d 382, 388.) The basis for a contributor’s obligation depends on his liability in tort to the injured party. (J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 462, 516 N.E.2d 260, 267.) In this case Harnischfeger, Hall, and Union Electric charged Gleason with negligence in failing to warn of the dangers of electricity by not applying the appropriate warning decals on the crane and/or by not supplying certain safety manuals.

The essential elements of a cause of action based on common law negligence are the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) The question we are confronted with concerns the existence of a duty. Gleason argues that under Illinois law (see Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465) it had no duty to warn John Clark of the open and obvious dangers associated with electricity and overhead power lines and, therefore, cannot be subject to liability under the contribution claims of Harnischfeger, Hall and Union Electric.

In Genaust, the plaintiff was installing a galvanized steel tower and citizens band antenna, and the tower and antenna came into close proximity to uninsulated overhead power lines. Electric current arced from the power lines to the antenna and severely injured the plaintiff. Plaintiff filed a six-count complaint predicated upon negligence and strict liability in tort. The circuit court dismissed five counts of the plaintiff’s complaint, thus forming the basis for the Genaust appeal. Count I of plaintiff’s complaint, premised on negligence, was not dismissed by the circuit court and was not involved in the Genaust appeal. The supreme court held that there was no duty to warn of the dangers of electricity and affirmed the dismissal of those counts of plaintiff’s complaint alleging such a duty. In the instant case, Gleason refers to the language of Genaust:

“[T]he danger of electricity is common knowledge. Moreover, it is common knowledge that metal will conduct electricity. Accordingly, it is not objectively reasonable to expect that a person, knowing the danger of electricity if metal should contact electrical wires, would attempt to install a metal tower and antenna in such close proximity to electrical wires. *** [I]t was not reasonably foreseeable a user would install the products in such proximity to electrical wires when the harsh consequences of the slightest mishap, which would cause the metal to contact the wires, are so obvious.” Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471.

We recognize that there is an obvious danger in operating a crane near overhead power lines. We are fully aware of Genaust and its progeny. (Genaust, 62 Ill. 2d 456, 343 N.E.2d 387; Hansen v. Goodyear Tire & Rubber Co. (1990), 194 Ill. App. 3d 351, 551 N.E.2d 253; Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 519 N.E.2d 10; Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 522 N.E.2d 227; Icenogle v. Myers (1988), 167 Ill. App. 3d 239, 521 N.E.2d 163; Carroll v. Commonwealth Edison Co. (1986), 147 Ill. App. 3d 909, 498 N.E.2d 645; Fisher v. Crippen (1986), 144 Ill. App. 3d 239, 493 N.E.2d 1204; Holecek v. E-Z Just (1984), 124 Ill. App. 3d 251, 464 N.E.2d 696; Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 442 N.E.2d 338; Clarke v. Rural Electric Convenience Cooperative Co. (1982), 110 Ill. App. 3d 259, 442 N.E.2d 278; Stambaugh v. Central Illinois Light Co. (1976), 42 Ill. App. 3d 582, 356 N.E.2d 148; cf. In re Estate of Martin (1990), 202 Ill. App. 3d 659, 559 N.E.2d 1125; German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 451 N.E.2d 903.) We first note that only the products liability count was at issue in Genaust, the negligence count had not been dismissed by the trial court. In addition, we are also aware that most of the cases following Genaust simply reiterate that an open and obvious danger equals no recovery without any serious discussion of the rationale for the rule. (Notable exceptions to the trend are Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513, and Smith v. American Motors Sales Corp. (1991), 215 Ill. App. 3d 951, 576 N.E.2d 146.) We are further aware that “[t]he patent danger rule has been roundly criticized by many commentators; its demise was announced in 1974; and it has now been rejected by the court in which it originated.” (Darling, The Patent Danger Rule: An Analysis & A Survey of its Vitality, 29 Mercer L. Rev. 583, 584 (1978), citing James, Products Liability, 34 Tex. L. Rev. 44, 51 (1955); 2 Harper & James, Law of Torts §28.5 (1956); Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 836-41 (1962); Keeton, Products Liability — Inadequacy of Information, 48 Tex. L. Rev. 398, 400 (1970); Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 842-43 (1973); Marschall, An Obvious Wrong Does Not Make a Right: Manufacturers’ Liability for Patently Dangerous Products, 48 N.Y.U.L. Rev. 1065 (1973); Twerski, Old Wine in a New Flask — Restructuring Assumption of Risk in the Products Liability Era, 60 Iowa L. Rev. 1, 14 (1974); Twerski, Weinstein, Donaher & Piehler, The Use and Abuse of Warnings in Products Liability — Design Defect Litigation Comes of Age, 61 Cornell L. Rev. 495, 507-09 (1976); Harris, Products Liability, 1977 Ann. Survey of Am. L. 85, 87-92 (1977); Twerski, From Defect to Cause to Comparative Fault — Rethinking Some Product Liability Concepts, 60 Marq. L. Rev. 297, 307-10 (1977); Rheingold, The Expanding Liability of the Product Supplier: A Primer, 2 Hofstra L. Rev. 521, 541 (1974).) Most importantly we are aware that our supreme court has held that the obviousness of the danger does not necessarily justify the risk of harm. Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223:

“A duty limitation is proper for those dangers which are always outside the defendant’s scope of duty, but obvious dangers are not always found there. The argument that the obviousness always takes the danger beyond the scope of defendant’s duty does not address the simple fact that the same hole in the ground, perfectly obvious by day, is not obvious under cover of total darkness.” (Ward, 136 Ill. 2d at 146, 554 N.E.2d at 229, citing Hanson v. Town & Country Shopping Center, Inc. (1966), 259 Iowa 542, 547, 144 N.W.2d 870, 874.)

One commentator has criticized the patent danger rule as follows:

“[T]he patent danger rule flies in the face of the calculus of risk analysis by insulating defendants with the per se position that obvious flaws are not actionable. Obviousness of danger, which should be but one factor in determining foreseeability and reasonableness of risk, becomes the factor in determining whether defendant’s conduct is actionable. The position that a risk is automatically reasonable by virtue of being obvious is indefensible under ordinary negligence analysis.” Darling, Patent Danger Rule: An Analysis & A Survey of its Vitality, 29 Mercer L. Rev. 585, 588 (1978).

Because of the concern about the duty question and because Gleason’s focus is on the absence of duty in this case, we will begin our examination with the more general question: what is a duty? A duty is a legally recognized obligation to do or to refrain from doing something. The key words in this definition are “legally recognized.” We all have a moral obligation to act as good Samaritans — to come to the aid of travelers in distress; to act as good sons and daughters — to visit our parents regularly and often (dutiful children we believe is the phrase); and to act as protectors of Mother Earth — to turn off the tap while brushing our teeth. However laudable each of these activities may be, it is clear that none of them are legally recognized obligations; we are free to pass by stricken travelers, ignore our lonely parents, and run the bath water to the brim without any concern that the legislature or the courts will impose any penalty.

It is equally clear that the legislature and the courts are the primary sources of legally recognized duties. During a drought the legislature may pass a statute which limits the amount of water that can be used, and a court may conclude that the preferable procedure would be to stop and succor the bandit’s victim. The source of the latter duty is involved in this case; what is a duty that is created by a court? The answer can be found in the question; a duty exists when a court says it exists. This response is not as facetious as it sounds:

“The extent of duty can seldom, if ever, be determined until all the facts of a transaction in its environmental setting are known, and some appropriate rule of law is found available; here the wisdom of the wisest of our profession, the judges, is called into play. It is they and they only who can say whether the risk that has brought injury to the victim shall be borne by the defendant, if the other issues are found favorably to the plaintiff. This is the law-making or law-declaring function of the courts and its range extends far beyond the range of the reasonable man’s foresight, or the foresight of anyone.” (Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1418 (1961).)

While this quote would seem to indicate that the judges’ power to create duties is practically unbridled, we do not believe that to be an accurate construction of Professor Green’s words. In another article he states:

“Duty as a creative concept for extending the protection of law to the rapidly increasing toll of deaths and personal injuries re-suiting from the risks imposed by machine and other enterprise activities of the 1800’s was slow in emerging. At first it was explicitly employed as a restriction on a defendant’s liability in the landowner cases.
* * *
*** For a long period the duty concept was also restrictive of the liability of the manufacturers, contractors and suppliers of products. Nearly all the risks productive of injuries in all these cases were thrown upon the victims rather than upon those whose operations of enterprise created the risks.
A change in the attitude of the courts came very slowly, first by the expansion of the duties of railroads to their passengers, employees, highway travelers at crossings and even trespassers on their tracks, expansion of the duties of landowners to travelers on the highways and even infant trespassers on their premises; later by the expansion of the duties of those who employed contractors to perform dangerous undertakings; still later by expanding the duties of those who undertook to perform services generally, even gratuitously; and finally, on large scale at least, by expanding the duties of those who manufacture or supply machines and products of all types. Over the course of the last century, and particularly the last third of that century, the duties of enterprisers have been expanded to include most of the risks of enterprise, and if the facts of the particular case raise an issue of negligence, liability will usually be imposed favorably to the victim. As so clearly stated by Judge Cardozo, the source of these duties is found in the law.” Green, Duties, Risks, Causation Doctrines, 62 Tex. L. Rev. 42, 59-61 (1962).

Professor Green has also set forth the policy bases which he feels are utilized by courts when they make their determination of whether a duty exists:

“In the part of this paper published in an earlier number of the REVIEW, I sought to develop the idea that legal ‘duties’ are determined by factors outside any legal theory which has yet crystallized. These factors were designated: (1) The administrative factor; (2) the moral or ethical factor; (3) the economic factor; (4) the prophylactic factor; (5) the justice factor.” Green, The Duty Problem in Negligence Cases: II, 29 Colum. L. Rev. 255, 255 (1929).

Perhaps more generally recognized as bases for a duty in negligence cases are sections 291 through 293, Restatement (Second) of Torts (1965):

“§291. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.”
“§292. Factors Considered in Determining Utility of Actor’s Conduct
In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;
(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.”
“§293. Factors Considered in Determining Magnitude of Risk In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:
(a) the social value which the law attaches to the interests which are imperiled;
(b) the extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;
(c) the extent of the harm likely to be caused to the interests imperiled;
(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.”

A more detailed list of policy bases can be found in Professor Wade’s article, On The Nature of Strict Tort Liability for Products:

“(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
(2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.” (Wade, On The Nature of Strict Tort Liability for Products, 73 Miss. L.J. 825, 837-38 (1973).)

We realize that Professor Wade was discussing products liability in his article, but we also realize that: (1) in warning cases the defendant must have actual or constructive knowledge of the danger before a duty to warn arises (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194), which certainly sounds similar to a negligence standard, and (2) Professor Wade himself stated that, “There are thus innate similarities between the actions in negligence and in strict liability, and changing the terminology does not alter this.” 73 Miss. L.J. at 837.

Finally, our supreme court has provided a list of factors to be considered in determining whether a duty exists:

“In Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307, this court observed that ‘the concept of duty in negligence cases is very involved, complex and indeed nebulous.’ (54 Ill. 2d at 545, 301 N.E.2d at 307.) Nonetheless, this court has identified certain factors which are relevant to the existence of a duty. The ‘reasonable foreseeability’ of injury is one important concern (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617), but this court has recognized that foreseeability alone provides an inadequate foundation upon which to base the existence of a legal duty (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387; Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617; see also Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18 (1961)). Other considerations include the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 526, 513 N.E.2d 387; Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231.” Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140-41, 554 N.E.2d 223, 226-27.

With all these policies in mind we return again to Professor Green, who stated:

“The judicial process in negligence cases is the experimental machinery of government-by-judges through which a restless and changing industrial society is furnished protection against its self-inflicted physical hurts. Only a few of the implications of such a conclusion can be stated here.” Green, The Duty Problem in Negligence Cases: II, 29 Colum. L. Rev. 255, 279 (1929).

The question posed to this court is, “Does the open-and-obvious-danger rule preclude the imposition of a duty under the circumstances of this case?” We hold that the answer must be no.

The open-and-obvious-danger rule in product liability cases focuses on the consumer-expectation test of liability: i.e., did the product perform as a consumer would reasonably expect it to? In a warning case this test translates to: would a consumer reasonably expect to be warned about that danger? The reasonable-expectation test is actually only one facet of the duty analysis, and it deals only with the question of foreseeability. Further, the reasonable-expectation test is not the only test of liability in Illinois in products cases (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401); we also have the danger/utility or risk/benefit test. Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; see also Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690; Derrick v. Yoder Co. (1980), 88 Ill. App. 3d 864, 410 N.E.2d 1030.

The risk/benefit or danger/utility test encompasses several of the same factors referred to in Professor Wade’s article and in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, and obviously encompasses many more considerations than the relatively simple consumer-expectation test. To the extent that a court weighs one or more of the policy bases more heavily than the others, it may or may not recognize a duty. For example, if a court stresses Professor Wade’s factor number seven, the feasibility of spreading the loss, the plaintiff, in general, may be favored, while in a court that more heavily weighs Professor Wade’s factor number five, a user’s ability to avoid danger in the use of the product, the defendant is more likely to prevail. When we turn from products liability cases to a negligence setting, we see similar policy considerations behind the recognition of a duty and a greater or less likelihood of a duty being imposed depending upon which factors are more heavily weighted.

Which of the factors does the obvious-and-open-danger rule focus upon? Foreseeability only, although foreseeability is only one of the elements to be considered. (Ward, 136 Ill. 2d 132, 554 N.E.2d 223.) Furthermore, and herein lies the greatest problem, the rule focuses upon foreseeability from the viewpoint of the plaintiff. The importance of the point of view used in the analysis cannot be overemphasized. A comment about Socrates, who believed in only one God as opposed to the majority of Greeks at the time who believed in a multitude of deities, is illustrative. “That is the atheist who says there is only one God.” (W. Durant, The Story of Philosphy 7 (1961), citing Voltaire, Philosophical Dictionary, art. “Socrates.”) The fact that courts are viewing open and obvious dangers through plaintiffs’ eyes becomes clear when we realize that in adopting it as a duty-denial tool they are in essence saying, “The more obvious the danger, the less the duty to warn.” If the duty issue is viewed from the defendant’s standpoint, such a rule makes no sense at all. Juries would forgive a defendant’s failure to warn if the defendant knew nothing of the hazard. Indeed, our supreme court has held that there is no duty to warn in products cases unless there is knowledge of the danger. (Woodill, 79 Ill. 2d 26, 402 N.E.2d 194.) Does it not follow then that, all other things being equal, the greater the degree of knowledge of the danger the greater the duty to warn? We believe that it does.

We further believe that the confusion in the open-and-obvious-danger cases has arisen because the degree of the awareness of danger has been viewed from the plaintiff’s standpoint rather than the defendant’s. If a danger is truly glaring, the courts could have used the open-and-obvious-danger rule to prevent recovery because of the plaintiff’s conduct in encountering it, i.e., an assumption-of-the-risk defense. Such a result might be justified depending upon the factual circumstances of the case, but if that is to be the result, the reason for it should be clearly stated rather than relying upon “no duty to warn because the danger is open and obvious.”

Another possible reason for the utilization of the open-and-obvious-danger rule is that some courts have skipped steps in their analysis; they have gone from the question of whether a defendant should furnish a warning to the question of upon whom it is more efficient to place the burden of preventing the injury. In other words some courts may have focused not on the foreseeability issue only but may have instead focused on a combination of Professor Wade’s factors four, five and six (73 Miss. L.J. 825, 837-38).

If they have done either of these, however, they have certainly done it without any discussion of such rationales. Our disagreement with those cases stems not necessarily from their results but with the reasoning employed to reach the results. To illustrate our discussion, we submit that the often-cited example of no duty to place a warning on a sharp knife because it is an open and obvious danger is actually based on either or both of the just stated but different tests. The first of these is that there is no duty under the consumer-expectation test because the danger of cutting oneself with a sharp knife is so well known that no consumer would expect to be warned of it. The second is that, under the risk/benefit test, the magnitude of the risk is so small and the utility of the warning so negligible that no duty to warn will be imposed. Again, while the answer to this question of duty may furnish an identical result, i.e., no recovery by the injured person, it is important for courts to realize the true basis for their decisions because different results may occur depending upon the facts of the case.

Defendant contends there should be no duty to warn if the plaintiff is equally aware of the dangers. However, warnings are not a useless act even though plaintiffs may have some awareness of the danger. All of us are aware of the wisdom of wearing seatbelts, but that general awareness does not negate the effectiveness of reminders in multiple form: visual — lights on the dash; auditory — bells; informative — “Buckle up for safety”; and even criminal — section 12 — 603.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95/2, par. 12— 603.1(d)). We note that the legislature has made a judgment as to the plaintiff’s duty to wear a seat belt by providing that the failure to do so cannot be considered either as evidence of contributory negligence or in diminution of damages. Ill. Rev. Stat. 1989, ch. 951/2, par. 12— 603.1(c).

Another example of what might appear to be unnecessary warnings are the backup systems on airplanes. The first safety system, of course, is the pilot’s vision, but to give only one example of a backup to that: all commercial aircraft are equipped with barometric altimeters which furnish the pilot with the plane’s distance above ground by means of an instrument. It might be thought that the altimeter is a necessity rather than a backup feature since commercial airlines typically fly at night and in inclement weather. This is, of course, true, but the altimeter is also available to the pilot during daytime and clear-weather flying conditions so that the aircraft can properly maintain assigned altitudes. Moreover, in addition to the altimeter, all airplanes that operate within terminal control areas are required to be equipped with a transponder with automatic altitude-reporting equipment so that the air traffic controller on the ground can observe his radarscope and advise the pilot of any deviation in his assigned altitude. (14 C.F.R. Pt. 91, App. A (1991).) There are other indications from an airplane’s operations that would furnish information to a skilled pilot about the plane’s altitude, but the two mentioned are primarily safety features and both are furnished even though every pilot knows that a plane should not be flown too close to the ground.

What do these examples mean? Are they to be interpreted so as to establish a principle of law which requires the attachment of warning after warning until the product looks like a Winston Cup or an Indianapolis race car that has oversold endorsement space, or do they mean that, regardless of the hazard, an adequate warning will insulate the defendant from liability? The answer to the second question must be no, and the answer to the third question can be found in Dean Prosser’s imaginative hypothetical:

“If somebody sells a biscuit full of potassium cyanide, I don’t think any court in the country has ever held or ever will hold that he can escape by putting on the box, ‘Don’t eat these.’ ” (Prosser, 38 American Law Institute Proceedings 68 (1961).)

The answer to the first question is the most difficult. What sort of duty, if any, should the court impose under the circumstances of this case? Or what lessons have been learned from this review?

The first lesson to be learned is that the obviousness of the danger is only one of the features that should be considered in determining whether a duty exists: foreseeability alone provides an inadequate foundation upon which to base the existence of a legal duty. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396.

The second lesson is that warnings serve two purposes: to inform us of dangers of which we are unaware, and to remind us of hazards of which we are already aware but may, due to distraction, momentarily forget. (See Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239; see Bailey, Human Performance Engineering: A Guide for System Designers 237 (1982).) As products become more complex, as the setting in which they are used becomes more distracting, as the magnitude of the possible injury increases, the calculus of risks/benefits may change. To conclude our discussion on the policy aspect of imposing a duty in this case, we reiterate that the obviousness of the danger is only one of the factors that should be considered in determining whether a duty exists.

Third, we should be aware that warnings are, at best, the least-favored method of protection in dealing with a hazard. We note that accident-prevention analysis from an engineer’s standpoint proceeds as follows: first, eliminate the hazard; second, if there is no feasible way to eliminate the hazard, guard against it; and finally, and only as a last resort, if it is impossible to eliminate or guard against it, warn about it. (See Bailey, Human Performance Engineering: A Guide For System Designers 11 (1982).) Therefore, when we encounter the question of a duty to warn, we are already in a situation dealing not even with second best, but of third best.

In this case the crane supplier was aware that cranes are used in close proximity to power lines and the high probability of serious injury or death in the event of contact with the lines. Further, it is common knowledge that distractions in the form of workmen, other equipment, and other elements will be present on jobsites and that employers may require certain jobs to be done in ways, under conditions and within times that may not be conducive to the safest operations. In the present case it is objectively reasonable to expect that the defendant was aware that the operators of its cranes would be using the machinery in the performance of tasks over which they have no choice but to maneuver in close proximity to overhead power lines. The requirement of applying the decals in this case would serve not only to inform the user or operator but to continually remind him to check for power lines.

It has already been mentioned that the likelihood of injury where a crane comes into contact with an overhead power line is great. The burden on the defendant of warning against this danger is slight. Defendant had been furnished with the warning decals and had only to apply the warnings to the crane. We hold that it had a duty to do so.

Gleason next argues that Harnischfeger, Hall and Union Electric failed to make a submissible case for contribution against Gleason because they were not subject to liability for the injuries and damages of the plaintiffs and, therefore, were not culpable parties within the meaning of the Contribution Act. In view of our decision as to the duty issue as to Gleason, it is unnecessary for us to further discuss this point.

The next issue for our review is whether the trial court erred in submitting multiple verdict forms to the jury. Harnischfeger, Hall, and Union Electric (hereinafter referred to as plaintiffs) contend that the submitted verdict forms are modified versions of Illinois Pattern Jury Instructions, Civil, No. 600.16 (2d ed. Supp. 1986). The submitted verdict forms provide:

“As between Harnischfeger Corporation and Gleason Crane Rentals, Inc., we, the jury, apportion damages as follows:
“As between H.H. Hall Construction Company and Gleason Crane Rentals, Inc., we, the jury, apportion damages as follows:
“As between Union Electric Company and Gleason Crane Rentals, Inc., we, the jury, apportion damages as follows:

Gleason objected to the court’s submission of three separate verdict forms. The court overruled the objection and refused Gleason’s tendered instruction which follows Illinois Pattern Jury Instructions, Civil, No. 600.16 (2d ed. Supp. 1986):

“We, the jury, apportion damages as follows:

The plaintiffs contend that because there were no cross-actions for contribution among them, there was no need to assign percentages of fault among them. They argue that it would have been inappropriate to submit a verdict form that would compare the culpability of the plaintiffs. Gleason responds that the multiple verdict forms gave rise to inconsistent verdicts. Fault was assessed as follows:

Cross-claims for contribution among the contribution plaintiffs (Harnischfeger, Hall and Union Electric) had been extinguished. A single verdict form would have required that the liability of the contribution plaintiffs be compared even though no claims existed among them. Although the record is unclear on this point, it is likely that the settling defendants had considered and rejected the possibility of maintaining their contribution claims against one another. By eliminating those claims they also eliminated the risk that their payment could exceed what they had already contributed toward settlement of the case. The multiple verdict form selected by the trial court reflected this choice. Gleason’s claim that the single verdict form would have reduced its obligation is simply unsupported. As long as Gleason’s obligation was assessed at 76.1% of the total culpability, its dollar obligation would have been the same. Gleason has failed to demonstrate how the use of a single verdict form would have effectuated any change.

Gleason argues that because multiple verdict forms were used the common liability totaled 300% thereby subjecting Gleason to an amount exceeding any amount Gleason would have been required to pay had the combined verdict form been used. We find no merit to this argument as it is easily discernible that as a result of the jury’s determination Gleason is liable for 76.1% of the total liability.

It is clear that even though multiple verdict forms were used Gleason’s liability did not exceed 100% as it would have us believe. In the instant case, because each of the contribution plaintiffs had settled with the plaintiff in the underlying action and because there were no cross-claims among them, the separate verdict forms were proper.

Gleason next argues that the trial court erred in submitting modified versions of Illinois Pattern Jury Instructions, Civil (hereinafter IPI), Nos. 600.09, 600.10 to the jury. (Illinois Pattern Jury Instructions, Civil, Nos. 600.09, 600.10 (2d ed. 1986 Supp.).) Each of these IPI instructions is set forth below in its entirety. The underlined portions were not included in the instructions given by the court. Gleason argues that the underlined language was wrongfully omitted from the instructions which were submitted to the jury.

“Harnischfeger Corporation, H.H. Hall Construction Company and Union Electric Company each have paid sums of money to John Clark and Cynthia Clark in settlement of John and Cynthia Clark’s claims for their injuries and damages. Harnischfeger Corporation, H.H. Hall Construction Company and Union Electric Company each now claim that they are entitled to contribution from Gleason Crane Rentals, Inc. for a percentage of those sums paid.
Harnischfeger Corporation, H.H. Hall Construction Company, and Union Electric Company further claim that the payments were made in reasonable anticipation of their liability to John and Cynthia Clark.
Harnischfeger Corporation, H.H. Hall Construction Company and Union Electric Company each claim that Gleason Crane Rentals, Inc. was negligent in one or more of the following respects:
(a) in failing to apply warning decals on the cranes concerning the hazards associated with power lines, as it was instructed to do by Harnischfeger Corporation;
(b) in failing to provide with the subject crane at the time of its sale by Gleason to Metro Construction Equipment Company the warning decals concerning the hazards associated with cranes coming into contact with overhead power lines, said decals having been previously supplied to Gleason by Harnischfeger Corporation;
(c) in failing to provide with the crane at the time of its sale by Gleason to Metro Construction Equipment Company certain safety manuals which contained warnings to the users of the crane concerning the hazards associated with overhead power lines.
Harnischfeger Corporation, H.H. Hall Construction Company and Union Electric Company each further claim that one or more of the foregoing was a proximate cause of John and Cynthia Clark’s injuries and damages.
Gleason Crane Rentals, Inc. denies that it did any of the things claimed by Harnischfeger Corporation, H.H. Hall Construction Company and Union Electric Company, and denies that any claimed act or omission on the part of Gleason Crane Rentals, Inc. was a proximate cause of John and Cynthia Clark’s injuries and damages.”
“The plaintiffs, Hamischfeger Corporation, H.H. Hall Construction Company and Union Electric Company each have the burden of proving each of the following propositions:
First, that Gleason Crane Rentals, Inc. acted or failed to act in one of the ways claimed in these instructions, and that in so acting, or failing to act, Gleason Crane Rentals, Inc. was negligent;
Second, that the negligence of Gleason Crane Rentals, Inc. was a proximate cause of the injury to John Clark.
Third, that the payments Hamischfeger Corporation, H.H. Hall Construction Company and Union Electric Company made were in reasonable anticipation of liability to John and Cynthia Clark.
As to each of the plaintiffs in this case, if you find from your consideration of all of the evidence that each of the propositions required of the plaintiffs have been proved, then your verdict should be for such plaintiffs, and you should apportion damages.
If, on the other hand, you find from your consideration of all of the evidence that any of the propositions required of Hamischfeger Corporation, H.H. Hall Construction Company or Union Electric Company has not been proved then, as to that plaintiff, your verdict should be for Gleason Crane Rentals, Inc. and against that plaintiff.”

Gleason argues that a cause of action for contribution requires proof that the party paid more than its pro rata share of the “common liability” (Ill. Rev. Stat. 1989, ch. 70, par. 302(b)), and that proof of liability to the injured party is necessary to sustain a cause of action for contribution. Therefore, according to Gleason, the above instructions did not accurately state the law and their submission was reversible error.

The test in determining the propriety of submitted jury instructions is whether, taken as a whole, they are sufficiently clear so as not to mislead the jury and whether they fairly and accurately state the law. (Schuchman v. Stackable (1990), 198 Ill. App. 3d 209, 225, 555 N.E.2d 1012, 1022.) Gleason has not demonstrated how the omission of the bracketed material prejudiced it. In light of the above, we find no error in the trial court’s omission of the language in this case.

Gleason also argues that the trial court erred in omitting the last line of IPI 600.10, which reads:

“and you will have no occasion to consider the apportionment of damages.”

Gleason contends that the last line should not have been omitted, and that Gleason’s tendered instruction No. 1 should have been given:

“If you decide for Gleason Crane Rentals, Inc. on the question of its liability to John Clark and Cynthia Clark, you will have no occasion to consider the question of damages to the plaintiffs in this contribution suit.”

The jury was instructed to complete the multiple verdict forms which apportion damages between Gleason and each of the three plaintiffs. The jury was advised that it must fill in a percentage for each party and that if it found in favor of the defendant, it must fill in zero percent (0%) for Gleason. The court further instructed the jury that on each of the three verdict forms the total of the percentages must equal 100%.

Gleason’s argument that the instructions given directed the jury to apportion fault without first determining the right to contribution is unfounded. The jury was told that it could find that Gleason was not liable for contribution. In the event it made such a finding, it was directed to complete the apportionment form, filling in “0%.” The omitted language of IPI No. 600.10 and Gleason’s tendered instruction could have confused the jury about what its obligation was with respect to completing the verdict forms. Gleason’s instruction would have directed the jury that if it found in favor of Gleason it would have no occasion to consider the question of damages. This directly conflicts with the instructions which were given, requiring the jury to apportion damages to equal 100%.

Whenever available, the IPI instruction should be given, unless the court determines that it does not accurately state the law. (Galowich v. Beech Aircraft Corp. (1991), 209 Ill. App. 3d 128, 137, 568 N.E.2d 46, 52; 134 Ill. 2d R. 239.) “It is, however, within the trial court’s discretion to determine the form for jury instructions, and the test of proper instructions is whether they formulate a clear and adequate picture of the applicable law when viewed in their entirety.” (Galowich, 209 Ill. App. 3d at 137, 568 N.E.2d at 52.) In the instant case, we find that the trial court did not err in ruling on the proposed instructions.

The final issue for our review is whether the trial court erred in allowing Union Electric’s motion in limine and prohibiting Gleason from presenting evidence to show that the power lines in question did not have any vision enhancement or other warning devices. Union Electric argues that because Gleason did not raise as error in its post-trial motion any claims regarding warning signs or power-line height such claims are waived. (134 Ill. 2d R. 366(b)(2)(iii); Lewis v. Beckman (1978), 57 Ill. App. 3d 482, 373 N.E.2d 589.) We find that Gleason did not waive his claims of error regarding vision-enhancement devices, warning signs or line height as its post-trial motion clearly states that “the court erred in granting Union Electric’s Motion in Limine *** Union Electric’s Motion in Limine should have been denied.” Gleason’s post-trial motion addresses in particular the alleged error in precluding testimony regarding vision-enhancement devices. The alleged error regarding power-line height and other warning signs is not addressed per se, but the post-trial motion clearly sets forth the alleged error in allowing Union’s motion in limine.

The trial court excluded testimony regarding vision-enhancement and warning devices on the basis that no such evidence could be presented without expert testimony. Gleason made an offer of proof at trial via the testimony of William Habermehl, the crane operator. Habermehl testified that following John Clark’s accident he examined the area around the power lines. He did not see any signs on the bridge structure or the utility poles, nor did he observe anything on the power lines which would have improved their visibility.

Union Electric argues that the court’s decision was correct because Gleason did not establish that the practice of using such devices was customary or common in the industry or community. Union Electric maintains that Gleason presented no evidence in support of any duty to place vision-enhancement devices such as orange balls on the power lines. Furthermore, Gleason was not prepared to present any testimony as to the cost of the orange balls, how they would be attached to the electrical lines, or whether they could even be placed on high-voltage power lines. Union Electric contends that in this case expert testimony was required in order to present evidence regarding vision-enhancement devices, warning signs on the utility poles, and power-line relocation.

Union Electric points out that the custom of the industry is relevant and admissible to show community standards of reasonable conduct. (Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 424 N.E.2d 1271, citing W. Prosser, Torts §33 (4th ed. 1971).) The issue, however, is whether or not the testimony Gleason desired to present is a matter of common knowledge. While Gleason’s offer of proof demonstrates that its witness could have easily testified about the absence of vision-enhancement or other warning devices, no foundation was laid to show that vision-enhancement devices or other warning devices were customary in the industry, were feasible or were even practical given the nature of high-voltage power lines. “In a tort case, custom and usage is a fact to be proved as any other fact and it may be the subject of expert testimony.” (McClure v. Suter (1978), 63 Ill. App. 3d 378, 384, 379 N.E.2d 1376, 1381.) In this case, Gleason’s offer of proof was simply to show that vision-enhancement and warning devices were nonexistent on the power line in question. In the context of this case, we cannot say that the trial court abused its discretion in sustaining Union Electric’s motion in limine.

We affirm the judgment of the circuit court of St. Clair County.

Affirmed.

RARICK and WELCH, JJ., concur.