text:
    ILLINOIS BELL TELEPHONE COMPANY, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    First District (5th Division)
    No. 1—87—2415
    Opinion filed November 3, 1989.

      Francine Soliunas and Paul K. Whitsitt, both of Illinois Bell Telephone Company, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Stanley L. Hill & Associates, of Chicago, for respondent Mary Amos.
   JUSTICE PINCHAM

delivered the opinion of the court:

Petitioner, Illinois Bell Telephone Company, appeals from a decision of the Illinois Human Rights Commission (Commission) that petitioner unlawfully discriminated against petitioner’s employee, complainant Mary Amos, in discharging her because of her absenteeism occasioned by her endometriosis disease handicap, and because of petitioner’s unreasonable failure to accommodate her handicap. Petitioner was ordered to reinstate complainant in her employment. We affirm.

The testimony presented at the evidentiary hearing established the following.

Prior to complainant’s employment by petitioner, complainant filled out medical forms and underwent a medical examination at petitioner’s demand and direction. On the medical forms, complainant stated that she suffered from severe menstrual cramps and pain which could cause her to miss work for one or two days every two months.

In March 1970, petitioner hired complainant as a central office technician, and six months later, petitioner promoted her to the position of central office frameman. Complainant remained in the central office frameman position until she was again promoted in 1974, four years later, to the position of central office maintenance woman, which title was later changed to central office technician.

Complainant’s duties as a central office technician entailed testing and maintaining equipment in the toll department. The toll department was part of the central office, and complainant worked in a unit called the “n-carrier unit.” As a member of the “n-carrier unit,” complainant was allowed to trade off-days with other employees under a system known as the “non-schedule days” system. This system provided employees flexibility and allowed them to alter their work and off-day schedules, and permitted them to work on weekends and have two weekdays off. Other units within the toll department utilized this same flexible “non-schedule days” system in scheduling work and off-days.

In 1978, complainant was transferred to the “pre-service unit” within the toll department, and in 1979, she was transferred out of the toll department and into the “pre-service unit” of the “SSB” department. Neither of these preservice units utilized the flexible “non-schedule days” system in programming employee’s duty and off-day assignments. Complainant remained in the “pre-service unit” of the SSB department until February 23, 1981, when petitioner terminated her employment because of complainant’s absenteeism.

During complainant’s employment with petitioner, she continuously suffered severe menstrual cramps and pain. Complainant initially saw Dr. Moragne but later switched to Dr. Chatman, because he was reputed to be a specialist in a new procedure for diagnosing the cause of menstrual cramps and pain.

On June 5, 1979, Dr. Chatman performed a laparoscopy, a diagnostic procedure, on complainant to determine the cause of her menstrual cramps or dysmenhorrea. Dr. Chatman concluded that the cause of complainant’s menstrual cramps was a disease called endometriosis, which caused scar tissue to build up on her uterine lining. Dr. Chatman prescribed danocrine to aid in dissolving some of the scar tissue. After the laparoscopy and danocrine treatment, complainant’s extreme menstrual cramps and pain subsided, but she still experienced severe discomfort.

On April 14, 1980, upon Dr. Chatman’s recommendation, complainant underwent further diagnostic surgery to determine the effectiveness of the danocrine treatment. The results were favorable, and Dr. Chatman discontinued the danocrine treatment. Upon the return of her menstrual cycle, however, complainant again began to experience severe pain. Dr. Chatman recommended that complainant “wait and see” how her body would react to the problem.

In December 1980, Dr. Chatman recommended that complainant undergo a laparotomy, a corrective surgical procedure to remove the scar tissue and implants of the endometrium lining. Dr. Chatman scheduled the laparotomy to be performed on January 16,1981.

In late 1980, at petitioner’s request, complainant had a health review by petitioner’s medical department. Shortly thereafter, complainant met with Hardin McCain, petitioner’s employment manager. McCain told complainant that he had received the results of her health review conducted by petitioner’s medical department, and McCain reiterated the hysterectomy recommendation of petitioner’s medical department to eliminate her menstrual pains and cramps. Complainant responded that she did not want to have a hysterectomy because she did not want to preclude herself from having children in the future. McCain then told complainant that her next absence from work would result in a one-day suspension and that subsequent absences would result in a five-day suspension with intent to terminate. Complainant informed McCain of her scheduled surgery in January 1981, but McCain reiterated his warning that her absences would result in her suspension. Dr. Chatman was unable to perform the scheduled January 16, 1981, laparotomy because “the disease had progressed so much and so rapidly that it would have been dangerous to do it.” Dr. Chat-man told complainant that “he would have endangered some other organs” if he had performed the laparotomy. Dr. Chatman again prescribed danocrine.

Complainant was suspended without pay for one day because of her absence from work on December 29, 1980, the cause of which was severe menstrual cramps and pain. On January 16, 1981, she underwent surgery and missed work for 26 days. She returned to work on February 23, 1981, only to be told that she had been suspended with intent to terminate. Petitioner terminated complainant on February 23,1981.

Shortly after complainant was terminated by petitioner, complainant underwent surgery called presacral neurectomy, a corrective surgery to lessen the pain associated with menstrual cramps.

The record reveals that during the period that complainant was employed in those units which utilized the flexible “non-schedule days” system, complainant was absent from her employment for only five days in 1975, none in 1976 and for only four days in 1977. After being transferred in 1978 to the “pre-service” unit which did not utilize the flexible “non-scheduled days” system, however, complainant’s attendance record steadily deteriorated. She was absent from work for nine days in 1978, 26 days in 1979, and 42 days in 1980. Of the 26 days complainant was absent from work in 1979, 15 were due to surgery, and the remaining 11 days she missed were due to her menstrual cramps. In 1980, of the 42 days complainant was absent from work, 20 were due to her menstrual cramps. Finally, between January 1, 1981, and February 23, 1981, the date on which petitioner terminated her, complainant was absent 27 days because of surgery.

Complainant filed her complaint against petitioner with the Illinois Department of Human Rights (Department), alleging that petitioner unlawfully discriminated against her on the basis of her sex and her handicap, to wit, endometriosis. An investigation was conducted, and on March 23, 1983, the Department filed a complaint of civil rights violation against petitioner. In its complaint, the Department alleged that petitioner discriminated against complainant because of her female sex and her endometriosis disease handicap.

The Department held an evidentiary hearing over a five-day period before administrative law judge (ALJ) Sandra Y. Jones. ALJ Jones presided over the complete evidentiary hearing until its conclusion but resigned from the Commission before writing her interim recommended order and decision. Prior to her resignation from the Commission, however, ALJ Jones prepared a report of her findings, conclusions and her impressions of the testimony presented at the evidentiary hearing, which she submitted to Richard J. Gonzalez, the substituting administrative law judge. ALJ Gonzalez prepared the interim recommended order and decision.

In his interim recommended order and decision, ALJ Gonzalez alluded to ALJ Jones’ resignation and cited the basis of his authority to write the interim order and decision. ALJ Gonzalez based his order and decision on an examination of the record and on the written report of ALJ Jones’ findings, conclusions and impressions of the testimony.

ALJ Gonzalez found that the preponderance of the evidence sustained the complainant’s complaint of handicap discrimination but he dismissed complainant’s charge of sex discrimination on the ground that petitioner’s articulated reason of excessive absenteeism was not a pretext for unlawful sex discrimination. ALJ Gonzalez concluded that endometriosis was a handicap within the meaning of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 103), and with reasonable accommodation, would not affect complainant’s ability to perform her job. ALJ Gonzalez specifically noted that the designation “modification of work schedules” in section 4(a) of the Commission’s rules was the type of accommodation contemplated within petitioner’s organization which provided a degree of flexibility to employees in their work schedules, namely the aforementioned flexible “non-schedule days” system. ALJ Gonzalez further found that complainant’s particular handicap was well suited for accommodation because it involved predictable periods of disability.

ALJ Gonzalez also noted that section 4(a) of the Commission’s rules “places a burden upon the employer to show that a requested accommodation could either be overly expensive or unduly disrupt the conduct of its business.” ALJ Gonzalez pointed out that petitioner already had in place a mechanism, the flexible “non-schedule days” system, which could have accommodated complainant and reduced her absent days to an acceptable number, but petitioner refused to accommodate her for reasons which were directly related to her handicap.

Petitioner’s express reasons for failing to accommodate complainant were that petitioner’s overall staffing balance would have been upset and that complainant’s transfer would have contravened a company policy that required good attendance as a condition to a transfer. The Commission found that petitioner had failed to rebut complainant’s prima facie case of handicap discrimination by petitioner. ALJ Gonzalez found that because transfers were not unusual in petitioner’s large organization, petitioner could have accommodated complainant by exchanging her with another employee working in a unit that utilized the “non-scheduled days” system. As to petitioner’s policy requiring good attendance as a condition of transfer, ALJ Gonzalez stated:

“Whatever value such policy may have in the abstract, adherence to this policy cannot justify a failure to accommodate when the precise reason for the transfer request is to improve attendance. In a sense, the mere existence of the policy is proof of [petitioner’s] refusal to meet its affirmative duty to reasonably accommodate its employee.”

ALJ Gonzalez concluded that petitioner’s failure to transfer complainant to a unit utilizing the “non-scheduled days” system was an unreasonable refusal to accommodate her handicap in light of the overwhelming evidence that petitioner could have done so. ALJ Gonzalez found that petitioner unlawfully discriminated against complainant on the basis of her handicap when petitioner unreasonably refused to provide available “non-schedule days” employment accommodation to complainant.

On July 8, 1985, petitioner filed its exceptions to ALJ Gonzalez’s interim order. ALJ Gonzalez filed his recommended order and decision on September 19, 1985. On June 9, 1986, the Commission issued its order and decision. On June 30, 1986, petitioner filed an application for rehearing before the entire Commission. The Commission set oral arguments for November 19, 1986. On April 1, 1987, the Commission issued its order and decision that petitioner had unlawfully discriminated against complainant on the basis of her endometriosis disease handicap. On July 31, 1987, the petitioner appealed pursuant to section 8 — 111 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(A)(3)).

Petitioner contends before us that it was error for ALJ Gonzalez to prepare a recommended order and decision when he was not the ALJ who presided over the evidentiary hearing and did not hear the witnesses or observe them testify. Petitioner argues that because ALJ Jones presided over the evidentiary hearing, the substitution of ALJ Gonzalez to prepare the recommended order and decision was erroneous. In support of its contention, petitioner relies on Quincy Country Club v. Human Rights Comm’n (1986), 147 Ill. App. 3d 497, 498 N.E.2d 316. Such reliance is misplaced because Quincy is clearly distinguishable from the case at bar.

In the instant case, the facts were uncontroverted and the witnesses’ credibility was not an issue. The fact of complainant’s absenteeism occasioned by her illness, from the surgery for her menstrual cramps and pain, and endometriosis was undisputed. The issues before the ALJ were legal, namely, whether complainant’s physical condition constituted a handicap cognizable under the Act, and whether because thereof petitioner unreasonably discriminated against complainant in refusing to adjust complainant’s work assignment to enable her to avoid her absences. Conversely, Quincy involved sex discrimination, and the facts were totally contested and the witnesses’ credibility was not only an issue, it was the issue. Moreover, the complainant in Quincy did not contend that her conduct of which her employer complained was occasioned by any handicap on her part.

In Quincy, a substitute administrative law judge, who did not hear the evidence or observe the witnesses, prepared the interim recommended order and decision. The substituting ALJ in Quincy as in the case at bar based his order and decision on an examination of the record and on impressions of the credibility of the witnesses written by the ALJ who presided over the evidentiary hearing but who resigned from the Commission before preparing her interim recommended order and decision. Quincy Country Club’s defense against the complainant’s charge of sex discrimination was that it experienced cash shortages at the bar at which complainant worked, which the complainant denied and which presented the issue of truthfulness and therefore required the hearing officer to carefully evaluate the witnesses’ demeanor and credibility during the hearing. The employer and the complainant in Quincy disputed the evidence on practically every crucial element, thereby necessitating the ALJ’s ability to observe the witnesses’ demeanor and assess their credibility to be a paramount requirement. The court in Quincy held that where the witnesses’ credibility is the determining factor, the presiding administrative law judge must participate in the decision and the substituting ALJ’s interim recommended order and decision based on his examination of the record and the presiding judge’s written impressions of the witnesses’ credibility were invalid. Quincy, 147 Ill. App. 3d 497, 500, 498 N.E.2d 316, 318-19.

As previously stated, the credibility of the witnesses in the case at bar was not a controverted factor. Unlike in Quincy, ALJ Gonzalez relied on uncontroverted employment and medical records and on the undisputed testimony of the witnesses to reach a decision. Petitioner’s defense in the case at bar was based on the construction and interpretation of the statutes involved and the application of the Commission’s rules and regulations, rather than on the credibility of the witnesses. In the case at bar, petitioner did not contest complainant’s truthfulness when petitioner asserted that complainant was terminated because she was excessively absent from work because of her illness. Accordingly, substituting ALJ Gonzalez properly relied on presiding ALJ Jones’ impressions of the witnesses and on his own examination of the record in preparing his recommended order and decision. Quincy is inapplicable to this case.

Additionally and more importantly, complainant contends that petitioner waived the issue of the substitution of ALJ Gonzalez for ALJ Jones when petitioner failed to raise the issue at any time during the administrative proceedings below. Complainant’s position is well founded and valid. It is fundamental that issues not raised during an administrative proceeding are waived and will not be considered for the first time on appeal. (Heeren Co. v. Human Rights Comm’n (1987), 150 Ill. App. 3d 234, 502 N.E.2d 17; Village of Cary v. Pollution Con trol Board (1980), 82 Ill. App. 3d 793, 403 N.E.2d 83; Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 377 N.E.2d 1297.) Petitioner had ample opportunity during the administrative proceedings to raise the ALJ substitution issue but neglected to do so. Petitioner knew in advance that ALJ Gonzalez was substituting for ALJ Jones, and petitioner could have raised the issue in petitioner’s July 8, 1985, exceptions to the ALJ’s interim order; in petitioner’s June 30, 1986, petition for rehearing before the Commission; and during petitioner’s November 19, 1986, oral argument before the Commission, but petitioner failed to do so. Accordingly, petitioner cannot raise the issue for the first time on appeal and has waived it.

Petitioner concedes that it failed to raise the ALJ substitution issue during the administrative proceedings but argues that the Commission acted without jurisdictional authority when it adopted the order and decision of ALJ Gonzalez, who did not preside over the evidentiary hearing, and therefore, petitioner urges, the issue can be raised for the first time on appeal. We disagree. Section 8 — 106(I)(1) states:

“When all the testimony has been taken, the hearing officer [ALJ] shall determine whether the respondent has engaged in or is engaging in [a] civil rights violation ***.” (Ill. Rev. Stat. 1987, ch. 68, par. 8-106(I)(l).)

In addition, sections 8 — 107(E)(1) and (E)(2) statfe:

“(1) Following the filing of the findings and recommended order of the hearing officer [ALJ] *** the Commission *** shall review the record *** [and]
(2) *** shall adopt the hearing officer [ALJ’s] findings of fact if they are not contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1987, ch. 68, pars. 8 — 107(E)(1), (E)(2).)

Thus, the Commission’s function is to review the recommendations and findings of the ALJ hearing officer and adopt the factual findings if they are not against the manifest weight of the evidence. We have found no decided case directly on point, but we believe that the Commission’s authority to review an ALJ hearing officer’s findings and recommendations is not dependent on which particular ALJ prepares the recommendation order. We are of the opinion that the Commission’s authority to review is neither invoked nor revoked because a substitute ALJ prepared the interim order and decision.

Petitioner next contends that endometriosis disease is not a handicap within the meaning of the Act and argues that the Commission therefore erroneously applied the Act to endometriosis. Factual findings by an administrative agency are prima facie correct and may not be set aside unless they are against the manifest weight of the evidence. (Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 448 N.E.2d 958.) A reviewing court, however, is not bound to give the same deference to an administrative agency’s conclusions of law and statutory construction as would be given factual findings, on which a reviewing court must exercise independent review and judgment. (Carson Pirie Scott & Co. v. Department of Employment Security (1987), 164 Ill. App. 3d 530, 518 N.E.2d 161; Flex v. Department of Labor, Board of Review (1984), 125 Ill. App. 3d 1021, 1023-24, 466 N.E.2d 1050, 1053.) Moreover, an administrative agency’s statutory interpretations are not binding on a reviewing court and will be overturned if found to be erroneous. Moore v. Board of Trustees of the Sanitary District Employees’ & Trustees’ Annuity & Benefit Fund, (1987), 157 Ill. App. 3d 158, 510 N.E.2d 87.

In determining whether endometriosis is a handicap within the meaning of the Act, we must look to the purpose for which the Act was enacted and read the Act as a whole, mindful of all relevant parts such that each word, clause and section is given a reasonable meaning. (People v. Jordan (1984), 103 Ill. 2d 192, 206-07, 469 N.E.2d 569, 576.) Where a statute is clear, however, we may not depart from its clear language. Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363, 389 N.E.2d 151, 153.

The pertinent provision of the Act, section 1 — 103(1), defines a handicap as:

“[A] determinable physical or .mental characteristic of a person including, but not limited to, a determinable physical characteristic which necessitates the person’s use of a guide, hearing or a support dog, the history of such characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder and which characteristic:
(1) *** is unrelated to the person’s ability to perform the duties of a particular job or position.” (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 103(I)(1).)

Thus, the plain language of section 1 — 103(1) provides that an individual may be protected by the Act when he or she has a determinable physical characteristic which results from a disease and which is unrelated to his or her ability to perform a particular job or function, or when his or her condition is perceived as a handicap.

The supreme court construed handicap to include at least those individuals whose condition in fact hindered them from engaging in major life activities, and a major life activity encompasses employment. (Lyons v. Heritage Restaurants, Inc. (1982), 89 Ill. 2d 163, 170, 432 N.E.2d 270.) The Commission’s rule on handicap discrimination in employment, section 2500.20(b), provides guidance on what may be considered a “determinable physical or mental characteristic.” The Commission’s rule states as follows:

“(1) The definition is not confined to only those physical and mental conditions which are grave or extreme in nature. However, it is interpreted as excluding:
(A) conditions which are transitory and insubstantial, and
(B) conditions which are not significantly debilitating or disfiguring.
(2) To be covered, a condition must be ‘determinable’ by recognized *** diagnostic techniques.” (56 Ill. Adm. Code 2500.20(b) (1985).)

In applying the foregoing principles to the case at bar, it is clear that the Commission correctly construed the provisions of section 1— 103(1) as applying to endometriosis. In the case at bar, complainant underwent a laparoscopy, and the disease of endometriosis was determined to be the source of her dysmenhorrea. In applying its rules on handicap discrimination, the Commission concluded that complainant was in fact handicapped. Administrative agencies are afforded substantial discretion by a reviewing court in construing and applying their own rules, and a reviewing court should interfere only where the agency’s interpretation is plainly erroneous or inconsistent with long-settled constructions. Neff v. Miller (1986), 146 Ill. App. 3d 395, 402, 496 N.E.2d 1073, citing Phillips v. Hall (1983), 113 Ill. App. 3d 409, 421, 447 N.E.2d 418.

Petitioner argues that the Commission’s decision that complainant’s condition constituted a handicap conflicts with a prior Commission decision that dysmenhorrea was not a handicap. (Handzik & Electromotive Division of General Motors Division (1986), 6 Ill. HRC Rep. 176.) We disagree. Handzik is distinguishable from the case at bar.

In Handzik, the Commission simply ruled that Karla Handzik’s dysmenhorrea did not constitute a handicap within the meaning of the Act because she failed to establish that her dysmenhorrea was caused by either a disease, a congenital condition of birth or a functional disorder. In the case at bar, however, the undisputed evidence presented to the Commission was that complainant’s painful menstruation, dysmenhorrea, was caused by the disease, endometriosis. Thus, unlike in Handzik, the complainant in the case at bar fell within the protection of the Act when she established that her physical impairment resulted from the disease endometriosis. Accordingly, in this case the Commission was correct in concluding that complainant’s endometriosis constituted a handicap within the meaning of the Act. We are mindful of the plight of the large number of women who are afflicted by severe menstrual pain, and we recognize that all such conditions are not necessarily physical handicaps, but must be determined from the facts of each case. We are also aware of the intent of the legislature to protect only those who are handicapped within the meaning of the Act.

The Act provides for the protection of handicapped individuals from unlawful discrimination in employment. Section 2 — 102(A) expressly states:

“It is a civil rights violation:
*** For any employer *** to act with respect to recruitment, *** selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination.” Ill. Rev. Stat. 1987, ch. 68, par. 2-102(A).

Section 1 — 103(Q) defines the words “unlawful discrimination” as including discrimination against a person because of his handicap. (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 103(Q).) “Handicap” is defined in section 1 — 103(1) of the Act.

Illinois courts have adopted the three-step analysis enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, in analyzing employment discrimination cases under the Act. (See Village of Oak Lawn v. Illinois Human Rights Comm’n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.) The complainant has the initial burden of proving by a preponderance of the evidence a prima facie case of unlawful discrimination. Once a complainant has met this burden, the employer may rebut it by articulating some legitimate, nondiscriminatory reason for its employment decision. If the employer meets this burden, the complainant must prove by a preponderance of the evidence that the employer’s proffered reason was not a legitimate reason, but merely a pretext for the unlawful discrimination. Caterpillar, Inc. v. Human Rights Comm’n (1987), 154 Ill. App. 3d 424, 506 N.E.2d 1029; Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 510 N.E.2d 1226; Villaqe of Oak Lawn v. Human Riqhts Comm’n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.

Under the Act, a prima facie case of discrimination based upon a physical handicap is shown by establishing that the employee is handicapped, that an adverse job action related to the handicap was taken against the employee, and that the handicap is unrelated to the employee’s ability to perform the job. Milan v. Human Rights Comm’n (1988), 169 Ill. App. 3d 979, 523 N.E.2d 1155; Kenall Manufacturing Co. v. Human Rights Comm’n (1987), 152 Ill. App. 3d 695, 504 N.E.2d 805.

Applying these criteria to the case at bar, the complainant presented sufficient evidence to establish a prima facie case of discrimination based upon a physical handicap. The Commission was correct in construing the Act as applying to the complainant’s endometriosis. There was sufficient evidence to support the Commission’s findings that complainant’s handicap was unrelated to her ability to perform her job.

Based on the corroborated testimony of complainant’s supervisors, coupled with complainant’s performance and employment history, the Commission found that not only did complainant possess the requisite skills to perform her job functions but petitioner was so satisfied with her work that it promoted her from the clerical to the office technician position. Clearly, petitioner would not have promoted complainant if she was unable to perform the duties of her promoted position.

Complainant may also be afforded protection under the Act upon a showing that her condition was perceived of by her employer as a handicap. There is sufficient evidence to support the Commission’s finding that complainant satisfied this requirement. Hardin McCain, petitioner’s manager, summed up petitioner’s perception of complainant’s condition in its responses to the following questions:

“Q. Well, now wait a minute, Mr. McCain, Mary returned to work on February 23rd, isn’t that right, of 1981?
A. According to that, yes.
Q. And you met with Mary on February 23rd of 1981, isn’t that right?
A. This is the date she was suspended with intent to dismiss?
Q. Correct.
A. Yes, I recall now.
Q. Why did you not give her a three day suspension at that time?
A. Because when I had called the medical department and asked them about her results, they said [t]he surgery that she had was not the type that was going to rpevent [sic] her from having her old problem again, and that was as far as it could be told, there had been no change in her physical being.
Q. Why did you skip a step Mr. McCain?
A. Because it was the end of the line, if you are not going to improve, if there is nothing that had to be done, correctively, for her to improve, it was no need to keep her there.”

Thus, petitioner’s employee admitted in these foregoing responses that complainant was discharged because petitioner perceived no change in her physical condition after surgery. The Commission was therefore correct in finding that the decision to terminate complainant was based on petitioner’s perception of complainant’s physical handicap, endometriosis.

Next, petitioner contends that the Commission’s finding that complainant could have been accommodated by transferring her to another position was erroneous as a matter of law and against the manifest weight of the evidence. Petitioner also argues that an employer has no duty to accommodate a handicapped employee by way of a reassignment or transfer to another position. Petitioner further argues that complainant’s numerous extended absences could not have been reduced even if she was placed in a unit that utilized the flexible “non-schedule days” system. We disagree with these contentions.

An employer’s duty to accommodate handicapped workers attaches when the employee asserts or claims that he or she would have performed the essentials of the job if afforded reasonable accommodation. (Carty v. Carlin (D.C. Md. 1985), 623 F. Supp. 1181, 1186.) Moreover, the Commission’s rule places the burden on the employee to assert the duty and to show that the accommodation was requested and necessary for adequate job performance. Milan v. Human Rights Comm’n (1988), 169 Ill. App. 3d 979, 523 N.E.2d 1155.

There is ample evidence in the record that complainant satisfied this burden. The record reveals that in 1974, complainant worked in the “n-carrier unit” of the toll department, which was part of the central office. The “n-carrier unit” utilized the flexible “non-scheduled days” system. Complainant was subsequently transferred to another unit within the same toll department that did not utilize the “nonscheduled days” system. The duties of both the “n-carrier” and the “pre-service” units were not significantly different or particularly unfamiliar to the complainant since she had worked in both units. Placing her in a unit that utilized the flexible “non-scheduled days” system would have provided complainant with the means of scheduling around the predictable days when she would be disabled.

The Commission found that complainant maintained a satisfactory attendance record while she was a member of the unit that utilized the flexible “non-schedule days” system. Complainant’s attendance deteriorated once she was placed in a unit that did not utilize the flexible “non-scheduled days” system. Her deteriorating attendance was in large part due to petitioner’s refusal to transfer her into a unit that utilized the flexible days system. Petitioner failed to implement the required reasonable accommodation which would have permitted complainant to rectify her attendance problem and overcome her handicap.

The Supreme Court in School Board v. Arline (1987), 480 U.S. 273, 287 n.17, 94 L. Ed. 2d 307, 321 n.17, 107 S. Ct. 1123, 1131 n.17, quoting Southeastern Community College v. Davis (1979), 442 U.S. 397, 410, 412, 60 L. Ed. 2d 980, 990, 992, 99 S. Ct. 2361, 2369, 2370, formulated a standard for determining when an accommodation by an employer is unreasonable, when it stated that an accommodation is unreasonable “if it either imposes ‘undue financial and administrative burdens’ *** or requires ‘a fundamental alteration in the nature of the program.’ ” These criteria have been interpreted by the Commission’s rules as placing a burden upon an employer to show that a requested accommodation would either be overly expensive or would unduly disrupt the conduct of its business.

There is ample evidence to support the Commission’s findings that placing complainant in one of the toll department units that utilized the “non-schedule days” system would not have been overly expensive or unduly disrupt petitioner’s business. The mechanism for accommodating complainant’s handicap was already in place. The Commission stated:

“This case is unusual in that rarely can a [c]omplainant so demonstratively show that the sought accommodation would alleviate any problem caused by the handicap. Because [cjomplainant previously worked under the ‘non-scheduled days’ system within the ‘carrier’ unit, she could show beyond any doubt that it was an effective accommodation for her handicap, eliminating the need for any speculation on the part of the trier of fact.”

For the foregoing reasons, the Commission’s decision that petitioner unlawfully discriminated against complainant when it unreasonably failed to provide available accommodations to her handicap, endometriosis, was not against the manifest weight of the evidence.

Accordingly, the Commission’s decision and order is affirmed.

Affirmed.

COCCIA and LORENZ, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    SADIE A. CARTER, Adm’r of the Estate of Robert E. Carter, Deceased, Plaintiffs-Appellees, et al., v. INDIANA HARBOR BELT RAILROAD COMPANY et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—87—3601, 1—87—3632 cons.
    Opinion filed November 3, 1989.

      Baker & McKenzie and Modesto, Reynolds & McDermott, both of Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard, Thomas W. Cushing, and Michael W. Rathsack, of counsel), for appellants.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Robert J. Bingle, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Sadie A. Carter, administrator of the estate of decedent Robert E. Carter, and plaintiff Rickey Carter filed suit against defendant Indiana Harbor Belt Railroad Company (the railroad), Transportation Displays, Inc. (TDI), a subsidiary of Winston Network, Inc., and WCTU Railway Company, after Robert and his son Rickey were struck by a passing train while painting a viaduct. Robert died as a result of his injuries. A jury awarded damages to Rickey in the sum of $60,000 and to the estate in the sum of $2,357,800 against the railroad and TDI, and the court entered judgment on the verdicts. The railroad and TDI appeal, and the appeals were consolidated. The trial court directed a verdict in favor of WCTU Railway, and plaintiffs do not appeal from that decision. No third-party actions or cross-claims were filed.

On appeal, the railroad makes the following contentions: that the jury’s verdicts are against the manifest weight of the evidence because TDI’s conduct in permitting plaintiffs to work on a viaduct without notifying the railroad was an unforeseeable intervening act; that the trial court erred by precluding it from introducing into evidence a provision contained in the contract between TDI and an advertiser, establishing TDI’s control over plaintiffs; that a mistrial should have been granted following emotional outbursts by plaintiffs’ witnesses; and that the damages awarded were excessive as a matter of law.

TDI’s contentions are as follows: that it is entitled to judgment notwithstanding the verdict because it owed no duty to plaintiffs and because its conduct was not the proximate cause of the injuries; that it was error to introduce evidence of a post-occurrence notification procedure which TDI adopted; and that the court erred in admitting into evidence the contract between TDI and an advertiser for the lease of the viaduct.

On June 30, 1981, a railroad employee discovered a door on a boxcar had bulged outward due to an unsecured load of newspaper rolls which were each 20 feet high and 5 feet in diameter, and weighed 8,000 pounds. The goods were reloaded and the bulge was repaired, but there was no protection for the doorway if the paper shifted again, and there was nothing to prevent the shifting. On June 30, the car was placed back onto a 70-car train. The load shifted, and the door bulged once again.

The train, moving at five miles per hour, passed a viaduct owned by the railroad and being painted by decedent and Rickey. Two other trains had already passed the painters with no problems. Charles Davis, a switchman for the railroad, sat in the engine at the head of the train and he observed the scaffold and the men working on it, but could see no problem as he looked back to see the train moving past the painters. Rickey looked back from where he stood on the scaffold and saw that one boxcar had a bulge. He heard a loud screeching sound as the train struck the scaffold, and the door of the boxcar snagged the hooks of the scaffold, pulling it down. Rickey was injured, and decedent died from his injuries on August 27,1981.

The trainmen were not aware of the accident. When the train arrived in the yard, the 16th car forward from the caboose had a door handle torn off, a bulge in the door, and fresh scrape and bum marks on the door. The door bulged out 8 to 10 inches. An investigation report indicated there was a large roll of paper loaded against the door, causing a 12-inch bulge.

TDI’s contract with the railroad gave TDI exclusive rights to sell advertising on the viaduct in question. The railroad and TDI shared the advertising revenue.

In 1975, TDI rented advertising space on the same viaduct and informed the railroad. In 1978, TDI again rented the same advertising space, and again informed the railroad.

In 1981, TDI entered into an agreement with Pal Construction for an advertisement on the viaduct. The contract between TDI and Pal provided that the railroad must be notified “prior to start of any work or painting at this location.” The railroad received no notification that decedent and Rickey would be painting the viaduct in June 1981. Decedent owned a painting company, B & G Quality Signs, and was hired by TDI to do the painting.

Evan Gollrad, TDI’s account executive in Chicago for 25 years, testified that neither Pal nor B & G was responsible for informing the railroad of the painting. Gollrad stated that even if he had known the painting was to take place on June 30, 1981, he would not have notified the railroad.

The TDI advertising contract was prepared in New York and was signed by Pal on May 26, 1981. The contract was returned to TDI in New York and was signed by TDI on July 29,1981.

After the accident, TDI adopted a new procedure. It advised the railroads by letter and telephone of any painting that was to be done near the tracks.

The railroad first contends that the jury’s verdicts are against the manifest weight of the evidence because TDI’s failure to notify the railroad of the painters’ presence on the viaduct was an unforeseeable intervening cause absolving the railroad of any liability. The railroad relies on the fact that TDI controlled the painting of the viaduct because it had the exclusive right to lease the viaduct for advertisement; that TDI had previously rented the viaduct for advertisement; that TDI had previously notified the railroad of the painting of that viaduct; that TDI’s contract with Pal required notification to the railroad; and that TDI controlled when the painters could work on the viaduct since its contract with B & G required the painters to comply with certain provisions before the painting could begin.

The question of proximate cause is ordinarily a question of fact for the jury. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.) As long as a party’s conduct was one of the proximate causes of an injury, it is liable for negligent conduct even where other causes were present. (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 310 N.E.2d 9.) Even where an injury would not have occurred but for the negligence of another party, a negligent party cannot avoid responsibility for its own negligence. Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 443 N.E.2d 214.

In order for an intervening act to sever the initial wrongdoer’s culpability, the intervening event must be unforeseeable as a matter of law. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) Foreseeability means that which is objectively reasonable to expect, not anything which might conceivably occur. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.) An intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury, and the new force becomes the direct and immediate cause of the injury. However, the intervention of independent concurrent forces will not break a causal connection if the intervention was itself probable or foreseeable. Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497.

We hold that TDI’s conduct was not a superseding intervening cause. Instead, it was a concurring cause. The boxcar was negligently repaired and repacked by the railroad. The railroad was required to follow the field manual and safety rules of the Association of American Railroads (AAR). Those rules provide that rolls of newsprint loaded into closed cars must have doorway protection to prevent the rolls from coming into contact with the doors of the boxcar. The rules provide further that when a boxcar is bulged due to roll paper stock, the cause of damage can be failure to apply doorway protection, or failure to protect lading from contacting with doorway protection. The rules set forth various ways of bracing the load.

The railroad’s superintendent of equipment, Steven Papa, testified that a carman must inspect the cars to make sure they are safe. The men are required to know the AAR safety rules. Robert Wiksten, a railroad employee under Papa’s supervision, performed the repair on the 21/2-foot bulge on the boxcar door on June 28, 1981. In 16 years as a carman, Wiksten had never been supplied with the AAR safety materials, and he was not familiar with the AAR’s recommended methods of bracing a load. After the door was repaired on June 28, a crane was used to reload the rolls and the doors were rehung and latched, but no protection was used on the doorway to prevent the rolls of paper from shifting again and creating another bulge. A July 13, 1984, railroad memorandum written by Wiksten’s supervisor states: “I had a conversation with Mr. Wiksten in connection with the repair work performed. *** There was no door protection to prevent the rolls from shifting against the side doors. After the rolls were shoved back into the car, they straightened the door to the best of their ability, closed and secured them in position. When the car departed the Repair Track, the doors were secured top and bottom with a slight bulge of the doors at the bottom.” Papa testified that if a car is improperly loaded, the railroad has an affirmative duty to prevent it from moving into traffic. Papa was concerned that a bulged door could strike railway equipment or some other structure.

It would be impossible to conclude, based on the evidence in the record, that the railroad could not reasonably foresee that the presence of either railway equipment or some other structure near the tracks would not come into contact with a door that was almost guaranteed to bulge considerably, as a result of improperly loaded rolls of paper weighing 8,000 pounds crashing against the door.

The railroad argues that its negligence merely created a condition upon which TDI acted. The bulged boxcar door had not come to rest in a position of apparent safety. Thus, a new force did not intervene after the forces set in operation by the railroad came to rest in a position of apparent safety. (See Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 440 N.E.2d 253.) The railroad’s negligence merely combined or concurred with the operation of TDI, thus producing a joint effect. (See Chapman v. Baltimore & Ohio R.R. Co. (1950), 340 Ill. App. 475, 92 N.E.2d 466.) The jury was entitled to find that the railroad was liable for the injuries sustained by plaintiffs.

The railroad next contends that the trial court erred in precluding the railroad from introducing into évidence relevant contractual provisions establishing the nature and extent of TDI’s control over the painters. The contract between TDI and Pal required the painters to provide a certificate of insurance to TDI before the painting could begin. The trial court refused to permit any reference to the liability insurance provision for fear it would prejudice plaintiffs. The court allowed the railroad to examine Gollrad on the terms of the contract in detail, without using the word “insurance.” (See Guardado v. Navarro (1964), 47 Ill. App. 2d 92, 197 N.E.2d 469; Rubinstein v. Fred A. Coleman Co. (1959), 22 Ill. App. 2d 116, 159 N.E.2d 379.) Thus, Gollrad testified that TDI enforced a certain provision in the contract with respect to every painting contractor and refused to permit painting until the contractor complied with the provision. Gollrad agreed that TDI controlled the painters, and that if they did not comply, they would not work. The railroad argues that disclosure of insurance is proper to establish control (see Pagano v. Leisner (1955), 5 Ill. App. 2d 223, 125 N.E.2d 301), and that here it evidenced the nature and extent of TDI’s control over the painters, thus establishing that TDI’s control constituted an intervening cause of the accident.

The railroad admits that it was able to elicit testimony from Gollrad that TDI controlled the painters. Moreover, TDI was found to be liable. The word “insurance” could not possibly have negated the effect of the railroad’s own negligent conduct. We hold ■ that the trial court’s ruling was correct, and did not deny the railroad the opportunity to show the nature and extent of TDI’s control over the painters.

The railroad also contends that the trial court erred in denying its motion for mistrial following the emotional outbursts by decedent’s widow, by Rickey Carter, and by Dr. Charles Malón Chuman, decedent’s physician. All three witnesses shed tears while testifying. The railroad argues that as a result, the jury’s verdicts are the result of passion and prejudice, and asks that we grant a new trial on this basis.

The trial court is in the best position to determine whether any showing of emotion by a witness is such that it would prejudice the jury, and absent apparent error, we will not reverse that decision. (Bucker v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 216 N.E.2d 14.) Emotional outbursts in a personal injury action do not constitute grounds for a mistrial where the conduct was not intentional, simulated or improperly motivated, and its effect is not so prejudicial as to have unquestionable influence upon the jury’s ability to try the issues fairly. (Costello v. Chicago Transit Authority (1976), 40 Ill. App. 3d 461, 352 N.E.2d 417; see also Soto v. E.W. Bliss Division of Gulf & Western Manufacturing Co. (1983), 116 Ill. App. 3d 880, 452 N.E.2d 572; Gourley v. Chicago & Eastern Illinois Ry. Co. (1938), 295 Ill. App. 160, 14 N.E.2d 842.) We find no evidence of intentional emotional outbursts here, and we believe the trial court was entitled to find that the effect was not so prejudicial as to preclude the jury from trying the issues fairly.

The railroad finally contends that the damage awards to decedent’s estate were excessive as a matter of law and self-evidently the result of passion and prejudice. The jury awarded $85,400 for decedent’s medical and funeral expenses; $482,430 for loss of money, goods and services suffered by decedent’s wife and children; $1,200,00 for loss of society suffered by decedent’s wife and children; $200,000 for decedent’s disability and disfigurement suffered prior to his death; and $390,000 for pain and suffering experienced by decedent prior to his death.

An award for personal injuries is not subject to mathematical computation, and the propriety of the amount of damages to be awarded is peculiarly a question of fact for the jury. (Baird v. Chicago, Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413.) This court will not substitute its judgment for that of the jury as to the sum to be awarded unless the total amount of the verdict falls outside the limits of fair and reasonable compensation, or results from passion or prejudice, or is so large as to shock the judicial conscience. Jones v. Karraker (1983), 98 Ill. 2d 487, 457 N.E.2d 23; Baird v. Chicago, Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413; McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787.

The railroad argues that the jury’s passions were heightened by the trial court’s improper ruling permitting plaintiffs to introduce a photograph of decedent’s injuries. The admission of photographs is within the discretion of the trial court. (Parson v. City of Chicago (1983), 117 Ill. App. 3d 383, 453 N.E.2d 770.) They may be used to depict the existence, nature, severity and location of injuries, and to show resultant pain and suffering. (In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872; Kallas v. Lee (1974), 22 Ill. App. 3d 496, 317 N.E.2d 704.) Here, the photograph was accurate and properly identified, and the fact that it was gruesome does not require the trial court to exclude it from evidence. See, e.g., People v. Henenberg (1973), 55 Ill. 2d 5, 302 N.E.2d 27; Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 200 N.E.2d 149, aff’d on other grounds (1965), 33 Ill. 2d 326, 211 N.E.2d 253; Parson v. City of Chicago (1983), 117 Ill. App. 3d 383, 453 N.E.2d 770; Kallas v. Lee (1974), 22 Ill. App. 3d 496, 317 N.E.2d 704.

The railroad further argues that the $482,430 award for loss of money, goods and services was excessive and speculative because decedent earned only $17,917 in 1980 and $5,462 in the first half of 1981. Decedent was a journeyman sign painter and previously worked for Beverly Sign Company. He earned over $20,000 annually in 1975, 1976 and 1977. Gerald Ryan, owner of Beverly Sign, testified that decedent worked for him from 1957 until 1978, that he was an excellent painter, was highly respected and had trained many other painters. Richard Kaczmarski, a Beverly Sign employee for 40 years, testified that decedent was one of the top 10 sign painters in Chicago. In 1978, defendant started B & G Quality Sign. At B & G, decedent earned $15,511 in 1979, $17,917 in 1980, and $5,462 in the first half of 1981. There was evidence presented of the union scales for a journeyman sign painter. At the time of trial, Beverly paid the average sign painter $30,243 annually. In addition, there was evidence as to the amount of work decedent performed at home for his family. Decedent was 45 years old and had a life expectancy of 30 more years. He was survived by his 42-year-old wife and six children ranging from 10 to 28 years old. Under the facts presented here, we find that the award for loss of money, goods and services is not excessive.

The railroad also maintains that decedent was unconscious and therefore incapable of experiencing conscious pain and suffering, that he never regained consciousness, and thus, that the $390,000 award for decedent’s pain and suffering was purely speculative. Dr. Chuman, the treating neurologist, testified that decedent suffered severe injuries to the right side of his face and the left side of his brain. There was no damage to the center of the brain. Decedent could not speak, but he communicated by movement of his right hand and thumb. He fractured the front and back of the skull, both ear bones, his right upper and lower jaw, a rib, one arm, one finger, and the side of his head. He suffered severe facial lacerations, including having his right eye socket torn off. The right ear was torn off, and he could not hear from the left ear. The nerve to the upper and lower teeth was torn off but was still functional and thus any movement to the jaw by the hospital staff would cause pain.

Dr. Chuman testified that after surgery on June 30, decedent moved his arms and legs in a thrashing manner. During the following weeks, it was necessary several times to remove dead tissue, necessitating going into the area of live tissue and nerves. Even just changing the dressings, which was necessary every four to six hours, caused decedent to start thrashing and jumping, pulling on his restraints. During July and August, surgery was performed seven times, including removal of the right eye, cleaning facial tissue, and reconstructing the jaw bone. Dr. Chuman testified that sometimes decedent was awake and experiencing pain, and would grimace in response to touch. As time went on, decedent became more physically coherent with his movements. While he could not speak, his movements became much more purposeful. Dr. Chuman opined that the injuries sustained by decedent actually produced excruciating pain and suffering.

In view of the uncontradicted evidence presented to the jury, we decline to disturb the award for pain and suffering.

We conclude that the verdict in behalf of decedent’s estate does not fall outside the limits of fair and reasonable compensation, that there is no indication that it results from passion or prejudice, and that it is not so large as to shock the judicial conscience under the facts of this case. See Jones v. Karraker (1983), 98 Ill. 2d 487, 457 N.E.2d 23; McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787.

Turning to TDI’s contentions, TDI first maintains that it is entitled to entry of judgment notwithstanding the verdict or a new trial because it either owed no duty to plaintiffs or its conduct was not a proximate cause of plaintiffs’ injuries. Initially we note that the railroad filed no claim for contribution against TDI. A duty is an obligation to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) It is not essential that defendant foresee the precise injury suffered by plaintiff. Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.

TDI maintains that the “uncontradicted evidence is that TDI could not and did not exercise any control over the plaintiff painters.” As we have already discussed, Gollrad admitted TDI’s control, and the contractual provisions between TDI and its customers support that admission. TDI concedes that one provision in the Pal/TDI contract “did require the painters to produce to TDI a certificate of insurance before painting was begun.” TDI had in fact informed the railroad that the viaduct in question was to be painted on two prior occasions, but failed to do so in June 1981. TDI always notified the Chicago and North Western Railroad when painters were going to be painting its property. It did so expressly for safety purposes. TDI had an obligation to conform to the standard of giving notice to the railroad in order to protect painters, engaged by TDI, from an unreasonable risk of harm.

Moreover, TDI clearly could foresee the danger to painters working next to railroad tracks.

TDI argues that it could not have “foreseen that a boxcar door would bulge or that it could do so to such an extent that it would knock over a scaffold as the car passed” because TDI “was not an expert in the rail business, as was the” railroad. TDI, however, is not charged with the duty to foresee or correct the bulging boxcar door. Instead, it is charged with the duty to notify the railroad as to when the painters are going to be painting. TDI was only required to foresee the danger which a reasonably prudent person would have foreseen as likely to happen, and not the precise manner in which the accident actually happened. See Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.

We note that TDI’s contract with advertisers provided that the advertisers would “assume all expenses in connection with the painting of advertising matter on the overhead bridges, including the cost of flagman’s track watching services.” TDI admitted that notification on the railroad was for safety purposes, to protect the painters working next to the tracks. We reject TDI’s argument that any notice to the railroad by TDI “about the presence of painters would have been superfluous” because the engineer on the train “could see the plaintiff-painters and knew they were present.” The engineer’s ability to look back at the 70-car train as it was passing the painters in no way obviates TDI’s duty to give the railroad notice so that appropriate safety measures could be in place if found to be necessary. Proximate cause is ordinarily a question of fact for the jury, and here we cannot say the jury’s findings are against the manifest weight of the evidence. (See Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 529, 504 N.E.2d 772.) Thus, TDI’s contention that its conduct was not a proximate cause of the injuries suffered by plaintiffs is rejected.

TDI relies on Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284, for the proposition that a party has no duty to warn of a condition where that party has no duty to undertake the actual improvement or correction of the condition. TDI erroneously focuses on correction of the bulging boxcar door, which plays no part in its duty here. Instead, its duty was to notify the railroad of the presence of the painters.

TDI next contends that it was prejudicial error to admit evidence of its post-occurrence adoption of a procedure notifying railroads of the presence of painters. Evidence of subsequent remedial measures is generally not admissible as proof of negligence. (Grubb v. Illinois Terminal Co. (1937), 366 Ill. 330, 8 N.E.2d 934.) It may be introduced, however, for the purpose of showing control (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247) and to demonstrate that the cost or convenience of remedial changes is slight in comparison to the risk of injury. Dallas v. Granite City Steel Co. (1965), 64 Ill. App. 2d 409, 211 N.E.2d 907.

We first note that it was the railroad, not plaintiffs, that introduced evidence of the post-occurrence remedial measure taken by TDI. And it was TDI who brought out that the purpose of the change was for safety reasons. TDI itself elicited the damaging testimony. Moreover, it is difficult to imagine plaintiffs ignoring the evidence after its admission.

Nevertheless, we find the evidence was relevant and thus properly admitted. TDI disputed whether notification to railroads was both within its control and feasible, despite the fact that it was done both before and after plaintiffs’ accident, at little inconvenience or cost, especially when compared to the risk of harm to painters.

TDI relies on Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, and Bargman v. Economics Laboratory, Inc. (1989), 181 Ill. App. 3d 1023, 537 N.E.2d 938, to support its argument that evidence of post-occurrence changes was inadmissible. In Schaffner, the court distinguished ‘cases where the parties dispute grounds for admissibility, such as the feasibility of a remedy. Here, control or feasibility was disputed by TDI. Moreover, in Schaffner, plaintiff introduced the evidence against the defendant railroad, and it was not introduced by the codefendant, Schwinn Bicycle Company. Here, the control issue was vigorously disputed between the two defendants. With regard, to Bargman, the court there found, unlike the present case, that feasibility was admitted and not at issue.

TDI finally contends that it was error to admit into evidence the contract between TDI and Pal because the contract was not in existence at the time of the accident and its later execution, on July 29, 1981, was immaterial. The contract was signed by Pal on May 26, 1981, in Gollrad’s presence: Gollrad testified that once the contract was signed by Pal, they “were in business to start painting that sign.” (See Soelzer v. Soelzer (1943), 382 Ill. 393, 47 N.E. 458; Stuckrath v. Briggs & Turivas (1928), 329 Ill. 555, 161 N.E. 91; Calo, Inc. v. AMF Pinspotters, Inc. (1961), 31 Ill. App. 2d 2, 176 N.E.2d 1.) No reversible error occurred.

For the foregoing reasons, the judgments entered by the circuit court of Cook County upon the jury verdicts in favor of plaintiffs are affirmed.

Judgments affirmed.

QUINLAN and LaPORTA, JJ., concur.


author: JUSTICE LaPORTA

text:
    RUTH WASSERMAN, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant (Chicago Transit Authority, Defendant-Appellee).
    First District (6th Division)
    No. 1—88—2849
    Opinion filed November 3, 1989.

      James E Doyle, of Ashman & Associates, of Chicago, for appellant.
    William H. Farley, Jr., of Chicago Transit Authority, of Chicago (R Scott Neville, Jr., of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County granting summary judgment in favor of defendant, Chicago Transit Authority (CTA). Plaintiff, Ruth Wasserman, brought an action seeking damages for personal injuries allegedly suffered as a result of the negligent conduct of defendant. Specifically, plaintiff claimed that she was injured when she slipped and fell on snow as she stepped off of a bus owned and operated by defendant. Plaintiff’s complaint alleged that defendant was negligent in (1) operating the bus in a careless and reckless manner; (2) stopping the bus in an unreasonably dangerous area to permit passengers to exit the bus; and (3) failing to obey signs indicating those areas in which the bus was to be stopped for exiting passengers. Defendant’s answer to the complaint denied knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegations of negligent conduct.

Defendant subsequently moved for summary judgment, alleging that under section 3 — 105 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 105), defendant was not obligated to remove the natural accumulation of ice and snow on which plaintiff had fallen and that under Illinois common law, defendant did not have a duty to protect against injuries caused by the natural effects of snow and ice on a sidewalk. In support of its motion, defendant attached copies of the deposition testimony of plaintiff and of Doris Lowe, plaintiffs sister, who was present at the time of plaintiffs injury. Plaintiff responded to defendant’s motion, arguing, inter alia, that section 3 — 105 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 105) was not applicable to her claim against defendant. Defendant filed a reply to plaintiff’s response to the motion, and after a hearing, the trial court granted summary judgment in favor of defendant. On appeal, plaintiff asserts that the trial court erred in granting defendant summary judgment because (1) defendant had a duty to protect plaintiff from the type of injury she sustained, and (2) the evidence presented created a question of fact as to whether defendant breached that duty.

The record indicates that at about 3 p.m. on December 7, 1983, plaintiff and Doris Lowe, her sister, got off a CTA bus at the northeast corner of Morse and Glenwood Avenues in Chicago, Illinois. Lowe got off the bus first, and plaintiff followed. It was a typical winter day, and there was ice and snow all over. The sidewalk did not appear to have been shoveled and was completely covered with ice and snow. There were piles of deep snow near the bus when it stopped, and there were no passages between the piles of snow. Plaintiff’s view was not obstructed as she got off the bus, and she fell after taking just one step away from the bus. Plaintiff sustained a fractured femur and other injuries.

Plaintiff asserts that the trial court erred in granting defendant summary judgment because defendant breached its duty to ensure that the bus stopped at a place which was safe for the plaintiff to exit. To state a cause of action for negligence, a plaintiff must allege the existence of a duty of care owed by defendant to plaintiff, a breach of that duty, and damages proximately resulting from the breach. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 1364; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116, 118.) Although the issues of whether a duty had been breached and whether the breach proximately caused the injury are factual matters, the question of the existence of a duty is one of law for the court. Rowe, 125 Ill. 2d at 215, 531 N.E.2d at 1364; Curtis, 98 Ill. 2d at 163, 456 N.E.2d at 119.

It is well established that a common carrier must exercise the highest degree of care to its passengers, and the passenger-carrier relationship does not terminate until the passenger has had a reasonable opportunity to reach a place of safety. (Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27, 29-30, 289 N.E.2d 623, 625; Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 208, 462 N.E.2d 753, 755.) Thus, the duty imposed upon defendant required that its driver provide plaintiff with a safe place to alight from the bus. Miskunas v. Chicago Transit Authority (1976), 42 Ill. App. 3d 202, 204, 355 N.E.2d 738, 740.

The evidence before the court established that the only point of egress from the bus was onto deep piles of snow with no passages for pedestrian traffic and that plaintiff fell after taking just one step. Defendant was required to operate its bus with the highest degree of care consistent with the practical operation of the vehicle. (Serritos v. Chicago Transit Authority (1987), 153 Ill. App. 3d 265, 271-72, 505 N.E.2d 1034, 1038.) The bus on which plaintiff rode had been traveling safely on a street that had presumably been cleared. Yet, defendant presented no evidence in the form of an affidavit or deposition testimony from the driver indicating that it was impossible to stop further from the curb and the snow piles or at some other point along the street where plaintiff would have been able to circumvent or pass through the deep piles of snow.

In view of the evidence presented here, a jury could find that plaintiff was required to exit the bus in an unsafe place. Summary judgment is inappropriate where there exist genuine issues of material fact or where fair-minded persons could draw differing inferences from the facts presented. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077-78, 500 N.E.2d 454, 456.) Thus, defendant was under a duty to ensure that plaintiff could alight from the bus safely, and the question of defendant’s breach of that duty was one of fact to be resolved by the jury.

For the foregoing reasons the judgment of the circuit court is reversed, and the cause is remanded for trial.

Reversed and remanded.

McNAMARA and QUINLAN, JJ., concur.

       Justice Quinlan participated in this opinion prior to his resignation from the court.


author: JUSTICE CAMPBELL

text:
    MAMIE GLEASON, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—1936
    Opinion filed November 6, 1989.
    Ernest K. Koehler, of Chicago, for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Mamie Gleason, appeals from an order granting summary judgment in favor of defendant, City of Chicago (the City), in an action alleging that the City had been negligent in maintaining its sidewalks, causing plaintiff to fall and to incur personal injury. On appeal, plaintiff contends that the trial court erred in determining, as a matter of law, that the alleged sidewalk defect was too slight to be actionable. For the following reasons, we affirm the judgment of the trial court.

The pleadings set forth the following information. On September 15, 1986, approximately 3 p.m., plaintiff was walking east on Oak Street in Chicago when her toe allegedly got caught in a Vi-inch crack on the sidewalk in front of Henrotin Hospital, causing her to fall and to incur an injury. In her discovery deposition, plaintiff stated that the accident had occurred approximately one block from her home on a beautiful, sunny day. She further stated that she was familiar with the area and had walked by the hospital every day for the past nine years. The sidewalk area in question is double the width of the average sidewalk and consists of two sidewalk slabs placed side-by-side. Immediately prior to the accident, plaintiff had been walking on that half of the sidewalk closer to the building and then decided to walk on the half closer to the street because she wanted to walk in the sun. At the time, there were no other pedestrians on the sidewalk. Plaintiff further stated that she was aware that the part of the sidewalk which was in the sun was in a deteriorated condition. After she fell, plaintiff asked a passerby to get someone from inside the hospital to help her stand up. She was then admitted to the hospital and treated for a fractured right patella.

The City moved for summary judgment on the ground that it owed no duty to maintain minimal sidewalk defects such as a V4-inch crack. Predicated primarily on plaintiff’s description of the crack, the trial court granted the City’s motion and entered summary judgment in the City’s favor. Plaintiff’s timely appeal followed.

The sole issue before this court is whether the trial court properly determined, as a matter of law, that the 1/4-inch crack in the sidewalk was too slight to be actionable. Although municipalities have a duty to maintain their property in a reasonably safe condition, including keeping sidewalks and streets safe for the purposes for which they are intended (Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383), they do not have a duty to keep all sidewalks in perfect condition at all times. (Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 145 N.E.2d 105; West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170.) In fact, slight defects frequently found in traversed areas are not actionable as a matter of law. (Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 145 N.E.2d 105.) However, there is no mathematical formula or bright line test for determining what constitutes a slight defect. Instead, courts rely on the general rule that a sidewalk defect is actionable only when the defect is such that a reasonably prudent person should anticipate some danger to persons walking on it. Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 145 N.E.2d 105; West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383; Walter v. City of Rockford (1947), 332 Ill. App. 243, 74 N.E.2d 903.

In the present case, plaintiff contends that it cannot be said that all reasonable persons would agree that the Vi-inch crack which caused her fall is so minor that the City could not reasonably foresee any danger to a pedestrian. In support of her position, plaintiff emphasizes the facts that the area in which she fell was a “heavily traversed” and “heavily congested” area and that the general area of the sidewalk where she fell consisted of uneven, cracked and decayed slabs.

Although courts have noted that the location of the defect is a determining factor as to whether a defect is actionable (Warner v. City of Chicago (1978), 72 Ill. 2d 100, 378 N.E.2d 502), the record does not support plaintiff’s characterization of the area as “heavily traversed” or “heavily congested.” In fact, the evidence explicitly contradicts this characterization. At her deposition, plaintiff testified that there were no other people walking on the sidewalk at the time of her accident in the middle of the afternoon.

With respect to plaintiff’s reference to other broken or cracked sidewalk slabs in the area, the presence of this general condition is irrelevant to the issue at bar because the surrounding conditions did not cause her fall. At her deposition, plaintiff specifically stated that her toe had stubbed a V4-mch crack, causing her to fall. Thus, the fact that there were other larger cracks or holes nearby is irrelevant to the cause of her fall.

Further, plaintiff’s reliance on West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170, for her position that the general area of the sidewalk should be considered is misplaced. In West, plaintiff fell on a portion of a public sidewalk which had small chipped rocks in it and numerous cracks. The West court noted that although the 1/4-inch difference between the levels of the two sidewalk slabs was slight, the two-inch broken area with small chipped rocks between the two slabs where plaintiff fell was sufficiently wide that a reasonable person could anticipate danger to persons walking on it. By contrast, in our case, any chipped rocks or holes in the general area did not cause plaintiff’s fall. Pursuant to plaintiff’s own deposition testimony, the cause of her fall was a 1/4-inch crack.

Plaintiff further claims that in order to avoid walking upon any of the cracks in the sidewalk, she would have had to select the equally unsafe alternative of walking in the street. Again, the record contradicts plaintiff’s argument. The photographs in the record indicate that the sidewalk on the side of the street where plaintiff fell consisted of two concrete slabs placed side-by-side. The photographs further indicate that the slabs closer to the building were smooth and seemingly crack-free. At her deposition, plaintiff stated that, just prior to her fall, she had been walking on that half of the sidewalk closer to the building, but decided to move to that half closer to the street so that she could be in the sun, even though she knew that that half of the sidewalk closer to the street was in a deteriorated condition. Although plaintiff never indicated of what legal significance an unsafe alternative route was, the significance is irrelevant in light of the fact that there was a safe alternative route available.

The City relies on Walter v. City of Rockford (1947), 332 Ill. App. 243, 74 N.E.2d 903, and Cooks v. United States (7th Cir. 1987), 815 F.2d 34. In Walter, plaintiff was walking with a friend when her toe caught on a one-inch rise between two sections of the sidewalk, causing her to fall. In finding that there was a s/4-inch "wide crack between two sidewalk slabs and one slab was approximately one inch higher than the other, the court held that the defect was so slight that no reasonable mind could foresee that an injury would result to a pedestrian upon this sidewalk.

Similarly, in Cooks v. United States (7th Cir. 1987), 815 F.2d 34, plaintiff’s heel caught on a Va-inch elevated sidewalk slab in front of the Federal Archives and Record Center, causing her to fall. In applying Illinois law, the court held that the defect was too minor to be actionable. In the present case, the size of the crack is even smaller than that in Walter and in Cooks.

In attempting to distinguish Cooks, plaintiff points to the following statement made by the Cooks court: “ [Investigation further revealed no broken concrete or loose concrete or separations in the sidewalk which might have caused Cooks’ fall.” (Cooks, 815 F.2d at 35.) Plaintiff claims that this observation suggests that had the sidewalk in Cooks contained the defects present in our case, the defects would have been considered substantial enough to impose liability on the City. Contrary to plaintiffs interpretation, the Coo/cs court’s statement was merely a statement of fact that served only to substantiate the conclusion that the Vs-inch elevated sidewalk slab had caused the plaintiff’s fall.

Those cases relied upon by plaintiff to support her position that the Vt-inch crack is actionable are distinguishable by the nature of the defects in those cases. Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 145 N.E.2d 105 (two-inch sloping height variation in sidewalk slabs located near the curb on a heavily traversed business street); West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170 (although a Vt-inch difference in level between two sidewalk slabs was found to be slight, the two-inch wide broken area between the slabs was sufficiently wide to be actionable); Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383 (depressed area in sidewalk/gasoline station driveway was IV2 feet in diameter and IV2 inches deep); Warner v. City of Chicago (1978), 72 Ill. 2d 100, 378 N.E.2d 502 (two-inch elevation between sidewalk slabs with Va-inch fresh snow covering).

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

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re JODI SUMMERVILLE, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Jodi Summerville, a Minor, by her Next Friend Patrick T. Murphy, Public Guardian of Cook County, Respondent-Appellant).
    First District (1st Division)
    No. 1—89—1136
    Opinion filed November 6, 1989.

      Patrick T. Murphy, Public Guardian, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David R. Butzen, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Patrick Murphy, as public guardian (the Public Guardian), appeals a protective order forbidding public discussion of a child custody case and a subsequent ruling denying his motion to lift that order. The Public Guardian argues that the order violates the first amendment and is vague and overbroad. For the reasons below, we hold that the protective order violates the first amendment.

Jodi Summerville was born on June 29, 1986. When Jodi’s parents could no longer care for her, they left Jodi with an aunt, but failed to provide for the infant’s proper medical care. On October 20, 1986, the Illinois Department of Children and Family Services (DCFS) took Jodi into protective custody and was appointed temporary custodian. In June 1987, DCFS placed Jodi with foster parents Donna and Richard Appel. In June 1988, DCFS moved Jodi to the care of her maternal great uncle, the Reverend Zonis L. Dabney. The Appels objected to the move on the grounds that it was racially motivated: the Appels are white and the Dabneys are black. Jodi is biracial. The Public Guardian was appointed Jodi’s guardian ad litem, and on September 19, 1988, the court ruled that Jodi should be left with the Dabneys to facilitate returning Jodi to her mother.

In a progress report dated November 17, 1988, the trial court expressed concern that Jodi’s name and face had appeared on a television news report. The record shows that Mrs. Appel had permitted Jodi’s face to appear on television, but she blamed DCFS for publishing Jodi’s name. The trial court directed the Public Guardian to draft an order prohibiting communication with the media. The court then entered an order that stated:

“All parties and all attorneys representing them are prohibited from communicating or discussing matters relating to this matter to any representatives of the media. This order is entered pursuant to Section 1 — 5(6) of the Juvenile Court Act.” See Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5(6).

The next day, November 18, the Public Guardian presented his order, which the trial court entered (the protective order). The protective order states:

“1. All parties and their respective counsel are prohibited from communicating to representatives of the media the name, address, or present placement of the minor respondent and from discussing the status of her current placement.
2. This order does not intend to prohibit the parties from discussing the implication of the case or in any other fashion limit legitimate First Amendment rights of the parties.”

Subsequently, in November 1988, after Jodi had been placed with the Dabneys, DCFS received an anonymous phone call accusing Reverend Dabney of child abuse. The caller was Margaret Henton, a former DCFS ward, who stated that Reverend Dabney had sexually abused her for three or four years while she was in a foster home in the early 1970s, and that Dabney might be the father of her child, who was presently a DCFS ward.

Jodi was examined at Mt. Sinai Hospital and La Rabida: both discovered injuries to the child’s vagina that might have been caused by sexual penetration, although it was impossible to rule out other causes of the injuries. WBBM News in Chicago (Channel 2 News) subsequently reported the allegations of sexual abuse against Reverend Dabney, and the Public Guardian appeared in that report.

On December 20, 1988, the Public Guardian moved for a change of custody, based on Henton’s allegations that Reverend Dabney had sexually abused her approximately 16 or 17 years ago. The parties agreed, however, that the allegations were irrelevant to Jodi’s custody case until definite evidence established Reverend Dabney’s guilt. The Public Guardian also moved to lift the protective order, and the DCFS filed a rule to show cause for contempt against the Public Guardian, alleging that his appearance on Channel 2 News violated the protective order. In a hearing in chambers, the trial court denied the motion to lift the protective order and, in response to the Public Guardian’s arguments, interpreted the protective order to forbid any discussion of the allegations against Reverend Dabney:

“COURT: This court interprets [paragraph 1 of the protective order] to mean that anybody discussing her current foster home is discussing her current placement, and as far as this court is concerned, that is what conduct is being prohibited.
PUBLIC GUARDIAN: Just to clarify, is the court indicating that we cannot discuss the status of the current foster placement [sic] even at a time in which Jodi was not in that foster home?
COURT: That’s correct.”

On January 11, 1989, the Public Guardian again moved to lift the protective order. After a series of continuances, the trial court denied the Public Guardian’s motion on May 2, 1989, and set a trial date for the rule to show cause. The Public Guardian appeals the protective order and the ruling of May 2,1989.

The Public Guardian argues that the protective order of November 18, 1989, infringed on the first amendment rights of the parties and counsel. DCFS argues, without merit, that the protective order was appropriate to protect the interests of the minor child. DCFS also raises jurisdictional and procedural issues that shall be addressed first.

Appellate jurisdiction here is based on Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)), which allows interlocutory appeals from orders granting and refusing to dissolve injunctions, and requires filing of interlocutory appeals within 30 days of the order appealed from. DCFS argues that because notice of appeal was filed on May 4, 1989, the Public Guardian may not appeal from entry of the protective order, and that the issue before this court, therefore, is not whether the protective order violated the first amendment, but whether the ruling of May 2 properly denied the Public Guardian’s motion to lift the protective order. The validity of the May 2 ruling, however, depends on the constitutionality of the protective order because an unconstitutional order is void. Thus, this court is not prohibited from and in fact must review the constitutionality of the protective order.

DCFS next argues that because the Public Guardian appealed from neither the protective order when it was entered, nor the ruling of December 20, 1988, denying the Public Guardian’s first motion to lift the protective order, the protective order must stand under the “law of the case” doctrine, which states that a court’s decision on a rule of law governs the same issue in subsequent stages of the same case. (Christianson v. Colt Industries Operating Corp. (1988), 486 U.S. 800, 817, 100 L. Ed. 2d 811, 830-31, 108 S. Ct. 2166, 2177-78.) But the protective order did not decide a rule of law. The protective order responded to the publicity surrounding the allegations of a racially motivated change of custody. The Public Guardian’s subsequent motions to lift the order responded to the allegations of sexual abuse by Reverend Dabney. Thus, the “law of the case” doctrine is inapplicable; the Public Guardian’s motions to lift the order were not merely successive attacks on a static ruling of law, but reasonable responses to changing circumstances.

DCFS also argues that the Public Guardian cannot challenge as unconstitutionally vague an order he drafted. But the Public Guardian does not challenge a ruling that arose from his own erroneous actions, such as neglecting to raise an issue at trial (In re Estate of Bania (1984), 130 Ill. App. 3d 36, 473 N.E.2d 489), advocating an improper theory at trial (Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817), or deliberately withholding documents necessary for administrative review (Johnson v. Board of Review, Department of Labor (1985), 133 Ill. App. 3d 992, 479 N.E.2d 1082 (cases cited in DCFS’s brief)). Rather, the Public Guardian challenges an order that carries the imprimatur of the court: the trial court directed him to draft the order and entered the order after it was submitted and reviewed. Therefore, the Public Guardian may challenge the protective order.

DCFS finally argues that because the Public Guardian failed to provide a record certified by the trial court, we must affirm, citing Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 369 N.E.2d 1313, and Robinson v. Moore (1975), 30 Ill. App. 3d 915, 332 N.E.2d 661. Those appeals were not dismissed, however, merely for failure to meet the formalistic requirement of certifying the record. Rather, the courts found they were unable to review the rulings of the trial court where the record submitted was fragmentary and its accuracy unverified. (See also In re Estate of Rice (1982), 108 Ill. App. 3d 751, 439 N.E.2d 1264 (record provided inadequate); Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239 (documents submitted not part of trial record); Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 394 N.E.2d 527, appeal denied (1980), 79 Ill. 2d 626 (no record provided to appellate court).) Here, the record provided was certified by the clerk of the circuit court. The record is complete and sufficient to consider the substantive issues raised. Further, although DCFS did not stipulate to the accuracy of the record, it has made no specific challenges to the record’s accuracy and has relied on it in its arguments. Thus, failure to comply with Supreme Court Rules 321 and 323 (107 Ill. 2d Rules 321, 323) neither defeats jurisdiction nor prevents this court from substantive review.

Turning to the substantive issues of the case, the Public Guardian argues that the protective order violates the first amendment and is vague and overbroad. DCFS argues without merit that the restrictions imposed by the protective order were reasonable, given the interest of protecting the minor child.

Both parties acknowledge that the protective order is a prior restraint on speech which, though not unconstitutional per se, requires close scrutiny and bears a heavy presumption against its validity. (Organization for a Better Austin v. Keefe (1976), 402 U.S. 415, 29 L. Ed. 2d 1, 91 S. Ct. 1575.) In Illinois, the standard for determining the validity of a prior restraint was established in Kemner v. Monsanto (1986), 112 Ill. 2d 223, 492 N.E.2d 327, which held that a prior restraint on extrajudicial comments concerning a pending trial was permissible only if the record contained specific findings by the trial court establishing that the conduct of the parties or their attorneys posed a “clear and present danger or a serious and imminent threat to the fairness and integrity of the trial.” (Emphasis in original.) Kemner, 112 Ill. 2d at 244. See also Chicago Council of Lawyers v. Bauer (7th Cir. 1975), 522 F.2d 242; In re A Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292.

Here, the protective order fails to satisfy Kemner. The record contains no specific findings that the conduct of the parties or the attorneys created a clear and present danger or serious and imminent threat to the fairness and integrity of the custody proceeding. Nor do the facts of the case and surrounding circumstances support such findings. The Public Guardian’s single communication with the media during the pendency of this case cannot be construed as an attempt to influence the court or corrupt the judicial process. The trial court, cognizant that both Jodi and the Public Guardian had appeared on the Channel 2 News, reiterated that the custody of Jodi would be decided solely according to her best interests. Clearly the extrajudicial activities neither influenced nor confused the judicial proceedings.

DCFS contends that the protective order was reasonable to prevent potential future harm and embarrassment to Jodi, and that consideration of the future impact of extrajudicial statements is proper. DCFS supports its position with a quote from Nebraska Press Association v. Stuart (1976), 427 U.S. 539, 563, 49 L. Ed. 2d 683, 700, 96 S. Ct. 2791, 2804: “[The impact of publicity on a case is] of necessity speculative, dealing *** with factors unknown and unknowable.” But the Nebraska Press Association quote was part of an analysis that concluded that the possibility of future harm was insufficient to justify a prior restraint, a conclusion opposite that which DCFS urges. A finding of “possibilities,” even if present, is not sufficient to support a conclusion that a serious or imminent threat to the administration of justice exists. (Kemner, 112 Ill. 2d at 245.) In the absence of specific findings of any serious threat to the integrity of the judicial process, we hold that the protective order violates the first amendment. Because we so hold, we need not address the Public Guardian’s arguments that the protective order was unconstitutionally vague and overbroad.

In summary, the Public Guardian challenges the protective order prohibiting discussion of the present placement of Jodi Summerville, which he argues operated as an unconstitutional prior restraint in violation of the first amendment. We find our jurisdiction is proper, and the record sufficient to decide the issues. We hold that in the absence of specific findings that the conduct of the parties or their attorneys created a clear and present danger, or serious and imminent threat to the fairness and integrity of the judicial process, the protective order violates the first amendment. Accordingly the ruling of May 2, 1989, is reversed.

Reversed and remanded.

CAMPBELL AND BUCKLEY, JJ., concur.