author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS FABING, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1492
    Opinion filed September 30, 1991.
    Michael D. Fabing, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and David Butzen, Assistant State’s Attorneys, of counsel), for the People.
    Cassiday, Schade & Gloor, of Chicago (Michael J. Gallagher, Gregory E. Schiller, and Patricia A. Bove, of counsel), for amicus curiae Chicago Herpetological Society.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Thomas Fabing was charged with four counts of violating the Illinois Dangerous Animals Act (Ill. Rev. Stat. 1987, ch. 8, par. 240 et seq.) (the Act) in that he unlawfully possessed the following four “life-threatening” reptiles: a four-foot alligator, a seven-foot boa constrictor and two Burmese pythons, each approximately 15 to 20 feet in length. After a trial in the circuit court of Cook County, defendant was convicted of all four counts and fined $100. On defendant’s initial appeal to this court (People v. Fabing (1990), 196 Ill. App. 3d 495, 554 N.E.2d 294 (Fabing I)), we held the term “life-threatening” within the Act to be unconstitutionally vague on its face. The supreme court, however, reversed and remanded, finding: (1) the Act was facially valid; (2) the Act was valid as applied to defendant’s pythons and alligator; and (3) the Act was invalid as applied to defendant’s boa constrictor. (People v. Fabing (1991), 143 Ill. 2d 48, 570 N.E.2d 329 (Fabing II).) We now address, as directed by the supreme court, the issue we did not reach in our first disposition: whether the State proved defendant’s two pythons and alligator to be “life-threatening” beyond a reasonable doubt.

Our resolution of the issue before us is governed by the Fabing II court’s definition of ‘‘life-threatening.’’ Initially, we note that the court’s opinion can potentially be read as giving conflicting definitions for that term. The court first defined the term as follows:

“We believe the term ‘life-threatening’ is commonly understood to mean that which might possibly attack humans, and which is reasonably capable of killing humans in the event of such an attack.” (Emphasis added.) (Fabing, 143 Ill. 2d at 55, 570 N.E.2d at 332-33.)

Later, however, in applying this definition, the court applied a reasonableness standard, and not a mere possibility standard, which the language highlighted above implies. For example, in concluding that the Act foreclosed as an available defense the domestication of defendant’s reptiles, the court stated:

“Therefore, under the Act, the temperament of each individual reptile may not be considered when determining whether that reptile is life-threatening. Rather, we find that a determination of whether it is reasonably possible that an animal will attack humans must be made on a species-wide basis.” (Emphasis added.) (Fabing, 143 Ill. 2d at 56-57, 570 N.E.2d at 333.)

The court again repeated the reasonableness language later in the opinion:

“Regardless of the snakes’ dietary preferences, we believe the testimony at trial showed that it is reasonably possible that the two 15- to 20-foot pythons would attack humans. The expert testimony showed it is possible that a snake could mistake a human for prey, and thus constrict around the person. Also, testimony showed that the snakes might constrict as a means of self-defense if they were gripped tightly. More importantly, both expert witnesses testified that they are aware of reports of incidents in which giant constricting snakes have killed children, although neither expert was familiar with the details of any of these incidents. We believe that this testimony shows that given the nature of giant constricting snakes, it is reasonably possible that these snakes would constrict around a human.” (Emphasis added.) Fabing, 143 Ill. 2d at 57, 570 N.E.2d at 333-34.

Notwithstanding the court’s initial definition of “life-threatening,” we interpret Fabing II as establishing a test in which an animal will be considered “life-threatening” under the Act when the following two requirements are met: First, there must exist a reasonable possibility that the reptile will attack a human. Second, in the case of such an attack, the reptile is reasonably capable of killing. Additionally, and consistent with Fabing II, these requirements must be determined on a species-wide basis, with consideration given to characteristics common to other members of the relevant species; the individual temperament of the reptile in question may not be considered. Fabing, 143 Ill. 2d at 56-57, 570 N.E.2d at 333.

Applying the above definition to the facts of the case, we believe the State proved defendant’s two Burmese pythons to be life-threatening beyond a reasonable doubt, but failed to prove defendant's alligator to be life-threatening beyond a reasonable doubt. With respect to the former, Charles Hill testified as an expert witness for the State that he is senior keeper of the reptile house at the Lincoln Park Zoo in Chicago and has been involved with reptiles for the past 18 years. Through his experiences at the zoo, he has been exposed to Burmese pythons.

Hill testified that Burmese pythons are inherently wild, dangerous and unpredictable. Even when tamed and possessive of a history of docility, the possibility that a Burmese python will attack a human always exists. Hill opined that any constrictor 10 feet or more in length was life-threatening and, therefore, defendant’s pythons were life-threatening to adults and children because they exceeded this length.

On cross-examination, Hill conceded that python attacks on humans are rare and that, in general, pythons do not attack people. Apart from Hill’s awareness of a single case in St. Louis where a person had been killed by an African python snake, and apart from his reading in unidentified literature of attacks in the wild, he was unaware of any reliable accounts of constricting snakes killing humans. Hill did testify, however, that a constricting snake will constrict to defend itself and that it is possible that a snake may mistake an arm or leg as an item of food.

Dr. Michael Com testified as an expert for the defense that pythons which are handled frequently by humans become completely complacent and will virtually never attempt to bite a human. Wild pythons, on the other hand, can be quite mean and frequently bite. Com, however, described their bite as not life-threatening.

Corn testified that he has read unsubstantiated reports in newspapers where Burmese pythons have been found in the same room with individuals who had been suffocated to death. Com explained, however, that none of these reports have made it into scientific journals. Corn further noted a book on giant reptiles which discussed pythons killing humans. Other than these circumstances, Corn noted no other reports of pythons killing humans.

Com testified that large pythons such as defendant’s could eat a mammal the size of a small pig, but that usually captive snakes stick to a certain food to which they have become accustomed. Com stated that tamed pythons do not regard people as food.

Corn opined that Burmese pythons as a species are very docile. This fact was important to Corn because a snake’s demeanor or tameness is a better measure of the snake’s threat to humans than its size. Corn suggested that while a “huge,” wild snake may be life-threatening, tame snakes such as defendant’s two pythons are not. Corn defined a life-threatening reptile as one that can kill or is likely to kill a human. Corn opined that defendant’s snakes were not life-threatening.

On cross-examination, Com denied that pythons are unpredictable and claimed that captive snakes act very consistently. He did admit, however, that snakes had the potential to kill but reiterated that each snake’s temperament must be considered.

Corn admitted that it was possible for a snake to mistake a body part or a small child as a food item. Corn further admitted that if a child came in contact with a rabbit, and then stuck its hand in a snake’s cage, the snake could bite the child’s hand.

Regarding defendant’s alligator, Corn testified it was not life-threatening. Com has heard reports of alligators killing humans, but none to his knowledge were under eight feet. Corn noted that alligators tame very nicely.

Other than introducing a photograph of defendant’s alligator into evidence, the State introduced no evidence on the issue of whether defendant’s alligator was life-threatening.

In assessing the sufficiency of the evidence, it is not our function to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) The relevant question is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 267.

In this case, as to defendant’s pythons, we believe the evidence shows that they may be properly classified under the Act as life-threatening. A reasonable possibility exists that a 15- to 20-foot Burmese python will constrict around a human. Further, this size of snake is reasonably capable of killing a human. Both experts noted the occurrence of snake attacks on humans and that pythons constrict in self-defense. The experts additionally noted the physical capability of large snakes to kill. As the supreme court observed in Fabing II, “[h]uman psychology is an inexact science, and we see no reason to believe that reptile psychology is capable of a greater degree of accuracy.” (Fabing, 143 Ill. 2d at 56, 570 N.E.2d at 333.) We believe the evidence supports this observation.

As for defendant’s alligator, we find that the State failed to prove it life-threatening beyond a reasonable doubt. Other than introducing a picture of the alligator into evidence, and the following testimony of Dr. Corn upon cross-examination, the State failed to introduce any evidence.

“Q. In your opinion, could the seven foot or, I forgot what size you conceived the Boa Constrictor to be, could that Boa Constrictor kill an infant or toddler?
A. No.
MR. FABING: I object to evidence to infants or toddlers.
There’s no evidence that snakes near infants or toddlers—
THE COURT: Overruled, he may answer.
Q. What about the four foot alligator?
A. What, kill an infant or toddler.?
Q. Yes.
A. No.”

As the above passage indicates, Dr. Corn denied the ability of defendant’s alligator to kill an infant. We recognize evidence exists showing that alligators as a species are life-threatening. The issue presented before us, however, is whether defendant’s alligator is life-threatening. The State utterly failed to present any evidence on this point. Defendant’s evidence was consistent with the conclusion that his alligator was not life-threatening. Given the State’s failure to come forward with any evidence on the issue, we conclude that the State failed to prove defendant guilty of possessing a life-threatening alligator beyond a reasonable doubt.

We recognize our decision as to defendant’s pythons may operate harshly on the large body of snake owners in this State. What the legislature has effectively done is to allow the sale of constricting snakes on the one hand, but require owners to forfeit such snakes after they reach a given size. Testimony shows that these snakes grow quickly and, therefore, only a short time will pass before newly purchased snakes becomes illegal under the Act. We believe, however, that any redress of the problem rests with the legislature, not this court.

For the foregoing reasons the judgment of the circuit court of Cook County is affirmed in part and reversed in part. We also affirm the $100 fine imposed upon defendant, as the amount was both statutorily proper (see Ill. Rev. Stat. 1987, ch. 38, par. 1005—9—1) and within the circuit court’s discretion.

Affirmed in part and reversed in part.

MANNING, P.J., and CAMPBELL, J., concur.

      Defendant correctly asserts that the State had the burden of proving that defendant owned, kept or harbored a dangerous animal. (See Ill. Rev. Stat. 1987, ch. 8, par. 241.) Since no issue exits whether defendant possessed the reptiles, our determination is limited to whether sufficient evidence existed to prove the life-threatening element beyond a reasonable doubt.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTORIA PETER, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—3497
    Opinion filed September 30, 1991.
    Rehearing denied November 1, 1991.

      Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William P. Pistorius, and Steven M. Mondry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, defendant Victoria Peter (Peter) was found guilty of possession of a controlled substance with the intent to deliver. (Ill. Rev. Stat., 1988 Supp., ch. BGVe, pars. 1401(a)(1), 1401.2(1).) Peter had been apprehended by United States Customs agents upon entering this country after they discovered, concealed in her luggage, a container with 240.51 grams of 91% pure heroin. Peter was later sentenced to 12 years’ imprisonment, and she now appeals her conviction and sentence, contending that: (1) the State failed to prove that she knowingly possessed the contraband; (2) she was denied a fair trial due to the admission of certain opinion evidence; and (3) that the sentencing court improperly considered factors inherent in the offense, resulting in an excessive sentence. For reasons that follow, we affirm both the conviction and sentence.

According to testimony adduced at trial, Peter, a permanent resident alien, returned to the United States on October 20, 1988, after visiting her native country of Nigeria. She left Lagos, Nigeria, on the previous day and traveled first class on a flight arriving at O’Hare Airport via Amsterdam. Upon her arrival at O’Hare, she presented her passport and documents to an initial customs agent. Because her declaration card indicated that she was bringing agricultural products into the country and because she had traveled from a “narcotics source country,” inspection of her luggage was necessary. For this reason she was directed to the secondary checkpoint.

Peter proceeded to the next inspection station with her luggage, which consisted of one carry-on bag and a suitcase. At this secondary inspection point, Inspector Petry checked the contents of Peter’s luggage. He testified that he first inspected her carry-on bag, which contained cosmetics and personal hygiene items. He then inspected her suitcase and found that it contained some grain products and a package which appeared to contain a large quantity of strong-smelling, smoked fish wrapped in plastic. Amid the package of fish, however, was a hard solid object also wrapped in plastic. He removed this object, unwrapped it and found that it was a canister of powder.

At this point Peter took the canister out of his hands, shook some of the scented powder onto his hand and exclaimed, “Oh, that’s nothing, just talcum powder.”

Although his suspicions had been aroused, he set the canister aside and continued with his inspection of Peter’s suitcase. When he was done, however, he picked the canister back up and said that he wanted to take a closer look. Inspector Petry testified that a momentary look of panic passed across Peter’s face but that she regained her composure immediately and assured him that the canister contained talcum powder.

Inspector Petry took the SVa-inch by 4-inch round canister to a nearby X-ray machine and X-rayed the canister. The machine revealed that the canister contained an internal partition. To check this, the inspector inserted a probe into the canister and found that the probe could only be inserted to about one-quarter of an inch. He then emptied the small amount of powder from the top portion of the canister and field tested it, finding it to be talcum.

The inspector then punctured the secret compartment with a pocket knife and found that it contained a white powder, which field tested positive for the presence of heroin. The canister was then confiscated, placed in a sealed container and turned over to Drug Enforcement Agency officials. Peter was placed under arrest.

Further analysis of the substance in the canister revealed that it was 240.51 grams of white heroin, which was approximately 91% pure. Its street value was estimated at about $2 million.

Peter raises no issues concerning the chain of custody of the evidence. In fact, Peter does not deny that she had in her possession a package containing heroin. Rather, Peter contends that the State did not prove her guilty beyond a reasonable doubt because it did not prove that she possessed the container knowing that it contained the contraband.

Peter testified at trial that, after visiting her family in Callaba, Nigeria, she purchased a first class, standby ticket for a flight scheduled to leave Lagos, Nigeria, on Monday evening, October 17, 1988. According to her testimony, she traveled with her friend, Nasser Aipaye, to Lagos, the capital and only city with an international airport, and stayed at the home of Kunle Adeshiyan, a friend of Aipaye’s. On Monday she learned that the flight for that evening was full and that she could not leave. However, she was allowed to remain at Adeshiyan’s home until she was able to obtain a seat on a flight leaving Lagos on Wednesday, October 19, 1988.

Peter testified that on Tuesday her host, Adeshiyan, asked her to take some presents with her for a friend of his in the United States and that she agreed. She did not know who this friend was, nor did she know his name, but stated that he lived in New York and was to call her regarding the gifts. The presents allegedly included some food items, some creams and soaps, and other unidentified items. She indicated that he gave her these items contained within a Nigerian lady’s handbag, but that she separated the food items for packing them within her suitcase. The other items, she claimed, remained inside the purse within her luggage.

Peter further testified that upon arriving in the United States she reported that she was bringing food items into the country, knowing from past experience that she would be subjected to a rigorous inspection. She also claimed that she was unconcerned when the inspector removed the canister from her luggage and denied taking the canister out of his hand or saying anything to him concerning its contents. Peter also denied that the canister was wrapped individually in plastic amid the fish and claimed that the canister was taken from inside the purse. Finally, she claimed that it was only when she was arrested that she learned that the canister contained a controlled substance.

In her first issue, Peter argues that she was not proved guilty of knowingly possessing heroin. She contends that the State’s own evidence indicates that the compartment containing the contraband was concealed within the canister of powder and that it was only susceptible to discovery with the use of an X-ray machine. Consequently, she contends that it was unreasonable to conclude that she had knowledge of its presence. We disagree.

Although the successful prosecution of the offense of possession of a controlled substance with the intent to deliver requires proof beyond a reasonable doubt that the offender knowingly possessed the contraband, the knowledge element is rarely susceptible to direct proof. (People v. Pintos (1989), 133 Ill. 2d 286, 291-92, 549 N.E.2d 344.) It may be proven, therefore, by use of circumstantial evidence, i.e., evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he or she possessed the requisite knowledge. People v. Embry (1960), 20 Ill. 2d 331, 334, 169 N.E.2d 767; People v. DeCesare (1989), 190 Ill. App. 3d 934, 941, 547 N.E.2d 650.

In the present case the State was able to show that, although the narcotic was concealed in a canister of talcum powder, it was not in the bag containing cosmetics and personal care items, but rather, was discovered in Peter’s suitcase amid a package of strong-smelling fish. Peter failed to deny ownership of the container when confronted with its seizure by the customs agent, and she made an attempt to convince the agent that the canister contained talcum powder. The circumstances, along with her actions, declarations, and conduct, were sufficient to give rise to a reasonable inference that Peter had knowledge of the presence of the concealed drug. We do not find this evidence so palpably unsatisfactory that we feel compelled to overturn the decision reached by the triers of fact, nor do we conclude that defendant was not proven guilty beyond a reasonable doubt. (People v. Alexander (1990), 202 Ill. App. 3d 20, 24, 559 N.E.2d 567.) Therefore, we must affirm the conviction.

We agree that the customs agent’s testimony concerning the momentary look of panic that Peter displayed when the canister of talcum was to be reinspected buttressed the inference of her guilty knowledge. But we disagree with defendant’s position that this evidence was improperly admitted.

It is true, as defendant states, that, generally, a witness may testify only to matters within his or her personal knowledge or recollection and may not testify as to an opinion or conclusion about such matters. (People v. Linkogle (1977), 54 Ill. App. 3d 830, 368 N.E.2d 1075.) However, to every rule there are exceptions. Where it is difficult to explain the conditions perceived and the opinion is one that persons are generally capable of making, comprehending and understanding, a nonexpert witness may summarize sensory perceptions or express an opinion based upon observation. (United States v. Alexander (7th Cir. 1969), 415 F. 2d 1352; People v. Sprinkle (1979), 74 Ill. App. 3d 456, 393 N.E.2d 94; see also M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.4, at 576 (5th ed. 1990).) For example, a nonexpert may give opinion testimony on matters such as speed, size, weight, and color. People v. Canity (1981), 100 Ill. App. 3d 135, 426 N.E.2d 591.

Although the testimony complained of in the present case is somewhat different, we believe that it was properly admitted. Expressions on a person’s face are certainly difficult, if not impossible, to explain or reproduce, and we are generally accustomed to, and capable of, understanding and interpreting such expressions in our everyday life. Therefore, the customs agent’s testimony concerning his perception of the momentary change of expression on defendant’s face, i.e., the flash of panic that he observed cross defendant’s face when he picked up the canister of talcum powder for the second time, was a description and not an improper conclusion which usurped the role of the jury.

In her final claimed error, Peter argues that her sentence should be reduced from 12 years to 9 years, the statutory minimum. (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1401.2(1).) She contends that the trial judge impermissibly increased her sentence based upon its consideration of factors which are inherent in the statutory scheme for determining the severity of the offense, namely, the amount of heroin found in her possession and the harm to society caused by the narcotics trade. In addition, defendant argues that the trial court did not give sufficient consideration to the mitigating factors, namely, that she was a 25-year-old student with no prior criminal background, who was, at most, shown to have been a courier, but who apparently had no other connection to the drug trade. For these reasons defendant asks this court to find that the trial court abused its discretion in imposing a sentence greater than the minimum.

Although we agree that the sentence imposed is a severe one, especially when the record indicates that defendant had been, up to the time of her seizure, a respectable young person with great potential, we do not feel that the trial court’s sentence, which was within the statutory guidelines, was an abuse of discretion. Consequently, we must not alter it.

A trial court’s decision with respect to sentencing is entitled to great weight and deference. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) Whenever the sentence imposed falls within the statutorily mandated guidelines, it will not be overturned as excessive unless there is an affirmative showing that the sentence varies greatly from the purpose and spirit of the law or is manifestly violative of constitutional guidelines. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Foster (1990), 199 Ill. App. 3d 372, 556 N.E.2d 1289.

In this case defendant was convicted of possession of 240.51 grams of 91% pure heroin, which carries a sentencing range of not less than 9 years and not more 40 years. (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1402.1(1).) Defendant’s sentence of 12 years was well within the statutory range of sentences that could have been imposed. Furthermore, we do not believe it was improper for the court to have noted the amount and purity of the heroin found in defendant’s possession when deciding what might be an appropriate sentence within the sentencing range. After all, a quantity of heroin in excess of 100 grams, but less than 400 grams, is susceptible to the same range of sentencing. Thus the fact that the defendant possessed a quantity of drugs in excess of the minimum for that sentencing range, as well as the fact that the drug was found to have a high level of purity, indicating its potency and potential for having a far-reaching impact on society, are factors which the trial court may consider when attempting to strike a balance between protecting society and rehabilitating the offender. We find no abuse of discretion.

For all the reasons stated above, the judgment of conviction and sentence is affirmed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE O’CONNOR

text:
    JULIO CORTES et al., Plaintiffs-Appellees and Cross-Appellants, v. RYDER TRUCK RENTAL, INC., et al., Defendants-Appellants and Cross-Appellees.
    First District (1st Division)
    No. 1—89—1634
    Opinion filed May 6, 1991.
    Modified on denial of rehearing November 4, 1991.

      Lord, Bissell & Brook and McKenna, Storer, Rowe, White & Farrug, both of Chicago, and Borgelt, Powell, Peterson & Frauen, of Milwaukee, Wisconsin (R. Bruce Duffield, Hugh C. Griffin, Richard E. Mueller, Lyndon C. Molzahn, and Brian D. Baird, of counsel), for appellant.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Michael K. Demetrio, and David A. Novoselsky, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Julio Cortes was severely injured in a collision between the car in which he was a passenger and a Ryder Truck, operated by an employee of A&H, Inc. In actions for negligence against Ryder and A&H, a directed verdict was entered against A&H, and a jury awarded damages of $15,261,000. The jury found Ryder not liable, but the trial court imposed liability on it of $14,511,000 pursuant to the Wisconsin financial responsibility statute.

On December 4, 1986, A&H, a Wisconsin trucking company that hauls throughout the United States, rented a semi tractor from the Ryder Truck Rental facility in Madison, Wisconsin. The rental contract required A&H either to agree to be covered under a $2 million liability insurance policy carried by Ryder, or provide its own liability insurance in the amount of no less than $100,000 per person and $300,000 per occurrence. A&H opted for its own policy, which provided $750,000 in coverage.

On December 27, 1986, Richard Hamlett, an A&H employee, was driving the Ryder tractor on Interstate 80 in Indiana. At about 10:30 p.m., Hamlett collided with a car in which Julio Cortes was a passenger. Mr. Hamlett was familiar with the road, and at the time of the collision, rested and alert. The truck was in good operating condition. Although it was dark, and there was no artificial lighting at the scene of the collision, visibility was good.

At trial Mr. Hamlett testified that he had first seen the Cortes car from about a quarter mile behind. As Mr. Hamlett drove under an overpass at about 50 to 55 miles per hour, and around a gradual curve, he judged the Cortes car to be travelling at about the same speed. Mr. Hamlett did not realize he was gaining rapidly until he was about 600 to 800 feet from the Cortes car. Hamlett checked his mirror to make a lane change and applied the brakes, but suddenly hit the car from behind. The Cortes car, driven by Ms. Alva Cortes, was travelling at about 40 miles.per hour at the time of the collision because they had stopped to change drivers and had just returned to the highway a few minutes before.

Julio Cortes, who was in the back seat of the car, was severely injured. Paramedics removed Mr. Cortes from the wreckage, and took him to Goshen General Hospital, where he was diagnosed to have the following injuries: bloody vomitus, shock, internal injuries, head injuries, multiple rib fractures, multiple fractures to the jaw, and a spinal fracture.

In emergency exploratory surgery, Mr. Cortes’ shattered spleen was removed. He was then transferred to Rush-Presbyterian-St. Luke’s Medical Center in Chicago, where he received two more operations, one to stabilize his fractured spine, and one on the jaw, which revealed that the mental nerve, which controls certain facial muscles, had been severed by the bone fractures. On February 10, 1987, Mr. Cortes was transferred to the Rehabilitation Institute of Chicago, where he received training to adapt to life in a wheelchair.

As a result of the injuries, Mr. Cortes is a paraplegic. He has no bladder or bowel control, must catheterize himself six times a day, and manually stimulate his bowel once a day. He is susceptible to bladder and kidney stones and bladder, urinary, and pulmonary infections, exacerbated by the lack of spleen. Mr. Cortes is also susceptible to skin problems and bed sores due to lack of feeling, and must perform pressure relief exercises 45 times a day. While Mr. Cortes has no feeling from the nipple line down, above that line he experiences constant pain. Mr. Cortes is physically incapable of engaging in normal sexual relations with his wife, and various mechanical aids have been disappointing.

Before the collision, Mr. Cortes was academic coordinator of special services at Northeastern University. He returned to work in April 1988, but university doctors will allow him to work half of his previous schedule, at half his former salary.

On February 17, 1987, Mr. and Mrs. Cortes sued A&H and Ryder for personal injuries and loss of consortium, based on Hamlett’s negligent operation of the Ryder tractor. Ryder’s liability was based on an agent-principal relationship between A&H and Ryder.

Applying Indiana law, the trial court entered a directed verdict of liability against A&H. The jury found Ryder not liable and awarded Mr. and Mrs. Cortes $15,261,000 in damages.

During the pendency of the trial, Mr. and Mrs. Cortes had amended their complaint to add count II, alleging Ryder’s liability for the full amount of damages under the Wisconsin financial responsibility statute (Wis. Stat. §344.51 (1985).) The trial court denied Mr. and Mrs. Cortes’ post-trial motion for judgment n.o.v. with respect to Ryder’s liability under the principal-agent theory, and denied Ryder’s motion to dismiss count II of the amended complaint. A&H’s insurer tendered the full amount of its insurance, $750,000 to Mr. and Mrs. Cortes. A&H then filed for bankruptcy. Ryder answered count II of the amended complaint, and on cross-motions for summary judgment, the trial court ruled in favor of Mr. and Mrs. Cortes and against Ryder for the amount of damages exceeding the $750,000 tendered by A&H.

Ryder challenges the finding of liability under Wisconsin law, the directed verdict on A&H’s liability, and the amount of damages. Mr. and Mrs. Cortes cross-appeal the verdict that Ryder was not liable as A&H’s principal. We first address the directed verdict, damages, and cross-appeal.

The trial court entered a directed verdict, finding A&H liable to Mr. and Mrs. Cortes. A&H is not a party to this appeal, but the directed verdict is properly challenged by Ryder, as a party may challenge any judgment adverse to its interests (see St. Mary of Nazareth Hospital v. Kuczaj (1988), 174 Ill. App. 3d 268, 528 N.E.2d 290), and Ryder’s liability was predicated on A&H’s liability. The directed verdict, however, was correct.

The driver of the trailing vehicle in a rear-end collision is not negligent as a matter of law, but the trial court may take the issue from a jury where the evidence overwhelmingly shows the driver of the trailing vehicle breached his duty to prevent a collision with vehicles in front of him. (Ziekert v. Cox (1989), 182 Ill. App. 3d 926, 538 N.E.2d 751.) Here, on a night with good visibility, on a clear road with a vehicle in good operating condition, Mr. Hamlett, who was alert and familiar with the highway, saw the Cortes car from as far as 600 to 800 feet, but nevertheless collided with it. The Cortes car was moving slowly, but that neither negated Mr. Hamlett’s duty to prevent the collision, nor contributed to the collision, given Mr. Hamlett’s ability to spot the vehicle with ample time and distance to adjust. The record supports the directed verdict.

The record also supports the damages award. Mr. and Mrs. Cortes presented uncontradicted evidence of the extent and severity of Mr. Cortes’ injuries, the extent of necessary treatment and rehabilitative therapy, and the profound and permanent impact of those injuries on Mr. Cortes and his family, physically, psychologically, and emotionally. The damages sought here were compensatory only, and rather than indicating a shockingly excessive award, the evidence supported the jury’s determination.

On cross-appeal, Mr. and Mrs. Cortes argue that the verdict finding Ryder not liable under the principal-agent theory was contrary to the manifest weight of the evidence. Ryder owned the vehicle and exercised control over its maintenance and safety, but Ryder exercised no control over A&H’s use of the vehicle as long as A&H operated the vehicle in a manner consistent with the terms of the rental agreement. The terms of the agreement, generally, provided only that the vehicle be operated in a safe and lawful manner by the renter’s employees, in the scope of their employment, and for its intended use of towing trailers of a specified design and weight. Further, when the collision happened, A&H was using the tractor to haul cheese; Mr. and Mrs. Cortes can make no legitimate argument that A&H was serving Ryder’s purposes. The record supports the finding that the rental agreement between Ryder and A&H did not constitute a principal-agent relationship. The verdict was correct and shall not be disturbed.

Mr. and Mrs. Cortes further argue that Ryder was allowed to introduce improper evidence, which invaded the province of the jury by presenting an ultimate conclusion that A&H was not an agent of Ryder. The evidence alleged as improper, however, was a paragraph from the rental agreement reciting that the lessee was not an agent of the lessor. That recital was not “an ultimate conclusion of law,” but rather, relevant to show the parties’ intent, and admission, that they not function as principal and agent. The evidence was proper and properly admitted.

The remaining issues concern Ryder’s liability under the Wisconsin financial responsibility statute (Wis. Stat. §344.51 (1985)), and the extent of that liability. Section 344.51 provides:

“(1) No person may for compensation rent any motor vehicle to be operated by or with the consent of the person renting the vehicle unless there is filed with the department a good and sufficient bond or policy of insurance issued by an insurer authorized to do an automobile liability insurance or surety business in this state. The bond, policy or certificate shall provide that the insurer which issued it will be liable for damages caused by the negligent operation of the motor vehicle in the amounts set forth in s[ection] 344.01(2)(d).
(2) Any person failing to comply with this section is directly liable for all damages caused by the negligence of the person operating such rented vehicle to the extent that such liability could have been established if this section had been complied with.”

The required amounts of insurance set forth in section 344.01(2Xd) in 1986 were $25,000 per person and $50,000 per accident.

We initially find that the trial court correctly applied Wisconsin law. Although choice of law principles might indicate that Illinois or Indiana law applied to the tort of negligence committed by A&H, Ryder’s liability was not based on negligence, directly or vicariously. Ryder’s liability was based on a public policy to compensate an injured plaintiff. Ryder’s liability to Mr. and Mrs. Cortes arose, therefore, through its contractual relationship as lessor to A&H, the negligent lessee. That contractual relationship was created by the rental agreement between Ryder and A&H, executed in Wisconsin. Clearly, Wisconsin had the most significant contacts to the lease agreement between Ryder and A&H, and the greatest interest in the contractual relationship.

Mr. and Mrs. Cortes alleged liability under section 344.51. (Wis. Stat. §344.51 (1985).) Section 344.51 was interpreted by the court of appeals of Wisconsin in Germanotta v. National Indemnity Co. (1984), 119 Wis. 2d 293, 349 N.W.2d 733, which held that under section 344.51, the lessor of a vehicle was financially responsible to an injured plaintiff where a negligent lessee or his insurer was unable to pay. (Germanotta, 119 Wis. 2d at 297-98, 349 N.W.2d at 735-36.) Where a statute of another State has been construed by the courts of that State, Illinois courts are bound to follow the highest court that has addressed the statute; interpretation de novo would be improper. (See Ray Schools-Chicago-Inc. v. Cummins, (1957), 12 Ill. 2d 376, 146 N.E.2d 42; Wisdom v. Stonewall Insurance Co. (1986), 139 Ill. App. 3d 1082, 487 N.E.2d 1289.) Here, the trial court properly followed Germanotta.

Ryder argues that the trial court misconstrued dicta in Germanotta for the holding, but examination of that case supports the trial court. In Germanotta, the plaintiff was injured in a collision with a defendant driving a leased car. The damages were approximately $17,700, and the defendant was able to pay only $15,000. Pursuant to section 344.51, a judgment for the damages exceeding $15,000 was entered against the lessor. The court of appeals affirmed, clearly stating that liability was imposed on the lessor, in abrogation of the common law rule, because the “purpose of [section 344.51] is to provide an answer in damages to a person harmed by the negligence of the lessee.” (Germanotta, 119 Wis. 2d at 297, 349 N.W.2d at 735-36.) The trial court correctly interpreted Germanotta.

Ryder also argues that section 344.51 imposed no direct liability, and further, that liability required a violation of the statute, which was not violated here. However, Ryder’s interpretation of section 344.51 requires a de novo interpretation and shall not be considered. The trial court correctly interpreted and followed Germanotta, and properly imposed liability on Ryder as the lessor of a negligent lessee that was unable to pay the full amount of damages.

The parties extensively briefed the issue of whether the lessor’s section 344.51 liability, if any, should be limited. Germanotta did not address the extent of the lessor’s liability because the excess liability fell within the amounts prescribed by statute. Here, however, the excess liability far exceeds the statutory amounts.

After careful consideration, we conclude that a Wisconsin court addressing the issue of the extent of a lessor’s liability would find that liability limited by either the amounts prescribed by statute or the limits of the insurance policy filed by the lessor in compliance with section 344.51.

Initially, we reject Ryder’s argument that section 344.51 was satisfied by A&H’s $750,000. Section 344.51(1) provides:

“No person may for compensation rent any motor vehicle to be operated by or with the consent of the person renting the vehicle unless there is filed with the department a good and sufficient bond or policy of insurance issued by an insurer authorized to do an automobile liability insurance or surety business in this state.” (Wis. Stat. §344.51(1) (1985).)

We construe section 344.51 to require filing a sufficient bond or policy as a prerequisite to conducting business in Wisconsin as a lessor of motor vehicles. Thus, Ryder was required to have filed a sufficient bond or policy in compliance with section 344.51 before A&H could have rented a vehicle from Ryder. Further, the filing of A&H’s $750,00 policy in compliance with section 194.41 shows that policy was filed to cover A&H’s primary liability, and not to cover Ryder’s lessor liability. Ryder correctly argues that the same form may be used to file a policy in compliance with both sections 194.41 and 344.51, but filing in compliance with one statute does not automatically mean compliance with the other. Here, the record shows A&H’s policy was filed in compliance with section 194.41. Thus, Ryder cannot look to A&H’s policy to satisfy its liability under section 344.51.

As Germanotta stated, section 344.51 abrogates the common law rule that one party cannot be held liable for the negligence of another. Because lessor liability is statutorily imposed, it is appropriate to look to the statute to find the measure of that liability. Section 344.51(1) provides: “[t]he bond, policy or certificate shall provide that the insurer which issued it will be liable for damages caused by the negligent operation of the motor vehicle in the amounts set forth in section 344.01(2)(d).” (Wis. Stat. §344.51(1) (1985).) The required amounts of insurance set forth in section 344.01(2)(d) in 1986 were $25,000 per person and $50,000 per accident. Thus, section 344.51 states in its own terms the measure of liability. Wis. Stat. §344.01(2)(d) (1985).

However, Germanotta noted that a lessor may extend the limits of its liability by filing a policy in compliance with section 344.51 in a greater amount than the statute requires. Accordingly, we find it appropriate to look to the policy Ryder filed in compliance with section 344.51 to find the measure of liability. The record indicates that Ryder filed a $2 million policy in compliance with section 344.51. Accordingly, we find Ryder liable to that extent.

In summary, we affirm the directed verdict of liability against A&H, the damages award, and the finding that Ryder was not a principal of A&H. We further affirm the imposition of liability on Ryder for the negligence of its lessee, pursuant to Wisconsin law, and hold that Ryder was liable to Mr. and Mrs. Cortes to the limits of the $2 million policy filed by Ryder in compliance with section 344.51. Accordingly, we reduce the judgment of $14,511,000 to $2 million. As so reduced, the judgment in favor of plaintiffs against Ryder is affirmed.

Affirmed as modified.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE GREIMAN

text:
    BIENVENIDO BRUNO, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—1765
    Opinion filed July 17, 1991.
    Rehearing denied November 8, 1991.

      William E. Reynolds, of Chicago (Edward F. Cozzi, of counsel), for appellant.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (James J. Hoffnagle, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff, Bienvenido Bruno, appeals from an order of the circuit court of Cook County granting summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) to defendant, State Farm Mutual Automobile Insurance Company.

The sole issue on appeal is whether the trial court properly granted State Farm’s motion for summary judgment based on its finding that the contractual limit of defendant’s uninsured motorist coverage ($25,000) was entirely offset by the same amount of money paid to plaintiff by another insurance carrier where actual damages may have exceeded the $25,000 so paid.

For the reasons that follow, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

The facts are not in dispute. On March 24, 1986, plaintiff was a passenger in an automobile driven by Norma Burgess. The automobile was struck by an unidentified motorist which resulted in injuries to plaintiff. Plaintiff claims that as a result of the accident he incurred medical and incidental bills in excess of $50,000.

The Burgess automobile was insured by Government Employees’ Insurance Company (GEICO), which provided bodily injury liability limits of $25,000, and uninsured motorist limits of $25,000.

Plaintiff was insured by defendant. The terms of his policy provided uninsured motorist limits of $25,000. Plaintiff’s policy contained a setoff provision which stated that any amount which would be payable to him under the uninsured motorist coverage would be reduced by any amount which was payable or paid to him by anyone responsible for bodily injury to him.

Plaintiff filed a complaint for declaratory judgment against defendant and GEICO seeking recovery from each insurance company. On May 17, 1989, the trial court granted GEICO’s motion to dismiss the complaint with prejudice upon GEICO’s payment of $25,000 to plaintiff under its bodily injury liability provision. Thus, GEICO is not a party to this appeal.

In its motion for summary judgment, defendant asserted that the $25,000 GEICO payment offset the coverage provided by its policy, which was limited to $25,000. Defendant argued that since GEICO’s payment was equal to defendant’s liability limit, plaintiff was not entitled to recover any additional award from defendant.

On appeal, plaintiff argues that the $25,000 paid by GEICO does not fully compensate him for his injuries and he would not be receiving double recovery because his medical bills exceed the combined total of the amount paid by GEICO and the uninsured motorist coverage provided by defendant’s policy.

In response, defendant maintains that under its setoff and subrogation provisions, plaintiff is not entitled to any uninsured motorist coverage because plaintiff already collected an amount equal to the maximum coverage under its policy. Defendant relies on cases which have upheld the validity of setoff and subrogation provisions under other circumstances. Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36; Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295; Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644.

Summary judgment is appropriate where the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223.) We find that summary judgment was improper in this case because proof of damages must be resolved.

In granting summary judgment for defendant, the trial court relied on Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644. We find that Sehutt is factually distinguishable.

Like this case, the Sehutt court was faced with two claims under limited “uninsured motorists” clauses. Payment had been made under one for $2,600 and the other claim was valued at $2,500 by subsequent binding arbitration. Under these circumstances, the insurer was relieved of further payment since the plaintiff had already been fully compensated for her loss. The case is silent on what the effect might have been had the damages determined by the arbitration proceedings been more than the amount paid in the first instance.

Thus, the key distinction between the case at bar and the Sehutt case is that damages in Sehutt had already been established. Greenawalt v. State Farm Insurance Co. (1991), 210 Ill. App. 3d 543, 549, 569 N.E.2d 154, appeal allowed (1991), 139 Ill. 2d 595.

Other cases relied on by defendant are also distinguishable. In Ullman and Stryker, our supreme court addressed a different setoff provision and held that an insurer’s liability under an uninsured motorist provision can be reduced by the amount the insured received from workmen’s compensation. (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36; Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295.) The present case does not involve workmen’s compensation benefits or the setoff provision which deals with such benefits.

The issue raised in this appeal has recently been decided by this district in Greenawalt v. State Farm Insurance Co. (1991), 210 Ill. App. 3d 543, 569 N.E.2d 154, appeal allowed (1991), 139 Ill. 2d 595, and Hoglund v. State Farm Mutual Insurance Co. (1991), 211 Ill. App. 3d 600, 570 N.E.2d 553, appeal allowed (1991), 139 Ill. 2d 596. The Greenawalt and Hoglund courts held that a determination of damages is a prerequisite in considering whether a setoff provision properly prevents double recovery. Accordingly, both courts reversed the trial courts’ judgments on the pleadings and remanded for proof of damages.

The present case is virtually identical on its facts to the Greenawalt and Hoglund cases and involves the same uninsured motorist provision in State Farm’s policy. The setoff provision at issue is contained in State Farm’s policy under Section Ill-Coverage U for uninsured motor vehicles and states, in relevant part, as follows:

“2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:
a. by or for any person or organization who is or may be held legally liable for the bodily injury to the insured ***.”

Both the present plaintiff Bruno and the Greenawalt and Hoglund plaintiffs were passengers in motor vehicles involved in accidents with other vehicles, required to make claims against the insurance carrier insuring the vehicles in which they were riding and insuring their own cars, and received payment equal to the maximum amount payable under the uninsured motorist provisions of one of the policies.

In response to the claims, State Farm asserted that no contractual liability remained for these plaintiffs because their respective policy limits had been entirely offset by the payments they received from other responsible parties. The trial courts agreed with State Farm.

However, in the view of the Greenawalt and Hoglund courts and in our view, the trial courts’ decisions were premature because State Farm is not entitled to setoff unless and until it can demonstrate duplication of payments. (Greenawalt v. State Farm Insurance Co. (1991), 210 Ill. App. 3d 543, 569 N.E.2d 154; Hoglund v. State Farm Mutual Automobile Insurance Co. (1991), 211 Ill. App. 3d 600, 570 N.E.2d 553; Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 633, 366 N.E.2d 901.) “Setoffs are to apply only where necessary to prevent double exposure ***.” Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 338, 312 N.E.2d 247; see also Melson v. Illinois National Insurance Co. (1971), 1 Ill. App. 3d 1025, 1028, 274 N.E.2d 664 (a crediting provision cannot operate to reduce payment where the total proven or undisputed damages incurred by the insured are greater than the combined total of uninsured motorist and medical coverage).

Bruno alleges that he is not seeking double recovery, that his medical bills exceed $50,000 and that his total damages exceed $150,000. However, the record does not provide any information to establish the actual amount of damages incurred by Bruno. Thus we cannot determine whether recovery, if any, would duplicate the compensation which Bruno has already received.

The language of the Coverage U section of the State Farm policy must be construed in light of the strong public policy of the State that those injured by uninsured motorists be afforded sufficient coverage to allow compensation to at least the same extent as if the injured claimant had been injured by a motorist insured with the minimum coverage required by law. Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 335, 312 N.E.2d 247.

Hoglund provides a particularly thoughtful analysis of the public policy considerations at issue. The court notes the enactment of the Financial Responsibility Law in the Vehicle Code requiring minimum insurance coverage for all policies issued. Ill. Rev. Stat. 1983, ch. 95½, par. 7—203.

The Insurance Code establishes the requirement of offering uninsured motorist coverage (Ill. Rev. Stat. 1983, ch. 73, par. 755a) and providing insurance in an amount up to the insured’s bodily injury liability limits (Ill. Rev. Stat. 1983, ch. 73, par. 755a—2(1)). To be sure, the legislature has also provided for the right of subrogation or set off where the insured has received the proceeds of settlement or judgment. Ill. Rev. Stat. 1983, ch. 73, par. 755a(4).

But nowhere do these statutory provisions suggest that an injured party may not resort to coverage under several uninsured motorist clauses where his damages exceed the amount so limited.

All of the legislation encouraging liberal regulation of uninsured motorist coverage must be overlaid on the 20-year controversy in the Illinois General Assembly with respect to mandatory automobile insurance.

Expansion of uninsured motorist coverage was viewed as a response to the call for mandatory automobile insurance. Only recently has Illinois become the 41st State to adopt such legislation.

Moreover, “ ‘the intent of the legislature was that the uninsured motorist coverage would protect an insured generally against injuries caused by motorists who are uninsured, and by hit-and-run motorists, and that this would complement the liability coverage.’ ” (Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 897, 377 N.E.2d 62, quoting Barnes v. Powell (1971), 49 Ill. 2d 449, 454.) “[I]n a situation where one of the joint tortfeasors is insured and the other is uninsured, the pivotal public policy issue is whether subrogation or setoff would prevent double recovery or whether it would act to deprive the plaintiff of damages she might otherwise receive if the uninsured tortfeasor had been at least minimally insured.” Greenawalt, 210 Ill. App. 3d at 547.

Since the actual amount of Bruno’s damages is not known, we find it premature to conclude that plaintiff may not recover under the second uninsured motorist policy. In order to fulfill the public policy mandate of the State, the trial court will be required to conduct an evidentiary hearing as to damages.

For the foregoing reasons, we reverse and remand the judgment of the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.

      Section 7—601 et seq. became effective on January 1, 1990. This legislation, in one form or another, was offered in the Illinois General Assembly each term since 1970. Such legislation actually passed both Houses of the General Assembly in 1975 only to receive a gubernatorial veto.