author: JUSTICE McCULLOUGH

text:
    PAUL R. NIKA, Plaintiff-Appellant, v. WARREN E. DANZ, Defendant-Appellee.
    Fourth District
    No. 4—89—0547
    Opinion filed June 28, 1990.

      Wayne R. Golomb, of Springfield, for appellant.
    Robert E. Gillespie, Deborah L. Rose, William P. Hardy, and Matthew J. Maddox, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff, Paul Nika, filed a legal malpractice action against defendant, attorney Warren Danz, alleging Danz was negligent when he failed to file a personal injury action against U.S. Printing Ink (U.S. Ink), the party allegedly responsible for plaintiffs back injuries. Plaintiff appeals from the jury verdict for Danz and raises the following issues for our consideration: (1) whether the trial court violated Supreme Court Rule 239 by giving non-Illinois Pattern Jury Instructions (IPI) instructions where IPI instructions were tendered and applied to the case (107 Ill. 2d R. 239); (2) whether the trial court erred in allowing evidence of a fee dispute between plaintiff and Danz and evidence of plaintiff’s receipt of a workers’ compensation award to be presented to the jury; (3) whether the trial court erred in allowing defendant to cross-examine the plaintiff on the issue of the solvency of U.S. Ink; and (4) whether the trial court erred in allowing defendant’s experts to testify regarding plaintiff’s contributory negligence in the underlying action involving U.S. Ink and regarding the duty of plaintiff’s employer to provide a safe workplace. We affirm.

Plaintiff testified that in 1979 he was employed as a truck driver for the State Journal Register (Register) in Springfield. His duties as a truck driver involved delivering newspapers out of town and, at the time of the accident, performing odd jobs. Plaintiff stated that on November 1, 1979, he went to the Register’s Ninth Street facility in Springfield to pick up a barrel of ink. Plaintiff testified U.S. Ink was delivering ink at the Ninth Street facility on that day, and he saw the ink truck when he arrived at the loading dock to pick up the barrel. Plaintiff testified the black ink used in printing newspapers is delivered by hose from a tanker truck to an ink spout inside the Register building near the loading dock. Plaintiff testified that prior to the day of his accident, if the ink company spilled any ink, the ink company would clean it up with rubber gloves and rags. Plaintiff stated he was on the other side of the loading dock picking up some bundles of newspapers while the ink truck was delivering ink.

After the ink truck left, plaintiff stated he moved his panel truck over to the area where the ink truck was parked. Plaintiff backed his truck up to within 20 inches of the edge of the loading dock, and stepped out of the truck onto the loading dock. The barrel was located in the center of a floating dock which was five to six feet above the surface of the loading dock. Plaintiff stated that because the bed of the truck was six inches below the surface of the floating dock, when moved, the barrel would drop into the truck as it came off the floating dock.

Plaintiff described the barrel as a 55-gallon drum that was bolted closed. Plaintiff stated he grasped the top of the barrel with one hand and began sliding the barrel toward the truck with the other hand when his feet slipped out from under him and he fell backward on the loading dock, with the barrel falling on top of him. Plaintiff stated he slipped on a piece of cardboard which had been put down on the loading dock to cover an ink spill. Plaintiff stated he did not look down at the loading dock as he stepped off his truck and, therefore, did not notice the cardboard. Plaintiff stated he reported the accident to his supervisor, Tony Denk. The rim of the barrel landed on plaintiffs groin. Plaintiff stated he had loaded ink barrels in the same manner before November 1, 1979. Plaintiff stated he finished his job on November 1, but experienced headaches, backaches, a stiff neck, and urinary problems. Plaintiff testified he continued to have urinary problems after seeing several doctors, had trouble concentrating and suffered from bad headaches.

On cross-examination, plaintiff was impeached with his prior testimony given in two depositions taken in 1985 for this case. In the depositions, plaintiff stated the loading dock was Shk feet off the ground; the barrel was sitting in the middle of the floating dock, protruding one-half inch over the north edge; the top of the barrel was higher than the top of the truck; and the weight of the barrel was about 300 pounds. Plaintiff admitted that if he looked down, he would have seen the cardboard on the loading dock. Plaintiff also stated that he was aware of prior spills of ink. Plaintiff stated he did not see anyone near the ink truck on November 1, 1979, including janitorial staff for the Register.

Anton Denk was plaintiffs supervisor at the Register. Denk testified that after plaintiff told him about the accident on November 1, he observed two pieces of cardboard over an ink spill on the loading dock. Denk also testified that ink spills often occur after an ink delivery and the ink company is responsible for cleaning up the spill or for getting someone else to clean it up. Denk recalled a previous ink spill where U.S. Ink paid the Register’s janitors to clean up the spill. Denk stated that since the accident, plaintiff had become forgetful on the job, wore a back brace, began turning down overtime, and suffered from urinary problems. Denk stated printing ink is as thick as molasses and oily.

On cross-examination, Denk admitted he had not observed very many deliveries of ink. Denk also stated that ink trucks do not have the equipment to clean up an ink spill. Denk stated that it is Register policy that employees get help when loading heavy objects. He also stated that the lighting on the loading dock allowed drivers to see any ink spills on the dock. Denk stated he did not know, who put the cardboard on the ink spill on November 1, 1979, and he did not know anything about a contract between the Register and U.S. Ink for cleaning up ink spills. On redirect, Denk stated he had seen U.S. Ink drivers clean up spills in the past.

Norman Antonacci, a janitor for the Register, testified for plaintiff that there are frequent spills of ink and he recalled a spill in the past when U.S. Ink paid Register employees directly to clean up a spill. Antonacci stated that if a truck driver did not clean up the ink, it was his responsibility to clean it up.

Dr. Clem Gotway, an internist and plaintiff’s family physician since 1962, testified he treated plaintiff for his November 1979 injury. Gotway testified he referred plaintiff to Dr. Schroeder for physical therapy and to Dr. Trautmann for the urinary problems. Trautmann diagnosed plaintiff’s urinary problem as prostatic urethritis. Gotway testified plaintiff was hospitalized in 1980 under the care of Dr. McVary, who was unable to give a firm diagnosis for plaintiff’s urinary problem. Gotway testified plaintiff saw Drs. Good and Couch, both neurologists, for the headaches and seizures plaintiff was experiencing. Dr. Couch could not determine the cause of plaintiff’s seizures and prescribed Dilantin. Gotway further testified plaintiff saw Dr. Taylor for chest pain and Drs. Madison, Rozhart and Texter for the urinary problems. When asked whether the November 1979 accident could have caused plaintiff's physical problems, Gotway stated he could only say that plaintiff did not have any of the physical problems before the accident in November 1979.

On cross-examination, Gotway was impeached with his own medical records for plaintiff, which indicated that in 1978, plaintiff complained of dizziness and urinary problems, in 1977 of back pain, and in October 1979 of chest pain. Gotway admitted there was no medical evidence linking any of plaintiff’s physical problems with the November 1979 accident. Gotway testified that a diagnosis of plaintiff’s problems was complicated by the nature of the problems and the number of work-related accidents plaintiff had between 1979 and 1985. Gotway stated that since the source of the problem could not be found and the date of the onset of the symptoms was November 1979, he concluded the November 1979 accident caused plaintiff’s physical problems.

Dr. Victor Trautmann testified he examined the plaintiff on January 13, 1980. At that time, Trautmann determined plaintiff’s incontinent problems were caused by nervousness. Trautmann testified after plaintiff was treated with Valium, his condition improved. Trautmann testified he saw plaintiff every three months until August 1980, when plaintiff reported he was much improved. Trautmann expressed no opinion as to whether plaintiff’s accident in November 1979 caused the urinary problems and stated his opinion was consistent with that given by Dr. McVary.

Plaintiff testified he contacted Danz in August 1980 after he saw Danz’s name posted in the union hall. Plaintiff testified he told Danz at their first meeting about the ink spill and that he wanted Danz to represent him and file an action against U.S. Ink. Plaintiff testified that U.S. Ink was a “big money maker” company because it had been hauling ink for as long as plaintiff had worked for the Register. Plaintiff stated he was not concerned about workers’ compensation because the Register was not responsible for the spill. Plaintiff stated Danz told him he would “handle it.” Plaintiff admitted he received letters from Danz which referred to the Industrial Commission. Plaintiff testified he told Danz more than once his main concern was U.S. Ink and not the workers’ compensation case. Plaintiff stated that after he had some discussions with friends who suggested that the statute of limitations on an action against U.S. Ink had run, he called the Attorney General’s office in Springfield and found out the limitations period for the claim against U.S. Ink had passed.

On cross-examination, plaintiff admitted he was a union steward at the time he hired Danz. Plaintiff testified he did not know about the workers’ compensation system and he filed the claim because it was company policy and not because he wanted to collect from the Register. Plaintiff denied receiving a letter from Danz dated August 18, 1980, but was impeached with his prior deposition testimony when he said that he understood the August 1980 letter to be a contract with Danz. Plaintiff was shown the letters Danz sent to him regarding the workers’ compensation case, but testified he did not recall receiving some of the letters. When asked about the letters at trial, plaintiff stated he thought the letters concerned his case against U.S. Ink. Most of the letters from Danz referenced the matter he was handling for plaintiff as “Re: Nika v. Journal Register.”

Plaintiff testified on cross-examination he did not discuss any settlement of the workers’ compensation case with Danz. Plaintiff testified he settled the workers’ compensation case when attorney Golomb represented him and the settlement concerned only his 1979 accident. A copy of the settlement contract which plaintiff signed was admitted into evidence, without objection. The settlement included four accident dates and five file numbers for the workers’ compensation cases plaintiff filed between 1979 and 1982.

Plaintiff stated that at the time of the settlement, he got into a fee dispute with Danz. When questioned about the references in the letters from Danz to plaintiff to “Industrial Commission” and “workers’ compensation,” plaintiff stated he did not connect these terms with the type of action Danz was handling on his behalf. Plaintiff further stated he did not recall signing a contract with Danz and he never asked Danz in writing about the claim against U.S. Ink.

On redirect, plaintiff stated he called Danz’s office several times to inquire about his case but his phone calls were not returned. Plaintiff also stated that when he met with Danz in Springfield, he would ask about his case against U.S. Ink but Danz only avoided the question. Plaintiff stated that Danz collected $1,300 in legal fees from him.

On further cross-examination, plaintiff stated U.S. Ink was a “wealthy company” because it has a lot of tanker trucks. Plaintiff admitted he had never seen a financial statement for U.S. Ink and did not know whether it had ever filed for bankruptcy. When asked again how he knew U.S. Ink was solvent, plaintiff stated, “I’ve seen their trucks and that’s enough right there.”

Danz testified his law practice is primarily confined to workers’ compensation cases. Danz stated plaintiff first contacted him in February 1980. Danz immediately sent plaintiff a letter and set up a meeting in Springfield, which plaintiff did not attend. Danz stated plaintiff finally met with him on August 12, 1980, in Springfield and they met monthly until Danz was discharged by plaintiff in 1982. Danz stated plaintiff was concerned about an action against the Register for workers’ compensation benefits and never mentioned a personal injury action or U.S. Ink. Danz testified that even if plaintiff had told him about the ink company, it would not have changed anything because plaintiff’s actions caused his injuries. Danz stated plaintiff knew Danz was handling a workers’ compensation case for him.

Danz met with plaintiff on July 13, 1981, to discuss a $6,000 settlement offer, but plaintiff wanted no less than $25,000. According to Danz, the difficulty with plaintiff’s case was that the doctors could not tie plaintiff’s urinary problems to the November 1979 accident. Danz reported that plaintiff was angry and wanted to see other doctors. Danz sent plaintiff to Drs. Rivero and Schultz. Danz stated that if plaintiff had asked him to file a personal injury action, he would have asked more questions about the accident and used a different form letter with the fee language for a personal injury case. Since plaintiff’s case related only to workers’ compensation, the letter sent to plaintiff after the first meeting included language for the statutory legal fee for a workers’ compensation case.

Danz stated his office file for plaintiff’s case indicated he was handling a workers’ compensation case. Danz also stated he would not accept a personal injury case like plaintiff’s because there was no value to it. Danz stated that when plaintiff became upset that his medical bills were not being paid, he suggested the bills be submitted to the Register’s group insurance carrier and reimbursement could be obtained after the workers’ compensation case was concluded. Danz stated plaintiff did not want to submit his bills to group insurance. Danz scheduled the trial for plaintiff’s workers’ compensation claim in 1982. Before it started, Danz learned plaintiff had discharged him.

After attorney Golomb began representing the plaintiff, Danz contacted Golomb in order to get reimbursed for his costs in getting medical reports. Danz testified that Golomb refused to pay him anything for his two years of services for plaintiff and threatened to bring a malpractice action against him for not filing a suit for plaintiff against U.S. Ink if he continued to pursue his claim for fees. Danz stated that the first time he heard anything about U.S. Ink was when Golomb threatened to sue him. Danz stated hearings were eventually conducted before the Industrial Commission on the fee issue and he was awarded $1,000 in fees and $330 in costs.

On cross-examination, Danz stated the first time he learned that plaintiff was driving a van and slipped on ink on November 1, 1979, was on July 12, 1981, after he read notes taken by his law clerk at the time, Matthew Ryan, at Ryan’s meeting with plaintiff in July 1981. Danz also admitted that his notes from the August 1980 meeting with plaintiff did not reflect anything about a piece of cardboard on the loading dock. Danz again stated that based on his August 1980 interview with plaintiff, he did not believe any viable common law action against a third party existed.

On redirect, Danz stated any reports from plaintiff’s supervisor at the Register would not have changed his opinion of plaintiff’s case. According to Danz, the fact that plaintiff slipped on ink was only one factor involved in plaintiff’s contributory negligence. The other factor was that plaintiff attempted to move a 300-pound barrel without any assistance.

Gary Borah, attorney for the Register in the workers’ compensation case, testified for plaintiff that he met with Danz and plaintiff regarding the accident. Borah stated it was impossible that plaintiff did not know Danz was handling a workers’ compensation case for him. Borah stated he recommended that plaintiff submit his medical bills to the group insurance carrier for the Register because the doctors could not connect plaintiff’s injuries to the November 1979 accident. Borah testified he recalled the fee dispute between Danz and plaintiff. He also stated he did not believe plaintiff had a viable action against U.S. Ink and that Danz did not violate any legal standards in his representation of plaintiff.

On cross-examination, Borah stated that an attorney has a duty when representing an employer in a case involving a personal injury to an employee to investigate any possible actions against a third party who may have caused the injury, but there is no duty to investigate when representing an employee. Borah stated the identity of the person responsible for the ink spill on November 1, 1979, was one factor to consider in deciding whether plaintiff had a viable action against a third party. Borah stated that the fact that plaintiff knew ink was delivered on the day of his accident and knew of previous spills required that he exercise a greater standard of care in moving the ink barrel. On redirect, Borah stated that even assuming U.S. Ink spilled the ink and placed the cardboard on the spill, plaintiffs negligence was so overwhelming that it operated as a complete bar to any third-party action against U.S. Ink.

Attorney Matthew Ryan testified for Danz. Ryan worked for Danz in the summer of 1981 and stated there was no question that Danz was handling a workers’ compensation case for plaintiff. Ryan interviewed plaintiff once in 1981 and stated his notes from the interview did not indicate anything about ink being spilled by U.S. Ink. Ryan stated Danz’s office file for plaintiff’s case did not include any information about the ink company.

Attorney William McNutt, a general practice attorney, testified as an expert for plaintiff. McNutt stated he based his opinion on plaintiff’s deposition and in-court testimony. McNutt stated Danz had an obligation to investigate the facts of the case, tell plaintiff whether a common law action existed and whether he would file it or that plaintiff should hire someone else to file the action. McNutt testified there was a viable action against U.S. Ink and Danz should have investigated the case by looking at the accident reports filed by plaintiff’s supervisor. McNutt stated Danz should have found out who was responsible for cleaning up the ink spill. McNutt also stated that Danz’s file notes indicated he knew all the facts about plaintiff’s accident. McNutt stated that plaintiff was not negligent in the way he moved the barrel. According to McNutt, Danz was negligent in not filing an action for plaintiff and in not telling plaintiff he was not going to file suit against U.S. Ink. McNutt estimated plaintiff’s damages to be $300,000 to $500,000.

On cross-examination, McNutt stated that when a person hires an attorney to handle a workers’ compensation case, the attorney cannot file a personal injury action for the client unless instructed to do so. McNutt stated that based on plaintiff’s deposition testimony, he did not believe plaintiff was negligent in moving the barrel, although he also stated he was aware that plaintiff could have asked for assistance in moving the barrel. McNutt admitted that the letter confirming the first meeting between Danz and plaintiff referred only to workers’ compensation and there was nothing in Danz’s file to indicate he was hired to file a common law action for plaintiff. McNutt stated that an attorney would be stupid not to file a common law action if he knew about one because there is more money in these actions.

McNutt admitted that in evaluating a personal injury action, a lawyer considers the cost to the client, evidence of the client’s contributory negligence, and the value of the workers’ compensation lien. Where a person’s injuries cannot be connected to an accident, the case has less value. McNutt also admitted that in an unrelated personal injury case, he had valued the case at $100,000, the client had valued it at $250,000, and the jury did not award any damages. On further cross-examination, McNutt stated he was not aware that prior to the 1979 accident, plaintiff had complained of headaches and vertigo.

Charles Gramlich testified as an expert for Danz. Gramlich testified he was familiar with the practice of personal injury and workers’ compensation lawyers, and stated he did not believe Danz violated any duty in his representation of plaintiff or committed legal malpractice. Gramlich stated plaintiff’s action in moving the barrel amounted to contributory negligence which would bar an action against the ink company for the spill. Gramlich stated any action that would have been filed against U.S. Ink would have been worthless, and any further investigation by Danz after taking the workers’ compensation case would have been futile. Gramlich testified he reviewed Danz’s office file on plaintiff’s case and it did not have any information about U.S. Ink being responsible for the spill. Gramlich stated that if Danz had any information that there was a possible common law action against U.S. Ink, Danz had more motive to file than not to file, because there is more money in common law cases than in workers’ compensation cases. In reference to the problems tying plaintiff’s injuries to the accident on November 1, 1979, Gramlich stated plaintiff’s case had been characterized by a doctor as “greenback neurosis,” or compensation neurosis. This term refers to the situation where an injured person has physical problems up until the time a settlement is received, after which the physical problems disappear. Gramlich noted that it would be impossible for someone like the plaintiff to not be aware that he was at a workers’ compensation hearing, as opposed to a regular court hearing, given that plaintiff was a union steward and union stewards are aware of employee rights and the workers’ compensation system.

On cross-examination, Gramlich admitted that if an attorney was hired by a client to file a common law action, the attorney should investigate the claim and advise the client as to whether a suit should be filed. Gramlich stated the investigation in this case would have entailed contacting the Register to get details about the accident. Gramlich stated it is negligence not to advise a client of the decision as to whether to file a personal injury action.

The jury was given instructions for the underlying case, which were labeled “Nika v. U.S. Printing Ink Company” (hypothetical), and separate instructions for the legal malpractice action, labeled “Nika v. Danz." The jury was further instructed to consider the malpractice action first and only if there was a finding of liability on the part of Danz was the jury to consider the underlying case. Several general instructions pertaining to both cases were labeled with both names. On May 9,1989, the jury returned a general verdict for Danz.

Plaintiff first argues the two separate sets of instructions given in this case, presented to the jury as “a case within a case,” violated Supreme Court Rule 239 and produced excessive instructions which were difficult to understand and follow. Plaintiff contends the instructions directing the jury to first consider defendant’s liability to plaintiff were erroneous because the underlying case should have been considered first.

Defendant argues the trial court correctly presented the legal malpractice action to the jury. Defendant contends the sequence of the jury instructions properly presented the factual dispute between plaintiff and defendant: that is, that defendant had a duty to investigate any possible personal injury action (liability) and because he did not, plaintiff lost his right to recover against U.S. Ink (damages).

Supreme Court Rule 239(a) requires that whenever the IPI contains an instruction applicable to a civil case, that instruction should be used unless the court determines that it does not accurately state the law. (107 Ill. 2d R. 239(a).) Where non-IPI instructions are given, they should be “brief, impartial, and free from argument.” (107 Ill. 2d R. 239(a).) On review, the given instructions should be considered as a whole to determine whether they fairly and fully stated the law applicable to the case. (Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 533, 445 N.E.2d 844, 855.) Only where it is determined that an instruction misled the jury, thereby prejudicing the losing party, should a reviewing court reverse the trial court. King v. Casad (1984), 122 Ill. App. 3d 566, 572, 461 N.E.2d 685, 689; Both v. Nelson (1964), 31 Ill. 2d 511, 202 N.E.2d 494.

A legal malpractice action is similar to an ordinary negligence action. The plaintiff-client must prove an attorney-client relationship existed; the duty owed to the plaintiff-client was breached; the attorney’s negligence was the proximate cause of injury; and actual damages. (Sexton v. Smith (1986), 112 Ill. 2d 187, 492 N.E.2d 1284; Albright v. Seyfarth, Fairweather, Shaw & Geraldson (1988), 176 Ill. App. 3d 921, 926, 531 N.E.2d 948, 951; Cook v. Gould (1982), 109 Ill. App. 3d 311, 314, 440 N.E.2d 448, 450.) In order to succeed in a cause of action for legal malpractice, a plaintiff must prove that but for the negligence charged, he would have been successful in the prosecution or defense of a cause of action involving a third party. (Albright, 176 Ill. App. 3d at 926, 531 N.E.2d at 951; D. Horan & G. Spellmire, Attorney Malpractice: Prevention and Defense, §19.01, at 19—2 (1986).) Thus, even if an attorney was negligent in not filing an action within the statute of limitations, if the client cannot establish that his case would have been meritorious, no damages are shown and no recovery can be had. Cook, 109 Ill. App. 3d at 314, 440 N.E.2d at 450.

Where, as here, an attorney is charged with negligently not filing an action within the statute of limitations, the plaintiff must recreate and litigate the action which was never filed. The accepted procedure for presenting evidence regarding the underlying action in a legal malpractice action is known as a “suit within a suit,” or “trial-within-a-trial.” (2 R. Mallen & J. Smith, Legal Malpractice §27.7, at 641 (3d ed. 1989).) The objective is to establish what the result should have been, had the case been filed. 2 R. Mallen & J. Smith, Legal Malpractice §27.7, at 641-42 (3d ed. 1989).

Before considering plaintiff’s issue on the jury instructions, a matter involving the preservation of issues for review is apparent in the record. The common law record includes a set of instructions not marked, with one exception, with an IPI number, plaintiff’s number or defendant’s number. Further, some of these instructions are marked “given”; some are not. In a supplement to the record, plaintiff submitted the set of jury instructions he allegedly submitted to the trial judge. These are not marked as required by the supreme court rules and were not certified as part of the proceedings in this cause below. It is apparent from the transcript involving the jury instruction conference on May 9, 1989, that plaintiff’s instructions were rejected prior to May 9 and plaintiff submitted instructions at the instruction conference to preserve the issue for review. At oral argument, plaintiff requested leave to further supplement the record with a set of jury instructions. Later, plaintiff presented a written motion to supplement the record with an additional set of instructions. We address the state of the record and plaintiff’s motion in turn.

In their briefs and at oral arguments, the parties repeatedly referred to “defendant’s instruction No._,” but do not tie them to the instructions in the record. It is apparent plaintiff’s latest supplement to record consists of his attorney’s file copies of the instructions allegedly given and refused in this case. This supplement was not certified by the trial court.

Section 2 — 1107 of the Civil Practice Law states:

“Instructing the Jury ***. (a) *** An original and one copy of each instruction asked by any party shall be tendered to the court. The copies shall be numbered and shall indicate who tendered them. Copies of instructions given on the court’s own motion or modified by the court shall be so identified. When instructions are asked which the court refuses to give, the court shall on the margin of the original and copy write the word ‘refused’ and shall write the word ‘given’ on the margin of the original and copy of those given. ***
(b) *** The originals and copies of all instructions, whether given, modified or refused, shall be filed as part of the proceedings in the cause.” (Ill. Rev. Stat. 1987, ch. 110, pars. 2—1107(a), (b).)

Supreme Court Rule 239(c) states:

“(c) Procedure. Each instruction shall be accompanied by a copy, and a copy shall be delivered to opposing counsel. In addition to numbering the copies and indicating who tendered them, as required by section 2—1107 *** the copy shall contain a notation substantially as follows:
TPI No. ...’ or TPI No. ... Modified’ or ‘Not in IPF as the case may be. All objections made at the conference and the rulings thereon shall be shown in the report of proceedings.” (107 Ill. 2d R. 239(c).)

Supreme Court Rule 323 states:

“(a) Contents; Preparation. A report of proceedings may include evidence, oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and any other proceedings that the Party submitting it desires to have incorporated in the record on appeal. The report of proceedings shall include all the evidence pertinent to the issues on appeal.
* * *
(b) Certification and Filing. A report of proceedings shall be submitted, upon notice given by the party seeking certification, to the judge before whom the proceedings occurred *** for his certificate of correctness, and shall be filed, duly certified, in the trial court within 49 days after the filing of the notice of appeal. If, however, the parties so stipulate, a report of proceedings may be filed without certification.” (107 Ill. 2d Rules 323(a), (b).)

Supreme Court Rule 329 states:

“If the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant. If necessary, a supplemental record may be certified and transmitted.” 107 Ill. 2d R. 329.

Plaintiff is responsible for presenting a complete record of the trial proceedings in this case. Plaintiff has not presented a complete record and has not certified the supplements to record as required by Rules 323 and 329. In the absence of an adequate record on appeal, it is presumed that the judgment entered conformed to the law and was based on sufficient factual information. (Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 407 N.E.2d 964.) Where, as here, the issue involves instructions which are not properly marked “given” or “refused,” or by number as required by the rules, the reviewing court need not consider any issues involving the instructions. (People v. Chamberlain (1972), 5 Ill. App. 3d 235, 282 N.E.2d 784 (under Supreme Court Rule 451 (see 50 Ill. 2d R. 451), virtually identical to Rule 239, which is applicable to criminal cases); Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941.) We find plaintiff has waived any consideration of the jury instructions due to the state of the record. Further, plaintiff’s attempts to supplement the record do not cure the defects. Therefore, plaintiff’s motion to supplement the record is denied.

On the merits, a review of the instructions in the record demonstrates the jury was given three sets of instructions; one for “Nika v. Danz”; one for “Nika v. U.S. Printing Ink Company” (hypothetical); and a third set to be used for both cases. The jury was instructed that only if it determined Danz was negligent was it to consider the net value of the underlying claim. Plaintiff asserts the underlying claim had to be considered first by the jury, before any consideration was given to Danz’s alleged negligence in not filing an action against U.S. Ink. We disagree. This case is no different from an ordinary negligence action where the jury is instructed to consider a defendant’s liability before considering any damages. In effect, the method of using three sets of instructions in this case separated the liability issue in the legal malpractice case from the damages issue. The instructions given, so far as can be determined, properly stated the legal framework applicable to this negligence case. We find no error.

Plaintiff next argues the trial court erred in instructing the jury that contributory negligence, not comparative negligence, rules applied to the underlying claim. Defendant argues the instructions were proper and supported by the evidence. Defendant contends that since plaintiff failed to present evidence that the underlying claim, if filed, would have gone to the jury after June 8, 1981, the date set in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, plaintiff has waived this issue. We find the jury was properly instructed, but do not agree with defendant’s analysis.

In Alvis, comparative negligence, which allows parties to recover a proportion of damages not attributable to their own fault, was adopted in its pure form. Prior to Alvis, contributory negligence rules were in force and barred a plaintiff, only slightly negligent, from recovering any damages from a negligent defendant. The supreme court in Alvis directed that comparative negligence rules applied to cases where a trial commenced on or after June 8, 1981.

It is clear, no trial of plaintiff’s underlying claim began on this date. However, defendant’s analysis is too simplistic in the context of this case. Initially, the focus must be on August 1980, when plaintiff first met with Danz. The evidence was disputed as to whether plaintiff told Danz, in August 1980, anything about U.S. Ink. The expert testimony on whether Danz had a duty in August 1980 to investigate a possible third-party action was also disputed. The next relevant time period is June and July 1981 when, according to Danz, he first discovered plaintiff slipped on ink and after the Alvis case was decided. Considering the change in contributory negligence rules and assuming Danz’s discovery of new information in July 1981 regarding plaintiff’s accident, any evidence regarding Danz’s duty to reconsider his earlier judgment that no viable cause of action existed against U.S. Ink is relevant. If Danz did not have a duty to reevaluate his judgment, then the jury was properly instructed that pre-Alvis contributory negligence principles applied to the underlying claim.

We find plaintiff waived any consideration of this issue because he did not raise the issue of Danz’s duty to reexamine plaintiff’s potential claim after the Alvis decision in his case in chief. Defendant’s objection to plaintiff’s- attempt to introduce this evidence through his cross-examination of defendant’s expert was sustained for this very reason. Following the objection, plaintiff did not make an offer of proof. The waiver rule applies. Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 541 N.E.2d 643.

Plaintiff next argues that even if the jury was properly instructed on contributory negligence, this defense is not available in a legal malpractice case. Specifically, plaintiff argues that because he did not know what information was necessary for a legally cognizable claim against U.S. Ink, he cannot be held responsible for his lack of knowledge. Further, plaintiff argues the duty to provide facts to Danz and whether plaintiff directed Danz to file an action against U.S. Ink amount to “all or nothing” defenses, which do not fit into a contributory negligence framework or qualify as affirmative defenses.

We find plaintiff’s argument unpersuasive. As previously stated, legal malpractice cases are no different from an ordinary negligence case where contributory negligence is an affirmative defense (Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d)). A client’s negligence in a legal malpractice case can involve failure to provide essential information for his or her representation. Plaintiff’s argument that this defense is “all or nothing” focuses only on the reason a client retains an attorney, and ignores a client’s duty to provide an attorney with all the essential information.

Plaintiff next argues giving defendant’s instruction No. 17 constituted plain error because the term “property” should have been “safety.” As defendant correctly points out, this instruction was given for the malpractice case and refers to plaintiff’s “property” as the potential cause of action against U.S. Ink. We find no merit in this claim of error.

Plaintiff also argues he was greatly prejudiced by the introduction at trial of evidence that plaintiff received an award for workers’ compensation benefits. Plaintiff’s motion in limine to preclude such testimony was denied. Plaintiff contends the collateral-source rule bars the introduction of such evidence and maintains defendant introduced this evidence to portray plaintiff as a “money-grabbing, venal person, claiming injuries and attempting to extract money out of everyone imaginable.”

Defendant argues plaintiff’s reliance on the collateral-source rule is misplaced in this case, because evidence that plaintiff received an award for workers’ compensation benefits was relevant and introduced to establish whether plaintiff knew defendant was handling a workers’ compensation case for him or a personal injury action against U.S. Ink. Defendant points out that where, as here, collateral-source evidence is used to impeach the credibility of the plaintiff, other jurisdictions have determined it is admissible. Defendant also notes that plaintiff opened the door to this evidence during his testimony; plaintiff opposed defendant’s motion for separate trials of the malpractice claim case and the underlying claim, which would have prevented the introduction of evidence of the workers’ compensation award in the trial of the underlying claim; and plaintiff did not object to the testimony on collateral-source rule grounds at trial.

The record shows that during cross-examination of the plaintiff, evidence that plaintiff received a settlement in his workers’ compensation case was brought out. A copy of the settlement contract plaintiff signed was admitted into evidence. The record also shows no objection was raised to this testimony or to the admission of the settlement contract.

We find plaintiff waived this issue for failure to object at trial. (Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 458 N.E.2d 1331.) On the merits, the evidence regarding the workers’ compensation award was presented to show that plaintiff knew all along that Danz was handling only a workers’ compensation case, and not to show plaintiff had received compensation from a collateral source for his injuries. The main issue in this case was whether plaintiff knew Danz was handling a workers’ compensation case and not a personal injury action. We do not believe the amount of the award should have been admitted to establish this point but, as stated, plaintiff offered no objection.

Plaintiff also argues the admission of evidence of a fee dispute between plaintiff and Danz allowed the jury to hear that plaintiff’s motive for filing the action against Danz was bad, i.e., that plaintiff filed the action because Danz was demanding fees. Plaintiff maintains the introduction of this evidence was improper and prejudicial.

Any prejudice from this evidence was created by the plaintiff. The record shows the issue of the fee dispute was raised by defendant in cross-examining the plaintiff without objection; on redirect of the plaintiff by attorney Golomb; on direct examination of Danz; during cross-examination of Danz by attorney Golomb; and during the direct examination by defendant of Gary Borah. Plaintiff objected to Borah’s testimony on the fee dispute on the grounds that the court had previously prevented plaintiff from continuing his examination of Danz on the same issue. The court stated it would limit defendant’s examination on this issue as well. No further testimony was received on this issue. Plaintiff did not ask that the testimony be stricken from the record. At no time did plaintiff raise any other objection to introduction of such evidence but in fact asked questions on the issue himself.

Plaintiff is correct that a party’s bad motives in commencing an action are not a valid defense to the action and are immaterial. (Somers v. AAA Temporary Services, Inc. (1972), 5 Ill. App. 3d 931, 284 N.E.2d 462.) However, plaintiff can hardly claim error where his attorney conducted some lengthy examination of plaintiff and Danz on this issue. We find plaintiff waived this issue. Gibson v. State Farm Mutual Automobile Insurance Co. (1984), 125 Ill. App. 3d 142, 465 N.E.2d 689.

Plaintiff claims the issue of the solvency of U.S. Ink further prejudiced plaintiff’s case. It was determined before trial that as part of his prima facie case, plaintiff had to prove the solvency of U.S. Ink. The report of proceedings on this issue are not part of the record. Plaintiff’s proof on the issue amounted to his testimony that U.S. Ink is a wealthy company, based on the number of trucks it owns. On cross-examination, plaintiff denied any knowledge of the actual financial condition of the company and no expert testimony was presented. The solvency issue was withdrawn from the case by the defendant at the instruction conference without objection from plaintiff. Plaintiff argues the only way to establish the solvency issue was through plaintiff’s testimony.

We note plaintiff cites no authority on this issue and does not establish the prejudice suffered. The waiver rule applies. (People ex rel. Daley v. Warren Motors, Inc. (1986), 114 Ill. 2d 305, 500 N.E.2d 22.) On the merits, plaintiff could have presented evidence on this issue through the testimony of a third party, possibly an officer of the company. We note that the issue was not presented to the jury. No error.

Plaintiff argues the admission of expert testimony on an ultimate issue in the case, plaintiff’s contributory negligence in moving the barrel, should not have been allowed and constituted plain error which deprived plaintiff of a fair trial. Plaintiff also argues evidence of the Register’s duty to clean up the ink spill, presented through expert testimony, was improperly admitted.

Defendant first argues plaintiff waived these issues by failing to raise an objection at trial or ask that the testimony be stricken. Defendant also contends plaintiff raised the issue of the duty to clean up the spill in his examination of McNutt, Borah, and Gramlich. Alternatively, defendant argues plaintiff’s statement of the law is erroneous. The rules of evidence allow experts to testify on the ultimate issue, and the testimony regarding plaintiff’s contributory negligence in the underlying case, given by Gramlich and McNutt, was relevant to the standard of care against which Danz’s conduct is measured.

The record shows plaintiff did not object to the testimony given by Gramlich, Borah, and McNutt on plaintiff’s contributory negligence in moving the ink barrel. We find plaintiff has waived this issue because he did not object to the evidence. Gibson, 125 Ill. App. 3d 142, 465 N.E.2d 689.

Considering the merits, it is well established that an expert may directly express his opinion on an ultimate issue. (Perschall v. Metropolitan Life Insurance Co. (1983), 113 Ill. App. 3d 233, 237, 446 N.E.2d 570, 573.) However, not all opinions are admissible. The test is whether the expert’s opinion on the ultimate issue will assist the trier of fact in understanding the evidence and for determining a fact in issue. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §704.1, at 479 (4th ed. 1984).

In legal malpractice cases, expert testimony is generally used to establish the standard of care attorneys must exercise when representing clients. (2 R. Mallen & J. Smith, Legal Malpractice, §27.14, at 664 (3d ed. 1989).) It is also admissible to prove what the result should have been in the underlying proceeding. (2 R. Mallen & J. Smith, Legal Malpractice §27.16, at 679 (3d ed. 1989).) The expert testimony presented in this case on plaintiff’s contributory negligence concerned the standard of care Danz was required to exercise in assessing the existence of a possible third-party action and whether he breached a duty to plaintiff. In substance, the expert testimony demonstrated that because the evidence so clearly showed plaintiff caused his own injuries, Danz was not negligent in not filing an action against U.S. Ink. The experts testified on the reasonableness of Danz’s judgment that no viable cause of action against a third party existed. Moreover, the legal implications of plaintiff’s contributory negligence in moving the ink barrel had to be presented through expert testimony because a jury would not be able to understand the issues. (Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller (1979), 75 Ill. App. 3d 516, 522, 394 N.E.2d 559, 563-64; 2 R. Mallen & J. Smith, Legal Malpractice §27.14, at 668-69 (3d ed. 1989).) We find the expert testimony was properly admitted.

As to the evidence regarding who had a duty to clean up the ink spill, plaintiff introduced testimony through his own cross-examination of Gramlich, Borah, and on direct examination of McNutt. Plaintiff can hardly claim error from his own actions at trial.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re TYRONE JAMES, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Tyrone James, Respondent-Appellant).
    Fourth District
    No. 4—89—0825
    Opinion filed June 27, 1990.
    Michael H. Vonnahmen, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Beth McCann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent appeals a circuit court order which found he was mentally ill, and because of his illness, likely to inflict serious physical harm upon another (Ill. Rev. Stat. 1987, ch. 91½, par. 1—119(1)), and ordered his admission to a mental health facility. Respondent argues (1) the circuit court erred in failing to consider a report before disposition as required by section 3—810 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 3—810); and (2) the evidence was not clear and convincing.

We affirm.

Callie James, respondent’s mother, filed a petition asserting respondent was mentally ill and, because of his illness, reasonably expected to inflict serious harm on himself or another. The petition alleged respondent was in need of immediate hospitalization. Ill. Rev. Stat. 1987, ch. 91½, pars. 3-600, 3-601.

Dr. Terry Killian, a psychiatrist, filed a certificate supporting the petition. Killian certified respondent was mentally ill and reasonably likely to inflict harm on himself or others. Killian noted respondent had a history of chronic mental illness. However, the condition responded well to medication. Currently, respondent was not taking his medication. Killian based his diagnosis upon respondent’s beliefs that his mother was stealing his mail, people were telling him to kill her, and his mother should be killed.

John Lauer, a psychiatry resident, also certified respondent was mentally ill and likely to inflict harm upon another. Lauer based his diagnosis in part upon respondent’s history of chronic paranoid schizophrenia. Lauer stated respondent had stopped taking his medication two months prior to admission. Respondent believed his mother was poisoning him, heard voices telling him about the poison, and thought about killing his mother. Lauer noted respondent’s history included assaulting his mother and threatening her with a shotgun. A third certificate was filed on October 11, 1989.

Karen Broquet, a staff psychiatrist at Andrew McFarland Mental Health Center, testified she examined respondent and was familiar with his mental health history. Respondent believed his mother was putting something in his food, interfering with his receiving the word of God, and needed to be dead. Respondent suffered from chronic paranoid schizophrenia, which responded well to medication. However, respondent had been refusing to take his medication and was delusional. Respondent was aggressive, had been involved in a violent episode at the hospital, and posed a significant risk of harm to others.

Broquet testified respondent’s treatment plan addressed a variety of issues. It was directed toward encouraging him to take his medication and contained support programs to emphasize the distinction between reality and delusions. Respondent was also involved in social programs, central programming activities, and the unit environment. Broquet stated hospitalization was the least restrictive treatment setting.

Respondent stated that Jews had paid the sheriff to bring him to the mental health facility. He believed he could care for himself if “the woman” did not slip something into his food. Respondent would not name “the woman,” but stated she was a witch, who had been casting spells. President Bush had said to free him.

The trial judge found respondent had a mental illness and was reasonably likely to inflict harm upon himself or others because of the illness. The judge based his finding on the expert testimony, respondent’s testimony, the medical history, and the events of physical aggression. The judge stated he considered testimony concerning the treatment plan and found admission to a mental health facility was the least restrictive environment.

Initially, respondent argues the court erred in ordering his involuntary admission absent consideration of a treatment report as required by section 3—810 of the Code. Section 3—810 of the Code states:

“Before disposition is determined, the facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. *** If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3-810.)

Recently, this court held a total failure to comply with section 3—810 of the Code constituted reversible error. (In re James (1989), 191 Ill. App. 3d 352, 547 N.E.2d 759; see generally In re Collins (1981), 102 Ill. App. 3d 138, 429 N.E.2d 531.) In James we stated:

“Involuntary commitment procedures represent the balance between an individual’s liberty interests and society’s dual interests in protecting itself from potentially dangerous individuals while protecting and caring for those who are unable to care for themselves. (Stephenson, 67 Ill. 2d 544, 367 N.E.2d 1273.) Thus, the procedures set forth in the Code are a legislative recognition that civil commitment is a deprivation of personal liberty. The purpose of the procedures is to provide adequate safeguards against unreasonable commitment. [Citation.] Inherent in the civil commitment process is the State’s promise that the individual subject to admission will receive treatment. [Citations.] We agree with the Collins court’s conclusion that a total failure to comply with the section evidences a disregard for the legislatively established procedures. It is contrary to the balancing of interests established by the Code and should not be condoned.” James, 191 Ill. App. 3d at 356, 547 N.E.2d at 761-62.

In the instant case, a report before disposition was prepared, and Broquet testified about it. The trial judge specifically stated he relied upon the report as testified to by Broquet. We find the trial court complied with section 3 — 810 of the Code. The specific language of the statute does not require the filing of the report prior to the hearing. It requires preparation of a report containing specific information and consideration of the report by the trial court. We note the record establishes a report complying with section 3 — 810 of the Code was prepared on October 4,1989. It was filed on November 9,1989.

The situation in the instant case is analogous to that presented in In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65. In Meek, respondent argued the report filed pursuant to section 3—810 of the Code lacked sufficient detail. On appeal, the court found respondent waived any objection to the sufficiency of the report by failing to raise it below. Since the statute was complied with, no error occurred in this case. Additionally, respondent has waived any objection to the sufficiency of the report. See also In re Smoots (1989), 189 Ill. App. 3d 289, 544 N.E.2d 1235.

Respondent next argues the evidence was insufficient to support a finding of mental illness and danger to others. In order to adjudicate a person in need of mental treatment, the court must be presented with clear and convincing evidence which establishes (1) the respondent is suffering from a mental disorder; and (2) due to the disorder, the respondent may injure himself or others, or is unable to care for himself. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273; James, 191 Ill. App. 3d 352, 547 N.E.2d 759.) Courts do not have to wait until someone is actually harmed before ordering hospitalization. (In re Grimes (1990), 193 Ill. App. 3d 119, 549 N.E.2d 616.) The evidence supports the court’s decision. Respondent suffered from paranoid schizophrenia, was delusional, was actively aggressive, and had threatened his mother.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE KNECHT

text:
      In re W.U. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Carolyn Johnson, Respondent-Appellant).
    Fourth District
    No. 4—89—0775
    Opinion filed June 29, 1990.
    Lynn R. Feldman, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas A. Bruno, of Urbana, guardian ad litem.

   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Carolyn Johnson, respondent, appeals the trial court order terminating parental rights for her son, L.K. Paternal rights were also terminated for L.K.’s father, Willie Keyhea. Keyhea does not join respondent in this appeal. We affirm.

On March 5, 1984, the Champaign County State’s Attorney filed a petition against respondent alleging neglect and abuse of her 14-year-old son, T.J., her 12-year-old son, W.U., her six-year-old son, W.K., and her five-year-old son, L.K. The petition alleged the minors were neglected as respondent does not provide the proper and necessary support for the minors, as she last left T.J. and W.U. in the care of an uncle from June 1983 through the present, without making any formal arrangement and without providing any support to the uncle; the minors are neglected as respondent does not provide necessary support for the minors, as she left W.K. and L.K. with an individual named Jesse on or about February 28, 1988, and by March 2, 1988, still had not made contact with this individual or done anything about picking the children up; the minors are neglected as respondent does not provide the minors the education required by law, as W.K. and L.K. have missed 31 days of school during this school year; the minors are neglected as respondent does not provide the care necessary for the minors’ well-being, in that the school social workers for W.K. and L.K. made arrangements to get shoes for the children but needed a permission slip signed by respondent, and respondent never returned the permission slip; the minors are abused by reason of being minors under the age of 18 whose environment is injurious to their welfare when they reside with respondent. At the shelter-care hearing, the trial court found the petition to be supported by probable cause and temporary custody of the children was given to Illinois Department of Children and Family Services (DCFS).

An adjudicatory hearing was held on March 27, 1984, and the children were found to be neglected. The court found for the petitioner on the allegations the minors were neglected due to respondent having left T.J. and W.U. in the care of an uncle and due to the school absenteeism of W.K. and L.K. A dispositional hearing was held on May 2, 1984. The court adjudged the minors neglected and respondent unable, unfit, and unwilling to care for them. The court appointed DCFS guardian of the minors with power to place and made rehabilitative orders against respondent.

A series of review hearings followed on October 25, 1984, January 24, 1985, May 2, 1988, September 6, 1988, October 4, 1988, April 4, 1989, and May 30, 1989. Additionally, DCFS provided the court with periodic reports of respondent’s progress. On June 5, 1989, a petition for termination of respondent’s parental rights for W.U., W.K., and L.K. was filed. The petition alleged respondent was an unfit parent for failure to make reasonable efforts to correct the conditions which were the basis for removal of the children, for failure to make reasonable progress toward return of the children within 12 months after adjudication, and for failure to demonstrate a reasonable degree of interest, concern, and responsibility as to the welfare of the children. T.J. was not included in the petition because of his eligibility for independent living.

A hearing was held on the petition to terminate parental rights on July 24, 1989. The court found respondent unfit based upon her failure to make reasonable efforts, her failure to correct conditions, and her failure to demonstrate a reasonable degree of interest. The court terminated respondent’s parental rights as to L.K. and gave DCFS the power to consent to adoption. The court found it was not in the best interests of W.U. and W.K. to terminate respondent’s parental rights. Respondent appeals, alleging the trial court erred in finding her unfit and in terminating her parental rights with respect to L.K.

Termination of parental rights is governed by the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801—1 et seq.) and the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501 et seq.). Under these acts, a finding of unfitness may lead to termination of parental rights. The court may take such action after finding it to be in the best interests of the minor. (Ill. Rev. Stat. 1989, ch. 37, par. 802—29(2).) A finding of unfitness can result from failure by the parent to make reasonable efforts to correct conditions which were the basis for the removal of the child, or from failure to make reasonable progress toward the return of the child within 12 months after adjudication, or from failure to maintain a reasonable degree of interest, concern, and responsibility as to the child’s welfare. (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(m), (D)(b).) Reasonable progress requires measurable movement toward the goal of returning the child. Whether a small amount of progress is reasonable must be determined with proper regard for the best interests of the child. In re Edmonds (1980), 85 Ill. App. 3d 229, 406 N.E.2d 231.

At the termination hearing, Vernessa Gipson testified for the State. Gipson was the child-welfare specialist assigned to this case at its inception. In this capacity, she assisted in formulating a service plan for respondent designed to improve respondent’s parenting ability. The plan provided respondent was to obtain adequate and suitable housing for herself and her four children, to attend parenting classes through Children’s Home and Aid Society of Illinois, seek employment in order to financially support herself and her children, and refrain from abusing any type of alcohol or drug substance. This plan was formulated in response to the conditions which had precipitated removing the children from respondent. DCFS evaluated respondent’s progress every six months at an adminstrative case review. Documents from these reviews were admitted into evidence at the termination hearing.

Respondent’s first administrative review was held on September 14, 1984. At this time, respondent had not made any progress toward establishing a permanent place of residence for herself or her children. Respondent had not kept any appointments with DCFS, nor had she attended parenting classes. Respondent had called Gipson on August 27, 1984, and stated she had a $300-a-day heroin habit and wanted help. Respondent did not attend an appointment at Prairie Center which was made to assist her with her drug problem. At this time, there were also two outstanding warrants issued for respondent for the offenses of burglary and forgery.

Respondent was next evaluated on March 8, 1985. At this time, respondent had been sentenced to four years’ imprisonment at the Dwight Correctional Center. Her children had been moved from their original foster-care placements and were living with respondent’s sister and brother-in-law, Ann and Robert Johnson.

The evaluation of September 27, 1985, indicated respondent had been released from the penitentiary and was in a work-release program in Chicago, Illinois, which required she reside at the Salvation Army residential facility. Respondent was employed while in the program and had made one visit to Champaign. While respondent was in the work-release program, she did meet several of the goals of her service plan. As reported in the adminstrative review of March 21, 1986, and September 26, 1986, respondent was employed at Church’s Fried Chicken and had remained drug free. She was participating in counseling and had visited with her children on a monthly basis in Champaign.

Respondent was released from the work program in October 1986 and her progress toward meeting her goals immediately diminished. Upon her release, she stayed briefly in Champaign, had very little contact with her sons and no contact at all with DCFS. In December 1986, respondent requested her parole be transferred to Chicago, as she was moving back there to live with a man.

Respondent did contact DCFS in January 1987, to set up an appointment at a time when she expected to be in town; however, respondent did not keep the appointment. According to respondent’s sister, Ann Johnson, respondent was in town that weekend. On March 16, 1987, respondent contacted DCFS and stated she planned on returning to Champaign after her marriage to John Behea in April 1987. There had been little contact between respondent and her sons. Respondent had not demonstrated any interest in the boys’ education and had not attended any teacher’s conferences as requested. At this time, W.K. was having trouble at school as he had been caught lying and stealing. He continued to work below his grade level and was being provided additional assistance with speech and language services in a learning disabilities class. L.K. also continued to function below his grade level and received extra help in a learning disabilities class.

The record from the adminstrative review held September 23, 1987, stated respondent had not kept in contact with her sons, had not visited with them since before March 1987, and had not written to them. Respondent continued to reside in the Chicago area, where she worked two days a week for the Chicago Housing Authority. She was maintaining a relationship with John Behea, but now did not plan on marrying him. The March 4, 1988, adminstrative review indicated respondent had visited with her sons in September, October, November 1987, and January and February 1988. Respondent had been released from parole in October 1987; however, she had not returned to Champaign or taken a role in her sons’ schooling.

As of September 23, 1988, respondent had secured employment at Jewel Foods in Champaign. Respondent had not yet secured housing and it was not always known whether she was living in Champaign or Chicago, or where she could be reached at either location. Respondent, for the most part, kept in contact with her sons, but again had not attended any school conferences.

The record from the adminstrative review of March 23, 1989, indicated respondent still had not secured housing. Respondent was no longer employed, allegedly due to a hand injury, but refused to sign release forms so her injury could be confirmed. Respondent saw her sons at least twice monthly, but was not available for the weekly visits on a consistent basis. The service plan established in September 1988 indicated respondent should visit with the children twice a week for at least two hours and one weekend day. Respondent had not attended any school conferences, but had attended a sporting event. W.K. had been classified as learning disabled and was two to three grades behind in all subjects. L.K. continued to be below grade level in achievement and had difficulty reading.

As of September 20, 1989, respondent was again incarcerated at the Dwight Correctional Center, apparently for the offense of theft. As part of her sentencing agreement, she had entered into a drug and alcohol program. Respondent attributed her reinvolvement in drugs to her inability to gain employment and housing. Respondent is pregnant and hopes to be a “real mother” to the baby, which is due in February.

The documents received by the court from the administrative reviews were substantiated by a succession of child-welfare specialists who had been assigned to the case during its five-year pendency. All testified respondent had lacked the stability required to regain custody of the children.

On appeal, a court will not reverse a finding of unfitness unless it is against the manifest weight of the evidence. The trial court’s opportunity to view and evaluate the parties and their testimony is far superior to that of a reviewing court. Accordingly, the trial court’s finding should be given great deference. In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84; In re Wright (1986), 142 Ill. App. 3d 809, 492 N.E.2d 252.

Respondent was given both time and opportunity to make a reasonable progress, reasonable efforts, and to demonstrate an interest in her children. Respondent failed and the trial court was required to act. The evidence showed at the time respondent’s children were taken from her custody, respondent did not have a permanent place to live and would frequently leave her children with friends or relatives for extended periods of time without letting anyone know where she was or when she would be back. Her two youngest children, W.K. and L.K., had missed a great deal of school even after respondent had been told how important it was for them to attend regularly.

Five years later, respondent still does not have a permanent place to live and continues to disappear and avoid contact with DCFS and her family. During this five-year period, respondent has lived a nomadic existence, moving back and forth between Champaign and Chicago, often without informing anyone of her whereabouts. At no time did respondent have a home of her own at which she could have taken custody of the children. Respondent’s contacts and visits with the children remained sporadic, with extended periods in which there was no contact whatsoever.

Respondent’s assertion there has been reasonable progress because W.K. and L.K. were now attending school regularly is without merit. This progress has not been due to any efforts or action on the part of respondent. Respondent has not made any attempts to understand or participate in the educational needs of W.K. and L.K., even though informed of their educational problems. Respondent has not attended any school conferences, even when specifically advised of the meetings and told of the importance of attending. Respondent has consistently shown a blatant lack of concern toward her children’s education during the entire five-year period.

The trial court did not abuse its discretion in terminating respondent’s parental rights for L.K. Such a decision was supported by clear and convincing evidence termination was in the best interests of L.K. At the time of termination, L.K. was an 11-year-old boy who had been in temporary custody since the age of six. The Johnsons, with whom L.K. had been living for the last five years, were interested in adopting him; moreover, there appeared to be other adoptive options. From all the evidence, it is not likely respondent’s parenting ability will improve in the near future, and L.K. has already had to wait too long for a permanent home. Clearly, the best interests of L.K. dictate termination of respondent’s parental rights.

The fact the trial court found it not to be in the best interests of W.U. and W.K. to terminate parental rights does not affect our decision regarding L.K. At the time of the termination hearing, W.U. was a 17-year-old high school junior with plans to attend college. W.U. was entering the independent living program and requested parental rights not be terminated. W.K. was 12 years old at the time of the termination hearing. He was no longer living with the Johnsons and had been placed in foster care. Though DCFS recognized W.K.’s need for permanent placement, it stated W.K. could probably not be successfully adopted citing his race, age, learning disabilities, behavioral problems, and involvement with the law. It was the recommendation of DCFS that parental rights for W.K. not be terminated for fear he would become “lost in the system.” The trial court agreed.

Ironically, W.K. has already been “lost in the system.” We question the rationale and wisdom of waiting five years to file a petition for termination. (See In re A.T. (1990), 197 Ill. App. 3d 821 (Steig mann, J., specially concurring).) Though respondent has seen fit to squander her life and play the role of a visiting mother when convenient, she should have not been permitted to inflict such a punishment upon W.K. W.K. deserved, and still does deserve, better.

Affirmed.

LUND and SPITZ, JJ., concur.


author: JUSTICE LUND

text:
    BETTY S. NICHOLAS, Adm’r of the Estate of Shane Nicholas, Deceased, et al., Plaintiffs-Appellants, v. ALLIANCE COMMUNICATIONS et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0972
    Opinion filed June 29, 1990.

      Smith, Waters, Kuehn & Hughes, Ltd., of Peoria (Steven P. Clancy, of counsel), for appellants.
    Frederic L. Kenney, of Decatur, for appellee Stuart Toft.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from the order of the circuit court of Vermilion County, dismissing counts III and XXVII of the amended complaints of Betty S. Nicholas, administrator of the estate of Shane Nicholas, deceased; Joseph Nicholas; and Gloria Ice, plaintiffs. Stuart Toft, one of the defendants, had requested such relief, based upon section 2— 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615).

Plaintiffs’ decedent was killed when hit by one of Toft’s vehicles, which was being driven by codefendant Gary P. Brown. Counts III and XXVII describe Brown’s alleged negligence and attempt to state a cause of action against Toft, based upon a negligent entrustment theory.

The relevant allegation in count III is paragraph seven, which states:

“7. That said vehicle was entrusted to Gary P. Brown, for use as Mr. Brown saw fit, by Defendant personally and through his agents and employees.”

The relevant allegation in count XXVII is paragraph six, which states:

“6. That said vehicle was entrusted to Gary P. Brown, for use as Mr. Brown saw fit, by Defendant personally or through his agents or employees.”

The counts do not allege Toft knowingly placed the vehicle with Brown, nor do they allege facts establishing Toft had knowledge of Brown’s recklessness or incompetence.

The appellants’ brief and the appellees' brief establish that one of Toft’s employees provided one of Toft’s automobiles to Brown.

The theory of negligent entrustment is described in Teter v. Clemens (1986), 112 Ill. 2d 252, 257, 492 N.E.2d 1340, 1342. It refers to “ ‘entrusting a dangerous article to another whom the lender knows, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others.’ ” (Teter, 112 Ill. 2d at 257, 492 N.E.2d at 1342, quoting 1 J. Dooley, Modern Tort Law §23.01, at 613 (1982).) Negligent entrustment should not be mistaken for liability of a principal for the negligence of an agent acting within the scope of employment, which is commonly referred to as the doctrine of respondeat superior. (Hogan v. City of Chicago (1943), 319 Ill. App. 531, 540, 49 N.E.2d 861, 865; 4 Ill. L. & Prac. Automobiles and Motor Vehicles §213 (1971); 3 Am. Jur. 2d Agency §280 (1986).) The Teter opinion also discussed Illinois’ insistence on fact pleading, and indicates the insufficiency of the allegations in count III, paragraph 7, and count XXVII, paragraph 6. Teter, 112 Ill. 2d at 256, 492 N.E.2d at 1342.

Plaintiffs do not argue their position is based upon agency. They basically contend that when an agent, or employee, places a principal’s vehicle (a dangerous article) in the possession of one he knows, or should have known, is likely to use it in a manner involving an unreasonable risk of harm to others, the principal should be responsible under the negligent entrustment theory. They basically contend that it is not necessary to include allegations of the conduct being within the scope of employment, as is required in respondeat superior cases. The pleadings in counts III and XXVII do not include allegations relating to the action being within the scope of employment.

To sustain their position that within the scope is not necessary to recover against Toft, plaintiffs cite Restatement (Second) of Torts §390, at 314 (1965), which provides:

“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”

The plaintiffs’ pleading fails to satisfy the dictates of this provision. The section states the supplier must have knowledge, or reason to know. Plaintiffs’ pleadings do not contain facts sufficient to establish that Toft knew or had reason to know of the dangers, nor is there sufficient allegation of fact to establish that the employee was acting within the scope of his employment. In the present case, both knowledge of the danger and the existence of the employee acting within the scope of his employment would be necessary to stretch the negligent entrustment liability to Toft. See Milner v. Nelson (1950), 340 Ill. App. 21, 91 N.E.2d 111.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASHLEY EVANS, Defendant-Appellant.
    Fourth District
    No. 4—89—0217
    Opinion filed June 29, 1990.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In December 1988, a jury found defendant, Ashley Evans, guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(a)(2)). The court sentenced defendant to 12 years’ imprisonment. On appeal, defendant argues that (1) he was not proved guilty beyond a reasonable doubt because the victim’s testimony was neither substantially corroborated nor clear and convincing; (2) he was denied a fair trial because his indictment charged that he “by the use of force * * * caused bruising,” yet the jury instructions and the State’s closing argument told the jury to convict the defendant upon a finding that he “by the use of force or threat of force,” caused any “physical harm” during the offense; (3) the trial court committed reversible error in denying defense counsel’s request to instruct the jury on the lesser included offense of criminal sexual assault; (4) the State improperly defined the reasonable doubt standard in its closing argument; (5) he was deprived of effective assistance of counsel because defense counsel conceded during closing arguments that the State had sufficiently proved the elements of bodily harm and the use of threat of force; and (6) the State improperly argued in its closing argument that (a) defendant’s statement to the police shortly after the alleged offense was tantamount to a full written confession, and (b) the sexual penetration involved in the alleged offense was simply a precursor of other acts.

We affirm.

I. THE EVIDENCE

In September 1988, a McLean County grand jury returned an indictment, charging defendant with the offense of aggravated criminal sexual assault. Specifically, the indictment stated that defendant:

“[KJnowingly committed an act of sexual penetration by the use of force on [P.E.P.], said act involving the tongue of Ashley Evans and the vagina of [P.E.P.] and Ashley Evans caused bruising to [P.E.P.] by hitting and choking her ***.”

A trial was held in December 1988. At trial, P.E.P. testified that shortly after midnight on September 6, 1988, she was walking with Pat Phillips and Dave Smith to pick up some beer. On their way to the liquor store, the group met defendant and decided to go to his apartment to drink. Approximately 10 or 15 minutes after arriving at defendant’s apartment, Phillips and Smith left, saying they were going to get cigarettes. P.E.P. testified that shortly thereafter, she and defendant went next door to ask Robert Schlattman for cigarettes. Upon returning to defendant’s apartment, defendant told P.E.P. that he wanted a mulatto baby. She refused his request to engage in sex. She testified that defendant then gained physical control over her, although she could not at first remember the manner in which defendant held her.

P.E.P. testified she screamed as defendant dragged her through the kitchen of his apartment and into the bedroom. She stated that defendant began choking her to prevent her from screaming. She also testified they were possibly in the kitchen when defendant began squeezing her throat. After she tried to bite defendant, he slapped her across the face and ripped her shirt off. She did not remember how defendant took the rest of her clothes off.

P.E.P. stated that defendant then placed his mouth on her vagina. At the time, he was dressed only in his undershorts. She did not consent to defendant’s action. She testified that she was in a state of shock. Defendant engaged in this activity for a few seconds and stopped when floodlights came in the back and side windows. Subsequently, P.E.P. heard knocking at the front door. The police entered the apartment, but P.E.P. continued to scream.

P.E.P. described her injuries as a bruise on one of her arms, several bruises on her neck, a bruise near her hairline, and a black eye. She stated that the police photographed these bruises at the police station.

On cross-examination, P.E.P. testified that she sometimes had problems with her memory, that it was not defendant’s idea for her to come to his apartment, and that Phillips and Smith did not ask her to go with them when they left. She explained that she did not want to go with them because she wanted to finish her beer. P.E.P. acknowledged that at the time of the incident she was taking Dalmane and she was not supposed to drink alcohol with that medication. Before she arrived at defendant’s apartment, she had consumed eight beers. P.E.P. drank another beer while in defendant’s apartment.

P.E.P. stated that she screamed the whole time defendant pulled her into the bedroom, but did not scream during the oral sex because defendant told her not to. P.E.P. testified that during oral sex, defendant was not pinning her down, she did not know where his hands were, and she did not scream because she thought it fruitless.

P.E.P. testified that she remembered describing the incident to Officer James Rash. She did not recall whether he asked her if she had been screaming. She did not recall telling Officer Rash that defendant would not let go of her neck, nor that when he started licking her vagina she screamed, at which point he stopped licking her vagina, started choking her, and then alternated between licking her vagina and choking her. P.E.P. testified that the whole incident was alarming, she could have been in a state of shock, and she was afraid.

On redirect examination, P.E.P. stated that the police asked her if she wanted to go to the hospital. She told them that was unnecessary.

Schlattman testified that on September 6, 1988, he was living next door to defendant. He indicated that on September 5, 1988, at about 11 p.m., he heard people arriving and leaving defendant’s apartment. He stated that defendant and P.E.P. visited him around 11:30 p.m. and asked him to join their party. He did not recall the two asking for cigarettes. Around midnight, he heard a group of people leave defendant’s apartment. Schlattman indicated that it was quiet for about 15 minutes, then he heard defendant and P.E.P. talking. P.E.P. asked defendant to allow her to leave his apartment. After defendant denied her request, P.E.P. began yelling for help and then began to scream. Subsequently, Schlattman went to a pay phone and called the police.

On cross-examination, Schlattman testified that he knew defendant, P.E.P., and Phillips because they were all clients at the Human Services Center. He also said he thought the screams from defendant’s apartment were coming from defendant’s living room. He stated that he did not hear any screams from the bedroom area until after the police arrived.

Officer James Rash testified that he was met by Schlattman outside defendant’s apartment at approximately 2 a.m. He stated that he and Officer Michael Ripsch knocked on the front door of defendant’s apartment. Getting no response, Officer Rash started toward the back of the house. On his way to the back of the house, Officer Rash heard a woman screaming for help. A door and a window were located at the back of the house. After knocking on the door, Officer Rash knocked on a wall. A few seconds later, defendant parted some curtains and looked outside. Officer Rash told him to open the door.

After the curtains closed, Officer Rash heard more screams and returned to the front door. He and Officer Mark Provanzano kicked it open. Officer Rash testified that he then saw defendant coming out of the bedroom, wearing only undershorts. Officer Rash went into the bedroom to check on P.E.P., finding her wearing only an open flannel shirt. He saw bruise marks on her neck and shoulders. Officer Rash later took of the marks.

Officer Provanzano testified that after he and Officer Rash entered the apartment, he examined the area for possible physical evidence. Officer Provanzano found four buttons on the floor near the bed.

Officer Ripsch corroborated Rash’s testimony. He informed defendant that he was under arrest for battery and criminal sexual assault. After he told defendant of his arrest, defendant, on at least three different occasions, stated that he could not understand how he could be arrested for criminal sexual assault because he was in his own apartment.

II. THE ISSUES

A. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that the evidence was not sufficient to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault. Specifically, defendant argues that the complaining witness’ testimony in a sex offense case must be either substantially corroborated or clear and convincing. However, this court recently held in People v. Roy (1990), 201 Ill. App. 3d 166, 185, that we no longer require in a sex offense case that the State must, in addition to proving the defendant guilty beyond a reasonable doubt, demonstrate either that the evidence is substantially corroborated or that the victim’s testimony is clear and convincing. We adhere to the views expressed in James and Roy and review the evidence in this case accordingly.

A verdict reflects the jury’s assessment of the credibility of the witnesses, a function generally within its province as the fact finder. (People v. Cole (1990), 193 Ill. App. 3d 990, 995, 550 N.E.2d 723, 727.) All alleged deficiencies in the State’s case now being argued on appeal were argued before the jury which actually saw and heard the witnesses. (Cole, 193 Ill. App. 3d at 995, 550 N.E.2d at 727.) A reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. Cole, 193 Ill. App. 3d at 995, 550 N.E.2d at 727.

In the instant case, one of defendant’s neighbors, Schlattman, testified that he heard P.E.P. asking to leave and screaming for help. Officer Rash stated that when he arrived at defendant’s apartment, he also heard P.E.P. screaming for help. He then indicated that defendant looked out the window, but did not open the door as requested, requiring the officers to kick defendant’s door open. Officers Rash and Ripsch both testified that when they entered defendant’s apartment, defendant was wearing only undershorts and P.E.P. was wearing only a shirt. Further, the officers testified that P.E.P. was bruised and photographs of these bruises were introduced into evidence. Officer Provanzano stated that he found buttons from P.E.P.’s shirt on the floor near the bed. Moreover, defendant made three statements after his arrest, which the jury could find as acknowledging that a sexual assault had occurred, but indicating that defendant could not understand how he could be arrested because the incident happened in his apartment.

Because the evidence presented against defendant at trial is overwhelming, we find the State proved defendant guilty beyond a reasonable doubt.

B. VARIANCE FROM INDICTMENT

The second issue defendant raises is whether he was denied a fair trial because his indictment charged that he “by the use of force *** caused bruising,” contrary to both the jury instructions and the State’s closing argument wherein the jury was told to convict the defendant upon a finding that he “by the use of force or the threat of force” caused any “physical harm” during the offense.

At trial, defendant did not object either to the instructions or to the State’s closing argument, nor did defendant raise the variance issue in a written post-trial motion. Errors contained in jury instructions are waived if not objected to at trial. (People v. Maberry (1990), 193 Ill. App. 3d 250, 265, 549 N.E.2d 974, 984.) Additionally, issues are waived for purposes of appeal if not objected to both at trial and in a written post-trial motion unless plain error is involved. (People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124, 1131-32.) Thus, we find defendant has technically waived this issue.

Having determined that this variance issue has been waived, we have considered whether the claimed error is plain error, affecting substantial rights, that may be noticed on appeal. (107 Ill. 2d R. 615(a).) We have done so in accordance with the criteria recently provided by the supreme court in People v. Herrett (1990), 137 Ill. 2d 195. Because we are unsure that any error occurred, we find that invocation of the plain error rule is hardly necessary “to preserve the integrity of the judicial process and provide a fair trial.” Herrett, 137 Ill. 2d at 210.

C. DENIAL OF JURY INSTRUCTION ON LESSER INCLUDED OFFENSE

Defendant’s third contention on appeal involves the trial court’s denial of his proffered instruction on the lesser included offense of criminal sexual assault. He argues that because the jury could have found him guilty of the lesser included offense of criminal sexual assault if the jury found the State had not proved bodily harm to RE.E, it was reversible error for the court to refuse to give that instruction.

When the record contains evidence which, if believed by the jury, would reduce the crime to a lesser included offense, the trial court should instruct the jury on that lesser included offense. (People v. Fonville (1987), 158 Ill. App. 3d 676, 685, 511 N.E.2d 1255, 1262.) However, in People v. Williams (1989), 191 Ill. App. 3d 269, 274, 547 N.E.2d 608, 612, this court stated the following:

“A defendant’s instruction on the lesser offense is appropriate when the evidence would permit a jury rationally to find him guilty of the less serious offense and not guilty of the more serious offense. Therefore, the evidence in a particular case might preclude use of an instruction on the lesser offense.”

In the instant case, we find there was no basis on which a rational jury could conclude that there was no bodily harm to the victim. (See People v. Bryant (1986), 113 Ill. 2d 497, 507, 499 N.E.2d 413, 417-18.) The victim testified that she was injured by defendant and her injury was corroborated by others. The court did not err in refusing defendant’s instruction on criminal sexual assault.

D. THE STATE’S CLOSING ARGUMENT

1. ALLEGEDLY IMPROPER REMARKS

During closing argument, the State argued the following:

“Based on that, folks, I submit that we have proven our case beyond a reasonable doubt. But we have got just a little bit more, don’t we? Because what did he say at that booking room? It can’t be criminal assault — -sexual assault if it took place in my apartment. Now goodness gracious, folks, he didn’t say it can’t be criminal sexual assault because we didn’t have any sex. It can’t be criminal sexual assault because she was not getting out of my apartment when I wanted her to. Isn’t that tantamount to a full written confession?”

During rebuttal, the prosecutor argued:

“Ladies and gentlemen, probably most crucially, why did he say, it can’t be a sexual assault if it is in my apartment? I submit to you folks that when he said that, he confessed.”

In addition, the State argued:

“Mrs. Davis says that there is no evidence of any penetration of her by his penis, and that is true. There was no evidence of that. But I do submit to you, ladies and gentlemen, that the evidence is clear that the act of sexual penetration was occurring when the squad car lights and those flashlights began shining through the window. I submit that this act of sexual penetration was the precursor of others, and it is only the intervention of the police catching him red-handed if you will that resulted in these charges.”

We find the above statements to be within the bounds of proper closing argument, consisting of nothing more than a reasonable characterization of the evidence and reasonable inferences drawn therefrom. See People v. Collins (1985), 106 Ill. 2d 237, 277-78, 478 N.E.2d 267, 285.

Additionally, we note that defense counsel did not object to these remarks at the time of closing argument nor in his written post-trial motion. Therefore, this argument on appeal is waived.

2. DEFINING REASONABLE DOUBT

Defendant next argues the State improperly defined the reasonable doubt standard for the jury during its closing argument. The statements in question are the following:

“Finally, ladies and gentlemen, Judge Dearborn is going to instruct you on the burden of proof in this case. We have to prove our case beyond a reasonable doubt. That is the standard. We talked about it earlier. I submit to you folks that the operative word in that instruction is reasonable. Now I am not going to try to tell you what reasonable means, that is for you to decide. But I submit to you folks that we only have to prove the ease beyond a doubt which makes sense, which has some reason compared with all the other evidence. Again, a little common sense, folks. We don’t have to exclude every doubt, any farfetched doubt. Only reasonableness.” (Emphasis added.)

The State’s comments regarding reasonable doubt that we have emphasized were improper. Neither the court nor counsel should attempt to define the reasonable doubt standard for the jury. (People v. Ellis (1985), 134 Ill. App. 3d 924, 926, 481 N.E.2d 320, 322; People v. Eddington (1984), 129 Ill. App. 3d 745, 780, 473 N.E.2d 103, 127.) However, “[e]ven comments that may be said to be improper do not constitute reversible error unless they result in substantial prejudice.” (Collins, 106 Ill. 2d at 276, 478 N.E.2d at 284.) Given the overwhelming nature of the evidence against defendant and the rather mild nature of the impropriety (we note that no objection to these remarks was ever raised), we find no substantial prejudice to have been caused.

E. EFFECTIVE ASSISTANCE OF COUNSEL

Finally, defendant argues that he was denied the effective assistance of counsel when his attorney conceded at closing argument that defendant caused bodily harm to his victim. Specifically, defense counsel stated the following:

“There is another thing that I think is significant before we get into specifics, and that is this. As an Assistant State’s Attorney myself for some years, I am very familiar with the fact that the assistant who files the case or the State’s Attorney who files the case has the option of choosing the appropriate charge. And how you do that is you sift through the evidence, you look at the police reports, you look at the physical evidence that is there, and you decide what is the charge that we are going file here or are we going to file one. And you look at everything there. Before the case ever goes to the Grand Jury, that decision is made. And I want to submit to you that in this case, the wrong charge was filed, the wrong charge was brought — .
[Prosecutor]: Judge, I am going to object to this as improper and beyond the scope of the case.
THE COURT: Overruled at this point.
[Defense counsel]: And that what should have been brought in this case is a case of battery. There is no question in this case that my client committed a battery against [P.E.P.]. He is not contesting it. It is not an issue in the case. There is ample testimony about it. There is testimony about his hands around her neck. There is testimony about screaming, there is testimony about fear. There is testimony, all of it going to a battery, and that would have been the particularly appropriate charge. But you are not hearing evidence today on a battery case. It is not a battery case, it is a sex case; and that is what you have to consider here today. I will not try to mislead you, there are elements of force in the sex case itself, and that is why it is very complicated and why you have to think very carefully when you do your deliberations in this case, because one of the elements in addition to sexual penetration is by force or use of force, and another element in aggravated criminal sexual assault is causing bodily harm of some sort or another. So that it looks really neat, it looks like — well look at the State's case, we have by force or use of force for one thing, we know that. And we probably have some kind of bodily harm, because she testified that these were marks on her neck even though she didn’t seek any medical treatment or ask for any hospitalization or any medical care of any sort, even though it was offered, she didn’t want that. There may have been some bodily harm. But was there sexual penetration? That is the crux of this case, ladies and gentlemen. And I submit to you that any evidence of that is patently unbelievable, and there are reasons why I believe that and they are in the evidence.”

The standard for establishing ineffective assistance of counsel was set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, where the United States Supreme Court announced that a defendant must first show that his counsel’s performance was deficient, and second, he must show that this deficiency prejudiced him so that but for counsel’s unprofessional errors, the result of the proceeding would probably have been different.

Applying the first requirement in Strickland, we find that defense counsel's remarks during closing argument were not deficient, but merely strategic. The State presented uncontradicted evidence at trial that the victim was bruised and that the defendant used force upon her. Earlier in this opinion, we observed that this evidence was so strong, there was no basis on which a rational jury could conclude there was no injury to the victim.

At closing argument, defense counsel made a tactical decision to acknowledge the strength of the evidence showing force and injury, focusing the jury’s attention instead on the element of penetration. Defense counsel was, in essence, trying to highlight for the jury counsel’s claim that there was no sexual penetration, that the State brought the wrong charge against defendant, and that the defendant should therefore be acquitted. This strategy is sometimes successful. Here it was not. However, errors in judgment or trial strategy do not establish incompetency of counsel for the purpose of determining whether defendant has been denied the effective assistance of counsel. People v. Eddmonds (1984), 101 Ill. 2d 44, 70, 461 N.E.2d 347, 360.

With regard to the second requirement set forth in Strickland, it also has not been met by defendant. Considering the strength of the State’s case, we conclude that there is close to zero probability that but for defense counsel’s concessions, the outcome would have been different.

Accordingly, for the foregoing reasons, the judgment and sentence of the circuit court of Sangamon County are affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.