author: JUSTICE SCARIANO

text:
    JOHN A. DOYLE, Plaintiff-Appellee, v. WHITE METAL ROLLING AND STAMPING CORPORATION et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—91—2960
    Opinion filed June 29, 1993.

      French, Kezelis & Kominiarek, P.C., of Chicago (Algimantas Kezelis, Russell P. Veldenz, and Robert A. Kezelis, of counsel), for appellants.
    Terrence K. Hegarty & Associates, Ltd., of Chicago (Terrence K. Hegarty and James S. Smith, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff John Doyle was injured on November 13, 1982, after falling off of a stepladder manufactured by codefendant White Metal Rolling and Stamping Corporation (White Metal) and sold by codefendant Sears, Roebuck & Company (Sears) to plaintiff’s employer, the Joliet Correctional Center (JCC).

Plaintiff filed a products liability action against defendants on February 13, 1985, count I of which alleged that the ladder “was unreasonably dangerous for users because [it] failed to perform in a manner reasonably expected since it was incapable of sustaining human weight when used in a foreseeable manner without collapsing.” The second count charged that the ladder was unreasonably dangerous for users because the rear rails were too weak and the steps were too narrow. After defendants’ motions to dismiss for failure to state a cause of action were denied, the cause was tried to a jury wherein the following pertinent facts were adduced.

THE INJURY

Plaintiff testified that on November 13, 1982, he was working his usual day shift as a stationary engineer at the JCC. At about 8:15, he went into the powerhouse in order to obtain a nipple or a pet cock, both of which were contained in a milk crate atop a cabinet along the north wall of the powerhouse. The cabinet was six feet tall, and there was an aisle of approximately 54 inches between it and a water tank to the south.

Plaintiff, who at the time of the incident was 5 feet 7 inches tall, and weighed 162 pounds, removed from the storage area a five-foot aluminum ladder which had just arrived the previous day. He placed it on the floor with all four of its legs on the ground facing east, two inches in front of the cabinet (on his left) directly under the milk crate. After extending its spreader arms and bucket tray, he climbed onto the second step and reached into the crate with his right hand while holding on to the top step of the ladder with his left hand. Approximately three minutes later, he sensed that the ladder was beginning to collapse; consequently, he grabbed the top of the ladder with both hands in order to steady it, but the ladder went forward and plaintiff’s right leg slid between the second and third steps and struck the ground. Plaintiff eventually ended up on the ground atop the ladder with his right leg still wedged between the second and third steps. He also noticed while he was lying on the ground that the right spreader arm had buckled and was twisted out to the right and that the right rear leg of the ladder was also buckled.

As soon as plaintiff fell to the ground, he screamed for help because he could not remove his leg, which had bones protruding through his skin, from the ladder. As he writhed in pain, he crawled to the north wall and extracted his leg from the aluminum ladder. Plaintiff then tried unsuccessfully to hop on his left leg to a phone on the wall. Ultimately, he crawled to the phone, called for help, and then scrambled to the powerhouse door in order to allow entrance into the facility.

Gaylon Yates, the shift commander on duty at the time of the accident, testified that he responded to a call to help plaintiff. He arrived about 5 or 10 minutes after the incident and immediately saw that plaintiff’s leg was badly damaged and that he was in severe pain. In response to Yates’ question as to what had happened, plaintiff stated that “the ladder buckled out under [me] causing [me] to fall off of it.” After having his leg stabilized with an air splint, plaintiff was transported by ambulance to the Silver Cross Hospital.

Plaintiff’s treating physician, Michael Greenwald, M.D., testified that plaintiff suffered a compound comminuted fracture of his tibia and fibula, which had protruded through his skin. Dr. Greenwald also related that the talus bone of plaintiff’s ankle had been driven into his tibia. Consequently, he was forced to perform two separate operations to fose the ankle and leg bones. The injury did not heal sufficiently to allow plaintiff to walk until August 1985. Dr. Greenwald opined that the injury which plaintiff suffered could have occurred only if he fell on a rigid or absolutely stiff leg, and he also stated that such rigidity could occur when one’s leg slips off a ladder and then becomes wedged between its second and third step.

THE LADDER

The parties stipulated that White Metal designed and manufactured the aluminum step ladder involved in the incident. The evidence established that the ladder was manufactured in April 1982 and was sold by Sears to the JCC on October 28, 1982. The aluminum ladder was five feet tall, weighed about eight pounds, had steps which were 21h inches wide, and had two cross braces on its back side.

The parties agree that at the time of its manufacture, the ladder in question complied with .the applicable 1972 manufacturing standards of Underwriters Laboratories (UL) and the American National Standards Institute (ANSI). In 1980, however, UL and ANSI began amending their manufacturing standards by requiring all ladders to pass a new “torsion spreader arm test.” On January 23, 1981, White Metal submitted two prototype ladders similar to the one involved in the accident to UL for testing, both of which failed initially. However, White Metal tendered a revised model which did pass the test. A similar process occurred with respect to tests conducted by ANSI, i.e., an initial sample aluminum ladder, submitted by Sears, failed the safety test, but a revised and more sturdy model passed. It is clear from the record, however, that compliance with these more stringent standards was not mandated until June (UL standard) and October (ANSI standard) of 1982.

THE SIMILAR OCCURRENCE

Charles Wysocki testified for the plaintiff through an evidence deposition that in the fall of 1982, he purchased a five-foot aluminum step ladder from Sears in Tuscon, Arizona. The first time Wysocki used it in order to clean out a friend’s rain gutter, he placed the ladder on solid ground and carefully opened the spreader arms. He then climbed to the third step, and after he was on the ladder for about a minute, it began to twist under him. Wysocki kicked the ladder out from under him so that he would not fall on top of it, and he tumbled' to the ground. When he looked at the ladder after he had fallen, he noticed that the “rear part of the ladder was twisted out of shape.”

EXPERT TESTIMONY

Ronald Lobodzinski, a machine design engineer called by plaintiff as his expert witness, testified that when a person twists on a ladder, he creates a torsion force on the rear legs of the ladder. He opined to a reasonable degree of scientific certainty that the buckling of the rear right leg of the ladder, which was the result of the torsion force exerted by plaintiff when he reached inside the milk crate, caused plaintiff to fall to the ground. Therefore, Lobodzinski concluded, in his opinion the ladder was unreasonably dangerous because it “was used in a normal expected manner and it failed in a dangerous manner unexpectedly.” Lobodzinski also opined to a degree of scientific certainty that the 2^-inch-wide steps were a defect in the ladder because they allowed a portion of the foot to overhang and therefore cause a user to slip and fall.

Defendants responded by presenting the expert testimony of Richard Ver Halen. He stated that in his opinion, the torsion force created by plaintiff’s reaching for the crate could not have caused the right hind leg to buckle. Instead, he felt that plaintiff simply lost his balance, which caused him and the ladder to fall simultaneously, and the damage to the ladder — ie., the buckled spreader arm and rear leg — was the result and not the cause of the fall. He offered two reasons for this conclusion. First, he opined that had plaintiff fallen in the manner in which he described, he would have left some marking on the boiler tank to his right. Second, he stated that even if the right hind leg had completely failed, the ladder could not have caused plaintiff’s fall because the other three legs, especially the two front ones, would have borne the brunt of his weight and prohibited the ladder from collapsing. He also opined that the fact that the steps were only 21/2 inches wide had nothing whatsoever to do with plaintiff’s fall. For these reasons, Ver Halen concluded that, in his opinion, the ladder did perform as was reasonably to be expected and thus was not unreasonably dangerous.

Ronald Stillman, an engineer who conducted performance tests on ladders for Sears, also testified as an expert witness through an evidence deposition. After studying photographs of the ladder in question, he opined to a degree of scientific certainty that the damage done to the rear right leg of the ladder could have been caused only if an external force, such as a body, fell on top of it, and under no circumstances could such damage be inflicted by torsion forces resulting from someone twisting on the second step of the ladder.

The jury found for the plaintiff in the amount of $681,128.98, and after the trial court denied defendants’ post-trial motions, it entered judgment in favor of the plaintiff for that amount. Defendants appeal from that judgment.

I

It is beyond dispute that in order to establish a prima facie case of strict liability in tort, a plaintiff must plead and prove the following three elements: (1) that an injury resulted from a condition of the product; (2) the condition of the product was an unreasonably dangerous one; and (3) that the condition existed at the time the product left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188, overruled on other grounds, Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 601 N.E.2d 704.) Defendants argue, however, that a plaintiff cannot establish that a product was unreasonably dangerous simply by pleading and proving that it did not perform as expected, since such a minimal burden would render manufacturers insurers of their products. Instead, they assert, the jury must be instructed that plaintiffs are required to point to a specific defect in the product, or at least illustrate an absence of other possible causes of injury, before they can recover under strict liability. Plaintiff counters by asserting that pursuant to Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449, he is entitled to establish that a product was defective by showing only that it failed to perform in a manner reasonably to be expected.

In Tweedy, the plaintiff brought a strict liability action against the defendant for brakes which malfunctioned, causing her to collide with a tree. The plaintiff offered no expert testimony concerning a specific defect in the automobile’s braking system. (Tweedy, 64 Ill. 2d at 572, 357 N.E.2d at 451.) Accordingly, the defendant contended that the plaintiff failed to prove that the brakes were defective, arguing that the verdict rendered in her favor was predicated on “mere conjecture and surmise.” (Tweedy, 64 Ill. 2d at 573, 357 N.E.2d at 451.) Our supreme court rejected defendant’s contention, and relying on a theory first espoused by Justice Roger J. Traynor, held:

“A prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed ‘to perform in the manner reasonably to be expected in light of [its] nature and intended function.’ [Citations.]” (Tweedy, 64 Ill. 2d at 574, 357 N.E.2d at 452.)

The court went on to hold that because there was no reasonable secondary cause for the failure of the brakes, the plaintiff had established a prima facie case of products liability. Tweedy, 64 Ill. 2d at 574-75, 357 N.E.2d at 452.

After Tweedy, courts in this State have generally held that a plaintiff need not pinpoint the specific defect in a product in order to recover under strict liability. (Bejda v. S G L Industries, Inc. (1980), 82 Ill. 2d 322, 330-31, 412 N.E.2d 464, 467; Abel v. General Motors Corp. (1987), 155 Ill. App. 3d 208, 214-15, 507 N.E.2d 1369, 1374, appeal denied (1987), 116 Ill. 2d 547, 515 N.E.2d 100; Johnson v. Amerco, Inc. (1980), 87 Ill. App. 3d 827, 830, 409 N.E.2d 299, 303; Erzrumly v. Dominick’s Finer Foods, Inc. (1977), 50 Ill. App. 3d 359, 363, 365 N.E.2d 684, 687; see Neighbors ex rel. American States Insurance Co. v. City of Sullivan (1975), 31 Ill. App. 3d 657, 659, 334 N.E.2d 409, 411; Belleville National Savings Bank v. General Motors Corp. (1974), 20 Ill. App. 3d 707, 709, 313 N.E.2d 631, 633.) Instead, a plaintiff may create an inference that a product was defective by direct or circumstantial evidence that: (1) there was no abnormal use of the product; (2) there was no reasonable secondary cause of the injury; and (3) the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. Bejda, 82 Ill. 2d at 330-31, 412 N.E.2d at 467-68; American Family Insurance Co. v. Village Pontiac-G M C, Inc. (1992), 223 Ill. App. 3d 624, 629, 585 N.E.2d 1115, 1119; Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1057, 473 N.E.2d 444, 449; Millette v. Radosta (1980), 84 Ill. App. 3d 5, 21, 404 N.E.2d 823, 836; St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 177, 298 N.E.2d 289, 297; Bollmeier v. Ford Motor Co. (1970), 130 Ill. App. 2d 844, 849-50, 265 N.E.2d 212, 216-17.

Having defined the elements of a “Tweedy” count sounding in products liability, we must next determine whether the jury was properly instructed. Generally, the test for determining whether the trial court abused its discretion when instructing the jury is whether, when considered as a whole, the instructions were sufficiently clear so as not to mislead the jury, and whether they fairly and correctly stated the principles of law pertaining to the case. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 314, 170 N.E.2d 163, 170; Dabros v. Wang (1993), 243 Ill. App. 3d 259, 267; Wille v. Navistar International Transportation Corp. (1991), 222 Ill. App. 3d 833, 839, 584 N.E.2d 425, 429, appeal denied (1992), 144 Ill. 2d 644, 591 N.E.2d 32.) Moreover, where the Illinois Pattern Jury Instructions provide an instruction on an issue, that instruction should be given to the jury by the trial court unless it finds that the pattern instruction does not accurately state the law. (134 Ill. 2d R. 239(a); Colls v. City of Chicago (1991), 212 Ill. App. 3d 904, 571 N.E.2d 951, appeal denied (1991), 141 Ill. 2d 537, 580 N.E.2d 110.) However, where no Illinois pattern instruction is available on a particular issue, the court should submit an instruction which accurately states the law and is simple, brief, impartial and nonargumentative. 134 Ill. 2d R. 239(a); see Daly v. Carmean (1991), 210 Ill. App. 3d 19, 31-32, 568 N.E.2d 955, 963, appeal denied (1991), 141 Ill. 2d 538, 580 N.E.2d 110.

In the case at bar, the court gave the jury the following instruction:

“Under Count I of the complaint the issues are as follows, plaintiff claims he was injured as a result of the use of a step ladder and that there existed in the step ladder at the time it left the control of the defendants, White Metal and Sears, a condition which made the step ladder unreasonably dangerous in the following respect.
The step ladder failed to perform in the manner reasonably to be expected in light of its nature and intended function. The plaintiff further claimed that the condition of the step ladder was a proxímate cause of the plaintiff’s injury.
* * *
*** [T]he plaintiff has the burden of proving each of the following propositions in Count I of his complaint as to each defendant. First, that the condition claimed by the plaintiff as stated to you in these instructions existed in the step ladder. Second, that the condition made the step ladder unreasonably dangerous. Third, that the condition existed at the time the step ladder left the control of White Metal and Sears. Fourth, that the plaintiff was injured. And fifth, that the condition of the step ladder was a proximate cause of plaintiff’s injuries.”

These instructions track those provided in the Illinois Pattern Jury Instructions for product liability actions in general. (See Illinois Pattern Jury Instructions, Civil, Nos. 400.02, 400.06 (3d ed. 1992).) However, under the facts of this case, those instructions misstated the law, for the reason that they allowed the jury to find that the ladder was unreasonably dangerous if it found only that the ladder failed to perform in the manner reasonably to be expected in light of its intended function. Yet, in order to establish that a product was unreasonably dangerous under his “Tweedy count,” wherein no specific defect in the product was alleged, plaintiff was required to prove also that he did not use the product in an unreasonable manner and that no reasonable secondary causes of his injury existed. In fact, defendants’ precise theory of the case was that there was another cause of the accident — plaintiff’s loss of balance while on the ladder. Defendants correctly assert that when a jury is instructed as was done here, a manufacturer becomes an insurer of the product, a proposition directly contrary to the law of Illinois. (See, e.g., Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372.) Accordingly, we hold that the court erred in giving the jury the above-quoted pattern instructions because they incorrectly stated the law as set forth by our supreme court in Tweedy.

Having determined that the trial court improperly instructed the jury on count I of plaintiff’s complaint, we must next decide whether that error requires a reversal in this case. A reviewing court ordinarily will not reverse the trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the complaining party. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1088, 560 N.E.2d 969, 973.) Moreover, our supreme court has held that “[w]hen there is a general verdict and more than one theory [of recovery] is presented [to the jury], the verdict will be upheld if there was sufficient evidence to sustain either theory, and the defendant, [who] failed to request special interrogatories, cannot complain.” Witherell v. Weimer (1987), 118 Ill. 2d 321, 329, 515 N.E.2d 68, 72.

In the case sub judiee, although it is clear that the instruction with respect to count I of plaintiff’s fourth amended complaint was faulty, defendants make no objection to the instruction concerning count II of the complaint, and plaintiff offered evidence supporting its theory of recovery under that count. In addition, defendants did not request that the jury be given special interrogatories, the answers to which would have made clear whether their verdict applied to the “Tweedy count” (count I) or to the “specific defect count” (count II); such a procedure would have been of particular value here since defendants disputed the validity of count I from the outset in this case.

Accordingly, we hold that defendants’ failure to request special interrogatories, the answers to which would have clarified the jury’s view of defendant’s liability under the “Tweedy count” as opposed to the specific defect count, was fatal to their complaint that the jury was improperly instructed.

II

Defendants next assert that the trial court erred in denying their motion for a judgment non obstante verdieto or, in the alternative, a motion for a new trial. It is well settled that a trial court should not enter a judgment n.o.v. unless all of the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based on the evidence could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14); and that standard also governs our consideration of a trial court’s denial of such a judgment. Knight v. Haydary (1992), 223 Ill. App. 3d 564, 569, 585 N.E.2d 243, 247, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 629.

Moreover, a trial court should set aside a verdict and grant a new trial only if the verdict is contrary to the manifest weight of the evidence. (Pedrick, 37 Ill. 2d at 509, 229 N.E.2d at 513.) A verdict will be deemed to be against the manifest weight of the evidence only if it is palpably erroneous and wholly unwarranted, clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable and not based on the evidence. Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 1050, 532 N.E.2d 1091, 1101, rev’d on other grounds (1990), 138 Ill. 2d 404, 563 N.E.2d 397.

The instant case once again “presents a classic example of what has become by this time the ubiquitous ‘battle of the experts.’ ” (Carter v. Johnson (1993) 247 Ill. App. 3d 291, 300, citing Martin v. Zucker (1985), 133 Ill. App. 3d 982, 991, 479 N.E.2d 1000, 1006.) Plaintiff’s expert, Richard Lobodzinski, testified that in his opinion, to a reasonable degree of scientific certainty, the ladder was defective because it was unreasonably dangerous. More specifically, with respect to the allegations of count I of plaintiff’s complaint, Lobodzinski opined that the ladder failed to perform as was reasonably to be expected because its rear right leg buckled and its spreader arm moved upward when plaintiff exerted torsion forces by .reaching into the milk crate. Furthermore, he stated that the deformation of the right rear leg of the ladder was not of the type that could have been caused by plaintiff simply by falling on top of it, especially since there was no room in the corridor for the plaintiff to fall in any direction but forward.

Regarding count II of plaintiff’s complaint, Lobodzinski opined to a reasonable degree of scientific certainty that the fact that the steps were only V-h inches wide made the ladder unreasonably dangerous because: (1) too much of the user’s foot overlaps, thus putting too much pressure on the front of the step; and (2) if users should happen to slip while on the ladder, it is much easier for their feet to become lodged inside the narrower steps.

Defendants, of course, refuted these opinions with their own expert testimony. Both of their experts, Richard Ver Halen and Ronald Stillman, testified that in their opinion, to a degree of scientific certainty, the damage to the right rear leg of the ladder was caused by plaintiff’s body falling on top of it, as the type of deformation found on the ladder could not have been caused by buckling from torsion forces. Moreover, Ver Halen opined that plaintiff could not have fallen forward as he had testified because no mark was found on the boiler tank, and Ver Halen theorized that the ladder would have left some sort of blemish thereupon had the incident occurred as plaintiff described. He also stated that even where a rear leg of the ladder completely fails, the other three legs continue to support most of the user’s weight, thus making it impossible for the ladder to have collapsed as plaintiff’s expert asserted. Finally, Ver Halen opined that the 21k-inch-wide steps on the ladder were not unreasonably dangerous and had absolutely nothing to do with plaintiff’s injury. Accordingly, both defense experts believed that no defect existed in the ladder and that the sole cause of plaintiff’s injury was his loss of balance while standing on the ladder.

When confronted with a situation in which the fact finder was offered conflicting expert testimony, we have invariably stated that we will not reweigh the credibility of the witnesses or reweigh the evidence. (See, e.g., Dabros, 243 Ill. App. 3d at 264.) Although defendants vigorously urge that Lobodzinski’s testimony is unbelievable, that was a matter for them to take up during cross-examination and closing argument. The sole question before us is whether his testimony was so preposterous that no jury could ever believe it; and, after reviewing the record, we find that such a conclusion is unwarranted. Accordingly, we reject defendants’ argument that the trial court improperly denied its motion for a judgment n.o.v. and/or new trial.

III

Defendants next assign as error the trial court’s admission of evidence concerning post-manufacture industry requirements. Evidence of standards promulgated by an industry, trade group or regulatory agency may be relevant in a products liability action in order to determine whether a condition is unreasonably dangerous. (Ruffiner v. Material Service Corp. (1987), 116 Ill. 2d 53, 58, 506 N.E.2d 581, 584.) Moreover, evidence of standards may be relevant and admissible even though the standards have not been imposed by statute or promulgated by a regulatory body and therefore do not have the force of law. (Ruffiner, 116 Ill. 2d at 58, 506 N.E.2d at 584; Merchants National Bank v. Elgin, Joliet & Eastern R.R. Co. (1971), 49 Ill. 2d 118, 125, 273 N.E.2d 809, 813.) To be admissible, however, standards must be relevant “in terms of both time and conduct involved.” Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 84, 368 N.E.2d 1299, 1302.

In the case at bar, the jury heard extensive evidence regarding the industry standards promulgated by ANSI and UL. Defendants complain that plaintiff was improperly allowed to introduce evidence that several prototype ladders similar to the one he used failed newly developed tests performed by UL and ANSI in 1981, even though passing those tests was not mandated until after the ladder was manufactured in April 1982. Defendants’ argument, however, is baseless. This evidence was clearly relevant in terms of time because it established that defendants were aware that the ladder used by plaintiff was not meeting safety standards which were to take effect in the immediate future. Further, this evidence was relevant to the question of defendants’ knowledge of safety hazards because the standards were in place when the ladder was sold to JCC, even though they were not in effect at the time of manufacture. Consequently, we hold that the trial court did not abuse its discretion in admitting evidence of the ANSI and UL standards, despite the fact that they were not yet being imposed at the time the ladder was manufactured. See Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 392, 356 N.E.2d 93, 98-99 (post-manufacture standards which were “intended to eliminate existing hazards as well as to prevent the creation of future ones” properly admissible).

IV

Defendants next assign as error the trial court’s admission of the testimony of Charles Wysocki, who testified that he fell off a similar ladder, which he bought from Sears, the first time he used it. Defendants’ argument is without warrant. A party may introduce evidence of prior accidents in order to establish the existence of a dangerous condition (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 114, 499 N.E.2d 1373, 1376; Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 441, 396 N.E.2d 534, 537-38; Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 245, 515 N.E.2d 403, 408, appeal denied (1988), 119 Ill. 2d 575, 522 N.E.2d 1257); and the prior occurrences need not have occurred in an identical manner, but instead need only to have been substantially similar. (Ballweg, 114 Ill. 2d at 114, 499 N.E.2d at 1376; Rucker, 77 Ill. 2d at 441, 396 N.E.2d at 538; Simmons, 162 Ill. App. 3d at 245, 515 N.E.2d at 408.) In this case, the accidents incurred by plaintiff and Wysocki were substantially similar in that: (1) each ladder involved was a five-foot aluminum ladder purchased from Sears and manufactured by White Metal; (2) they were both using the ladder for the first time; (3) they both set up the ladder on solid ground; and (4) the back legs of both ladders collapsed after a short period of time while the user was reaching upward. Accordingly, we, hold that the trial court did not abuse its discretion in allowing the testimony of Charles Wysocki.

V

Defendants next complain that the trial court improperly allowed the hearsay testimony of Gaylon Yates under the spontaneous declaration exception to the rule against hearsay. We disagree. In order for a statement to qualify as a spontaneous declaration, the following three requirements must be met: (1) an occurrence sufficiently startling to produce a spontaneous, unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Zwart (1992), 151 Ill. 2d 37, 46, 600 N.E.2d 1169, 1173; People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, 807; Flath v. Madison Metal Services, Inc. (1991), 212 Ill. App. 3d 367, 376-77, 570 N.E.2d 1218, 1225.) The party offering the statement must establish that it meets these requirements (Flath, 212 Ill. App. 3d at 377, 570 N.E.2d at 1225), and the determination of whether they are met, depending on the particular circumstances of each case, is within the sound discretion of the trial court. Lewis v. Beckman (1978), 57 Ill. App. 3d 482, 484, 373 N.E.2d 589, 591.

In this case, -Yates testified that when he arrived at the site of the incident about 5 or 10 minutes after it occurred, plaintiff was sitting on the ground in excruciating pain and that his leg appeared to be broken. When Yates asked him what had happened, plaintiff responded that “[I] was up on the stepladder, and the ladder buckled out under [me] causing [me] to fall off of it.”

There is no question but that the above statement qualified as a spontaneous declaration. First, plaintiff’s falling off the ladder, thereby shattering his leg, was a sufficiently startling event such that it would produce an unreflecting outcry. Second, only a few minutes transpired between the event and the statement; thus, plaintiff certainly did not have substantial time within which to fabricate a story. Finally, plaintiff’s statement unquestionably related to the startling event. Accordingly, we hold that the trial court did not abuse its discretion in allowing Yates to relate to.the jury plaintiff’s statement regarding how he sustained his injury.

VI

Defendants next argue that the trial court improperly allowed plaintiff to elicit the expert testimony of Robert Lobodzinski. They assert that because he testified at trial inconsistent with his deposition testimony regarding the position of plaintiff’s hands just prior to the accident, the trial court should have barred his testimony pursuant to Supreme Court Rule 220(d). 134 Ill. 2d R. 220(d).

The parties do not quarrel with the general rule that expert witnesses disclosed pursuant to Rule 220 may not offer testimony at trial which is inconsistent with their testimony given in a deposition (see Mid-America Bank & Trust Co. v. Commercial Union Insurance Co. (1992), 224 Ill. App. 3d 1083, 1088-89, 587 N.E.2d 81, 84-85, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 630), or that the trial court’s decision whether to impose sanctions for Rule 220 violations is within the sound discretion of the trial court which will not be disturbed absent a clear abuse thereof. Zajac v. St. Mary of Nazareth Hospital Center (1991), 212 Ill. App. 3d 779, 793-94, 571 N.E.2d 840, 849-50.

The record reveals that during his deposition, plaintiff testified that he had his left hand on the top of the ladder while he reached into the milk crate with his right hand. Lobodzinski, however, testified during his deposition, based on a previous conversation with plaintiff, that plaintiff reached into the crate with his left hand while holding on to the ladder with his right hand. Defendants moved the court prior to trial to find that plaintiff’s statement during his deposition that he reached with his right hand constituted a judicial admission. The court granted defendants’ motion; consequently, plaintiff related to the jury that he reached into the crate with his right hand just before the ladder gave way. On the morning that Lobodzinski was to testify, plaintiff’s attorney informed the court that the expert was going to alter his testimony regarding the position of plaintiff’s hands in order to conform with the court’s ruling that plaintiff was bound by his judicial admission. At that point, defense counsel immediately objected, arguing that the expert would thus be changing his testimony in violation of Rule 220(d). The trial judge rejected this argument, and Lobodzinski based his opinions on the fact that plaintiff reached with his right hand instead of his left. The court also prohibited defendants from eliciting on cross-examination Lobodzinski’s contrary deposition testimony, reasoning that once a judicial admission has been made, no contrary facts may be introduced into the record.

Defendants’ argument that the court abused its discretion by allowing plaintiff’s expert to testify is unavailing. While Lobodzinski did change a fact underlying his opinion, his opinion itself, that the ladder collapsed after plaintiff exerted torsion forces on it by reaching into the crate, did not differ from his deposition testimony. Defendants cannot successfully claim that they were prejudiced by Lobodzinski’s testimony because they could not have been surprised by his giving the essential basis upon which he rested his opinion — that the ladder collapsed due to forces exerted thereupon by plaintiff when he reached into the crate. Moreover, defendants tendered no offer of proof as to whether the amount of torsion force would have produced a different result depending on which hand plaintiff used to reach into the crate; thus, whether plaintiff used his right or left hand does not appear to have been of any consequence. Accordingly, we hold that the trial court did not abuse its discretion in allowing Lobodzinski’s opinion testimony.

Moreover, we disagree with defendants’ contention that the trial court improperly limited their ability to cross-examine Lobodzinski. A judicial admission is a deliberate, clear, unequivocal statement by a party regarding a concrete fact within that party’s peculiar knowledge. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 15, 545 N.E.2d 965, 969.) We have explained the nature of a judicial admission thus:

“[A judicial] admission is a formal act, done in the course of judicial proceedings, which waives or disposes with the production of evidence, by conceding for the purposes of litigation that the proposition of fact alleged by the opponent is true; it concerns a method of escaping from the necessity of offering any evidence at all, and is a waiver relieving the opposing party from the need of any evidence, and is conclusive in the sense that it formally waives all right to deny, for the purposes of the trial; it removes the proposition in question from the field of disputed issues.” (Emphasis added.) Hudson v. Augustine’s, Inc. (1966), 72 Ill. App. 2d 225, 234-35, 218 N.E.2d 510, 515.

In the case sub judice, defendants, by requesting that the court find that plaintiff had made a judicial admission with respect to the position of his hands at the time of the incident, effectively “remove[d] the proposition in question from the field of disputed issues.” Once defendants’ motion was granted, the trial court correctly ruled that they could not attempt to reintroduce, for the purpose of impeachment or otherwise, the question of where plaintiff’s hands were positioned shortly before his fall. Defendants could have fully preserved their right to cross-examine Lobodzinski on the issue of the location of plaintiff’s hands had they not moved for the judicial admission finding, since in the absence of such a ruling, they could have simply impeached him or plaintiff on cross-examination if either of them contradicted their deposition testimony on direct examination regarding that issue. Accordingly, we hold that the trial court did not abuse its discretion in refusing to allow defendants to impeach plaintiff’s expert on the question of the position of plaintiff’s hands at the time of the accident.

VII

Defendants’ final assignment of error is the trial court’s decision to prohibit their witness, Earl Records, from offering any opinion testimony. Defendants admit that they did not disclose Records, who was the chief engineer involved in the manufacture of the ladder, as a Rule 220 expert. However, they argue that because he was an employee of White Metal who was intimately related to the litigation, defendants were not required to disclose him as an expert witness. See Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, 547.

Defendants’ argument is groundless. The record reveals that the trial court recognized that Records, as an employee intimately related to the case, was not a Rule 220 expert whom defendants were required to disclose. However, the court held that defendants were estopped from eliciting any expert testimony from him, irrespective of Rule 220, based on the following agreement between the parties prior to Records’ deposition:

“For the record, [plaintiff’s counsel] and I had a conversation yesterday as to the status of Mr. Records’ testimony at trial.
Mr. Records is not being produced here today as an expert witness on behalf of White Metal as that term is understood, but rather as a person most knowledgeable concerning this particular ladder and would be the company representative at trial.”

Plaintiff argued to the trial court that the essence of this agreement was that Records would not be offering any expert opinions at trial. Defendants responded that the agreement meant that pursuant to the “Wakeford exception” to Rule 220, Records would be offering expert testimony at trial, but that the parties recognized that because he was not a Rule 220 expert, he would not be bound by the constraints thereunder. The trial judge, after hearing argument, interpreted the predeposition agreement between counsel to mean the former, i.e., that the parties understood that Records would not be offering any expert testimony at trial, and after reviewing the record, we cannot say that his decision that defendants were estopped from eliciting expert testimony from Records constituted an abuse of discretion.

For all of the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.

      Plaintiff eventually abandoned his claim that the rear rails were too weak, and the jury was instructed that plaintiff’s only claim of defect on count II concerned the steps.

      Ver Halen illustrated this by putting on a demonstration wherein he briefly stood on the second step of a ladder missing the right hind leg without falling.

      One court has compared this approach to the doctrine of res ipsa loquitur in the area of negligence. St. Paul Fire & Marine Insurance Co., 12 Ill. App. 3d at 177, 298 N.E.2d at 297-98.

      ‘The court instructed the jury with regard to count II as follows:
      “The issues to be decided by you under *** count [II] are as follows. The plaintiff claims he was injured as a result of the use of the step ladder, and that there existed in the step ladder at the time it left the control of the defendants, White Metal and Sears, a condition which made the step ladder unreasonably dangerous in the following respects.
      The design of the ladder steps was too narrow. The plaintiff further claims that this condition of the narrow design the [sic] ladder steps was a proximate cause of his injuries.”


source: Caselaw Access Project

author: PRESIDING JUSTICE TULLY JUSTICE GREIMAN,

license: Public Domain

text:
    ANN SPARAPANY, Indiv. and as Special Adm’r of the Estate of John W. Sparapany, Jr., et al., Plaintiffs-Appellants, v. REXALL CORPORATION et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—0665
    Opinion filed June 30, 1993.
    GREIMAN, J., specially concurring.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky, of counsel), for appellants.
    Burditt, Bowles & Radzius, Chartered, of Chicago (Robert G. Epsteen and Richard E. Favoriti, of counsel), for appellee E.R. Squibb & Sons, Inc.

      Wildman, Harrold, Allen & Dixon, of Chicago (Richard C. Bartelt, of counsel), and Shook, Hardy & Bacon (Laura D. Stith, of counsel), for appellee Eli Lilly & Co.
    Clausen, Miller, Gorman, Caffrey & Witous, EC., of Chicago (James T. Ferrini and Lisa Marco Kouba, of counsel), for appellees Rexall Drug Company, Rexall Corp., and Rexall Drug and Chemical Co.
    Lord, Bissell & Brook, of Chicago (Hugh L. Moore, of counsel), for appellee Abbott Labs.
    Wilson, Elser & Moskowitz, of Chicago (Thomas Murray, of counsel), for appellee B.L. Lemke & Co.
    Pretzel & Stouffer, Chartered, of Chicago (Gary A. Peters, of counsel), for appellee Burroughs Wellcome.
    Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellees Sharp & Dohme, Inc., Merck, Sharpe & Dohme, and Merck & Co.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County, the Honorable Dean J. Sodaro, Judge presiding, dismissing the action of plaintiffs following the granting of summary judgment in favor of defendants pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (section 2 — 615) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615 (now codified as 735 ILCS 5/2 — 615 (West 1992))). Jurisdiction is vested in this court pursuant to Supreme Court Rule 304. 134 Ill. 2d R. 304.

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

The history of diethylstilbestrol (DES) is well chronicled in the numerous decisions of courts from throughout this nation and need not be revisited here (see, e.g., Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 N.E.2d 324). We merely note that between 1941 and 1971, the drug, a synthetic substance which duplicates the activity of the female sex hormone estrogen, was produced by approximately 300 manufacturers and was prescribed for use by millions of pregnant women to prevent miscarriages. In 1971, after a number of studies established a link between in útero exposure to DES and the occurrence in teenage women of a rare form of vaginal and cervical cancer, the Federal Food and Drug Administration banned the marketing of the drug for use in the treatment of pregnant women. In the case sub judice, plaintiffs allege that in útero exposure to DES has since been linked to aberrations and malformations of the genital tracts of the daughters of those women who originally ingested DES, all of which is now causing harm to a “third generation” of plaintiffs bom to these DES daughters.

The plaintiffs in this case are Ann Sparapany (Ann), as special administrator of the estate of her deceased son, John W. Sparapany, Jr. (John), and Ann’s minor daughter, Nichole Sparapany (Nichole). The defendants to this action are numerous manufacturers and distributors of DES. According to plaintiffs’ complaint, the events which gave rise to their claims began more than 30 years ago, when John and Nichole’s maternal grandmother, Florence McCarville, ingested DES during a pregnancy which resulted in the birth of Ann on August 8, 1957. Mrs. McCarville was prescribed DES by her physician to prevent a miscarriage. Plaintiffs allege that as a result of her in útero exposure to DES, Ann developed an incompetent cervix and malformed uterus. As a result, John was stillborn at 21 weeks of gestation and Nichole was bom approximately 21/2 months premature. Nichole suffers from serious and permanent injury and disability that plaintiffs attribute to her premature birth and, ultimately, to Mrs. McCarville’s use of DES.

On June 18, 1986, plaintiffs fled their eight-count complaint against defendants, of which counts I through IV are not at issue in this appeal. Plaintiffs purported to state claims against defendants under the theories of negligence and strict liability. Counts V and VI of the complaint sought to set forth wrongful death claims on behalf of John’s estate on the theories of negligence and strict liability, respectively. Counts VII and VIII alleged personal injury to Nichole on the theories of negligence and strict liability, respectively.

The trial court, in granting defendants’ section 2 — 615 motion as to counts V through VIII, ruled that the Illinois Supreme Court’s decision in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250, precluded the imposition of a legal duty upon the manufacturers and distributors of DES to plaintiffs for the injuries they allegedly incurred as result of their grandmother’s ingestion of DES in 1956-1957. Consequently, on February 9, 1989, the trial court entered judgment against plaintiffs. Plaintiffs filed a timely notice of appeal.

ISSUE ON APPEAL

The sole issue to be determined in this appeal is: Was the trial court correct in ruling that Renslow bars the preconception tort claims of “third generation” DES plaintiffs because those claims arise out of conduct which occurred prior to date of the Renslow opinion?

Opinion

“Both negligence and strict liability require proof that [a] defendant breached a duty owed to a particular plaintiff.” (Smith, 137 Ill. 2d at 265, 560 N.E.2d at 343.) “Whether a duty exists is a question of law to be determined by a court [citation], and thus a motion for summary judgment properly addresses the issue of duty.” (Grove v. City of Park Ridge (1992), 240 Ill. App. 3d 659, 661, 608 N.E.2d 421, 422.) As stated above, in holding that defendants owed no duty to plaintiffs in this case, the trial court relied on Renslow.

In Renslow, a mother, on behalf of her minor daughter, filed a medical malpractice action. The complaint in that case alleged that, on two separate occasions, the defendant physicians had negligently transfused the mother, whose blood type was Rh negative, with Rh positive blood. Consequently, the mother’s blood became sensitized by the incorrect transfusion due to the incompatibility of the two blood types. In spite of learning of the incompatibility of the blood types, the defendant physicians never informed the mother of the adverse reaction and its associated risks. Seven years later, the mother became pregnant with the minor plaintiff. During the course of prenatal care, a routine blood screening apprised the mother of her condition. Three months later, as a result of injury to the mother’s hemolytic process caused by the defendant physicians, the minor plaintiff was bom prematurely with severe and permanent neurological damage, exactly the danger associated with such a negligent transfusion.

In affirming the lower court’s ruling that the minor plaintiff had stated a cause of action, our supreme court applied the elements of professional negligence to the preconception conduct at issue and found that the defendant physicians owed a duty to the minor plaintiff. A plaintiff’s right to maintain such a suit stems from a physician’s duty of due care, which arises from the special relationship between physician and patient. However, the supreme court realized that it was creating a new duty and limited the persons to whom this new duty could be owed. The Renslow court held that this new duty was not owed to persons injured by preconception conduct occurring prior to August 8,1977, the date of its opinion, when it stated:

“Since the liability announced herein represents an extension of duty to a new class of plaintiffs, we hold that it be given prospective application. Therefore, except as to the plaintiff herein, the rule shall apply only to cases arising out of future conduct.” Renslow, 67 Ill. 2d at 359, 367 N.E.2d at 1256.

Upon reviewing the arguments of the parties, we find the plain language of the Renslow decision clearly limits application of the duty found in that case to instances arising out of conduct that occurs on or after the date of that opinion. The conduct which plaintiffs complain of in this case, the marketing of an unsafe drug and consequential ingestion of it by Mrs. McCarville, occurred in 1956-1957, 20 years prior to Renslow. Thus, defendants did not owe a duty to plaintiffs at either the time of the conduct or subsequent to the rendering of Renslow. Consequently, as there was no duty imposed upon defendants which they could have breached, plaintiffs’ claims are not actionable.

Still to be considered is plaintiffs’ assertion that their claims are not time barred under the theory that defendants engaged in a “conspiracy of silence” and, thus, breached a continuing duty to warn of the dangers of DES. It is settled law in Illinois that a theory cannot be presented on review which was not presented in the trial court; any such theory not presented below is deemed waived. (Cosentino v. Price (1985), 136 Ill. App. 3d 490, 494-95, 483 N.E.2d 297, 300.) Accordingly, we find that this issue is not cognizable on appeal as plaintiffs did not raise it at the trial level. Moreover, even were we to assume that this issue was not waived, we nevertheless believe the complained-of conduct which serves as the genesis for this “conspiracy of silence” occurred well before 1977 and, consequently, is barred by the prospective language of Renslow.

Finally, we turn to plaintiffs’ contention that because Renslow was a negligence case, which did not specifically address the topic of strict liability, its prospective language is thus inapplicable to such counts in plaintiffs’ complaint. Thus, according to plaintiffs, their claims under a strict liability theory are still viable. We find that this argument has also been waived by plaintiffs due to their failure to raise it at the trial court. (Cosentino, 136 Ill. App. 3d at 494-95, 483 N.E.2d at 300.) Assuming, however, that the issue was properly preserved on appeal, we would note that these claims are time barred pursuant to the 12-year limitation period for bringing such a product liability suit found in the statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213). Mrs. McCarville took the DES at issue in this case in 1956-1957 and, therefore, all strict liability claims have long since lapsed.

In closing, we emphasize that our decision in this case finding that defendants owed no duty to plaintiffs rests solely upon our conclusion that the complained-of conduct occurred prior to August 8, 1977, the date of the Renslow decision. Nothing in this opinion speaks to the issue of whether a pharmaceutical manufacturer or distributor can be held liable for injuries allegedly suffered by grandchildren, yet unconceived, of an individual who has ingested a drug on or after August 8,1977.

In light of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CERDA, J., concurs.

JUSTICE GREIMAN,

specially concurring:

This court is clearly limited in its consideration of the issue presented in this case by the mandate of the supreme court in Renslow for prospective application of liability for preconception torts (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250) and by the limitations period imposed by the statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213). I write separately only to voice my concerns over what I believe to be the unnecessarily premature cutoff of claims by DES grandchildren.

The 1977 Renslow decision, upon which the majority opinion necessarily rests, established a duty to a woman, as a potential mother, even though no child had yet been conceived and thereby recognized a cause of action for her future-bom child based on preconception injuries. Thus, Renslow established that a legal duty is owed to a person not yet in existence when the cause of the harm is inflicted. The supreme court reasoned that “|l]ogic and sound policy require finding of legal duly in this case.” Renslow, 67 Ill. 2d at 359.

In creating this extension of duty to a new class of plaintiffs, the supreme court considered the defendants’ assertion that a duty for preconception torts should not be imposed because of “the need for an end to responsibility, short of perpetual liability for a single wrongful act.” (Renslow, 67 Ill. 2d at 358.) As an example of such perpetual liability, the Renslow defendants mentioned “the specter of successive generations of plaintiffs complaining against a single defendant for harm caused by genetic damage done an ancestor in a nuclear accident.” (Renslow, 67 Ill. 2d at 358.) The supreme court found this argument unpersuasive:

“While we aware that there may be similar potential for perpetual claims arising from chemical accident or long-term radiation exposure [citation], the case at bar is clearly distinguishable. The damage alleged is not, by its nature, self-perpetuating, nor is the plaintiff a remote descendant. We feel confident that when such a case is presented, the judiciary will effectively exercise its traditional role of drawing rational distinctions, consonant with current perceptions of justice, between which are compensable and those which are not.” (Emphasis added.) Renslow, 67 Ill. 2d at 358.

While a court cannot conclusively state either with medical certainty or as a matter of law that the DES generations will necessarily cease at the third-generational stage, the likelihood of such an end is probably assured. Accordingly, the fear of perpetual liability being imposed by far-removed descendants seems meritless under these circumstances and needlessly unjust to the DES grandchildren.

The supreme court in 1977 felt confident that the judiciary would draw rational distinctions comporting with justice when faced with future situations involving a wrong committed prior to a child’s existence. At that time, the disastrous effects of DES were only coming to light concerning the DES children. Only with the further passage of time could the injuries and deaths of DES grandchildren be reasonably known or considered.

As an appellate court judge, I am constrained in this matter to apply prospectively the extended duty created in Renslow in 1977. The Hlinois Supreme Court, however, is not so confined and may now exercise its traditional role in recognizing the need to adjust duties to fit new and unique situations.

Perhaps the grave, but time-limited, distress caused to DES grandchildren is not so far removed from the principles richly expressed in Renslow.


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HOOKER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—3241
    Opinion filed June 30, 1993.

      Rita A. Fry, Public Defender, of Chicago (Lester Finkle and Tina Liebling, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, Kelly S. Caner, and Michael R. Slovis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a bench trial, defendant Charles Hooker was convicted of first degree murder for the shooting death of Kiwana Allen.

On appeal, defendant asserts that (1) he either acted in self-defense or should have been guilty of only second degree murder; (2) the second degree murder statute is unconstitutional because it requires a defendant to prove that his belief in the need for self-defense was unreasonable; and (3) the second degree murder statute unconstitutionally shifts the burden of proving a certain mental state to the defendant.

For the reasons which follow, we affirm defendant’s conviction for first degree murder and find that the second degree murder statute is constitutional.

The victim, Kiwana Allen, died from multiple gunshot wounds which he sustained about 7:30 a.m. on August 19, 1989, in front of an apartment building at 2910 South Dearborn, a Chicago Housing Authority unit with nine floors.

At trial the State presented the testimony of two eyewitnesses, Tobias Hall and Randall Jones, and two police officers, Victor Roden and Gary Butler, who investigated Allen’s murder.

Tobias Hall observed the victim and defendant talking in front of 2910 South Dearborn and also saw Bobby Williams near the building. Hall heard defendant say “Why ya’ll put my woman in this?” and heard the victim say “Your woman ain’t got nothing to do with this.”

Hall then saw defendant reach into his jacket, remove a gun, point the gun at the victim’s head, and fire. At that time, the victim and defendant were about one foot apart from each other. After the shot, the victim attempted to turn and run but defendant kept firing his weapon. When the victim fell to the ground, Hall saw defendant run into the building behind him. Hall never saw the victim or anyone else, except defendant, in the area with a gun and denied that Bobby Williams picked up a gun next to the victim after the shooting. Hall testified that he had never seen the victim with a gun nor to his knowledge did the victim own one.

Randall Jones, the second occurrence witness, corroborated the testimony of Hall. Jones lived in the 2910 South Dearborn building and knew both defendant and the victim. While looking out the sixth-floor window of 2910 South Dearborn, Jones saw defendant and the victim talking to each other but was unable to hear any part of their conversation. Jones also saw defendant reach into his jacket and remove a gun. The victim then took a step back, raised his hands, and began to turn away. Defendant aimed and fired his gun at the victim’s head. Defendant continued to shoot about three or four times at the victim and then shot once at Hall, who was standing behind defendant at that time. The victim did not have a gun nor did the victim reach for anything on his body.

Jones was aware that defendant and the victim had previous arguments concerning Cindy Wade Hooker, the then girlfriend of defendant, who later married defendant, but had never personally heard them argue. Jones also had never seen the victim with a gun either before or at the time of the shooting. Jones did not know Bobby Williams and only saw three people at the scene of the shooting, i.e., defendant, the victim and Hall.

Both eyewitnesses, Hall and Jones, testified that they were not members of the Mickey Cobra street gang, although the victim was.

Victor Roden testified that he was one of the police detectives assigned to investigate this case. Roden stated that Hall identified defendant as the shooter on the morning of the shooting. When Roden interviewed Cindy Wade Hooker, she stated she had no personal knowledge of the shooting but had heard about it.

Gary Butler, a police officer, testified that he interviewed Cindy Wade Hooker on the day of the murder at her apartment at 2920 South State, which is the building next to 2910 South Dearborn. Cindy took the officer to two different houses in an unsuccessful search for defendant. Cindy then took the officer to another apartment in her building where they recovered a .38-caliber revolver which defendant had brought to her a few minutes after the shooting of the victim.

The defense presented three witnesses, Joshua Taylor (defendant’s younger brother), Cindy Wade Hooker (defendant’s wife), and Charlotte Bush (a next-door neighbor of defendant’s wife Cindy for 15 years).

Joshua Taylor, the younger brother of defendant, was 11 years old at the time of the shooting and 13 years old at the time of trial. At the time of the murder, Joshua lived in the 2910 South Dearborn building with his mother and sister while defendant, his. brother, lived in Woodridge.

On the morning of the murder, defendant and his girlfriend, Cindy, arrived at the building to go to Great America with Joshua and other people. From inside the building, Joshua saw defendant talking to the victim and also saw Bobby Williams sitting outside the building when Tobias Hall arrived.

Joshua heard defendant and the victim accuse each other’s friends of “shooting at” the other. According to Joshua, the victim then took about five steps back from where he was standing, pulled up the back of his shirt and took out a gun. Defendant then pulled out his gun, aimed it at the victim, and “popped one time.” The victim “was clicking the trigger” so defendant shot two more times. Then the victim started backing up, Bobby Williams shot about four times at defendant, and Hall also fired a gun of a different caliber about 12 or 13 times.

Later that same day, Joshua told the police that defendant had first only fired in the air when actually Joshua saw defendant aim his gun at the victim. At trial Joshua testified that he had told a series of lies to the police when he was first interviewed and that he knew defendant, his brother, was a murder suspect. During a second interview, Joshua admitted that he had changed his story.

Joshua also testified that the victim was backing up even before defendant pulled out his gun and that he lied to the police about defendant firing a shot into the air. Joshua stated that defendant fired three times at the victim, striking him only in the leg, and that Bobby Williams shot the victim in the head.

Joshua identified the victim, Tobias Hall, Randall Jones, and Bobby Williams as members of the Mickey Cobra street gang and stated that the Mickey Cobras dominate the buildings at 2910 South Dearborn and 2920 South State. Joshua identified the initials “MCK” located on the side of defendant’s gun as meaning Mickey Cobra Killer.

Cindy Hooker, formerly Cindy Wade before her marriage to defendant on June 1, 1990, testified that before July 1989 she lived with her mother at 2920 South State. Cindy did not see the shooting.

Cindy knew the victim all of her life and was his girlfriend until May 16, 1989. Cindy testified that the victim was a member of the Mickey Cobra street gang and carried a gun every day she was dating him.

In June or July of 1989, Cindy was with defendant near the 2930 building when Randall Jones, the victim, and Lawrence Carter began shooting at defendant. Cindy and defendant moved to Woodridge because she was tired of the victim bothering her. Prior to their move, Cindy had filed about five complaints against the victim and had appeared in court against the victim about three times.

Shortly before 7 a.m. on the morning of the incident, Cindy arrived with defendant from Woodridge to 29th and State to go to Great America. Cindy then went alone to her sister’s house at 2920 South State and upon arriving heard five or six gunshots. Defendant then appeared at Cindy’s sister’s house and gave Cindy his gun. Subsequently, Cindy called a police detective she apparently knew and furnished him defendant’s gun.

Charlotte Bush testified that she did not actually see the shooting. Charlotte lived next door to Cindy Hooker for about 15 years but they were not exactly good friends. Although Charlotte and the victim were close friends, she did not know the victim to be a member of a gang.

Charlotte was looking out a window from her apartment on the morning of the murder and could see the 2910 building. She observed the victim, Hall, Bobby Williams, and a fourth person who looked like defendant. Her attention was diverted from the scene when she heard three shots and ducked. After a minute, Charlotte looked outside, saw the victim bent over, and saw Hall and Williams walking toward 2910. Charlotte ducked again when she heard four more shots which sounded different than the first series of gunshots. When she looked out the window again, Charlotte observed the victim on the ground and Hall and Williams were trying to help the victim. The fourth person was now gone.

Hall and Williams then came under Charlotte’s window and they were crying. Williams told Charlotte that he didn’t do it and that the victim was his best friend. Charlotte saw Williams holding something resembling a gun and she called the police.

Charlotte never saw defendant’s brother (Joshua) or defendant but saw someone resembling defendant. Charlotte never saw Hall with a gun nor could she positively say that Williams had a gun.

In rebuttal, the State called Victor Roden, a police detective, who conducted three interviews with Joshua Taylor. Roden testified that during the course of interviews, Joshua had told approximately three versions of the events that transpired and kept changing his story.

The parties stipulated that the medical examiner would testify that the cause of death was multiple gunshot wounds, that four gunshot wounds were visible, that one bullet recovered from the victim’s skull was small caliber and another recovered bullet was medium caliber, and that the bullets were all deformed.

The parties further stipulated that two evidence technicians would testify that the recovered gun revealed that three bullets had been discharged and three live bullets remained in the gun.

Following closing arguments, the trial court found defendant guilty of first degree murder.

On appeal, defendant first asserts that he was not proven guilty of first degree murder beyond a reasonable doubt because he acted in self-defense against a gang-related attack from the victim and other members of the Mickey Cobra street gang. Alternatively, defendant maintains that even if his belief that his life was in imminent danger was unreasonable, a conviction for second degree murder would have been appropriate.

The State contends that the evidence (1) proved beyond a reasonable doubt that defendant committed first degree murder, (2) rebutted defendant’s claim of self-defense, and (3) established that defendant’s actions did not qualify under the statute to reduce the crime to second degree murder.

Where a criminal defendant challenges the sufficiency of evidence on appeal, the conviction will be overturned only if the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Schott (1991), 145 Ill. 2d 188, 203, 582 N.E.2d 690.) The relevant inquiry on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Schott, 145 Ill. 2d at 203; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The crime of first degree murder occurs when a person kills an individual without lawful justification and he either intends to kill or do great bodily harm to that individual, or knows that such acts will cause death to that individual, or knows that such acts create a strong probability of death or great bodily harm to that individual. Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2).

Self-defense is an affirmative defense (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 14) which is raised when (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened must actually believe (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) the above beliefs are reasonable (People v. Guzman (1990), 208 Ill. App. 3d 525, 531, 567 N.E.2d 500).

Self-defense, once raised, places the burden upon the State to disprove it beyond a reasonable doubt. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) The State carries its burden of proof to refute the defense of self-defense where it is able to negate even one of these elements. People v. Tucker (1988), 176 Ill. App. 3d 209, 216, 530 N.E.2d 1079.

The issue of self-defense is always a question of fact determined by the trier of fact. (People v. Felella (1989), 131 Ill. 2d 525, 534, 546 N.E.2d 492.) Specifically, the reasonableness of a defendant’s subjective belief that he was justified in using deadly force is a question of fact. (People v. Sawyer (1986), 115 Ill. 2d 184, 193, 503 N.E.2d 331.) Moreover, where, as in the present case, the testimony of the witnesses conflicts, the trial judge, as the trier of fact in a bench trial, must determine the credibility of the witnesses, weigh their testimony, draw reasonable inferences, and resolve conflicts in the evidence. (Felella, 131 Ill. 2d at 534.) We will not substitute our judgment for that of the trial court where the evidence is conflicting (Felella, 131 Ill. 2d at 534) because it is not the function of a reviewing court to retry a defendant when considering a challenge to the sufficiency of the evidence of his guilt (People v. Furby (1990), 138 Ill. 2d 434, 455, 563 N.E.2d 421).

In the present case, Tobias Hall and Randall Jones testified that they were not members of the Mickey Cobra street gang but the victim was, they actually witnessed the murder, defendant fired multiple shots at the victim even after the victim attempted to flee or retreat, and they had never seen the victim with a gun. Detective Roden testified that on the morning of the murder, Hall identified defendant as the shooter. Officer Butler testified that while interviewing Cindy Wade Hooker on the day of the murder, she retrieved the gun which defendant gave to her a few minutes after the victim was shot.

Two of the three defense witnesses, Cindy Wade Hooker and Charlotte Bush, made no claim that they had witnessed the shooting incident. Moreover, the trial judge discounted Cindy’s and Charlotte’s testimony. As to Cindy Hooker, the trial judge found that she “doesn’t know too much about anything other than the defendant brought her the gun.” In addition, the trial judge noted that she “must take into consideration [Cindy’s] credibility, she’s the Defendant’s wife.” However, Cindy provided evidence of the victim’s antagonism toward defendant and a prior course of aggressive conduct because of the relationship she previously maintained with the victim. In considering the testimony of Charlotte Bush, the trial judge noted that she observed very little and never told the police the story she testified to “from the witness box.”

Joshua Taylor, the brother of defendant, was the only witness who testified that the victim had a gun but also admitted at trial that he had told a series of lies to the police and that the victim was backing up even before defendant pulled out his gun. The trial judge specifically found that the testimony of Joshua was “totally unbelievable.” The trial judge also noted that Joshua had told “totally different stories while he was on the bench” and when he was interviewed by the police.

Regarding the physical evidence, the parties stipulated that two evidence technicians found three discharged cartridges and three live shells, all .38-caliber bullets, in defendant’s gun after the shooting. The parties also stipulated that the medical examiner observed four visible gunshot wounds. Only two bullets, however, were recovered from the victim’s body, one bullet located in the back of the victim’s neck and one bullet discovered in the back of the victim’s head. The medical examiner would describe one recovered bullet “as a small caliber, deformed, lead bullet” and the other bullet “as a medium-caliber bullet.”

This evidence, according to defendant, leads to the inevitable conclusion that someone other than defendant fired a bullet into the victim because three bullets cannot cause four gunshot wounds and the recovered bullets were of different calibers.

The record, however, also reveals that the medical examiner “observed an entry gunshot wound to the victim’s calf portion of his left leg, with a corresponding exit wound to the front portion of the left leg.” The bullet which accounted for these two wounds, the entry and the exit wounds, was not recovered. These two wounds would account for the medical examiner’s count of four wounds even though only three bullets struck the victim. Accordingly, the three bullets missing from defendant’s gun would correspond with the number of wounds sustained by the victim.

As to the apparent difference in the caliber of the two recovered bullets, the medical examiner would also testify that each bullet was “deformed when he found them in the skull.” The trial judge also observed that “the bullets are pretty well smashed.” Detective Roden testified that a .38-caliber revolver, the standard issue for the police department and the type of gun recovered from defendant, would be considered a medium caliber weapon. Roden testified that deformed bullets are not always capable of being identified as a certain caliber. From his observation of the two recovered bullets, Roden testified that one bullet was unidentifiable because it had “no shape to it whatsoever.” Roden surmised, but could not state with certainty due to its incomplete form, that the other bullet was a .38-caliber. Accordingly, the caliber of the two bullets recovered from the victim's body was not established with certainty except that the medical examiner and Roden agreed that one of them was a medium-sized, .38-caliber bullet.

From our review of the evidence, in the light most favorable to the prosecution, we find that a rational trier of fact could have found that the essential elements of first degree murder were established beyond a reasonable doubt and that the State sufficiently refuted the defense of self-defense.

Defendant alternatively asks this court to find that he acted on the unreasonable belief that deadly force was necessary because his life was in danger from three antagonistic gang members, i.e., the victim, Tobias Hall and Bobby Williams. Based on this unreasonable belief, defendant asks this court to reduce his conviction to second degree murder.

Second degree murder occurs when the defendant commits the offense of first degree murder while believing that the circumstances at the time of the killing would legally justify or exonerate the killing but the defendant’s belief was unreasonable. Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(2).

Second degree murder is distinguished from self-defense only in terms of the nature of defendant’s belief at the time of the killing. (Felella, 131 Ill. 2d at 534.) If the defendant’s belief as to the use of force was reasonable, self-defense may apply. If the defendant’s belief was unreasonable, a conviction of second degree murder may be appropriate.

Supreme Court Rule 615(b)(3) empowers a reviewing court to reduce the degree of the offense of which a defendant was convicted. (134 Ill. 2d R. 615(b)(3).) This power, however, should be used with extreme caution and only in rare instances. People v. Williams (1991), 222 Ill. App. 3d 129, 138, 582 N.E.2d 1158.

The power to reduce the degree of the offense is. available where a lesser-included offense is involved, where there is an evidentiary weakness with regard to an element of the offense charged, and where the trial judge has expressed dissatisfaction with imposing the mandatory minimum sentence. (Williams, 222 Ill. App. 3d at 138-39.) Specifically, the power to reduce a conviction of first degree murder to second degree murder should be cautiously exercised. People v. Greene (1987), 160 Ill. App. 3d 1089, 1098, 513 N.E.2d 1092.

We find no evidentiary weakness in the present case to suggest that we should reduce the first degree murder conviction. The evidence sufficiently established that defendant, and only defendant, had a gun and repeatedly fired it at the victim as he sought to retreat. The evidence was neither closely balanced nor insufficient to find defendant guilty of first degree murder beyond a reasonable doubt. Moreover, defendant does not contest his sentence nor does the record indicate any reluctance on the part of the trial court to impose a sentence within the mandatory range. Accordingly, we find that the offense for which defendant was convicted should not be reduced.

Defendant next challenges the constitutionality of the second degree murder statute on the grounds that the second degree murder statute requires the defendant to prove that his belief in self-defense was unreasonable and that the unreasonableness of a defendant’s belief will always be proved, if at all, by the State. This statutory scheme, defendant argues, creates a “reverse” Reddick error, referring to People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and violates due process.

In Reddick, the Illinois Supreme Court held that the pattern jury instructions regarding murder and. voluntary manslaughter misstated the State’s burden of proof by incorrectly informing the jury that the State was required to prove the conditions which would reduce murder to manslaughter. The jury instructions should have placed the burden on the State to disprove the mental conditions that reduce the offense of murder to manslaughter. Reddick, 123 Ill. 2d at 197; see also People v. Shields (1991), 143 Ill. 2d 435, 442, 575 N.E.2d 538.

The present case was a bench trial. Thus, no jury instructions were given and defendant’s reliance on Reddick, a case involving the validity of jury instructions, is misplaced. As conceded by defendant at oral arguments, a trial court is presumed to follow the law correctly. People v. Blount (1991), 220 Ill. App. 3d 732, 745, 580 N.E.2d 1381.

As to the merits of defendant’s contention, we observe that numerous appellate courts have considered and rejected arguments which maintained that the second degree murder statute violates due process. (E.g., People v. Davis (1991), 221 Ill. App. 3d 1023, 583 N.E.2d 64; People v. Guidry (1991), 220 Ill. App. 3d 406, 581 N.E.2d 38; People v. Willis (1991), 217 Ill. App. 3d 909, 926, 577 N.E.2d 1215 (and cases cited therein); People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242.) Given the abundance of authority holding that the second degree murder statute does not violate a defendant’s constitutional rights to due process of law, we decline to expound at length on the present defendant’s analogous argument.

Due process requires the State to prove beyond a reasonable doubt all elements included in the definition of the offense with which the defendant is charged. (People v. Mitchell (1991), 221 Ill. App. 3d 926, 931, 583 N.E.2d 78; People v. Brown (1991), 218 Ill. App. 3d 890, 896-97, 578 N.E.2d 1168.) The second degree murder statute in Illinois expressly states that “the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(c).

Following Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, this court specifically held that “it is constitutional to require the defendant to prove [mitigating factors] by a preponderance of the evidence in order to reduce the first degree murder charge to second degree murder.” Brown, 218 Ill. App. 3d at 897.

We recognize the unique dichotomy presented by the interplay between the affirmative defense of self-defense predicated on a reasonable belief in self-defense (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1) and the mitigating factor of second degree murder based on an unreasonable belief in self-defense as enunciated in section 9 — 2(a)(2) (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(2)).

We acknowledge the curiousness of any rule that requires a person to show that he acted unreasonably. However, shifting this burden to the defendant does not impair his right to a fair trial or deny him due process.

Finally, defendant asserts that the second degree murder statute is unconstitutional because it places upon the defendant the burden of proving that he lacked the requisite mental state for first degree murder by proving the existence of one of the statutory mitigating factors enunciated in the second degree murder statute (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2), relying on Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. We disagree.

Defendant concedes that appellate courts have previously rejected this argument. This court has found that the Illinois second degree murder statute is substantially the same as the statute at issue in Patterson (432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319), rather than the statute in Mullaney which our courts have distinguished. (Mitchell, 221 Ill. App. 3d 926, 583 N.E.2d 78; Brown, 218 Ill. App. 3d 890, 578 N.E.2d 1168.) The statute held unconstitutional in Mullaney required the defendant to disprove an element of murder before the charge would be reduced to manslaughter. In contrast, the Patterson court held that it is constitutional to require the defendant to prove by a preponderance of the evidence an affirmative defense which is a mitigating factor to reduce murder to manslaughter. Mitchell, 221 Ill. App. 3d at 930-31; Brown, 218 Ill. App. 3d at 896.

This court specifically rejected the defendant’s argument that the Illinois murder statute is constitutionally infirm by requiring a defendant to prove a mitigating mental state. People v. Wright (1991), 218 Ill. App. 3d 764, 776-77, 578 N.E.2d 1090.

Moreover, this court and other appellate courts have repeatedly found that under the statute, the State has the burden of proving the essential elements of the crime of first degree murder and no constitutional violation arises from requiring the defendant to prove a mitigating factor to reduce the offense to second degree murder. People v. Smallwood (1991), 224 Ill. App. 3d 393, 586 N.E.2d 636; People v. Manley (1991), 222 Ill. App. 3d 896, 584 N.E.2d 477; Mitchell, 221 Ill. App. 3d 926, 583 N.E.2d 78; Wright, 218 Ill. App. 3d 764, 578 N.E.2d 1090; Willis, 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.

For all the foregoing reasons, we affirm the conviction of first degree murder and find the second degree murder statute constitutional.

Judgment affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE CERDA

text:
    ALDEN NURSING CENTER OF POPLAR CREEK, INC., Plaintiff-Appellant, v. MEDITRUST OF ILLINOIS, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 1—92—0966
    Opinion filed June 30, 1993.

      Janet L. Hermann, of Greenburg & Hermann, of Chicago, for appellant.
    John F. Zabriskie, of Hopkins & Sutter, of Chicago, and Daniel J. Gleason and John M. Griffin, both of Nutter, McClennen & Fish, of Boston, Massachusetts, for appellee.
   JUSTICE CERDA

delivered the opinion of the court;

Plaintiff, Alden Nursing Center of Poplar Creek (Alden), brought a declaratory action to determine the rights and liabilities of the parties regarding certain provisions of a lease agreement between the parties. The trial court granted summary judgment in favor of defendant, Meditrust of Illinois, Inc. (Meditrust). On appeal, Alden asserts that the trial court erred in granting summary judgment because Alden is not obligated to pay (1) greater financing costs associated with refinancing than the original financing arrangements, which provided only for variable costs due to varying interest rates and bond costs; and (2) attorney fees associated with refinancing the bonds because the lease does not provide for such payment. In addition, Alden asserts that the trial court erred in denying its request for an evidentiary hearing on the issue of reasonableness and necessity of the attorney fees claims. We affirm in part and reverse and remand in part.

Alden operated a nursing center on premises leased from Meditrust. In January 1988, a three-part transaction closed between Alden, Meditrust, and a nonparty to this action, Midwest Cambridge, Inc. (Midwest). Under the transaction, which was memorialized in an agreement for purchase and sale and for lease, Meditrust bought a nursing home from Midwest and simultaneously leased it to Alden pursuant to a lease and security agreement executed at the closing. Meditrust made a $2 million cash payment and assumed Midwest’s obligations relating to the existing tax-exempt bond financing on the facility. Meditrust assumed $6.8 million variable rate, tax-exempt revenue bonds (bonds) with the Illinois Health Facilities Authority. The bonds were supported with a $6.8 million letter of credit.

The lease agreement provides that Alden will pay as part of its minimum rent:

“3.1 (a) Minimum Rent:
* * *
(iii) An amount equal to the monthly sum of all principal, interest and other payments of any kind payable in connection with any Assumed Indebtedness ***. Such amount may vary from month to month, owing to the variable rate of interest on the Bonds as well as the varying periodicities for payment of Bond-related costs, fees and expenses.”

The lease agreement defines assumed indebtedness as follows:

“2.1 Assumed Indebtedness: [Defined] Any indebtedness or other obligations existing at the time of acquisition of the Leased Property by Lessor secured by a mortgage, deed of trust or other security agreement in or on the Leased Property and taken subject to or assumed by Lessor pursuant to the terms of the Purchase and Sale Agreement, and any indebtedness resulting from the refinancing thereof (which refinancing shall not (i) result in the financing costs to the Lessee related thereto being greater than the costs associated with the financing arrangement being replaced, or (ii) be on terms materially more burdensome to the Lessee than those associated with the financing arrangement being replaced) and/or any subsequent indebtedness resulting from Lessor’s financing of, or Lessor’s reimbursement of Lessee’s financing of any Capital Additions during the Term, but specifically excluding any indebtedness or other obligations of Lessee not assumed by Lessor prior to or during the Term.”

Initial security for the $6.8 million bonds assumed by Meditrust was provided by a five-year letter of credit issued by National Westminster Bank USA (Natwest) in which Natwest agreed to honor the purchase price of the tendered bonds and the draws by the trustee to pay the bonds’ interest and principal as they became due. Meditrust was required to reimburse Natwest for any draws made against the letter of credit account.

The purchase, sale and lease agreement was executed by Midwest, Alden, and Meditrust at the same time that the lease and security agreement was signed. It was understood by all parties that if the letter of credit lapsed, the bonds had to be redeemed immediately. Section 2.14 of the purchase, sale and lease agreement provided in part:

“The Buyer [Meditrust] shall assume the Bonds and shall take title to the Premises subject to and shall assume the outstanding balance, as of the Closing Date, of the Bond Mortgage Note and the Bond Mortgage ***. All carrying costs, fees, expenses relating to the Bonds, including but not limited to payments of principal of and interest on the Bonds, trustee fees, letter of credit fees and remarketing agent fees shall be paid by the Lessee as a component of the rent payable under the Lease.”

The five-year letter of credit was due to expire on January 15, 1990, by which time it had to be either renewed or replaced. If not, the bonds would be immediately redeemed. Natwest refused to renew its letter of credit. To prevent the bonds from being redeemed, Meditrust obtained an alternative letter of credit from Barclays Bank PLC. The closing costs totaled $169,199. Due to timing problems, it was also necessary to get two emergency temporary extensions of the Natwest letter of credit, which cost $116,116.22.

In June 1990, Meditrust sought reimbursement from Alden for the incurred costs and fees of $288,715.22 associated with obtaining the extensions and new letter of credit. Under protest, Alden paid a portion of those fees and costs. Then, without Alden’s consent, Meditrust removed $105,386.02 from an escrow account under a renovation and closing expense escrow agreement entered into between the parties at the time the lease agreement was made. Meditrust then demanded that Alden pay the remaining amount of $70,742.98.

Denying that it had any obligation under the lease agreement to pay those expenses, Alden filed a declaratory action in March 1990. On January 3, 1991, Meditrust filed a motion for summary judgment arguing that Alden agreed to pay all costs associated with the bond financing. Alden filed a cross-motion for summary judgment. After a hearing on May 23, 1991, the trial court entered summary judgment in favor of Meditrust and denied Alden’s cross-motion for summary judgment.

On appeal, Alden’s argument is as follows. Alden asserts that the new letter of credit was a refinancing for which it is not obligated to pay the associated extraordinary fees and costs. Alden contends that the bonds and letter of credit securing the bonds are inextricably linked, forming the assumed indebtedness, which was refinanced. The lease agreement provides that it is not liable for refinancing costs that are greater than those associated with the original financing arrangements or that are materially more burdensome. Instead, it is required to pay as minimum rent the usual and ordinary costs, fees, and expenses, including variations due to variable rate of bond interest and varying periodicities for related costs, fees, and expenses. Alden argues that the lease reflects an intention of the parties to keep the costs relatively constant, limited to varying periodicities, not extraordinary costs associated with refinancing the assumed indebtedness.

Meditrust responds that the refinancing limitations in the lease were not triggered because no refinancing took place. Instead, Meditrust contends that the. bonds were the financing and the letter of credit is the security for the bonds. Meditrust asserts that Alden is responsible for all costs associated with the bond financing because it agreed to pay all principal, interest, and other payment in connection with any assumed indebtedness, which is the existing financing that Meditrust assumed when it acquired the nursing home. Meditrust maintains that Alden’s responsibility includes all costs of maintaining the letter of credit, which is a separate and distinct financial document that was extended, then replaced. We agree.

Summary judgment should be granted only if the pleadings, admissions, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Neofotistos v. Metrick Electric Co. (1991), 217 Ill. App. 3d 506, 577 N.E.2d 511.) Where facts are not in dispute, and the only issue raised is the construction of contract language, summary judgment is properly employed to resolve that issue. Peters & Fulk Realtors, Inc. v. Shah (1986), 140 Ill. App. 3d 301, 305, 488 N.E.2d 635.

A court must consider the contract in the context of the entire agreement. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283, 154 N.E.2d 683; Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 850, 577 N.E.2d 1323.) The determinative factor is the intention of the parties, which can best be determined by considering the contract as a whole, reviewing each part in light of the others. (Wilson, 217 Ill. App. 3d at 850; Boatmen’s National Bank v. Smith (7th Cir. 1987), 835 F.2d 1200, 1203.) Where there is no ambiguity, the contract language alone establishes the intention of the parties. S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.

We hold that the agreement is unambiguous. It is clear that the purchase of the nursing home by Meditrust was financed by bonds and that the bonds are the assumed indebtedness as defined in section 2.1 of the lease agreement. The bonds were secured by a letter of credit which was to expire in 1990. Alden should have been aware that the letter of credit had to be replaced or renewed in 1990. Renewal of the letter of credit, however, did not constitute a refinancing of the debt itself. Therefore, since the bonds were not refinanced, the refinancing clause limiting costs is not applicable.

We also hold that the terms of the purchase, sale and lease agreement are binding on Alden, the lessee under both agreements. It is clear under section 2.14 of that agreement that Alden agreed to pay, as a component of the rent payable under the lease, all letter of credit fees. Alden is obligated to pay the costs of replacing the letter of credit. Pursuant to the lease agreement, Alden is responsible for all bond-related costs, which includes the letter of credit. Thus, we affirm the summary judgment in favor of Meditrust.

The last two arguments involve attorney fees. Alden asserts that it is not obligated to pay the $141,795 attorney fees incurred in the acquisition of the extensions and new letter of credit because the lease does not provide for such fees. In addition, Alden contends that the attorney fees-were improperly granted without any hearing on the fees’ necessity or reasonableness.

Meditrust responds that Alden is responsible for all transactional attorney fees, as distinguished from litigation attorney fees, because the lease provides that Alden is to pay all bond-related fees. Meditrust contends that this provision includes all attorney fees actually incurred.

We hold that Alden is responsible for any reasonable attorney fees incurred in obtaining the extension and new letter of credit. (Hanover Insurance Co. v. Smith (1989), 182 Ill. App. 3d 793, 538 N.E.2d 710.) Where the attorney fees are transactional, they are ;prima facie reasonable. We further hold that the party opposing the fees has the burden of proving their unreasonableness. Thus, we reverse the trial court’s ruling on attorney fees and remand this cause for a hearing on the reasonableness of the transactional attorney fees. The burden is on Alden to prove their unreasonableness.

Based on the foregoing, we affirm in part and reverse and remand in part. We affirm the circuit court’s ruling that Alden is responsible for all the fees, costs, and expenses- related to the extension and new letter of credit. We reverse the circuit court’s ruling on attorney fees and remand this cause for a hearing on the reasonableness of the transactional attorney fees. The hearing is to be conducted in accordance with this opinion.

Affirmed in part; reversed and remanded in part.

TULLY, P.J., and RIZZI, J., concur.


author: JUSTICE JOHNSON

text:
      In re MARRIAGE OF RICHARD KANE, Petitioner-Appellant, and JO ANN KANE, Respondent-Appellee.
    First District (4th Division)
    No. 1—91—2341
    Opinion filed June 30, 1993.

      Arnold B. Stein, Sarane C. Siewerth, Todd R. Warren, and Andrea K. Muchin, all of Schiller, DuCanto & Fleck, of Chicago, for appellant.
    Gemma B. Allen and Ronald S. Ladden, both of Pretzel & Stouffer, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Petitioner, Richard Kane, appeals from a circuit court order granting a motion for post-judgment relief filed by respondent, Jo Ann Kane. Respondent petitioned the circuit court to vacate its previous judgment for dissolution of marriage. Petitioner contends in this appeal that the circuit court abused its discretion in granting respondent’s petition, thereby vacating the judgment of dissolution of marriage.

We reverse and remand.

Petitioner and respondent were married on September 4, 1964. On October 10, 1989, petitioner filed a petition for dissolution of marriage alleging extreme and repeated mental cruelty. Both parties executed a “Stipulation and Request to Hear an Uncontested Cause in Suburban District.” After hearing testimony from both petitioner and respondent at the prove up hearing held on November 9, 1989, the trial court found that respondent had been guilty of extreme and repeated mental cruelty. The trial court then entered a judgment of dissolution which incorporated a marital separation agreement previously executed by the parties.

On May 13, 1991, respondent filed a four-count petition to vacate the judgment of dissolution. On June 6, 1991, the trial court ordered the parties to litigate count I, which was entitled “Applicability of Ill. Rev. Stat. Ch. 40, Section 401,” and which also alleged that petitioner failed to establish sufficient grounds for the judgment of dissolution. After a hearing on count I, the trial court vacated the judgment for dissolution on June 21, 1991, reasoning that the evidence failed to support the allegation of mental cruelty. Petitioner appealed to this court to reverse the June 21, 1991, order. Subsequently, this court granted petitioner’s request for a stay pending appeal.

The sole issue before us now is whether the trial court had jurisdiction to vacate its judgment of dissolution 17 months after the judgment was entered.

Generally, a trial court loses jurisdiction over the subject matter in a divorce proceeding after 30 days following the entry of a final order therein. (Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 138.) A limited exception to the general rule is section 2 — 1401 of the Code of Civil Procedure (formerly section 72 of the Civil Practice Act), which allows a party to seek relief from a judgment “after 30 days from the entry thereof.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401.) In seeking relief under section 2 — 1401, a party must allege and establish proper grounds for relief. Kelly, 105 Ill. App. 3d at 140.

In the present case, respondent filed her petition to vacate 17 months after the court entered a judgment for dissolution. Count I of respondent’s petition, which is the subject of this appeal, was not based on section 2 — 1401. Respondent did not allege in count I or at the hearing on the petition that she was entitled to relief under section 2 — 1401. Hence, the trial court lacked proper jurisdiction to vacate its judgment of dissolution since respondent’s petition was filed more than 30 days after the judgment was entered. Notwithstanding, the remaining counts in respondent’s petition alleged that she was entitled to relief under section 2 — 1401. Respondent’s allegations of fraud, unconscionable conduct, and newly discovered evidence fall within the purview of relief obtainable in a section 2 — 1401 proceeding. Here, however, the trial court ordered the parties to litigate count I before proceeding on the remaining counts. Respondent never had an opportunity for a hearing on those counts. Therefore, we remand this cause to the trial court for a hearing on those counts in respondent’s petition pertaining to section 2 — 1401.

Accordingly, we reverse the trial court’s order entered June 21, 1991, and remand this cause for further proceedings.

Reversed and remanded.

JIGANTI, P.J., and CAHILL, J., concur.