text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL MORTON, Defendant-Appellant.
    Fourth District
    No. 4 — 88—0639
    Opinion filed September 14, 1989.
    Rehearing denied October 12, 1989.

      Samuel J. Cahnman, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

The principal issue in this case concerns application of the statutory exception to the hearsay rule involving evidence of complaints of children as to unlawful sexual acts perpetrated upon them. In prosecutions for certain sexual acts, section 115 — 10(a)(2) of the Code of Criminal Procedure of 1963 (Code) effective January 1, 1988, permits, under stated conditions, admission into evidence of an “out of court statement made by [a victim of such an act who is less than 13 years of age] describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 115— 10(a)(2).) Under court interpretation of prior statutes, the witness was not permitted to testify as to the details of the sexual act or the identification of the perpetrator of the act as related by the victim. (People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916; People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131; People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) The most significant question here is whether the present section 115 — 10(a)(2) permits evidence of those details of acts which are elements of the offense and that identification. We hold that it does.

On June 3, 1988, following a jury trial in the circuit court of Sangamon County, defendant Samuel R. Morton was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) of his eight-year-old son J.M. in that he knowingly committed an act of sexual penetration by placing his penis in the anus of his son. One act was alleged to have taken place on August 19, 1987. By the State’s answer to a request for a bill of particulars, the time of the other act was limited to the period from May 1, 1987, to July 15, 1987. A charge alleging he also placed his penis in the mouth of his son was later dismissed by the State. He was subsequently sentenced to a term of nine years’ imprisonment on each count to run concurrently.

On appeal defendant maintains (1) his guilt was not proved beyond a reasonable doubt; (2) the court erred in admitting testimony of Nancy Roncancio, an investigator for the Department of Children and Family Services, and Dave Shaneman, a Sangamon County deputy sheriff, in regard to statements made to them by J.M. concerning acts of defendant upon which the charges against defendant were based; (3) the court also erred in admitting testimony of Jeanne Hamilton, a counsellor, as to damaging admissions defendant had made to her during counselling; (4) defendant was entitled to a mistrial; and (5) the court considered improper matters in imposing sentence and abused its discretion in imposing a term of nine years’ imprisonment. We affirm.

The most important prosecution evidence was the testimony of J.M. After examination by court and counsel, he was found competent to testify. He then said: (1) he was eight years old; (2) he had been to the Rape Information and Counseling Center (RIGS) in August of 1987 and told a secret; (3) the secret was that his father (defendant) had “stuck his penis into my butt”; (4) the incident had occurred the day before he had been to the center while J.M. was preparing to take a bath; (5) he had his clothes “halfway” off when his father entered the bathroom; (6) after the act, J.M. wiped “white sticky stuff” from his bottom and got into the bathtub; (7) afterwards, J.M. would go into his bedroom, place a toy chest in front of the door and take a nap; and (8) it hurt him “a little.”

J.M. also testified (1) the foregoing conduct of his father had occurred before and had been continuing periodically for over a year; (2) on occasion, his father would put his penis into J.M.’s mouth, usually in the back of defendant’s van; (3) his father told him if he told this secret, he would punish him; and (4) he previously had trouble controlling his bowel movements, but he did not have that problem after his father moved out in August 1987. On cross-examination, J.M. testified that he had attended counseling weekly since August of 1987 and had discussed his testimony numerous times.

Nancy Roncando then testified: (1) she was an investigator for the Department of Children and Family Services (DCFS); (2) on August 20, 1987, she investigated a report of child abuse concerning J.M.; (3) on that date, she went to the RIGS office and spoke with J.M.; (4) J.M. told her that his father had put his penis in J.M.’s mouth and bottom and drew a picture of his dad and himself with an arrow pointing from his dad’s penis to J.M.’s bottom; (5) J.M. indicated on a marker the depth of penetration and the approximate color of the “white sticky stuff”; (6) J.M. told her the “stuff” got on his bottom and his underwear and that the acts would occur in the bathroom most of the time except for once when it happened in his bedroom; (7) she and Deputy Shaneman went to defendant’s home to search for the nude photographs of J.M. that he had told them his father had taken of him, but they were unable to find any; (8) she then went to the hospital where J.M. was being examined; and (9) the exam revealed no physical evidence of abuse.

Shaneman testified he talked to J.M. at the RIGS office on August 20, 1987, and was told by J.M. that after defendant had sex with him, he often soiled his underwear. Shaneman stated he then searched the Morton residence for J.M.’s underwear but was unable to find any with evidence of feces, semen, hair, or blood on it. William Frank, a forensic scientist with the Illinois State Police, testified that he analyzed two pair of underwear taken in the search of defendant’s house, and both were negative for semen and blood.

Jeanne Hamilton, an employee counselor at St. John’s Hospital, where defendant had previously worked, testified for the State. She explained defendant had come to see her, appearing visibly very upset. According to Hamilton, in the course of a 40- to 45-minute conversation, defendant told her a possibility existed he may have committed an act of sexual molestation but if he had done so, he did not remember it.

Defendant testified, in his own behalf, denying any acts of sexual abuse. He also denied making any statement to Hamilton that a possibility existed he might have committed the offense but did not remember doing so. This latter denial was supported by a stipulation that an investigator for defendant’s attorney would testify that he interviewed Hamilton and made notes and his notes do not indicate Hamilton told him defendant made the statement concerning the possibility he committed the offense but could not remember. Defendant’s brother and sister both testified at trial that they had taken care of J.M. on numerous occasions, and that they had not noticed any marks or bruises on his body. Defendant’s sister also said she did not notice any changes in J.M.’s moods or behavior.

Defendant’s theory that the prosecution’s proof was insufficient is based largely upon the rule that in sexual abuse cases, where, as here, the accused denies commission of the offense, in order to support a conviction, the testimony of the victim must be corroborated or be clear and convincing. (In re B.J.S. (1987), 151 Ill. App. 3d 1023, 503 N.E.2d 1198.) Here, the testimony of J.M. is corroborated if the testimony of Roncando and Hamilton is admissible because J.M.’s complaints corroborate his testimony at trial, as does Hamilton’s testimony of defendant’s admission. As we later explain, we hold this testimony was admissible. Corroboration is not dependent on the testimony of Shaneman.

As defendant correctly points out, no physical evidence of his guilt was produced, and substantial evidence indicated J.M. was coached concerning his testimony. In addition, some inconsistency existed in (1) J.M.’s testimony as to the frequency of the sexual acts; (2) his testimony about some nude pictures which he said his father took of him; and (3) his testimony concerning whether he put his toy chest in front of his bedroom door to keep his father out. The failure of Shaneman to find any evidence of the offense in J.M.’s underwear the day after the last alleged occurrence was also of some significance. However, testimony of a young victim does not have to be perfect to be clear and convincing. (People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359.) More particularly, failure of the child witness to remember dates does not render the testimony unclear as a matter of law. (Sexton, 162 Ill. App. 3d at 612, 515 N.E.2d 1363.) In any event, because of the corroborating evidence here, we need not decide whether J.M.’s testimony here was clear and convincing.

J.M.’s testimony, together with the corroborating testimony of other witnesses, was sufficient to enable a reasonable jury to conclude each element of defendant’s guilt of each offense was proved beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The defense contention that the testimony of Roncancio and Shaneman was inadmissible is based on his contention that (1) their testimony in regard to the complaints made to them of the sexual acts of defendant was improper because they both included J.M.’s report of the details of defendant’s acts and named him as the perpetrator of those acts; (2) in regard to Shaneman, no hearing was held pursuant to section 115 — 10(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b)(1)); and (3) both witnesses testified to statements J.M. made after extensive questioning.

The first question concerning the propriety of the testimony of Roncancio and Shaneman is that which we have previously indicated to be the most important issue in the case. It involves the corroborative complaint hearsay exception of section 115 — 10 of the Code. Testimony by a -witness as to something told to the witness by another is hearsay if the testimony is offered to prove the truth of the matter asserted. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) Here, the testimony of Roncancio and Shaneman as to what J.M. told them defendant did was hearsay when it was offered to prove that defendant did, in fact, do those things.

Prior to the enactment of legislation making admissible evidence of complaints by victims of sex offenses, a common law exception to the hearsay rule existed in regard to complaints made promptly after the offense by rape victims. However, the portion of the complaint which gave the details of the offense and named the perpetrator was inadmissible. (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.) Section 115 — 10 of the Code was enacted effective January 1, 1983. It was subsequently amended, effective February 1, 1983, to state:

“In a prosecution for a sexual act perpetrated upon a child under the age of 12, including but not limited to prosecutions for violations of Sections 11 — 1 through 11 — 5 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” Ill. Rev. Stat. 1983, ch. 38, par. 115 — 10.

In People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137, this court interpreted the purpose of then section 115 — 10 of the Code to extend the common law corroborative complaint doctrine to complaints of young victims of sexual offenses other than rape. Accordingly, this court held that portions of such complaints which gave details of the offense or identified the offender were inadmissible. However, by drawing analogy to the holding in People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164, we held that error in the admission of testimony of details and of identification in corroborative complaints under section 115 — 10 of the Code was harmless if (1) every detail stated in the testimony of the complaint was corroborated by the victim’s testimony at trial; and (2) the defense had an opportunity to cross-examine the victim who made the complaint. In Robinson,' the supreme court had set forth a similar rule in regard to application of the common law corroborative complaint rule in rape cases.

In People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, this court followed Leamons and Robinson in holding, under similar circumstances, error in the admission of section 115 — 10 corroborative complaint testimony was harmless although details of the offense were recited and the offender’s name was given. On the other hand, where the violations of the Leamons requirements were gross, this court reversed a conviction in People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916. During the period covered by Leamons, Server, and Bradley, section 115 — 10 of the Code remained in substantially the same form.

Effective January 1, 1988, section 115 — 10 of the Code was | amended to state:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.

As section 115 — 10 of the Code concerned procedure at the trial which occurred in 1988, the new version of section 115 — 10 determined the admissibility of evidence of corroborative complaints by J.M. in this case. (People v. Ruiz (1985), 107 Ill. 2d 19, 479 N.E.2d 922.) As section 115 — 10(a)(2) speaks of testimony of a statement which describes “any *** detail pertaining to any act which is an element” of a sexual offense (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(a)(2)), the question arises as to whether the legislature has changed the rule that testimony of corroborative complaints by a victim cannot include recitation of the details of the offense or the identification of the offender. Defendant maintains the reference to “any detail of an act which is an ‘element’ of the offense” is for the purpose of recognizing the rule of Robinson, Leamons, Server, and others whereby the recitation of details is harmless error if the conditions required in those cases are met. We do not agree.

New section 115 — 10 of the Code does resemble the rule of Robinson, Leamons, and Server, rendering error in the admission of corroborative complaints of child victims of sex offenses harmless, to the extent new section 115 — 10(b)(2) requires the child to testify if available. However, section 115 — 10 does not require that every detail recited be corroborated by the child’s testimony at trial. Rather than being a restatement of existing case law, we conclude the new section 115 — 10 is intended to be, and is, a comprehensive, well-considered statement of the circumstances under which hearsay evidence of the statement of child victims of sex offense may be admitted in criminal proceedings for the purpose of prosecuting those accused of such offenses.

The previously cited language of section 115 — 10(a)(2) which provides for the admissibility of “testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense” (emphasis added) means just what it says (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(a)(2)). If the conditions of section 115 — 10(b) are met, a “detail” of a corroborative complaint by the child may be related by a witness to the child’s statement of the complaint. Clearly, an identification of the perpetrator of an “act” is a “detail pertaining” to that act.

An intent upon the part of the legislature to clarify and modify the rules in regard to the admission of the type of evidence involved here seems logical. In the vast majority of cases where a corroborative complaint of a child victim of a sex offense is offered, that child will have testified in detail and been subject to cross-examination. Thus, the rule against recitation of identification and other details has largely become engulfed by the rule rendering the violation of the rule harmless error. Furthermore, the recitation of some of the details of acts which are elements of the offense and matter, at least implying the identity of the perpetrator, was very likely to be required to make sense of testimony. Section 115 — 10(b) sets forth reasonable conditions for the safeguard of the reliability of the evidence.

The testimony of Roncancio was supported by full compliance with the requirements of section 115 — 10(b) of the Code. A hearing was held out of the presence of the jury and evidence showed the circumstances existing safeguarded the reliability of the hearsay she (Roncancio) related. The child testified at the proceeding. Accordingly, no error arose because Roncancio related the portion of J.M.’s statement to her which stated the details of the offenses and identified defendant as the person J.M. said committed those offenses.

Shaneman’s testimony was not supported by full compliance with section 115 — 10(b) of the Code. The circuit court refused defendant’s request that a hearing be held pursuant to section 115 — 10(b)(1) of the Code to determine whether the circumstances indicated a sufficient reliability could be attached to J.M.’s purported statement to Shaneman. Thus, admission of this testimony was error. However, the only significant statement of J.M. that Shaneman testified about was J.M.’s statement that after defendant sexually abused him he often soiled his underwear. J.M. did testify directly that this did occur. Considering this direct testimony and the fact only one significant statement of J.M.’s was related, we conclude the error was harmless.

Defendant also maintains the testimony of Roncancio and Shane-man concerning complaints- made to them by J.M. was inadmissible because J.M.’s statements occurred during and after extensive questioning by those witnesses. Defendant relies on People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865. There, the supreme court reversed a conviction for rape and deviate sexual assault. That court held reversible error resulted from admission of testimony of a witness concerning statements made to the witness by the victim. The evidence indicated the victim, after being let out of an automobile driven by the accused, walked a short distance to a fire station where she asked the witness if she could use a telephone. The witness asked the victim if he could help her, but she said she merely wanted to call the police. The witness thought the victim appeared nervous and, accordingly, asked again if he could help, but she refused help. After the phone call was completed, the victim told the witness she had been raped. The supreme court held that the questioning spoiled any spontaneity in the victim’s complaint, and thus the complaint was inadmissible as either a spontaneous declaration or a prompt complaint. The Damen case was cited.

Later, in Server, this court held “[t]he fact that a complaint [by a victim was] made in response to questions does not necessarily destroy its admissibility under *** section 115 — 10.” (Server, 148 Ill. App. 3d at 900, 499 N.E.2d at 1028.) Cited there were cases where testimony of police officers, nurses, and social workers of statements of victims of sex crimes had been considered even though the statements resulted from questioning. Those were cases where the opinions do not indicate any objection was made to the fact that the corroborative complaints resulted from questioning. (In re R.D. (1985), 131 Ill. App. 3d 612, 476 N.E.2d 62; People v. Powell (1985), 138 Ill. App. 3d 150, 485 N.E.2d 560; People v. Salas (1985), 138 Ill. App. 3d 48, 485 N.E.2d 596.) Nevertheless, we consider the reasoning of Server to be sound. At the time of Taylor, the focus in determining reliability of the statement of a victim was placed upon the spontaneity of the hearsay statement even though the reviewing courts recognized that the doctrines of a corroborative complaint and a spontaneous declaration were not entirely the same. Section 115 — 10 of the Code is applicable only when the declarant is a child, and the focus is on the fact a child would be unlikely to fabricate rather than that the declarant would be likely to be truthful only if the information is volunteered. The testimony of Roncancio and Shaneman as to J.M.’s statement was not rendered inadmissible because the statements were made as a result of questioning.

Thus, no reversible error resulted from the testimony of Roncancio and Shaneman.

Defendant’s complaint that Jeanne Hamilton, the St. John’s counselor with whom he conferred, should not have been permitted to testify as to admissions he made to her is based upon the provisions of section 10(a) of the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (Ill. Rev. Stat. 1987, ch. 91½, par. 801 et seq.), which states that, except as therein provided, “therapists” and “recipients” have “the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications’ ’ in court proceedings and before various other situations. (Ill. Rev. Stat. 1987, ch. 91½, par. 810(a).) The term “therapist” includes social workers (Ill. Rev. Stat. 1987, ch. 91½, par. 802(9)) and the word “recipient” includes a person receiving mental health services (Ill. Rev. Stat. 1987, ch. 91½, par. 802(6)). However, section 4 of the Abused and Neglected Child Reporting Act (Reporting Act) requires a wide variety of people involved in providing various types of health and social services, including social workers, to report suspected cases of child neglect or abuse to the Illinois Department of Children and Family Services. (Ill. Rev. Stat. 1987, ch. 23, par. 2054.) Section 4 further states in part:

“The privileged quality of communication between any professional person required to report and his patient or client shall not apply to situations involving abused or neglected children and shall not constitute grounds for failure to report as required by this Act.” Ill. Rev. Stat. 1987, ch. 23, par. 2054.

In People v. McKean (1981), 94 Ill. App. 3d 502, 418 N.E.2d 1130, the court rejected the contention of an accused that his constitutional rights were violated prior to his arrest when a social worker of the Department of Children and Family Services had revealed information he gave her concerning his acts of aggravated incest for which he was charged and convicted. The appellate court affirmed the conviction, holding that the social worker properly revealed the information pursuant to the previously cited provisions of section 4 of the Reporting Act. The court stated:

“Under the statute *** not only was any communication privilege that might exist between the defendant and [the social worker] inapplicable but also [he] had an affirmative duty to report the defendant’s conduct ***.” McKean, 94 Ill. App. 3d at 505, 418 N.E.2d at 1133.

This court, in People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121, held the cited provisions of section 4 of the Reporting Act defeated the contention of a defendant convicted of taking indecent liberties with a child that admission into evidence of incriminating statements he had made to a social worker violated his privilege against self-incrimination. Apparently, the social worker had informed the defendant their conversation would be confidential. This court relied on the statement in McKean that under section 4 of the Reporting Act no privileged communication between the social worker and the defendant could exist as to matters involving child abuse.

Defendant maintains that the confidentiality created under section 10 of the Confidentiality Act concerns a confidentiality in regard to testimony in court or other proceedings, while section 4 of the Reporting Act is focused upon reports to be made to the Department of Children and Family Services. He points out that the decision in McKean involved a report made to authorities and not to testimony given in court. Defendant contends that Bradley was improperly decided. Defendant makes a conceivable argument. However, as stated in McKean, and adopted by the court in Bradley, the express language of section 4 of the Reporting Act provided both for the creation of a duty upon the social worker to report child abuse and also to negate any privilege to the communication between the parties. Bradley, 128 Ill. App. 3d at 381, 470 N.E.2d at 707-08.

The obvious purpose of a confidentiality between therapists and recipients is to encourage the recipients to speak freely so that the therapist will have accurate information to use in deciding on treatment. Here, the undisputed evidence showed that the recipient was advised the conversation would not be confidential. If the statutory format is, as defendant argues, that the conversation here was confidential as far as use in subsequent court proceedings but that the therapist would be required to report the conversation to the Department of Children and Family Services, the incentive for a person who has committed child abuse to speak accurately has been virtually eliminated anyway. Those who would speak truthfully would be those like the defendant who were emotionally compelled to seek advice even if no confidentiality existed.

We conclude, as indicated in McKean and Bradley, the express language of section 4 of the Reporting Act destroys any confidentiality for use in a criminal prosecution for child abuse to information given by an accused to a therapist under the circumstances here. The court properly admitted Hamilton’s testimony.

Defendant’s final contention bearing upon his conviction concerns the circuit court’s denial of his motion for a mistrial made during the course of trial. It was made in response to testimony by defendant’s former wife that defendant was reluctant to take J.M. to RIGS the first two times he went there. Defendant objected and stated, out of the jury’s presence, that his initial reluctance to take J.M. and his sister to RIGS related to an alleged sexual abuse of J.M.’s sister by an older cousin. He then asked for a mistrial on the basis that he could not explain this reluctance without going into details of the abuse against J.M.’s sister. The court sustained the objection, and instructed the jury to disregard the answer, but denied the motion for mistrial. Defendant now argues the jury could have inferred the testimony related to other sexual crimes against J.M. which would be discovered at RIGS. Defendant notes that during deliberations, the jury sent a note to the judge asking if it would “have been admissible for us to know the original reason [J.M.] was taken to RIGS. If admissible, why was it not brought out[?]”

As the matter turned out, defendant probably was somewhat prejudiced by the episode. However, the evidence of defendant’s reluctance to take J.M. to RIGS had some tendency to show a guilty mind on defendant’s part. The State cannot be faulted for offering the evidence, and defendant cannot complain of the court’s action in sustaining objection to the evidence. The only alternative for the court to follow would have been to let the evidence come in and for defendant to put on evidence indicating his reluctance was for another reason. In any event, the prejudice to defendant was not great, and the court did not abuse its discretion in denying a mistrial.

Finally, defendant argues the trial court was unduly swayed by the victim-impact statement prepared by defendant’s ex-wife, the victim’s mother. Defendant notes the United States Supreme Court recently announced that sentencing decisions would be based on the characteristics and record of the defendant and circumstances of the crime, not the emotional impact of the crime on the victim’s family. (Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529.) However, this court noted that Booth applied only when the death penalty was in issue and that the victim-impact statement may properly be considered. People v. Hines (1988), 165 Ill. App. 3d 289, 303, 518 N.E.2d 1362, 1371, cert. denied (1988), 488 U.S. 895, 102 L. Ed. 2d 226, 109 S. Ct. 236.

Moreover, the trial court here indicated it would not consider the victim-impact statements of the victim’s sister or the statements of the victim’s mother as to the effect the defendant’s actions had on her, since she was not the victim. Also, the trial court has substantial discretion to sentence, and where the sentence is within the statutory limits, it will not be disturbed on appeal. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

As we have indicated, we affirm.

Affirmed.

McCULLOUGH, Ed., and SPITZ, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    CLARENCE DEIBERT, Plaintiff-Appellee, v. BAUER BROTHERS CONSTRUCTION COMPANY, INC., Defendant-Appellant.
    Fifth District
    No. 5-88-0480
    Opinion filed August 7, 1989.
    Rehearing denied September 19, 1989.
    Stephen W. Thomson, Curtis L. Blood, and Kit R. Morrissey, all of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, P.C., of Edwards-ville, for appellant.

      Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville (Bruce N. Cook, of counsel), for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

A possessor of land has a duty to protect invitees from harm caused by a known or obvious danger when the possessor should anticipate the harm despite the invitee’s knowledge of the danger or the obviousness of the danger. (See Restatement (Second) of Torts §343A (1965); Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35.) At trial, plaintiff testified that his attention was distracted from an obvious danger, thereby forming a breach of duty issue for the jury’s resolution. Defendant’s claim that it had no duty under the circumstances of this case as a matter of law is rejected, and the judgment entered on the jury’s verdict for plaintiff is affirmed.

Plaintiff, an electrician with 24 years of construction experience, worked for Fritz Electric, a subcontractor of defendant, the general contractor. Rain had come to the construction site the day before plaintiff’s spinal disc was herniated. The day he was injured, the ground was slippery and soft. Sometime during the morning, plaintiff walked to a portable restroom on the construction site and went in. As he came out, he looked up instead of down, because in the past, construction workers had been throwing plasterboard and related construction garbage off a balcony overhead, although they had not thrown anything that day. Unseen by plaintiff, but only a step and a half from the portable restroom, were ruts, four to five inches deep and 8 to 10 inches wide, that had been left by heavy machinery. Plaintiff walked that step and a half looking up, stepped into one of the ruts, and tripped, severely injuring his back. He admitted that the ruts were open and obvious and that he would have seen them had he been looking where he was going.

Defendant moved for a directed verdict at the close of plaintiff’s case; that motion was denied. The jury found for plaintiff, but reduced his damages in accordance with finding plaintiff 40% contributorily negligent. Defendant moved for judgment notwithstanding the verdict; that motion was also denied. Both the motion for a directed verdict at the close of plaintiff’s case and the motion for judgment notwithstanding the verdict were predicated on defendant’s claim that because the rut was open and obvious, it had no duty to protect plaintiff from harm caused by the rut.

A general contractor “is subject to the same liability, and enjoys the same freedom from liability *** as though he were the possessor of land.” Restatement (Second) of Torts §383 (1965).

Defendant cites Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and Restatement (Second) of Torts section 343 (1965) and argues that it had no duty to plaintiff to protect him from the harm caused by the rut, because a possessor of land has no duty to protect an invitee from a condition of the land where the possessor • has no reason to expect that the invitee will not discover or realize the danger or will fail to protect himself against it, or where the condition is open and obvious. Defendant insists: (a) the rut was open and obvious; and (b) because plaintiff was an experienced construction worker, and because depressions, ruts and rises in the ground are inherent in construction, defendant had no reason to expect that plaintiff would not discover the danger posed by the ruts.

Had there been no evidence that plaintiff’s attention was distracted from the ruts, section 343 Restatement (Second) of Torts would apply. The circuit court, then, would have been obliged to direct a verdict because defendant would have had no duty to protect plaintiff from the obvious danger posed by the ruts. However, there was evidence of distraction, and therefore, this case is governed by section 343A Restatement (Second) of Torts.

Section 343A(1) of the Restatement applies to known or obvious dangers. It provides:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts §343A(1) (1965).

Plaintiff has claimed that defendant has a duty to protect him from harm caused by the ruts, because plaintiff’s attention was distracted by the past practice of workers throwing construction garbage off an overhead balcony, and that under the circumstances of this case, the defendant should have anticipated that distraction. In conjunction with that duty, his testimony that he looked up to see if workers were dumping plasterboard from the balcony overhead formed, prima facie, a breach of that duty. See Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35.

That nothing was being thrown off the balcony on the day plaintiff was hurt may have had significance to the jury, but was not determinative to the court’s granting a directed verdict or judgment notwithstanding the verdict. Plasterboard and other construction items had been thrown off the balcony as this construction project proceeded. Plaintiff knew it; it is a reasonable inference that defendant also knew it. Under these circumstances, a court can only say that it is a jury question whether defendant should have anticipated that a person using the portable restroom would look up to see if he was coming into harm’s way from above. Under these circumstances it would be wrong for a court to announce as a matter of law that defendant should not have anticipated the distraction.

Lastly, defendant argues that the ruts are a natural condition of the land, caused by ordinary construction site traffic across soft dirt and mud, and therefore, defendant had no duty to protect plaintiff. Defendant relies on Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896, 438 N.E.2d 241, and Walker v. Chicago Transit Authority (1980), 92 Ill. App. 3d 120, 416 N.E.2d 10. These cases involve the rule that covers accumulations in their natural state of snow, ice, water and mud. These are placed into the world by God. The ruts were placed into the world by defendant.

The judgment is affirmed.

Affirmed.

HARRISON and LEWIS, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    DAVID EALEY, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF SALEM et al., Defendants-Appellees.
    Fifth District
    No. 5 — 88—0265
    Opinion filed August 9, 1989.
    Rehearing denied September 19, 1989.

      Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellant.

      Branson, Jones & Stedelin, of Salem, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, David Ealey, a police officer with the City of Salem, appeals from the judgment of the circuit court of Marion County affirming the findings of defendant, Board of Fire and Police Commissioners of the City of Salem (Board). The Board found plaintiff guilty and terminated his employment. Plaintiff raises several issues on appeal. This court affirms.

On July 31, 1987, plaintiff filed a complaint for administrative review in the circuit court alleging that the findings by the Board were arbitrary, capricious, contrary to the law and against the weight of the evidence. The circuit court affirmed the Board’s findings of fact, which are summarized as follows:

(1) That plaintiff on numerous occasions allowed a female, Rue Woodruff, to ride in a squad car while he was on duty for the sole purpose of pursuing a social relationship.
(2) That plaintiff drove outside the city limits while on duty to meet Woodruff to engage in activities unrelated to his duties as a police officer.
(3) That plaintiff while on duty transported Woodruff in his squad car while responding to a police emergency call.
(4) That plaintiff allowed Woodruff to operate an automobile in an intoxicated condition.
(5) That plaintiff while on duty used the Salem Police Department telephone for the purposes of making various long distance calls to Woodruff which were personal calls and unrelated to his official duties.
(6) That plaintiff stopped a juvenile motorist, confiscated a bottle of whiskey and delivered it to Woodruff.
(7) That plaintiff while on duty transported a female, Kenya Smith, for purposes unrelated to his official duties.
(8) That plaintiff committed acts of voyeurism.
(9) That plaintiff while on duty met with a female, Lynne Arnold, on six separate occasions for social purposes unrelated to his official duties.

Plaintiff’s first issue on appeal is whether he was denied his constitutional rights of due process and a fair hearing. (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2.) Plaintiff argues that the city attorney should not have participated in the Board hearing because he gave legal advice to Police Chief Krueger during the administrative interview.

At the administrative interview, plaintiff refused to answer certain questions upon the advice of his counsel. Chief Krueger telephoned the city attorney, who advised him that he had the option of ordering plaintiff to answer the questions. Chief Krueger returned to the interview and stated that he was to make note of the objections to the interview and proceed with the interview because no charges had been filed. After another objection, Chief Krueger stated that pursuant to the regulations of the police department, plaintiff was required to answer all questions asked and cooperate with the investigation, otherwise his refusal would be considered an act of insubordination.

After the administrative interview, Chief Krueger’s own attorney, Brockton Lockwood, prepared the petition for termination of plaintiff’s employment with the police department of the City of Salem. At the Board hearing, the city attorney acted as counsel for the Board and not for Chief Krueger. Plaintiff cites two cases to support his proposition, but each case is factually distinguishable.

In Gigger v. Board of Fire & Police Commissioners (1960), 23 Ill. App. 2d 433, 163 N.E.2d 541, the attorney for the board presented, interrogated and cross-examined the witnesses as well as made rulings on questions of law and fact. The members of the board remained mute during the hearing. In this case, the city attorney advised Chief Krueger that he could order plaintiff to answer questions at the interview. The city attorney neither participated in the Board hearing to the extent as in Gigger nor acted as Chief Krueger’s attorney.

In Sommer v. Goetze (1981), 102 Ill. App. 3d 117, 429 N.E.2d 901, the court held it was “an abuse of discretion to refuse appointment of a disinterested attorney to prosecute the charges” (102 Ill. App. 3d at 120, 429 N.E.2d at 903) because the assistant State’s Attorney was not only prosecuting the case but was also the complaining party and key witness. In this case, the city attorney initially acted as counsel for the city when he advised Chief Krueger that he could order plaintiff to answer the questions. At the hearing, the city attorney acted only as counsel for the Board and did not have any personal interest or other role in the litigation.

The Board cites Kosoglad v. Porcelli (1985), 132 Ill. App. 3d 1081, 478 N.E.2d 489. In Kosoglad, the plaintiff contended that when the mayor requested the village attorney’s assistance in drafting the written charges against plaintiff and that same attorney was an advisor to the board during the proceedings against the plaintiff, he was denied a fair trial. The court found the argument without merit, stating, “[pjlaintiff has neither pointed to improper statements or evidentiary rulings by [the village attorney] nor suggested any conduct by [the village attorney] which interfered with plaintiff’s presentation of his case before the Board.” (132 Ill. App. 3d at 1090, 478 N.E.2d at 495.) The court further found that the plaintiff did not show that the attorney had any personal interest in the outcome of the proceedings and that the attorney did not “sit in judgment.”

In this case, plaintiff has not shown any improper statements or rulings by the city attorney, has not shown any interference with the presentation of his case or any personal interest. The only involvement by the city attorney prior to hearing was a single phone conversation with Chief Krueger during the administrative interview prior to the time any charges were filed. For these reasons, this court finds plaintiff’s argument without merit.

Plaintiff then argues that the Board violated the Open Meetings Act (Act) (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.) and its own rules and thus the finding of guilty and subsequent termination should be reversed. Although the Board’s own rules state that all hearings must be public, the Act recognizes an exception which states in part:

“This section does not prevent any body covered by this Act from holding closed meetings to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity.” (Ill. Rev. Stat. 1987, ch. 102, par. 42.)

In this case, this court finds that the closed meeting fell well within the listed exceptions of the Act. Even though the Board failed to follow its own rules, this court finds that plaintiff has not shown prejudice by such actions.

Plaintiff also argues that since the hearing was closed, the veracity of the witnesses was suspect because the witnesses were not subjected to testifying in a public forum. The testimony was taken before a three-man Board with plaintiff and his attorney present. Each witness was subject to a lengthy cross-examination by plaintiff’s attorney and a record was kept of the entire hearing.

Plaintiff cites People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731, as support for its proposition that the Board hearing should have been open to the public. In Barr, our supreme court held that an “informal” meeting of the city council should be open to the public. However, that meeting did not meet any section 42 exemption as does the meeting in this case.

Plaintiff also argues that reversal is required because the Board failed to enforce its own subpoena. On February 27, 1987, the Board issued a subpoena duces tecum for records pertaining to several witnesses. The subpoena ordered the production of certain juvenile diversion records which are “in house” police department records on juvenile offenders who are not prosecuted in the courts. On March 18, 1987, the Board entered an order stating that it reserved ruling on plaintiff’s motion to compel compliance with the subpoenas until resolution of whether the Board has authority to compel disclosure of juvenile law enforcement records by a subpoena. On May 13, 1987, the Board issued an order requiring the chief of police to comply with the subpoena duces tecum. Plaintiff then filed a motion to dismiss the complaint or in the alternative to bar the testimony of persons named in the subpoena duces tecum because the chief of police had not complied with the subpoena duces tecum. On May 29, 1987, a court held a hearing on plaintiff’s motion.

Plaintiff sought juvenile diversion records of several witnesses. These records are “in house” police department records on juvenile offenders not prosecuted in the courts. The program is designed to give young offenders a chance to avoid prosecution. When the juvenile offender reaches the age of 18, his or her diversion record is destroyed. On or about the time the Board entered an order directing Police Chief Krueger to comply with its subpoena to produce the diversion records on the various witnesses listed, the records were shredded.

At the May 29, 1987, motion hearing, Mary Janie, dispatcher with the Salem police department since 1981, stated that she had shredded the documents on May 14, 1987. She had been involved with the juvenile diversion program from July 1985 until April 1987. On May 14, 1987, Police Chief Krueger requested the juvenile record of Kenya Smith. When she gave him the record, he asked her why it was marked “old file.” She told him that once the juvenile turns 17, the file is put into the “old file.” He then asked her if they were supposed to be destroyed. She replied “yes.” He told her to shred the old files. In the old files, she stated, were records on Kenya Smith, possibly Marty Edwards, and possibly one other witness. A few days later, Chief Krueger called to ask her if any of the records on the witnesses in this case were shredded. This court finds that Janie’s testimony does not reveal any wilful intent to destroy any or all juvenile diversion records of the witnesses.

Although plaintiff did not have the diversion records, he was permitted to inquire into any past juvenile offenses of each witness. Each witness testified to those past incidents. Thus, since the Board did have each witness’ juvenile history before it, it was able to fully judge credibility of the witnesses and plaintiff was not prejudiced.

Plaintiff also argues that at the hearing the Board improperly considered the administrative interview discussed above in violation of section 3.10 of the Uniform Peace Officers’ Disciplinary Act (Disciplinary Act) (Ill. Rev. Stat. 1987, ch. 85, par. 2563). He specifically argues that the admission of the interview into evidence over his objection “improperly undermined his credibility and caused the Board to find him guilty and terminate his employment.”

Section 3.10 provides:

“Admissions or confessions obtained during the course of any interrogation not conducted in accordance with this Act may not be utilized in any subsequent disciplinary proceeding against the officer.” (Ill. Rev. Stat. 1987, ch. 85, par. 2563.)

In order to challenge the admission of the interview into evidence, plaintiff must allege specific violations of the Disciplinary Act. In his reply brief plaintiff cites a violation of section 3.2 of the Disciplinary Act, which provides:

“No officer shall be subjected to interrogation without first being informed in writing of the nature of the investigation. If an administrative proceeding is instituted, the officer shall be informed beforehand of the names of all complainants. The information shall be sufficient as to reasonably apprise the officer of the nature of the investigation.” Ill. Rev. Stat. 1987, ch. 85, par. 2555.

At the interview conducted by Chief Krueger, the chief read into the record the letter to plaintiff notifying him of the charges and time and place of the interview. The letter stated, in part:

“You are hereby informed by this writing that allegations of misconduct have been lodged against you, and that an internal affairs investigation has been commenced to ascertain the facts surrounding the allegations. The allegations in this case include acts of moral turpitude, neglect of duty, conduct unbecoming a police officer, acts tending to discredit the police department, allowing unauthorized persons to ride in a squad car, acts of oppression and sexual harassment.”

This court finds that plaintiff was sufficiently apprised of the charges. Thus, plaintiff’s argument is without merit.

Plaintiff also argues that the charges in the petition for termination were vague and indefinite. However, in light of the petition and the response to the motion for specificity, this court finds that plaintiff was effectively notified of the basis of the charges against him. It is well established that all that is required is that the charges. be sufficiently clear and specific to enable the respondent to intelligently prepare a defense. Altman v. Board of Fire & Police Commissioners (1982), 110 Ill. App. 3d 282, 284, 442 N.E.2d 305, 306.

Plaintiff’s third issue on appeal is whether the Board properly found him guilty. Plaintiff specifically points out that the testimony of several witnesses was not credible, and argues in his reply brief that this court must review the record prior to making a decision. However, plaintiff fails to note that “[a] reviewing court may not judge the credibility of witnesses.” (Albert v. Board of Fire & Police Commissioners (1981), 99 Ill. App. 3d 688, 691, 425 N.E.2d 1158, 1161.) These allegations are matters for the trier of fact. On review, the only question before this court is whether the findings of the administrative tribunal are against the manifest weight of the evidence. (99 Ill. App. 3d at 691, 425 N.E.2d at 1161.) After reviewing the record, this court finds that the Board’s findings are not against the manifest weight of the evidence.

Plaintiff’s last issue is whether the termination of employment was proper. Plaintiff specifically argues that suspension was appropriate in this case because of his outstanding record as an officer. Since plaintiff’s employment in 1980, he has been suspended only once, a period of two hours for failure to wear his hat. Plaintiff also points out that he is with his wife, from whom he was previously separated, and has two children.

In Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885, the supreme court established a two-step analysis for reviewing the findings of the administrative agency. The first step considers whether the findings were against the manifest weight of the evidence. In the second step, the court is to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does exist.

It has been held that while an individual infraction “may not be sufficient to constitute a basis for discharge, viewed in totality they may have a substantial, detrimental impact on the discipline and efficiency of the police department.” (Albert v. Board of Fire & Police Commissioners (1981), 99 Ill. App. 3d 688, 692, 425 N.E.2d 1158, 1162.) In this case, plaintiff’s misconduct while on duty occurred repeatedly. Furthermore, in light of the fact that Salem is a small town with only 12 sworn officers, plaintiff’s continued service could have a substantial, detrimental impact on the discipline and efficiency of the police department. Thus, this court finds that the termination of employment was proper, considering the findings of fact and permissible departmental concerns.

For the foregoing reasons, the judgment of the circuit court of Marion County is affirmed.

Affirmed.

LEWIS and HOWERTON, JJ., concur.


author: JUSTICE RARICK

text:
    BYRLE H. SMITH et al., Plaintiffs-Appellants, v. NATIONAL CARRIERS, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5 — 87—0631
    Opinion filed August 23, 1989.

      Edward J. Kionka, of Murphysboro, for appellants.
    Gregory C. Ray, of Craig & Craig, of Mattoon, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

Byrle and Lorraine Smith brought this action in the circuit court of Fayette County against George Gittinger and National Carriers, Inc., seeking damages for injuries sustained when their car was struck by a National Carriers truck being driven by Gittinger. The complaint alleged both negligence and willful and wanton misconduct. The case was tried before a jury which returned verdicts for the defendants on all counts. No post-trial motion was filed and no appeal was taken from the judgment. Approximately two years later, the Smiths filed a pro se section 2 — 1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) petition for post-judgment relief alleging that they had located a critical eyewitness who they had been unable to locate at the time of trial. Attached to the petition was an affidavit of the witness’ proposed testimony, which substantially supported the Smiths’ version of the accident. The trial court struck the petition, finding that the witness’ testimony went to the issue of liability only and that the jury could have found against the Smiths on the basis of liability or damages. It is from this decision that the Smiths appeal.

The record reveals that on January 25, 1979, the Smiths were traveling east on 1-70. The weather was clear but the roads were covered with ice and snow. Upon cresting a hill, the Smiths observed a jackknifed tractor-trailer ahead of them blocking the right-hand eastbound lane. Byrle Smith testified that he moved into the left-hand lane to go around the trailer and was moving at 10 to 20 miles per hour.

Gittinger was also traveling east on 1-70. He was driving in the left lane because it had less snow and ice. Upon reaching the crest of the hill, Gittinger saw the jackknifed truck ahead and the Smith car. Gittinger and his co-driver, William Barnett, testified that Smith was still in the right-hand lane while Smith testified that he switched lanes before Gittinger crested the hill. Gittinger and Barnett noticed that Smith was tapping his brakes. Gittinger began tapping his brakes, but his truck began to jackknife on the icy road and Gittinger ceased braking.

Gittinger and the Smith vehicle converged at a point just west of the jackknifed tractor-trailer. Gittinger was moving faster than Smith, who pulled off the road onto the left shoulder. Smith had traveled several hundred feet when the side of Gittinger’s truck struck the side of his car, forcing him off onto the median.

The testimony of the Smiths differs from that of Gittinger and Barnett on numerous points. The Smiths testified that the distance from the crest of the hill to the location of the jackknifed trailer was approximately two-thirds of a mile. This was confirmed by a registered land surveyor. Gittinger and Barnett initially stated that the distance was about 200 yards, but Gittinger later changed his testimony and stated that it was closer to one-half mile. Smith also stated that he moved into the left lane when he was halfway between the hill top and the jackknifed tractor-trailer, while Gittinger testified that Smith was only 50 to 100 feet from the jackknifed truck when he switched lanes and that he was so close to Smith at that point that he thought the Smith vehicle would hit his front bumper. Gittinger maintained that he thought Smith was going to stop in the right lane. The parties also disagreed on Gittinger’s speed and on whether Smith used his turn signals.

The Smiths had initially filed a pro se complaint on January 23, 1981. They subsequently retained counsel who filed an amended complaint alleging negligence and willful and wanton misconduct against both defendants. The case went to trial at which the Smiths, Gittinger and Barnett all testified. The driver of the jackknifed truck, Acie Eggerson, identified by defendants in discovery as “A. Eggers,” had also been an eyewitness, but the Smiths had been unable to locate him before trial. On January 18, 1975, the jury returned verdicts in favor of the defendants on all counts. Immediately after trial, the Smiths’ attorney sought leave to withdraw, and withdrawal was allowed on June 21, 1985, over the Smiths’ objections, and the Smiths were given 30 days to obtain new counsel. On July 19, 1985, the Smiths filed a petition seeking additional time to obtain counsel which was denied on August 15, 1985. No post-trial motion was filed and no appeal was taken from the judgment.

Following trial, the Smiths appear to have undertaken extraordinary efforts to locate Acie Eggerson and, proceeding pro se, filed on January 16, 1987, a “Motion for Leave to File a Petition for Relief from Judgment,” alleging that Eggerson had been found. The Smiths subsequently filed an “Affidavit-Petition” requesting relief, and the affidavit of Acie Eggerson, which he had signed and sworn to on November 25, 1986. In his affidavit, Eggerson stated, among other things, that immediately after the accident, Gittinger provided him with an accident form which he filled out, indicating his full name, address, and other information. The defendants filed a motion to strike the “Affidavit-Petition,” alleging that it was conclusory and argumentative, contained statements of fact of which Eggerson could not possibly have known, and had clearly been written by Byrle Smith. The defendants also filed a motion to strike and dismiss the Smiths’ motion for leave to file, arguing that such motion should be construed as a section 2 — 1401 petition and that as such it failed to make out a prima facie case for relief. Specifically, defendants argued that the Smiths failed to set forth any facts demonstrating due diligence, failed to show how the new evidence was so decisive that it could have prevented judgment against them, and failed to address the issue of whether the jury’s verdict could have been based solely on the question of damages. The trial court took the motions under advisement. The court subsequently struck the Smiths’ petition, finding that while the Smiths had clearly demonstrated due diligence, they could not possibly show that the testimony of Eggerson could have prevented judgment against them. The trial court stated that the jury’s verdict could have been based on the issues of liability and/ or damages, and that whether Eggerson’s testimony could have changed the jury’s outcome was mere speculation.

On appeal, the Smiths argue that the trial court erred in refusing to grant them a new trial pursuant to their section 2 — 1401 petition. To prevail on a section 2 — 1401 petition, the petitioner must show (1) that the ground for relief would have prevented judgment against him had it been known at trial, and (2) that the failure to discover or present such ground was not the result of the petitioner’s own lack of diligence. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 283, 433 N.E.2d 253, 257; Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 210, 473 N.E.2d 955, 959.) A section 2 — 1401 petition, like any other pleading, is subject to a motion to dismiss where it fails to set forth a cause of action or it is clear on its face that the petitioner is not entitled to relief. (Ostendorf, 89 Ill. 2d at 279-80, 433 N.E.2d at 255-56.) Petitions for relief under section 2 — 1401 are addressed to the sound discretion of the trial court, and the court’s ruling should not be reversed absent an abuse of that discretion. (Collins v. Prestige Casualty Co. (1977), 54 Ill. App. 3d 762, 370 N.E.2d 103.) In the present case, we believe that reversal is warranted.

The motion to strike addressed only the legal sufficiency of the Smiths’ section 2 — 1401 petition. We believe the petition and accompanying affidavit, though hardly models of form, are sufficient to state a cause of action. The petition successfully raises the issues of the Smiths’ diligence and whether the testimony of a disinterested eyewitness, Acie Eggerson, would have resulted in a different verdict at trial.

The trial court stated that whether Eggerson’s testimony would have changed the jury’s decision was mere speculation. The court apparently reasoned that because Eggerson’s testimony related only to the issue of liability and because the jury could have decided against the Smiths solely on the issue of damages, Eggerson’s testimony could not possibly have affected the outcome of the trial. To prevail at a hearing on a section 2 — 1401 petition, the petitioner must ultimately show that the new evidence would have prevented judgment against him. To survive a motion to dismiss prior to actual hearing, however, the petition need only show that the new evidence could have prevented judgment against him. (Ostendorf, 89 Ill. 2d at 282-83, 433 N.E.2d at 256.) At the motion stage, all facts must be construed and all inferences drawn in a light most favorable to the non-moving party. (Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 404 N.E.2d 1104.) We cannot say that Eggerson’s testimony clearly could not affect the outcome of the trial. It is true that the jury may have based its decision on the issue of damages, but it is equally true that the jury may have based its decision on the issue of liability, in which case Eggerson’s testimony may well have resulted in a different verdict. Because it cannot be said with certainty that the jury based its decision on the issue of damages, it cannot be said that Eggerson’s testimony could not possibly have affected the outcome of the trial. This is sufficient to survive a motion to dismiss. Further, it has been held that the testimony of a preoccurrence witness which relates to facts and circumstances supporting plaintiff’s theory of his case is sufficient to warrant a new trial. (Drehle v. Fleming (1970), 129 Ill. App. 2d 166, 263 N.E.2d 348.) We do not comprehend how the testimony of the sole neutral occurrence eyewitness could not but have a significant impact on the jury’s assessment of the other testimony. Surely the testimony of such a presumably disinterested occurrence eyewitness which corroborates plaintiffs’ testimony is sufficient to defeat a motion to dismiss in a section 2 — 1401 proceeding as to. the issue of newly discovered evidence preventing an adverse judgment. We hold, therefore, that this cause must be remanded to permit the defendants to answer and, if said answer controverts central facts of the petition, for an evidentiary hearing on the merits of the petition. Ostendorf, 89 Ill. 2d at 286-87, 433 N.E.2d at 259; Manning v. Meier (1983), 114 Ill. App. 3d 835, 449 N.E.2d 560.

The defendants also argue that the trial court erred in finding that the Smiths had been diligent in their attempt to locate Eggerson. Again, it appears that the trial court prematurely ruled on the merits of the petition. At the hearing on the motion to strike, only the legal sufficiency of the petition was at issue. The petition alleges that the Smiths did not have a correct address for Eggerson and that he had changed address several times. The petition also incorporates several documents, filed before the hearing, demonstrating the Smiths’ attempt to locate Eggerson. While this may have been sufficient to defeat a motion to dismiss, the defendants must be provided with the opportunity to challenge the merits of the Smiths’ allegations of diligence.

We also note that in their brief the Smiths argue that the defendants misidentified Eggerson as “A. Eggers” during discovery and failed to produce the accident report Eggerson had filled out at Gittenger’s request. The defendants respond that Eggerson’s signature appears to read “Eggers” and that they denied under oath having possession of the accident report. In Ostendorf, our supreme court stated:

“As regards petitioners’ diligence in discovering the ground for relief, we think a litigant exercises ordinary diligence in pretrial discovery when he poses interrogatories reasonably calculated to elicit the information important to his case. If his opponent then suppresses information within the scope of the interrogatories in such a way as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the former’s fault, not of the latter’s negligence.” (Ostendorf, 89 Ill. 2d at 284-85, 433 N.E.2d at 258.)

The questions of whether the misinformation about Eggerson’s name was the result of fraudulent concealment by the defendants and, if not, how the mistake bears on the issue of diligence must be resolved by the trial court before it can properly determine whether diligence was shown. This also warrants a remand.

Finally, the Smiths argue that their motion for default judgment against National Carriers should have been granted. They maintain that National Carriers was properly served with process but failed to appear. National Carriers responds that it was never properly served with process with respect to the Smiths’ section 2 — 1401 petition. Out-of-State service requires that an affidavit of the server be filed stating the time, place and manner of service (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 208), and National Carriers contends that while summons was served on it in Kansas, no proper affidavit of service was returned. The record reveals that National Carriers filed a special and limited appearance arguing that the trial court did not have personal jurisdiction over it and that no proper service of process had been made. National Carriers was subsequently served with summons in Kansas, but the affidavit of service was returned blank. The summons itself indicated the time, place and manner of service, but was unsworn. National Carriers was not a party to the motion to strike the Smiths’ section 2 — 1401 petition. After the dismissal of their section 2 — 1401 petition, the Smiths filed a motion for default judgment against National Carriers, but never called this- motion for a hearing. This issue is therefore not properly before this court.

The judgment of the circuit court of Fayette County is reversed and remanded for an evidentiary hearing on the Smiths’ section 2— 1401 petition.

Reversed and remanded.

HARRISON and CHAPMAN, JJ., concur.


text:
    EARL W. PETHAN, JR., Plaintiff-Appellant, v. PEAVEY COMPANY, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0015
    Opinion filed August 23, 1989.
   Subsequent to publication the original opinion in this case was vacated and the appeal dismissed.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAPHAEL CLARK, Defendant-Appellant.
    Fifth District
    No. 5-87-0453
    Opinion filed August 24, 1989.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant kidnapped Gary Decker and his wife, Donna, on a St. Louis parking lot, robbed and murdered Gary Decker in Missouri, and raped and murdered Donna Decker in St. Clair County, Illinois.

Defendant was arrested on March 2, 1983, by United States Marshalls who jailed him in the St. Clair County jail, a federally approved jail, as a prisoner of the United States. He remained there as a prisoner of the United States until sent to the United States penitentiary at Leavenworth, Kansas, on June 23,1983, for 120 years.

While in the St. Clair County jail, on June 2, 1983, defendant was indicted in St. Clair County, Illinois, for the rape and murder of Donna Decker. On June 17, 1983, he was arraigned in St. Clair County, pled not guilty, and was appointed a public defender.

Missouri filed a detainer against defendant for Gary Decker’s murder after defendant had been sent to Leavenworth. Defendant was tried, convicted and, on April 6, 1984, sentenced to the Missouri penitentiary for his natural life without parole for 50 years and returned to the custody of the Attorney General of the United States to first satisfy the 120-year sentence of the United States of America.

On January 8, 1985, Illinois dismissed the charges against defendant, refiled them on September 24, 1986, and on January 24, 1987, for the first time, served an arrest warrant on defendant. Defendant immediately was brought to Illinois. On June 8, 1987, after a stipulated bench trial, defendant was found guilty of murder and rape. He was sentenced to 50-year concurrent terms on each offense, with both sentences consecutive to the sentences imposed by the United States and Missouri.

Not once did defendant demand trial or prosecution under the interstate agreement on detainer act (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — -8—9 et seq.).

Now he claims: (1) Illinois deprived him of his statutory right to be tried within 120 days (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5); (2) Illinois deprived him of his right to a speedy trial, as guaranteed by the sixth amendment to the Constitution of the United States, made applicable to Illinois by the due process clause of the fourteenth amendment to the Constitution of the United States; and (3) that he inappropriately was sentenced to an extended term of 50 years for rape, even though he agreed to the sentence.

Taking the third contention first, the State agrees that 50 years is an unauthorized, extended sentence for rape; murder was the most serious offense with which he was charged and and an extended term can be entered only on the most serious charge. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a); People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) The State further agrees that a court cannot impose a sentence for a term longer than that allowed by the legislature, even though defendant bargains for a longer sentence. (People v. Majer (1985), 131 Ill. App. 3d 80, 475 N.E.2d 269.) Accordingly, we are compelled to give defendant a reduction of his sentence. Defendant’s sentence for rape is hereby reduced to 30 years, but otherwise is unchanged.

Contrary to defendant’s complaint, Illinois did not deprive him of his statutory right to a speedy trial as provided by section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103-5(a)).

Defendant relies on People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242, to support his position that he was not placed on trial within 120 days, and therefore, the charges against him must be dismissed. Fosdick does not control this case.

In Fosdick, Champaign County dismissed its charges, voluntarily relinquished custody to another county, and then refiled charges. These facts led the Fosdick court to find an attempt to evade the 120-day rule. (See People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525.) Defendant, here, attempts to bring himself within Fosdick’s sphere by arguing that the custody of the United States and the custody of St. Clair County were simultaneous from March 2, 1983, the date he was arrested.

Defendant does not succeed. The custody was not simultaneous. Defendant merely was physically present in St. Clair County from March 2 until June 23, 1983. He was there as a prisoner of the United States, not as a prisoner of St. Clair County. He was in the St. Clair County jail only because it was an approved, designated jail of the United States. The power and authority of the United States, not the power and authority of St. Clair County, had put him there. His presence in the St. Clair County jail, insofar as it relates to custody, was accidental. He was in the custody of the United States, not St. Clair County.

Fosdick is distinguishable further. In Fosdick, defendant was being prosecuted only by one government, the people of the State of Illinois, although venue was being laid in two separate counties for two separate crimes. In this case, however, defendant was being prosecuted by three different governments, the United States, Missouri, and Illinois. Therefore, there is every reason not to apply Fosdick, which should be limited to its facts.

Finally, Fosdick does not control, because there the voluntary relinquishment of custody operated in tandem with dismissal and reinstatement of charges to establish an attempt to evade the provisions of the 120-day rule. The case at bar contrasts starkly. In this case, there was no voluntary relinquishment of custody, because custody was in the United States, not St.- Clair County. St. Clair County could not relinquish what it never had. Therefore, the dismissal and reinstatement here operate alone, not in tandem with relinquishment of custody. The mere dismissal and refiling here do not imply any attempt to evade the 120-day rule.

Illinois did not have custody until January 24, 1987, and defendant’s trial, therefore, was held within 120 days as prescribed by statute. Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a).

Defendant next contends that he was deprived of his right to a speedy trial as guaranteed by the sixth amendment to the United States Constitution. He is wrong. Illinois did not deprive defendant of his right to a speedy trial as guaranteed by the sixth amendment to the United States Constitution.

A sixth amendment right to a speedy trial was made applicable to the States by the due process clause of the fourteenth amendment in Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988. Whereas a claimed violation of Illinois’ 120-day rule calls for counting days in custody, analysis of whether a constitutional right to speedy trial has been abridged calls for a “functional analysis * * * in the particular context of the case.” (Barker v. Wingo (1972), 407 U.S. 514, 522, 33 L. Ed. 2d 101, 112, 92 S. Ct. 2182, 2188.) Cases necessarily are approached on an ad hoc basis. Four factors are assessed and balanced in each case to determine if defendant has been deprived of his constitutional right to a speedy trial. These factors are: length of delay, reason for delay, defendant’s assertion of the right to a speedy trial, and prejudice to defendant.

In this case, the length of delay was only three months if calculated from the time defendant came into Illinois custody. Viewed most favorably to defendant, it was four years, three months.

The reason for delay seems relatively clear. Defendant first was in custody of the United States, then Missouri, and finally Illinois. We do not find from this any deliberate attempt to delay the trial in order to hamper the defense. We find only an attempt to prosecute defendant. Rather than finding an attempt to gain an advantage, we believe the reasons for the delay are neutral.

Next we assess defendant’s assertion of his right to a speedy trial: He never did. Defendant never once asserted his right, until immediately before trial. Not once did he ask Illinois to take him into custody. Not once did he demand trial. Not once did he request trial. Defendant has some responsibility to assert a speedy trial claim. (Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182.) In fact, “barring extraordinary circumstances, we would be reluctant indéed to rule that a defendant was denied this constitutional right on a record that strongly indicates *** that the defendant did not want a speedy trial.” (Barker v. Wingo, 407 U.S. at 536, 33 L. Ed. 2d at 120, 92 S. Ct. at 2195.) This record does not show defendant wanting a speedy trial.

Finally, we probe for prejudice to defendant. Prejudice is “assessed in the light of the interests which the right to speedy trial was designed to protect.” There are three such interests: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern about the pending charge; and (3) limiting the possibility that the defense will be impaired by delay. We consider each of these three interests.

Oppression? Oppression is subjecting another to cruel and unjust hardship. (Black’s Law Dictionary 1244 (4th ed. 1951).) Almost all of defendant’s pretrial incarceration was because he was under sentences from two other jurisdictions as a result of his murderous spree. No facts are presented from which we could find an unjust use of the power of the State. We further fail to see oppression in a four-year delay which involves three separate jurisdictions.

Anxiety? How could defendant have been anxious and concerned about this case in Illinois when he was in the custody of the Attorney General of the United States for 120 years, and after doing that time, then was to be in custody of Missouri penitentiary for his natural life, without parole for 50 years? The only conceivable catalyst of anxiety would be the death penalty. Although we note that death could strike even this defendant’s heart with dread, under these circumstances, we do not feel this fact is significant, that by itself, it would create prejudice.

Impairment of defense? Lastly, there is no showing that the defense was impaired by the delay. On the other hand, the prosecution was: One of its witnesses against defendant died during the delay.

We find that a delay of four years, explained, neutral, not deliberately contrived to hamper the defense, during which defendant never requested trial, and causing no demonstrable prejudice, did not deprive defendant of his right to a speedy trial as guaranteed by the sixth amendment to the Constitution of the United States.

The judgment and sentence of the circuit court is affirmed, but remanded to the circuit court for entry of a modified sentence and mittimus.

Affirmed as modified and remanded.

GOLDENHERSH and RARICK, JJ., concur.


text:
    JEANNIE LITTLE, Plaintiff-Appellant, v. METROPOLIS IGA FOODS, INC., Defendant-Appellee.
    Fifth District
    No. 5 — 88—0329
    Opinion filed August 24, 1989.
    Rehearing denied September 26, 1989.
    Roy C. Dripps, of Talbert & Mallon, P.C., of Alton, for appellant.

      Jeffrey P. Hine, of Oliver, Oliver, Waltz & Cook, P.C., of Cape Girardeau, Missouri, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

We reverse the summary judgment entered for defendant by the circuit court of Massac County.

Plaintiff sued defendant claiming she fell after slipping on grapes that were on the floor of defendant’s grocery store.

Defendant submitted an affidavit in support of its motion for summary judgment.

Plaintiff neither filed a counteraffidavit, nor presented any evidence in opposition to the motion for summary judgment and the affidavit, but stood on the allegations in her complaint.

Our threshold concern, therefore, is the effect that the affidavit in support of the motion for summary judgment has on the pleadings. If it supplies evidentiary facts which, if uncontradicted, would entitle defendant to judgment, then plaintiff cannot rely on her pleadings alone to raise issues of material fact. In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 770, 458 N.E.2d 1065, 1068.

Plaintiff’s complaint alleged that defendant was negligent in:

(a) failing to clean up the grapes from the floor when defendant knew or should have known in the exercise of ordinary care that the grapes posed a hazard to its customers, including plaintiff;
(b) failing to warn customers, including plaintiff that the grapes were present and could be hazardous;
(c) failing to prebag grapes displayed for sale or to have an employee stationed at the produce counter to bag the grapes when defendant knew or should have known that unbagged grapes have a propensity to roll out of the display area and onto the floor, thus posing a danger to customers, including plaintiff;
(d) failing and omitting to display grapes offered for sale in such a manner as to prevent grapes from rolling from the display area onto the floor, thus posing a danger to customers, including plaintiff; and
(e) failing and omitting to place mats or rugs on the floor of the produce aisle when defendant knew or should have known that said mats or rugs were necessary to prevent rolling of grapes and/or to prevent grapes present on the floor from causing customers, including plaintiff, to slip and fall.

Michael Cathey’s affidavit was presented by defendant to support its summary judgment motion. The affidavit said:

(a) he was defendant’s employee;
(b) he had been working in the produce department the major portion of the day plaintiff claimed she fell;
(c) a woman came up to him that day and told him she had fallen;
(d) he went to where she said she had fallen and found one grape on the floor of the aisle in which the produce case was located;
(e) the grape was closer to the dairy case than the produce case;
(f) he had been in the aisle 30 minutes before the incident;
(g) he did not see any grapes on the floor;
(h) he had not been told grapes were on the floor; and
(i) he did not cause any grapes to be on the floor.

It is elementary that a party cannot rely on his pleadings to avoid summary judgment in the face of affidavits that contradict those pleadings. (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 453, 464 N.E.2d 634, 637.) The consequence of failing to file counteraffidavits is that the statements in the affidavits supporting the summary judgment motion stand as admitted. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 541, 458 N.E.2d 575, 581.) Therefore, to justify summary judgment, the affidavits relied upon “must avoid the theories of recovery set forth by the complaint.” Harris, 124 Ill. App. 3d at 454, 464 N.E.2d at 637.

Two theories of recovery are alleged in plaintiff’s complaint.

The first theory is alleged in paragraphs 4(a) and 4(b) of plaintiff’s complaint. Defendant’s liability under this theory rests on one of two possibilities. Either defendant actually caused the grape that plaintiff slipped on to be on the floor, or defendant had knowledge, actual or constructive, that the grape was on the floor, but neither removed it nor warned plaintiff that it was on the floor. See Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 148 N.E.2d 434.

The second theory is alleged in paragraphs 4(c) thru 4(e) of plaintiff’s complaint. Defendant’s liability under this theory rests on the grapes being on defendant’s floor so frequently that defendant should have undertaken the extraordinary protective measure of prebagging the grapes or providing mats or rugs on the floor of the produce aisle. See Wroblewski v. Hillman’s, Inc. (1963), 43 Ill. App. 2d 246, 193 N.E.2d 470.

I

We first examine the theory set forth in paragraphs 4(c), 4(d), and 4(e) in light of the affidavit offered to support summary judgment.

Defendant ordinarily has no duty to prebag produce; however, there are circumstances that would cause a duty to prebag to arise. (Wroblewski v. Hillman’s, Inc. (1963), 43 Ill. App. 2d 246, 193 N.E.2d 470.) The heart of plaintiff’s theory that defendant breached this duty is that defendant knew, or should have known, that the grape would roll off, and therefore, defendant should have prebagged the grapes or placed mats or rugs on the floor to prevent plaintiff from slipping on the grape.

The affidavit presented by defendant only said that Cathey had not put grapes on the floor, had not seen grapes on the floor, and had not been told that grapes were on the floor on the day plaintiff says she fell. The affidavit failed to say that grapes had not rolled off the display in the past and failed to say that Cathey did not know that the grapes, as displayed for sale, had a propensity to roll off the display case.

On the other hand, plaintiff’s complaint alleges that defendant knew or should have known that the unbagged grapes had a propensity to roll off the display case onto the floor. Propensity means tendency, a demonstrated inclination to behave in a certain way. (See Webster’s New World Dictionary 1078 (1988).) Plaintiff’s allegation that defendant knew that the grapes had a demonstrated inclination to roll off the display case is not contradicted in any way by defendant. Therefore, defendant’s motion for summary judgment did not avoid this theory of liability, and summary judgment was erroneously entered as to paragraph 4(c).

B

Paragraph 4(e) of plaintiff’s complaint, on the other hand, alleges only that defendant was negligent in failing to place a rug or mat under the grape display. It does not allege the critical fact: namely, that defendant had knowledge, actual or constructive, that grapes were either on the floor or had the propensity to roll onto the floor. Without such knowledge, defendant would have no duty to place rugs or mats under the grape display. Therefore, summary judgment properly was entered as to paragraph 4(e).

Paragraph 4(d) of plaintiff’s complaint, likewise, alleges no such knowledge, actual or constructive. It merely says defendant failed to

display the grapes in such a manner as to prevent them from rolling onto the floor. Consequently, it pleads no duty, and summary judgment properly was entered as to it.

II

The summary judgment as to the theory of liability as expressed in paragraphs 4(a) and 4(b) of plaintiffs complaint is now examined.

A possessor of land has a duty to exercise ordinary care in maintaining his premises in a reasonably safe condition, but is not a guarantor of the safety of business invitees. Schmelzel v. Kroger Grocery & Baking Co. (1951), 342 Ill. App. 501, 506, 96 N.E.2d 885, 887.

Under paragraphs 4(a) and 4(b), defendant will be liable for plaintiffs fall only if (1) defendant knew the grape was on the floor, but neither removed it nor warned plaintiff; or (2) defendant caused the grape to be on the floor. See Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 148 N.E.2d 434.

A

Plaintiff and defendant agree that there is no direct evidence that defendant knew the grape was on the floor and also agree that there is no circumstantial evidence from which constructive knowledge could be inferred. Therefore, liability, under paragraphs 4(a) and 4(b) cannot rest on defendant having knowledge that the grape was on the floor.

B

Because defendant lacked knowledge, its liability under paragraphs 4(a) and 4(b) can only be conditioned on defendant having caused the grape to be on the floor.

The record establishes that there is no direct evidence that defendant’s negligence caused the grape to be on the floor. Negligence, however, also can be proved by circumstantial evidence. Is there any evidence, therefore, from which it can be inferred that defendant’s negligence caused the grape to be on the floor?

Insofar as that issue is concerned, the supreme court of Illinois stated:

“Where, however, in addition to the fact that the substance on the floor was a product sold or related to defendant’s operations, the plaintiff offers some farther evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises, courts have generally allowed the negligence issue to go to the jury, without requiring defendant’s knowledge or constructive notice. Moreover, from our review of the cases, there appears to be a diminishing reluctance by courts to accept such circumstantial evidence to establish that the foreign substance came on the floor through defendant’s negligence. [Citation.]” Donoho, 13 Ill. 2d at 122, 148 N.E.2d at 439.

Donoho teaches that one way to prove circumstantially defendant’s negligence is by showing: (1) that the substance on the floor is a product sold or related to defendant’s operations; and (2) that the business practices of defendant or the location of the object on the floor make it more likely that defendant placed it there. If these two factors are supported in the slightest, courts generally have allowed the negligence issue to go to the jury. In this case, Donoho’s first prong is satisfied: The grape is a product sold in defendant’s grocery store. The critical question is whether its location supports in the slightest an inference that defendant caused it to be there.

Defendant’s affidavit puts the grape on the floor in the aisle in which the produce display case was located. Defendant pointed out in argument that the grape was nearer to the dairy case than the produce case; the grape was nearer to a door that went into a general back room than it was to the door that led into the produce back room; and there was no passage between the two back rooms. Therefore, defendant says the location does not support an inference that its negligence caused the grape to be on the floor. We disagree. We believe that a jury could reasonably infer that a grape on the floor of a grocery store, in the produce aisle, near a door to a back room for employees only was caused to be there by the negligence of the store.

As a result, we find that summary judgment was not proper as to paragraphs 4(a) and 4(b).

Therefore, the summary judgment against plaintiff on paragraphs 4(a), 4(b) and 4(c) of the complaint is reversed and the cause is remanded to the circuit court of Massac County for further proceedings consistent with this opinion, but the summary judgment on paragraphs 4(d) and 4(e) of the complaint is affirmed.

Affirmed in part; reversed in part and remanded.

RARICK and GOLDENHERSH, JJ., concur.