author: JUSTICE UNVERZAGT

text:
    CLAIR REUTER et al., as Plenary Guardians of the Estate of Paul A. Reuter, a Disabled Person, Plaintiffs-Appellants, v. FREDERICK B. KORB III, Defendant-Appellee.
    Second District
    No. 2 — 92—0811
    Opinion filed July 15, 1993.
    Rehearing denied August 20, 1993.

      Paul G. Brinkman, of Wheaton, for appellants.
    Lindner, Speers & Reuland, P.C., of Aurora (Jon Yambert, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Clair and Elizabeth Reuter, as plenary guardians of the estate and person of Paul Reuter (Reuter), a disabled person, brought an action against defendant, Frederick Korb, for injuries to their son occasioned by the alleged negligence of defendant in operating his automobile. Plaintiff sought damages in the amount of $15 million. Defendant’s answer included affirmative defenses alleging that Reuter was more than 50% of the proximate cause of the injury or damage for which recovery was sought. The case proceeded to a jury trial. At the conclusion of the evidence presented at trial, the court granted defendant’s motion for a directed verdict.

On appeal, plaintiffs contend: (1) that the trial court abused its discretion in granting a directed verdict in defendant’s favor at the close of the evidence; (2) that the trial court abused its discretion in granting defendant’s motion in limine to bar evidence of defendant’s drinking; (3) that the trial court abused its discretion in granting defendant’s motion to bar testimony by plaintiffs’ accident reconstruction expert; and (4) that the trial court erred in failing to strike defendant’s affirmative defenses because section 2 — 1116 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116), which formed the basis of those defenses, is unconstitutional.

Prior to trial, defendant filed a motion in limine to bar plaintiffs’ expert James O’Donnell, a pharmacology consultant and registered pharmacist, from testifying regarding any ingestion of alcohol or intoxication on the part of defendant. Defendant had admitted to the police, following the accident, that he had consumed two cans of beer that evening. Defendant had also agreed to a breathalyzer test; the breathalyzer reading was .05. O’Donnell had extrapolated the .05 reading up to a .075 blood-alcohol level at the time of the accident, based upon the average blood-alcohol dissipation rate. If allowed to testify, O’Donnell planned to express his opinion that defendant had a blood-alcohol level of .075 at the time of the accident, that defendant drank at least three 12-ounce cans of beer prior to the accident, and that most individuals demonstrated the effects of alcohol at a level of .075.

Attached to defendant’s motion to bar O’Donnell’s testimony was a portion of the deposition testimony of Douglas Dinerstein, a passenger in defendant’s car on the night of the accident. Dinerstein opined that defendant was not intoxicated or under the influence of alcohol that night. Also attached were portions of the depositions taken from three police officers who were at the scene shortly after the accident. Two of the officers, Brian Furman and Lisa Brogan, testified that defendant was in good physical condition and not slurring his words. The third officer, Alan Pierce, who administered defendant’s breathalyzer test as well as spoke with defendant at the accident scene, also stated that defendant was not slurring his words. Additionally, Officer Pierce said that he observed nothing about defendant’s behavior which indicated that defendant was in any manner intoxicated.

A portion of defendant’s deposition testimony also accompanied the motion in limine. That testimony indicated that defendant had consumed a couple of beers on the evening in question, one sometime prior to leaving McCormick Place between 10 and 10:30 p.m. and the other during the drive from McCormick Place to Naperville. However, defendant did not feel impaired as he drove home nor did he feel the effects of the beer.

Plaintiffs filed a response to defendant’s motion in limine, arguing that O’Donnell’s retrograde extrapolation could be validly used to find that defendant had an alcohol level of .075 at the time of the accident. Plaintiffs asserted that, based on this level of alcohol concentration, O’Donnell would be able to state that defendant was under the influence of alcohol at the time of the occurrence. This testimony regarding defendant’s alcohol consumption was, according to plaintiffs, probative of the issue regarding why defendant never saw Reuter until the moment of impact.

A hearing was conducted on defendant’s motion in limine. The trial court granted defendant’s motion, pointing out in its letter of opinion that plaintiffs’ expert, O’Donnell, did not intend to render at trial any opinions as to defendant’s intoxication other than to say that in most individuals a .075 alcohol concentration, which O’Donnell arrived at through retrograde extrapolation, indicates that an individual is under the influence. The trouble with this opinion, the court stated, was that O’Donnell could not “tag that opinion to this defendant.” Without any evidence of erratic driving on defendant’s part, the court found that it was “too speculative” to allow O’Donnell to “testify in a ‘generic’ sense as to what most individuals would be like if they tested .05 sometime following the occurrence [in question].”

Plaintiffs filed a motion to reconsider, asking the court to reconsider and vacate its prior order granting defendant’s motion in limine. The trial court heard the motion and, subsequently, denied it, stating that O’Donnell “does not have any opinion as to whether defendant was ‘intoxicated’ at the time of the occurrence.”

Also, prior to trial, defendant filed a motion in limine to bar the testimony of plaintiffs’ expert, Roland Ruhl, an expert in accident reconstruction and in the field of vehicle dynamics. Ruhl was to express his opinion regarding the mechanics of the accident, e.g., defendant’s perception and reaction time, the dynamics of evasive actions, the properties of high beam and low beam headlights, and the physics and mechanics of the impact to Reuter. Defendant argued that the mechanics of the accident were within the understanding of the average juror, that many of Ruhl’s opinions were based upon defendant’s blood-alcohol level which had already been barred through previous rulings of the court, that some of Ruhl’s opinions were conclusionary in nature and invaded the province of the jury, and that eyewitness testimony to the accident existed.

Plaintiffs filed a response to defendant’s motion to bar Ruhl’s testimony. Plaintiffs contended that Ruhl’s engineering analysis, which constituted the basis for his conclusions, was beyond the knowledge of the average juror and would aid the jury in understanding what driving maneuvers were available to defendant at and before the time of the accident.

Defendant filed a reply in support of his motion to bar Ruhl’s testimony, specifically pointing out why Ruhl’s opinions should not be allowed into evidence. Additionally, defendant pointed out that Diner-stein, the passenger in defendant’s car, could and would provide eyewitness testimony of the accident; that police officers, who arrived on the scene within minutes of the accident, could and would testify as to road conditions, the layout of the area, the physical damage to the vehicle, and the lighting conditions; and that numerous photographs of the scene and of the vehicle involved had been taken. Defendant concluded that Ruhl’s testimony would add very little, if anything, to the jurors’ understanding of the issues.

The trial court granted defendant’s motion to bar Ruhl’s testimony, stating in its opinion letter that Ruhl was relying upon numerous assumptions, all of which were within the province of the jury. Therefore, the court determined, Ruhl’s testimony would not aid the jurors in resolving the instant dispute.

The case proceeded to trial on May 4, 1992. The testimony at trial revealed that on the evening of January 7, 1989, defendant left McCormick Place, where he had been working, between 10 and 10:30 p.m. Accompanying defendant was Douglas Dinerstein, who also worked at McCormick Place and who had been traveling to and from work with defendant for several weeks. At approximately 11:25 p.m. defendant was traveling southbound on Washington Street in Naperville. Defendant had traveled this street on many prior occasions. He was proceeding through a curve at about 45 miles per hour, the posted speed, limit, when suddenly Reuter appeared in the center of defendant’s lane of traffic.

According to defendant’s testimony, he first saw Reuter just before the impact. At the time, Reuter was about 10 feet in front of defendant’s car. Defendant related that Reuter appeared to be “jostling” back and forth in the roadway. His hands went up, and then the impact occurred. Defendant believed that, prior to the impact, he had moved his foot toward the brake but the car had not slowed down before striking Reuter. Defendant stated that he was not distracted as he drove through the curve, that he was looking out the front windshield, and that his headlights were illuminated. Defendant recalled that it was dark and that there was no overhead lighting.

After striking Reuter, defendant stopped his car and walked back to where Reuter lay. Reuter was lying so that one-half of his body was on the roadway and one-half was on the shoulder. Defendant directed some cars traveling in the southbound lanes around Reuter. A police car was one of the cars. Defendant had a conversation with the officers at the scene.

At about 11:20 p.m. Officer Lisa Brogan of the Naperville police department, who was on patrol duty, had traveled Washington Street in the area of the accident. At the time, she had not observed any pedestrian in the roadway. Brogan had then parked in the parking lot of Moser Lumber, a store located at the intersection of Washington Street and Ring Road. Brogan stated that, while parked in that location, a vehicle pulled up alongside her. The driver of that vehicle told her that he had just passed a pedestrian walking in the roadway on Washington Street and trying to flag down cars. According to Brogan, the driver told her that he had had to swerve to avoid the pedestrian and that he was reporting the incident to the officer because he was afraid that the pedestrian was going to get hit by a car.

Officer Brogan testified that she immediately headed southbound toward the area of Washington Street where the driver had said he swerved to avoid hitting the pedestrian. By the time the officer arrived at that area, the pedestrian, Reuter, had been hit by defendant’s car. Officer Brogan summoned the traffic unit, the paramedics, and more squad cars to block off the roadway.

After Reuter had been removed from the scene, Officer Brogan spoke with defendant. The officer recalled that defendant was visibly upset and that he told her that Reuter had appeared to have come out of nowhere and that he (the defendant) did not have time to brake or do anything; he just struck him. Officer Brogan described the area where the accident occurred as “a notoriously dark stretch of road.” The area is very rural with fields on one side of the roadway and trees on the other side. There was no artificial lighting in the area. The officer stated that she also spoke with the passenger in defendant’s car, Doug Dinerstein. The officer recalled that Dinerstein’s statement was similar to defendant’s in that he also said that he did not see Reuter until almost on impact.

Officer Alan Pierce, a traffic officer for the Naperville police department whose duties included investigating serious personal injury accidents, testified that he was summoned to the scene of the accident. The officer stated that he had received formal training in accident investigations at the traffic institute of Northwestern University. The officer made an investigation of the scene, spoke with defendant and Dinerstein, and, subsequently, prepared a written report and diagram of the scene. He also took photographs of the scene and of defendant’s vehicle.

The officer recalled that defendant said that he had been traveling southbound on his way home from work and had just started into the curve when a form appeared in front of him, seemingly out of nowhere. Defendant told the officer that he had had no time to take any evasive action prior to the impact. According to Officer Pierce, Diner-stein’s version of the occurrence was nearly identical to defendant’s with the exception that Dinerstein was certain that the form which appeared in front of them was a person. Neither defendant nor Diner-stein indicated that defendant had been distracted in any manner prior to the accident.

Officer Pierce stated that as a car entered the curve involved here its headlights would be into the inside of the curve and not shining on the edge of the road. The officer also said that the nearest artificial lighting was almost 1,400 feet away. It was the officer’s belief that defendant had told the officer that he had had his low beams on at the time of the accident although the officer was not absolutely certain of that fact. Also, Officer Pierce stated that no law existed in Naperville requiring a driver to drive with his high beams illuminated.

The officer recalled that at the time of the accident Reuter was wearing blue jeans and a dark top.

According to Officer Pierce, the shoulders on each side of Washington Street measured about three feet and were walkable, i.e., not covered with snow, on the night of the accident. Additionally, there was no indication from his reconstruction of the accident that defendant’s car had ever left the traveled portion of the roadway before he brought it to a stop.

The officer further testified that the posted speed limit in the area of the accident was 45 miles per hour and nothing indicated to the officer that defendant was exceeding the speed limit prior to the accident. At that speed, the officer stated, a car travels roughly 65 or 66 feet per second. According to Officer Pierce, the reaction time of a driver of defendant’s age and experience to take his foot off the accelerator and apply it to the brake pedal would be about three seconds. It would take that amount of time to recognize the danger and begin the mechanical movement of moving the foot from the gas pedal to the brake pedal. The officer also said that a person confronted with an unexpected situation, like the instant one, may think he applied the brakes when, in actuality, he had not yet completed that movement prior to the impact. The officer acknowledged that no one knows if Reuter was just standing in the roadway before the accident occurred.

Both plaintiff Clair Reuter and Dr. Anthony Altimari, Paul Reuter’s physician, testified as to Reuter’s current physical condition. Dr. Altimari stated that Reuter is in a persistent vegetative state as a result of the accident.

Doug Dinerstein testified that, prior to the accident, he had been commuting to work with defendant for about two months. Dinerstein stated that on the night of the occurrence defendant and he left McCormick Place at approximately 10 p.m. When they arrived in Naperville, they drove by the house of defendant’s girlfriend to see if she was home. Defendant then proceeded to take Dinerstein home.

Dinerstein recalled that they were traveling southbound on Washington Street, going about 40 miles per hour as they proceeded through a curve. In that area of the roadway it was “very dark” with woods on both sides of the road and no lighting. There were no crosswalks within 300 yards of the accident. Dinerstein stated that he first saw Reuter at about the time of impact. Reuter was in the middle of the southbound lane and about 10 feet away from the car. He was wearing dark clothing.

Dinerstein said that the incident happened so fast he did not have time to say anything to defendant. The amount of time that transpired from the time Dinerstein first saw Reuter until the moment of impact was less than a second. Dinerstein did not feel the car slow down before impact and could not recall whether defendant took any evasive action prior to impact.

According to Dinerstein, defendant stopped the car within a few seconds after the impact. The two men exited the car and walked back toward Reuter. The police arrived almost immediately thereafter.

Dr. Stephen Vogel, director of the division of toxicology at Evanston Hospital, testified regarding the effects of alcohol on a person. The doctor had reviewed records from Edward Hospital where Reuter had been taken after the accident. Dr. Vogel stated that the results of a blood test administered to Reuter indicated that Reuter had a .298 blood-alcohol level at the time of the accident. The doctor testified that Reuter’s blood-alcohol level was equivalent to three times the level considered as legally drunk in Illinois.

Dr. Vogel stated that a .298 blood-alcohol level would markedly slow down a person’s reaction time. Based upon a reasonable degree of medical certainty, the doctor opined that Reuter was under the influence of alcohol and “significantly impaired” at the time of the accident. According to the doctor, Reuter’s judgment, his reaction time, his inhibitions, his risk-taking behavior, and his coordination would have been significantly changed and diminished.

At the conclusion of the evidence defendant moved for a directed verdict. Defendant argued that plaintiffs had failed to show any negligence on defendant’s part. Additionally, defendant argued that Reuter was more than 50% comparatively negligent for his injuries. Plaintiff maintained that the jury should be allowed to decide if Reuter was the sole proximate cause or more of a cause of his injuries than defendant. The court granted defendant’s motion, finding that no negligence on defendant’s part had been shown and that the evidence overwhelmingly indicated that Reuter’s own conduct constituted the proximate cause of the accident. This appeal ensued.

In this court defendant has filed a motion for leave to file four exhibits which were used extensively at trial but not made part of the record on appeal. We ordered the motion and plaintiff’s objections thereto be taken with the case. We address this matter briefly before proceeding with the issues plaintiffs have raised on appeal.

None of the exhibits used at trial can be found in the record. Defendant seeks to submit two blowups of the stretch of roadway where the accident occurred, a blowup depicting the damage to defendant’s car as a result of the impact with Reuter, and an enlarged diagram of the accident scene drawn by the police officer who conducted an investigation and prepared a detailed report of the accident. Plaintiffs maintain that the submission of these selected exhibits without complete submission of all the exhibits would effectively imply that these exhibits were more important than the other evidence. We do not agree. The omitted exhibits contributed little to the understanding of the case.

Moreover, we find it particularly interesting that most of the exhibits defendant seeks to add to the record were plaintiffs’ exhibits and were heavily relied upon by plaintiffs in presenting their case. We cannot, therefore, comprehend why plaintiffs maintain that the exhibits are not necessary to understand fully the testimony of the witnesses. A careful reading of the record indicates that the exhibits are essential to our review of the case. Accordingly, pursuant to Supreme Court Rule 366 (134 111. 2d R. 366), we allow defendant’s motion to add to the record the four exhibits specified in that motion.

Plaintiffs first contend that the trial court abused its discretion in granting a directed verdict in defendant’s favor at the close of all the evidence. A verdict may be directed when all the evidence viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

In the instant case the overwhelming evidence showed that the proximate cause of Reuter’s injuries was his own conduct. Although plaintiffs rely on the trial court’s statement, in directing the verdict, that some inference of negligence may be drawn from defendant’s failure to see Reuter in the roadway, the court also stated that it did not believe in that inference. Moreover, any such inference was not sufficient to overcome a directed verdict. The presence of some evidence of a fact which, when viewed alone may seem substantial, does not always, when viewed in the context of all of the evidence, retain such significance. (Pedrick, 37 Ill. 2d at 505.) An individual’s constitutional guarantee to have a dispute resolved by the jury is not impaired by direction of a verdict despite the presence of some slight evidence to the contrary for the right to a jury trial includes the right to a jury verdict only if there are factual disputes of some substance. (37 Ill. 2d at 505.) Such was not the case here.

The evidence showed that defendant was traveling between 40 and 45 miles per hour through a curve on Washington Street in Naperville in an area that was “notoriously dark,” as stated by police officer Lisa Brogan. Defendant said that he had his headlights on and that he was watching where his headlights were aiming. Both defendant and his passenger, Dinerstein, recalled that when they first saw Reuter, who was wearing dark clothing, he was right in front of them, about 10 feet away from the car. Defendant was not certain whether he applied his brakes and estimated that he had only a second or less to brake before impact. Dinerstein stated that defendant had no time to alter his course or to brake before impact and that less than a second transpired from the time they first saw Reuter until the impact occurred.

Officer Alan Pierce, who had received formal training in accident investigations, testified that one second prior to the accident defendant’s headlights would not have been shining on something located on the road but would have been shining into the inside of the curve. Additionally, he stated that a car moving at 45 miles per hour would travel 65 to 66 feet per second and that a person of defendant’s age and experience would take approximately three seconds to react to the danger and to move his foot from the accelerator to the brake pedal. Given these calculations, defendant would have had no time to avoid the accident.

The officer also testified that the roadway had shoulders made up of some asphalt plus gravel which provided about three feet of space on which to walk. At the time of the accident the shoulders were not covered with snow and were walkable.

Officer Lisa Brogan testified that she and another officer had driven through the area of the accident shortly before the occurrence and that they had observed no pedestrian in the roadway. A few minutes later Officer Brogan was positioned in a nearby location when a vehicle pulled up alongside her and told her that a pedestrian was walking in the roadway trying to flag down cars.

The evidence showed that at the time of the accident Reuter had a blood-alcohol level of .298, three times the level which is considered to be legally drunk. Dr. Stephen Vogel, defendant’s toxicologist, opined that Reuter was under the influence of alcohol and significantly impaired at the time of impact. Dr. Vogel stated that at his level of intoxication Reuter’s judgment, reaction time, inhibitions, risk-taking behavior, and coordination were significantly diminished.

In light of this testimony, it is clear that there were no substantial factual disputes for the jury to resolve. Any evidence supporting Reuter lost its significance when viewed in the context of all the evidence. Here, as defendant points out, he was driving his vehicle in a normal manner but never had the opportunity to avoid Reuter who, contrary to plaintiffs’ assertion, was not where he should have been. As required by law, Reuter was not walking on the shoulder of the roadway as far as practicable from the edge of the roadway (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 1007(b)), he did not yield the right-of-way to vehicles upon the roadway (Ill. Rev. Stat. 1989, ch. 95½, par. 11— 1007(d)), and he did not refrain from walking upon the roadway while under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. 11— 1010).

The cases relied upon by plaintiffs are distinguishable. Unlike the instant case, these cases involved: a minor child victim to whom no negligence could be imputed and whose presence should have been known to the defendant (Mort v. Walter (1983), 98 Ill. 2d 391; Wallace v. Weinrich (1980), 87 Ill. App. 3d 868); a defendant with an unobstructed view of 600 to 700 feet between the 14-year-old plaintiff and him prior to striking the plaintiff, who had trotted out into the road to retrieve a tennis ball (Harris v. Day (1983), 115 Ill. App. 3d 762); a defendant driving with defective headlights who failed to see a 15-year-old jogger in light clothing jogging down the center of the road at night with a companion (Campbell v. Morine (1992), 223 Ill. App. 3d 678); and a defendant who struck a minor plaintiff in broad daylight whom he first noticed from a distance of 100 to 150 feet away and who then crossed the street in the middle of the block when defendant was 40 to 60 feet away (Newton v. Meissner (1979), 76 Ill. App. 3d 479). In the instant case, the victim was not a minor but a 31-year-old highly intoxicated adult who suddenly appeared in front of defendant’s car in a pitch-dark area of the roadway. He was not in an area where defendant should have known or expected a pedestrian to be, nor was he at a distance that allowed defendant to honk, slow down, or swerve. Moreover, there was testimony that defendant was looking straight out his windshield in the direction that his headlights, which were operating properly, were shining when Reuter unexpectedly appeared out of nowhere.

In arguing defendant’s motion for a directed verdict, defense counsel contended that the trial court had the discretion to take the case from the jury where no reasonable person could differ on the proposition that plaintiff was more than 50% comparatively negligent. Under section 2 — 1116 of the Code of Civil Procedure, a plaintiff is not entitled to any damages for his personal injuries if he is found to be more than 50% at fault for those injuries. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116.) Thus, under this statute, even if defendant was negligent in some manner, he would not be liable for any of Reuter’s injuries as long as Reuter’s contributory fault constituted more than 50% of the proximate cause of his injuries.

Here, it was readily apparent from the evidence that Reuter was more than 50% comparatively negligent in causing his injuries and, thus, not entitled to any recovery from defendant. Given the doctrine of comparative negligence, as well as the fact that all the evidence overwhelmingly favored defendant, we find that it was within the trial court’s discretion to take the case from the jury and direct a verdict in defendant’s favor.

In their second contention, plaintiffs contend that the trial court abused its discretion in granting defendant’s motion in limine to bar evidence through expert testimony of James O’Donnell, a pharmacist, of defendant’s drinking on the night of the occurrence. Defendant asserts that plaintiffs have waived this issue on appeal because they failed to make an offer of proof at trial regarding what O’Donnell’s testimony would be if allowed to testify. We disagree with defendant.

Prior to trial, the court conducted a hearing on defendant’s motion in limine. Attached to defendant’s motion was the deposition of James O’Donnell which contained testimony regarding defendant’s alleged intoxication. Plaintiffs’ response to defendant’s motion set out what O’Donnell’s testimony would show. The court heard arguments on defendant’s motion and plaintiffs’ response and, thus, was well informed regarding what the evidence would be if O’Donnell was allowed to testify. The court’s subsequent letter of opinion specifically addressed O’Donnell’s testimony and stated why the court was excluding it from trial. In reaching its decision, the court considered the arguments and motions of the parties, complete with supporting documents.

An offer of proof may be necessary to assess both the admissibility of the proffered evidence and the prejudice resulting from the exclusion. (Scoggin v. Rochelle Community Hospital (1988), 176 Ill. App. 3d 648, 651.) These matters, however, were presented to and considered by the court in connection with defendant’s motion in limine. Thus, plaintiffs could have reasonably presumed that the trial court’s ruling excluding O’Donnell’s testimony was conclusive and that raising it again at trial would prove futile. Given the particular circumstances here, we believe plaintiffs’ presumption was reasonable and, therefore, plaintiffs did not waive the admissibility of O’Donnell’s testimony by failing to make an offer of proof at trial.

Following the accident, defendant admitted to police that he had had two beers during the evening. As a result, a breathalyzer test was administered at the police station. The .05 result of the test gave rise to the presumption that defendant was not under the influence of alcohol at the time of the accident. (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.2(b)1.) O’Donnell, using a theory known as retrograde extrapolation, opined that defendant’s blood-alcohol level at the time of the accident was .075. This opinion was based on the facts that defendant had consumed two beers, the last within 45 minutes before the accident, and that the breathalyzer test had not been given until 90 minutes after the accident.

To arrive at the .075 figure, O’Donnell assumed that the alcohol defendant had drunk had been absorbed by his body and that he was in the elimination phase of the blood-alcohol curve at the time of the breathalyzer test. Using an average blood-alcohol dissipation of 15 milligrams per hour, O’Donnell calculated that defendant’s alcohol dissipation 90 minutes after the accident would be 22 to 23 milligrams per hour. Adding those figures to the .05 breathalyzer reading, O’Donnell estimated defendant’s blood-alcohol level to be .075 at the time of the accident. Based on this extrapolation, O’Donnell was of the opinion that defendant “may have been” under the influence of alcohol at the time of the accident.

Relying largely on Cuellar v. Hout (1988), 168 Ill. App. 3d 416, a case in which O’Donnell had testified, plaintiffs argue that O’Donnell should have been allowed to testify in the instant case regarding the theory of retrograde extrapolation and the opinions O’Donnell formulated regarding defendant’s alcohol concentration by applying that theory. However, as defendant points out, a significant difference existed between O’Donnell’s testimony in Cuellar and his proposed testimony here. In Cuellar, O’Donnell testified that the plaintiff was intoxicated at the time he was injured. In the instant case, O’Donnell was unwilling to make a similar statement.

In Cuellar, the results of a blood-alcohol test administered to the plaintiff following the accident in question revealed an alcohol concentration of .064. Using retrograde extrapolation, O’Donnell calculated the plaintiff’s alcohol level to be .104 at the time of the accident and opined that the plaintiff was intoxicated at the time of the accident. (168 Ill. App. 3d at 422.) The blood-alcohol level of .104 gave rise to the presumption that plaintiff was under the influence of alcohol. (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.2(b)(3).) Based on that presumption, coupled with O’Donnell’s opinion that defendant was intoxicated at the time of the accident, this court concluded that O’Donnell’s testimony regarding retrograde extrapolation and his opinions based thereon were admissible.

In the instant case, the .075 alcohol concentration arrived at through O’Donnell’s extrapolation did not give rise to the same presumption arrived at in Cuellar. In fact, it did not give rise to any presumption concerning whether defendant was or was not intoxicated. See Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.2(b)(2).

Although an alcohol concentration in excess of .05 but less than .10 does not give rise to any presumption that a person was or was not under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.2(b)(2)), it may be considered with other competent evidence in determining whether a person was under the influence of alcohol. Here, there was no other evidence of intoxication. Attached to defendant’s motion in limine were portions of depositions taken from three police officers. Two of the officers, who arrived at the scene shortly after the accident, testified that defendant was in good physical condition and not slurring his words. A third officer, who administered defendant’s breathalyzer test as well as spoke with defendant at the scene, stated that he observed no behavior indicating that defendant was intoxicated. Also attached to defendant’s motion was a portion of the deposition testimony of defendant’s passenger, Dinerstein, on the night of the accident. Dinerstein testified that defendant was not intoxicated or under the influence of alcohol that night.

Additionally, unlike the testimony in Cuellar, O’Donnell’s testimony at his deposition revealed that he would not testify at trial that defendant was intoxicated at the time of the accident:

“Q. [Mr. Rice, defendant’s counsel] Okay, now then have you seen any information whatsoever indicating at the time of the accident Mr. Korb was intoxicated?
A. [O’Donnell] No.
Q. Have you seen any information whatsoever to indicate that Mr. Korb was physically or mentally impaired at the time of the accident?
A. Any information?
Q. Any information in your file.
A. No.
Q. All right. Am I therefore correct based upon a reasonable degree of certainty, you do not have an opinion as to whether Mr. Korb was intoxicated at the time of the accident?
A. Correct, my opinion is that he may have been under the influence.
Q. All right. But you don’t have an opinion as to whether he was intoxicated, correct?
A. Correct.
Q. Okay. Once again though, sir, it’s correct that as far as Mr. Korb specifically, and not generally as you indicate in your report, ‘other individuals’, as far as Mr. Korb specifically you do not have an opinion as to whether or not he was intoxicated at the time of this accident, correct?
A. That’s correct.
Q. All right, and that’s based upon a reasonable degree of certainty, correct?
A. I usually only have a reasonable degree of certainty of opinions that I have. I mean I don’t have an opinion as to any intoxication. So there is really no certainty that applies to that.
Q. All right, bottom line being you wouldn’t render an opinion at the time of trial that he was intoxicated, is that right?
A. That’s right.”

Generally, evidence that a person has consumed alcoholic beverages is not, by itself, admissible; there also must be evidence to show that the drinking resulted in intoxication. (Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 798.) Such evidence was lacking here. Plaintiffs’ expert did not have an opinion whether defendant was intoxicated on the night of the accident. The most he opined was that defendant “may have been under the influence,” and that opinion was based on the results of the expert’s retrograde extrapolation which, unlike the extrapolation in Cuellar, did not raise defendant’s alcohol concentration to a level which permitted a presumption of intoxication. Additionally, defendant and his passenger both testified that defendant was not intoxicated, and that testimony was supported by police officers who knew defendant had consumed alcohol yet observed no behavior indicating that defendant was under the influence. In view of the lack of any supporting evidence of any intoxication, the trial court did not abuse its discretion in granting defendant’s motion to bar any evidence of defendant’s alcohol consumption.

Next, plaintiffs contend that the trial court abused its discretion in granting defendant’s motion in limine to bar the testimony of their accident reconstruction expert, Roland Ruhl. Plaintiffs maintain that Ruhl’s testimony would have aided the jury in understanding what driving maneuvers were available to defendant at and before the accident. Defendant argues that such matters were within the understanding of the average juror and that Ruhl’s opinions would have invaded the province of the jury.

Initially, defendant contends that plaintiffs have waived this issue on appeal by failing to make an offer of proof at trial regarding the opinions of Ruhl which plaintiffs sought to be admitted. We have already addressed this identical argument as it applied to the testimony of plaintiffs’ expert, O’Donnell. As in that instance, the trial court in ruling on defendant’s motion to bar Ruhl’s testimony at trial had before it defendant’s motion, plaintiffs’ response, and the expert’s deposition testimony. Consequently, the court was well apprised regarding what the evidence would be if Ruhl were allowed to testify.

An offer of proof may be necessary to assess both the admissibility of the proffered evidence and the prejudice resulting from the exclusion. (Scoggin v. Rochelle Community Hospital (1988), 176 Ill. App. 3d 648, 651.) But, here, where at the time the court ruled on defendant’s motion it had before it for its consideration the necessary information to make such an assessment, we cannot say that plaintiffs’ failure to make an offer of proof at trial constituted a waiver. Any offer of proof was likely to pertain to the same evidence already proffered to the court at the time it considered defendant’s motion in limine to bar Ruhl’s testimony.

Additionally, we find no merit to defendant’s claim that plaintiffs have failed to point out which opinions of Ruhl’s the court should have allowed him to present at trial. We move on, therefore, to our consideration of plaintiffs’ contention that the court should not have barred Ruhl from testifying.

The modern standard for the admissibility of expert testimony is whether such testimony would aid the jurors’ understanding of the facts. (Ketchum v. Dura-Bond Concrete, Inc. (1989), 179 Ill. App. 3d 820, 831.) In instances such as the case at bar, a fundamental reason for the exclusion of reconstruction testimony has been the court’s feeling that jurors are well aware of driving situations and do not require the assistance of experts in reaching their decisions. (Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 680.) Whether to admit evidence which reconstructs the scene of an accident rests within the sound discretion of the trial judge, whose decision will not be disturbed absent a clear showing of an abuse of that discretion. Wiedemann v. Industrial Erectors, Inc. (1985), 137 Ill. App. 3d 47, 56.

In the instant case, Ruhl’s expert opinions were not required to aid the jury in reaching a decision. The opinions which Ruhl intended to give at trial as expressed during his deposition were:

• 1. That the accident was avoidable if the defendant had exercised reasonable care.
2. That the defendant’s failure to exercise reasonable care was a proximate cause of the accident.
3. That the defendant’s avoidance maneuver should have been to swerve rather than to brake, as the avoidance travel distance for swerving is 40% less than for braking.
4. That had the defendant been using the high beams of his headlights, the distance for detection of the pedestrian would have been 2½ times greater and would have allowed defendant to swerve or stop.
5. That the defendant had to have observed Reuter at a minimum of 65 feet prior to the impact rather than at 10 feet as he related to the police, since defendant thought he had begun braking prior to striking defendant.
6. That the defendant’s blood-alcohol level contributed to his failing to avoid striking the plaintiff.
7. That the defendant failed to exercise due care to avoid colliding with the pedestrian and did not exercise proper precautions upon observing an obviously intoxicated pedestrian in the roadway.

Some of these opinions were conclusional, e.g., defendant did not exercise reasonable care, as plaintiffs admit in their brief, and would have been inappropriate since they would have invaded the province of the jury. Also, one opinion, that pertaining to defendant’s alcohol level, was based on information which had been previously barred from trial and, therefore, could not have been presented to the jury. Additionally, Ruhl’s opinion that defendant should have swerved rather than braked was, in actuality, not his opinion but that of an associate of his who had calculated that the available travel distance for swerving was 40% less than for braking.

Although Ruhl was of the opinion that defendant would have had a greater detection distance had he been using his high beams as he traveled through the area where the accident occurred, that opinion was based on the assumption that Reuter was standing in the road at all times relevant to the occurrence. Additionally, Ruhl acknowledged that the greater detection distance with high beams assumed a straight and level roadway. Neither of these assumptions, however, was shown to be true by the testimony of the other witnesses.

Both eyewitnesses to the accident, defendant and Dinerstein, stated that they did not see Reuter until almost the moment of impact. He appeared in the middle of their lane and was about 10 feet from the car. Defendant said that Reuter appeared to be “jostling” back and forth and raising his arms and that he (defendant) was unable to swerve before impact. Dinerstein recalled that defendant had no time to alter his course or to brake. Both defendant and Dinerstein remembered that the roadway curved where the impact occurred and that there were no lights in the area. Dinerstein stated that there was no background against which to see Reuter because it was dark and the roadway in that area was flanked by woods on either side of it. Additionally, Dinerstein recalled that Reuter was wearing dark clothing.

Officer Lisa Brogan, who arrived at the scene shortly after the accident occurred, described the area where the accident occurred as “a notoriously dark stretch of road.” Brogan had proceeded to the area after being stopped by a motorist who said that there was a pedestrian walking in the middle of the roadway trying to flag down cars and that the motorist had had to swerve to avoid him.

Officer Alan Pierce, a specialist in the investigation of serious personal injury accidents such as the instant one, related that the nearest artificial light to the scene of the accident was 1,400 feet away. The officer stated that he believed defendant told him that defendant had had his low beams on at the time of the impact, but the officer was not absolutely certain of that fact. Nevertheless, Pierce stated that there was no local requirement that an individual drive with his high beams illuminated.

Defendant’s expert, Ruhl, also acknowledged that no law required an individual to use his high beams. Moreover, Ruhl himself stated that with his low beams on defendant would have been able to see 150 to 200 feet in front of him. If Reuter had been just standing in the road, as Ruhl assumed, defendant would have seen him sooner and been able to stop or at least to swerve to avoid Reuter. The fact that neither defendant nor Dinerstein saw Reuter until just before the impact implies that he walked right into their path.

If allowed to testify, Ruhl also intended to give his opinion that defendant had to.have observed Reuter at a minimum distance of 65 feet rather than 10 feet, as related by defendant and Dinerstein. Ruhl’s calculation was based on defendant’s statement that he began braking prior to striking Reuter and on the fact that défendant said a second or less transpired from the time he first observed Reuter until the instant of the impact.

Defendant also stated, however, that he thought he had moved his foot from the accelerator to the brake pedal but that he was not certain whether he applied the brake. He remembered that the car did not slow down at all before the impact. Officer Pierce, as a trained accident investigator, stated that it would have taken defendant three seconds to recognize the danger, understand it, and begin to make the motion of moving his foot from the accelerator to the brake pedal. Given this fact, along with the facts that a car travels about 65 feet per second at 45 miles per hour and that both defendant and Diner-stein said that Reuter was only 10 feet away when they first saw him, defendant would not have had sufficient time to apply the brakes. Moreover, Pierce testified that in an unexpected situation like the instant. occurrence, an individual may think he has applied the brakes because that is what his body is telling him to do when, in reality, he has not even moved his foot to the brake prior to the occurrence. In the instant case it is likely that defendant never even had the opportunity to brake before striking Reuter.

The last opinion Ruhl intended to give was that defendant failed to exercise due care to avoid colliding with Reuter and to exercise proper precautions upon observing an obviously intoxicated pedestrian in the roadway. Ruhl, however, had not reached an opinion regarding what percentage ■ of the general population would have been able to avoid the accident as defendant confronted it. He did opine that 50% of the population would have been able to swerve to avoid striking Reuter. This opinion, however, once again assumed that Reuter had been standing still in the middle of defendant’s lane of traffic prior to the accident and that defendant, therefore, could have seen Reuter much sooner than defendant and Dinerstein testified they had seen the victim.

Ruhl admitted that he never inspected the scene of the accident. He had no courses dealing strictly with reconstructing accidents, nor had he participated in any traffic institute courses such as Officer Pierce. During his investigation, Pierce had made a diagram of the accident scene and the location of Reuter as well as taken several photographs of the scene and of the damage to defendant’s vehicle. These items were to be entered into evidence and given to the jury to use during deliberations.

There was no evidence that defendant was exceeding the speed limit, driving in the wrong lane of traffic, or not using his headlights. There was eyewitness testimony in the form of defendant’s testimony and that of his passenger, Dinerstein, as to how the accident occurred and where it occurred. This testimony, as well as that of the officers and of Dr. Stephen Vogel, defendant’s expert in toxicology, regarding the degree of impairment in one with the alcohol concentration of Reuter on the night of the accident was sufficient to supply the jury with the information it needed to understand the facts of the occurrence.

Although Ruhl was qualified as an expert, his opinions, as the trial judge pointed out in his letter of opinion, were based upon numerous assumptions, e.g., the advisability of using high beams rather than low beams, the position of Reuter in the roadway prior to impact, defendant’s reaction time, and defendant’s ability to swerve and avoid Reuter. These assumptions, the court determined, were based on matters within the province of the jury and would not have aided it in the resolution of the dispute. We agree and find that the trial court did not abuse its discretion in barring the testimony of Ruhl.

In their final contention plaintiffs argue that the trial court erred in failing to strike defendant’s affirmative defenses which plaintiffs allege were based on the “51%” rule set forth in section 2 — 1116 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1116). Plaintiffs maintain that section 2 — 1116 is unconstitutional because, in passing that statute, the legislature violated the separation of powers doctrine of the Illinois Constitution. (Ill. Const. 1970, art. II, §1.) Specifically, plaintiffs contend that since our supreme court established the doctrine of comparative fault in Alvis v. Ribar (1981), 85 Ill. 2d 1, only it could modify that doctrine. Consequently, plaintiffs assert, the legislature’s passage of section 2 — 1116, which modified the pure comparative negligence rule established by the court, violated the separation of powers doctrine.

Before addressing this issue, we note first that plaintiffs’ motion to strike defendant’s affirmative defenses makes no mention of section 2 — 1116 or its alleged unconstitutionality. Rather, the motion merely denies that Reuter’s negligence was the proximate cause of his injuries, as defendant states in his affirmative defenses. Also, although plaintiffs allude in their brief to a memorandum they filed in support of their motion to strike, we have been unable to locate that memorandum in the record before us. Additionally, it appears from the court’s order denying plaintiffs’ motion to strike that a hearing was conducted on the motion but no transcript of that hearing was apparently made. Thus, we have no documentation before us indicating that the theory under consideration in this issue is consistent with that espoused in the lower court. Nevertheless, the court’s order denying plaintiffs’ motion to strike mentions that the motion involved a question of the constitutionality of section 2 — 1116. Consequently, we will consider plaintiffs’ constitutionality issue despite the lack of any evidence in the record that the theory presented by plaintiffs is consistent with that argued in the lower court.

In Alvis, our supreme court abolished the doctrine of contributory negligence and adopted, in its place, a “pure” form of comparative negligence. (85 Ill. 2d at 25, 28.) In so doing, the court stated that it was time to make the change in Illinois from contributory negligence to comparative negligence and that the court was acting because the legislature had failed to enact comparative negligence. The court pointed out that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. (85 Ill. 2d at 23.) But, the court stated, when there exists a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court, manifest injustice to the public results. (85 Ill. 2d at 23.) In such a situation, the court stated, it is the court’s duty to repair that injustice when the legislature has failed to remedy that injustice. 85 Ill. 2d at 23.

In adopting the doctrine of pure comparative fault, the court remedied one injustice but ended up creating another. Following its decision in Alvis, Illinois’ common law evolved from the harsh concept of contributory negligence, where a plaintiff who was contributorily negligent could recover nothing for his injuries, to a system of total permissiveness, which allowed a grossly negligent, but injured, plaintiff to recover substantial damages from a slightly negligent defendant. As predicted by Justice Underwood in his dissent in Alvis, litigation increased following the adoption of the pure comparative fault doctrine, augmenting the burden upon our already overburdened courts and increasing insurance rates. 85 Ill. 2d at 32 (Underwood, J., dissenting).

Five years after Alvis, the legislature acted to reduce the number of lawsuits, the amount of damage awards, and, ultimately, the insurance rates. It enacted section 2 — 1116 as part of omnibus legislation enacted in response to the “insurance crisis.” (Ill. Ann. Stat., ch. 110, par. 2 — 1116, Historical & Practice Notes, at 120 (Smith-Hurd Supp. 1992).) The purpose of the legislation was to lower escalating insurance rates by reducing recoveries in lawsuits. (Comment, Modified Contributory Fault & Strict Products Liability: Illinois’ Silent Disposal of Misuse & Assumption of Risk Turns Back the Evolution, 23 J. Marshall L. Rev. 247, 259 (1990) (hereafter Modified Contributory Fault).) Section 2 — 1116 allows a plaintiff who is less than 50% at fault to recover his injuries diminished by his percentage of contributory negligence but bars the substantially negligent plaintiff whose contributory negligence exceeds 50% from obtaining a recovery. The statute precludes plaintiffs from taking advantage of their own wrongs and favors the party whose fault is only a minor cause of injury. Modified Contributory Fault, 23 J. Marshall L. Rev. at 256-57.

Plaintiffs maintain that by enacting section 2 — 1116 the legislature attempted to “reverse the decisions of the court.” We do not agree. While the General Assembly may not pass a statute in an attempt to change the result of a decision which has been finally decided as between the parties to a particular case (Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1, 10), it may enact legislation which changes the effect of a prior decision of a reviewing court with respect to cases which have not yet been decided.

In Sanelli, plaintiff contended that the General Assembly violated the principle of separation of powers because it attempted to nullify the supreme court’s decision in a prior case by enacting the statute in question. The statute applied to conduct occurring prior to its enactment and expressly forbid the result announced in the supreme court’s prior decision. Although the statute became effective after the dispute between the parties in Sanelli had already been pending in the trial court, the dispute had not yet been decided at the time of its enactment. The supreme court determined that the General Assembly may enact retroactive legislation which changes the effect of a prior decision of the reviewing court with respect to others whose circumstances are similar but whose rights have not been finally decided. (108 Ill. 2d at 10.) This authority, according to the court, extended to decisions in which the law changed by the legislature resulted from a reviewing court’s interpretation of the common law as well as from a reviewing court’s interpretation of a statute. (108 Ill. 2d at 10.) We believe the principles set forth in Sanelli have equal application to prospective legislation such as section 2 — 1116 and find, as the supreme court , did in Sanelli, that the legislature’s enactment of the statute did not violate the separation of powers doctrine.

We disagree with plaintiffs’ contention that the legislatively created remedy contained in section 2 — 1116 deprived plaintiffs of a full or adequate .remedy. Consistent with the separation of powers principle, the legislature may impose reasonable limitations and conditions upon access to the courts. (DeLuna v. St Elizabeth’s Hospital (1992), 147 Ill. 2d 57, 73.) Such standards do not fail on constitutional grounds simply because noncomplying actions, like plaintiffs’, may suffer dismissal. 147 Ill. 2d at 73.

We conclude that the trial court did not err in failing to strike defendant’s affirmative defenses on the basis that section 2 — 1116 is unconstitutional. .

Accordingly, for all of the reasons stated the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIANE POWELL, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 92—0855
    Opinion filed May 21, 1993.
    Rehearing denied July 9, 1993.

      Rita A. Fry, Public Defender, of Chicago (Lynn Hubanks Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Christine Cook, and Dori K. Leo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

Attorney Diane Powell appeals from an order of the circuit court of Cook County finding her in direct criminal contempt of court and fining her $100. The fine was stayed by the trial judge pending appeal.

On January 28, 1992, Ms. Powell, an assistant public defender, appeared before the trial judge on behalf of a criminal defendant and answered ready for trial. Following an off-the-record conference the following occurred:

“THE COURT: On the record. Trial will commence at 11 o’clock.
MS. POWELL: I will be here at 11.1 hope the jury will be.
THE COURT: I am not going to have any remarks like that in my courtroom. I will not be spoken to that way. There is no reason for it. I want an apology.
MS. POWELL: I — if I did not believe there wag, I would not have spoken that way; and I apologize.
THE COURT: Even if you do have a reason, you will not do that in my courtroom. I want an apology, or I will hold you in contempt. Take Miss Powell into custody." (Emphasis added.)

The case was recalled, according to the State, two hours later, during which time Ms. Powell remained in custody. The following occurred:

“MR. CARMODY [Ms. Powell’s supervisor]: Could I address the court? Would you allow Ms. Powell to address the court at this time?
THE COURT: For what purpose?
MR. CARMODY: I think she wants to address the court regarding the incident that took place, and also prior to the jury being brought in.
THE COURT: I still would like to know for what purpose. I am not interested in further comments.
MR. CARMODY: I think she would attempt to apologize to the court for what took place this morning.
THE COURT: She wants to address the court in apology?
MR. CARMODY: Yes. I think that — yes. I do not want to do it. I am not the attorney.
THE COURT: Bring Ms. Powell out.
MS. POWELL: May I address the bench, Your Honor?
THE COURT: You may.
MS. POWELL: Judge Douglas, I am sorry if my remark, ‘I’ll be here at 11:00, Judge, I hope the jury is,’ was perceived as disrespectful to the office you hold. Often the unavoidable pressures of the advocate system, not to mention the pressures of individual conflicting personalities, create a charged atmosphere resulting in misunderstandings on both sides. I find this to be unfortunate but inevitable. Since my first duty is to my client and since he cannot receive adequate representation from an attorney while in custody, let me again assure you I mean no disrespect to your office.
THE COURT: I asked for that apology at eleven — about ten minutes to eleven. The court has held you in — is holding you in criminal contempt. And I will fine you $100 for your behavior this morning. I will keep you in custody until your fine is paid. I will accept your apology, however.” (Emphasis added.)

Mr. Carmody then asked the judge to release Ms. Powell from custody on bond and to permit her to represent her client. The following occurred:

“THE COURT: She will be released subject to — she "will be able to represent her client in the court trial. I will release her for that purpose. She may fully participate in all aspects of the trial.
MR. CARMODY: Is she going to be released from custody now, Judge, prior to the jury being brought out so she can go to the office and prepare her case?
THE COURT: She may bring her files back down, yes, to prepare for trial and be here for trial.
* * *
MR. CARMODY: Thank you. Could we readdress the issue of the fine later on this afternoon?
THE COURT: I have already ruled on that. Nothing else is pending before me right now. How long will you need to get your file and be prepared with your client?
MS. POWELL: About an hour, Judge.
THE COURT: An hour. I will give you one hour to be back.”

In her written order, the judge found Ms. Powell in contempt and fined her $100 based on her having

“stated in open court remarks which undermined the integrity and fairness of the court *** and then having turned her back to the court in silent defiance of the court and the opportunity the court provided her to retract the remarks and the tone of voice [used] to deliver said remarks.”

Direct criminal contempt requires proof that the acts at issue were calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate its authority or its dignity or bring the administration of law into disrepute. (People v. Siegel (1983), 94 Ill. 2d 167, 445 N.E.2d 762.) The standard of proof for direct criminal contempt is proof beyond a reasonable doubt of contemptuous intent and acts. Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 509 N.E.2d 136.

The worst that may be said of Ms. Powell’s remarks is that they were sarcastic (and even that is not clear), and sarcasm alone is not sufficient to sustain a finding of contempt. (Smith v. Georgia Pacific Corp. (1979), 76 Ill. App. 3d 667, 395 N.E.2d 214.) Moreover, the remarks could not be construed to be an attempt to embarrass, hinder or obstruct the judge in the administration of justice. If the jurors do not appear for duty on time, that is not the fault of the judge. We make an extreme understatement when we say that the record does not establish direct contempt on the part of Ms. Powell beyond a reasonable doubt.

The judge told Ms. Powell to apologize or she would be held in contempt. She did apologize, but she was still held in contempt and taken into custody, where she remained for at least two hours. We express strong disapproval of the contempt finding itself, and we deplore any practice of taking people into custody under circumstances such as were present here, even if the contempt finding could be upheld.

No purpose would be served by any further discussion of the applicable law and citation of any more cases. Suffice it to say that this is the weakest case involving a finding of contempt on the part of an attorney that we have encountered through research, personal experience or any other source. There are many cases in which reviewing courts have reversed contempt convictions which were based on facts much more egregious than are present here. The power to punish for direct contempt is an extraordinary power and should be exercised with utmost caution. In this unfortunate case, that power was exercised with abandon.

The judgment of the circuit court is reversed.

Judgment reversed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE MURRAY

text:
      In re C.B., a Minor (Dorothy Petty, Petitioner-Appellant).
    First District (5th Division)
    No. 1 — 92—1988
    Opinion filed June 11, 1993.

      Steven A. Drizin, of Northwestern University Legal Clinic, of Chicago, for appellant.
    Patrick T. Murphy, Public Guardian, of Chicago (Ellen Gorin, of counsel), guardian ad litem.

   JUSTICE MURRAY

delivered the opinion of the court:

This appeal was brought by Dorothy Petty (Petty), the maternal grandmother of C.B., the minor in this case. Petty asks this court to reverse the order of the circuit court which awarded Tonya Wood (Wood), a nonrelative, private guardianship and physical custody of C.B. Petty alleges that the trial court erroneously believed it was bound to accept the expert testimony proffered in this case and, for that reason, failed to determine C.B.’s best interest by balancing all the attendant circumstances and factors. For reasons that follow, we reverse and remand for a new hearing to determine C.B.’s best interest.

The record in this case is rather scant, consisting only of a very limited social history and supplemental prepared by the Department of Children and Family Services (DCFS); a two-page “bonding assessment” entitled “psychological evaluation” which was completed sometime in August 1991 by Dr. Hirsch of the University of Illinois and his associate, Dr. Dursunkaya, after only three one-hour sessions with C.B.; and the testimony of witnesses presented at the guardianship hearing in this case. From these sources comes the following information.

C.B. was born December 17, 1989, to Donna B. (Donna), who was 21 years of age at the time. C.B.’s father is listed as unknown and no one claiming to be C.B.’s father has had any involvement in this case. Donna is the daughter of Petty, the petitioner in this case. Donna was born out of wedlock, although her parents married after her birth and then later divorced. Donna was raised by her mother and great-grandmother, living with one or the other on an alternate basis.

In addition to C.B., Donna has given birth to two other children, a girl, K.B., born November 10, 1983, and a boy, J.B., born November 18, 1988. In July 1989, prior to C.B.’s birth, Donna came to the attention of DCFS when she admitted to hitting K.B. with a belt, leaving welts and bruises. As a result, Donna was found to be an abusive parent and K.B. and J.B. were made wards of the State. These two children were then placed in foster care with Petty, who was maintaining a household with her 15-year-old son, Charles, and Charles’ friend, Kevin, who was abandoned by his parents and taken in by Petty.

Although Petty knew that a court order prohibited Donna from living in the same household as her children in foster care, Petty allowed Donna to move into her home in December 1989, just prior to C.B.’s birth. After C.B.’s birth, Donna and C.B. continued to live with Petty until Roseanna Sierra, a court-appointed special advocate (CASA) worker, reminded Donna that she was in violation of the court order and had to leave. Consequently, in February 1990, Donna and C.B. moved into an apartment. This apartment, however, had no heat or electricity, so they, spent little time there. During the day C.B. was cared for by a friend of Donna’s and in the evenings, while Donna worked, C.B. was left with Petty. This situation continued for about two months until Donna was evicted from the apartment.

After being evicted in April 1990 Donna went to Ohio for two weeks. She did not take C.B. Instead, she left him with a friend, Tonya Wood. Upon her return from Ohio it appears that Donna and C.B. moved back with Petty and the child care arrangements for C.B. that were in place prior to the Ohio trip were resumed, i.e., C.B. was watched by a friend during the day (while Petty worked) and Petty watched C.B. each evening. It is clear that Donna took little responsibility for any of her children.

In September 1990, when C.B. was eight months old, Donna decided to leave Illinois to go to Atlanta. Again, Donna did not take C.B. with her. However, Donna did not leave C.B. with Petty because Petty was unable to keep C.B. without obtaining guardianship. This was because Petty worked during the day and would have needed to obtain day care for him. Petty, however, could not afford to pay for the day care without the benefit of subsidies that would be available if she had guardianship.

Furthermore, Petty did not seek guardianship or custody of C.B. at that time because she believed that Donna intended to send for C.B. after she got settled in Atlanta. In addition, Petty did not seek guardianship of C.B. or attempt to assume responsibility for him because DCFS had indicated that Donna had to show responsibility in caring for C.B. if she was ever going to regain custody of her other two children and Petty wanted to give Donna every opportunity to become a mother to all of her children.

Consequently, Donna made alternative arrangements, deciding to leave C.B. with Wood because Wood would care for C.B. without requiring a transfer of guardianship to her. When Donna left C.B. with Wood, Wood was approximately 22 years old and living at home with her parents while attending nursing school. Wood’s mother or a friend cared for C.B. during the day while Wood was at school and unavailable.

Donna, however, did not turn over all responsibility for C.B. to Wood. In actuality, C.B.’s care was a shared arrangement, i.e., C.B. stayed at Wood’s during the weekdays and then visited with Petty on the weekends. In addition, Petty contributed to C.B.’s welfare by giving Wood money and food stamps on at least one occasion and by supplying other items for C.B. such as diapers, clothes and medicine on other occasions.

Initially C.B.’s placement with Wood was an informal one, but in April 1991, circumstances changed. Sometime in late March or early April 1991, Petty discovered that Donna left Atlanta and went to California. It was then that Petty realized that Donna was never going to take responsibility for any of the children. In Wood’s presence, Petty informed Roseanna Sierra, the CASA worker for K.B. and J.B., of the situation. Petty indicated at this time that she wanted to adopt all three of Donna’s children. As a result, Sierra notified DCFS that Donna had abandoned C.B.

Shortly thereafter, Petty met with DCFS for a case review regarding K.B. and J.B. At this time Petty told DCFS workers that it was her intention to adopt all three of Donna’s children. DCFS agreed to assist her with this goal. Nevertheless, despite Petty’s contact with DCFS about her intentions and her consistent involvement with C.B., a petition for adjudication of wardship was filed regarding C.B. on April 5, 1991, without Petty’s knowledge and without notice being given to her of the hearing on this matter. Because Wood was present at the hearing and already had physical custody of C.B. and because Petty was not present at the hearing to make her position known, the court awarded Wood temporary private guardianship and custody of C.B. on April 29, 1991.

How the petition for adjudication of wardship was filed without Petty’s knowledge or involvement is not made clear in the record. Nonetheless, once Petty learned of the situation she moved to intervene and also filed a petition to vacate the order which awarded Wood temporary private guardianship. Petty then participated in the subsequent proceedings to determine C.B.’s permanent guardianship. Petty also continued to have weekend visitation with C.B., although there is some indication that Wood was sometimes uncooperative and obstructionists regarding these visits.

Because the issue of permanent guardianship pended, DCFS requested that a bonding assessment be done to assist in the permanent custody determination. Dr. Jay Hirsch and his assistant, Dr. Dursunkaya, performed the evaluation. Dr. Hirsch testified that he had been a child psychiatrist for 30 years and a professor of psychiatry at the University of Illinois since 1957. Dr. Dursunkaya testified that she had completed four years of residency in psychiatry but that she was currently training at the University of Illinois, under the direction of Dr. Hirsch, for a specialty in child and adolescent psychiatry. Her training in this field would not be completed until June 1993 and after that she would be eligible to take the Board certification examination for child psychiatry.

According to the testimony of Drs. Hirsch and Dursunkaya, Wood and C.B. were seen together on two occasions and Petty and C.B. were seen on only one occasion. Each session was held at the clinic and lasted for about one hour. For the first session Dr. Hirsch met with Wood and C.B., at which time he mainly interviewed Wood to obtain background information. For the second session, C.B. and Petty came to the clinic and met primarily with Dr. Dursunkaya. While Dr. Dursunkaya observed C.B. she interviewed Petty for more background information. Dr. Hirsch was present only intermittently. The third session (the second session with Wood and C.B.) was conducted primarily by Dr. Dursunkaya, with minimal contact by Dr. Hirsch. In summary, the doctors’ total contact with C.B. consisted of only three, one-hour sessions, all conducted at the clinic, wherein the majority of time was spent talking to the adult to obtain background information.

Based upon this limited contact, a two-page written report was prepared. The report is undated although it indicates that the sessions were conducted on July 29, August 14 and August 26, 1991. One entire page of the report consists of “salient historical background” and “current situation” and the data contained within these sections is, in some instances, inaccurate or unsubstantiated. The second page of the report contains a brief description of the doctors’ observations of C.B., Wood and Petty. The report then concludes, in a single paragraph, that C.B. was “dearly attached” to Wood, his primary caretaker, and that disruption of this bonding at the “current sensitive period” of C.B.’s psychological development would be detrimental despite the existence of a caring grandmother who already cares for two of C.B.’s siblings in her home. The doctors recommended frequent visitation with the grandmother but continued guardianship by Wood.

Proceedings to determine permanent guardianship and custody for C.B. began in February 1992. On February 5, 1992, Drs. Hirsch and Dursunkaya each testified concerning the evaluation that was performed and the report that was compiled. No contact was had between these doctors and the parties subsequent to the report.

Both doctors admitted that their contact with the parties was extremely limited. Nevertheless, they both testified that their conclusion would probably not differ even if they had had a greater opportunity to be involved with the parties. This was because their opinion that C.B.’s best interests would be fostered by continuing Wood’s guardianship and custody of C.B. was based upon the theory and belief that the psychological development of a child can be permanently impaired or damaged if that child is removed from his primary caregiver during the critical developmental period between the ages of six months and four years.

It should be noted that the doctors admitted that C.B. had bonded to both Wood and Petty and that either Wood or Petty would be an appropriate care provider for C.B. The doctors also admitted that the family relationship and the presence of C.B.’s siblings in Petty’s home were important considerations. Nevertheless, based upon their brief opportunity to observe C.B. with Wood and Petty, as well as the very limited and sometimes inaccurate background information at their disposal, they determined that C.B. considered Wood his primary caregiver or mother figure and, for this reason alone, it was contraindicated to disturb the status quo, i.e., placement with Wood.

Robert Lund, a DCFS worker, and Roseanna Sierra, the CASA worker assigned to K.B. and J.B., testified at the custody hearings on April 15 and 16, 1992. Both of these workers indicated that it was their recommendation to place C.B. in Petty’s custody and that they were in favor of Petty’s eventual adoption of C.B. The reasons for their recommendations were Petty’s blood relation to C.B., the presence of C.B.’s siblings in her home, as well as her stability in the community, her experience and the proficiency she had exhibited in raising Donna’s other two children. Sierra, who had been involved with Petty since December 1991, had made home visits and had witnessed Petty’s relationship with C.B.’s siblings. Sierra reported that Petty was able to effectively provide for them physically and emotionally.

Lund was also pleased with Petty’s handling of C.B.’s siblings and, in addition, indicated that C.B.’s mother, Donna, had told him that she wished C.B. to be placed with Petty. Unfortunately, neither Lund nor Sierra had ever witnessed C.B. in either Petty’s or Wood’s home. Therefore, neither one could testify concerning C.B.’s relationship with, or his behavior while in the presence of, either Wood or Petty.

Finally, on April 16, 1992, Wood and Petty each testified. It is clear from their testimony that they are both fit and caring individuals who are interested in providing a home for C.B. Wood testified that she had become a certified nurse’s assistant and that, during the weekdays, she worked as a child care provider through DCFS and also babysat for a couple in Evanston. Due to the nature of her employment, she was able to take C.B. with her when she worked. On the weekends, Wood worked as a visiting nurse and C.B. was generally with Petty during these times. Wood also testified that she had moved out of her parents’ home and was now living in an apartment with C.B.

Petty’s testimony showed her to be a stable individual who, for the past 15 years, was a resident of Evanston, maintained a job with the same company and was active in her church. Petty exhibited genuine concern for C.B. and expressed her desire to adopt all of Donna’s children together.

On April 29, 1992, the trial court heard argument from all parties. The court indicated that it gave little credence to the bonding assessment that was performed. A discussion was apparently held, off of the record, regarding the possibility of postponing the custody decision until another bonding assessment could be completed. Because the discussion was off the record, we are unable to determine why this option was rejected. However, without the benefit of further evaluation or expert opinion, the court gave its decision as to C.B.’s custody.

The court stated that although it found the expert testimony as to the best interest of C.B. to be based upon inadequate observation, it “had to accept” the uncontradicted expert testimony which indicated that the period between the ages of six months and four years was the worst time to remove a child from its primary caregiver. The court found that the testimony was based upon psychological principles which were unrebutted by other expert testimony.

The court went on to express some concern over Tonya Wood’s lack of a stable home setting and her lack of cooperation with C.B.’s weekend visitation with Petty. The court was also troubled by the fact that Petty, a blood relative, had custody of C.B.’s siblings and wanted to adopt all three children, which the court felt was a desirous situation. However, despite all of these considerations, the trial court determined that Tonya Wood should be appointed private guardian, stating the following:

“But in looking at all of the evidence and weighing it all, I’m still left with the expert’s opinion, not as to what he feels is the best interest of the Minor because as I’ve said, that opinion, based upon that limited observation, does not carry much weight but the statement to the worst time to remove the Minor from the primary caretaker, which Ms. Wood is and has been for the primary time is the worst time and that has not been contradicted either by Cross Examination or by any other expert.”

Petty filed a motion to reconsider. At the hearing on this motion the court indicated that, based upon the expert testimony and the cases In re Ashley K. (1991), 212 Ill. App. 3d 849, 571 N.E.2d 905, and In re Violetta B. (1991), 210 Ill. App. 3d 521, 568 N.E.2d 1345, it believed that it had no choice but to rule as it did and, consequently, denied the motion. Petty then filed this timely appeal.

Petty raises several issues in this appeal and has introduced a number of treatises discussing, at considerable length, the merits, or lack thereof, of the psychological parenting theory. This court has neither the expertise nor the inclination to determine the validity of this psychological theory. Furthermore, the issue in this case is not the validity of the psychological parenting theory, but rather, whether the trial court gave undue weight to the testimony of the expert who applied this theory to the circumstances of this case.

After reviewing all of the evidence, this court finds that the trial court awarded Wood permanent custody and guardianship of C.B. based solely upon the recommendation of the expert testimony, not because it was particularly persuasive, but because it was unrebutted and because the court believed that the cases of Ashley K. and Violetta B. required such a result. We find, as Petty charges, that the trial court failed to exercise its own discretion by balancing all the factors that may be considered when making a reasoned decision concerning the best interests of a child. We also find that the trial court was remiss in making any determination when it was dissatisfied with the quantity and quality of the evidence presented. For these reasons, we reverse the trial court’s determination and remand for further proceedings.

All custody decisions are difficult, but especially so where, as here, the court is placed in the unenviable position of having to choose between two capable, caring and fit individuals vying for custody of a single child. We sympathize with a trial court’s difficult plight in cases such as this and realize that the trial court’s Solomonic task is sometimes made even more difficult by the seemingly conflicting and contradictory case law and statutory law with which the court is charged to uphold.

However, much of the confusion stems from the fact that the prime directive in all guardianship and custody cases is the best interest of the child (Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, 411 N.E.2d 1145), a standard which, although universally recognized and accepted, is illusive and difficult to define, making it subject to varying interpretations and opinions. It is clear that when the best interest of the child conflicts with the statutory preference for placement with a close relative (Ill. Rev. Stat. 1989, ch. 23, par. 5007(b)), or even a natural parent’s right to have custody restored, the best interests of the child takes precedence and will defeat all other considerations. (In re Violetta B., 210 Ill. App. 3d 521, 568 N.E.2d 1345; In re Ashley K., 212 Ill. App. 3d 849, 571 N.E.2d 905; Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2(3)(c).) However, deciding what is in a child’s best interest is difficult, if not impossible, to predict without a crystal ball or the gift of foresight. Consequently, courts generally seek the opinions of experts in the field of psychiatry or psychology to assist them in deciding what is in the best interest of a child. However, trial courts must keep in mind that psychiatric expert opinions are only as valid as the bases and reasons supporting them. In re Violetta B., 210 Ill. App. 3d at 535.

Furthermore, by the very nature of a custody determination, a trial court makes decisions that have far-reaching effects. Therefore, it is crucial that the fact finder have an abundance of information at his or her disposal to make a proper and reasoned “best interest” determination. If a trial court feels that there is insufficient evidence from which it may make a reasoned decision regarding the custody and guardianship of a child, the trial court should seek additional information before reaching a decision. See In re J.J. (1991), 142 Ill. 2d 1, 9, 566 N.E.2d 1345; Ill. Rev. Stat. 1987, ch. 37, par. 801-2(2) (in all proceedings brought under the Juvenile Court Act, the court may direct the course thereof so as to promptly ascertain the jurisdictional facts and fully gather information bearing upon the current condition and future welfare of persons subject to the Act).

In the present case there was a glaring lack of competent evidence concerning C.B.’s situation. Although caseworkers were involved with Petty in relation to C.B.’s siblings, C.B. had no caseworker. No one had ever made home visits to observe C.B.’s relationship with Wood or Petty in the less “sterile” atmosphere of their homes, and there was no evidence concerning the condition and suitability of Wood’s and Petty’s homes.

More importantly, there was no evidence, other than the completely inadequate bonding assessment, concerning C.B. and his reaction to Wood or Petty. There was no substantiated medical evidence to support the expert’s application of the psychological parenting theory, i.e., evidence that would indicate that C.B. had, in fact, adopted Wood as his psychological parent and, thus, would be harmed by a change in custody. This is in stark juxtaposition to the evidence presented in the Ashley K. and Violetta B. cases.

In In re Violetta B., the trial court was called upon to determine whether custody of the child “Minnie” should be given to nonrelative foster parents, who had parented Minnie since she was four months old, or to the child’s paternal grandmother, who filed a petition for custody when Minnie was two years old. Extensive testimony was given by Thomas Leo, a family therapist who had been involved with Minnie for a number of years. He had written seven reports concerning Minnie and he was keenly aware of the child’s background, as well as her current situation. Leo was able to testify concerning the child’s behavior in the presence of the foster mother, her reaction to visitation with the grandmother and the effect that this visitation had on the child’s emotional and psychological well-being. According to his testimony, Minnie considered her foster mother her real mother, she cried when she had to visit with the grandmother and exhibited “regressive behavior” when told that she might have to stay with the grandmother for a long time.

Leo’s testimony was substantiated by the testimony of Dr. Roland, a clinical child psychologist, and Ann Campos, a DCFS social worker. Both of these witnesses testified that Minnie made it clear through her behavior that her psychological well-being was dependent upon her continued relationship with her foster mother. Minnie became “depressed, combative and aggressive when faced with visiting [the grandmother].” In re Violetta B., 210 Ill. App. 3d at 530.

Despite this considerable evidence, the trial court disregarded the expert testimony and awarded custody of Minnie to her grandmother. On review the court, admitting that trial judges are free to disregard psychiatric testimony, held that the trial court improperly rejected the expert testimony, not because it was unfounded or unbelievable, but because the trial court found that the bonding between Minnie and the foster mother was caused by DCFS misconduct. For this reason, the reviewing court held that the trial court impermissibly ignored and discounted the expert testimony.

In In re Ashley K., Ashley, who was born addicted to drugs, was taken into custody by DCFS at birth and placed with foster parents by the time she was two months old. Ashley’s parents, who were not married, were both drug addicts and the mother prostituted to support their habit. For more than three years the parents had little contact with Ashley while they continued their criminal and antisocial behavior, yet DCFS’s goal remained to return Ashley to her parents.

When Ashley was three, her mother completed a methadone program and DCFS instituted twice monthly visitations with Ashley. As a result, Ashley had to be admitted to Mount Sinai for an in-patient psychological evaluation to assess her “severe emotional and behavioral problems” related to these visitations. Based upon this assessment, Dr. Sonia Yballe, a child psychiatrist, and Dr. Alan Hirsch, a staff psychologist, recommended that Ashley be adopted by her foster parents. Nevertheless, DCFS continued visitation with the parents and Ashley continued to exhibit severe emotional and behavioral problems, including screaming, tantrums, vomiting on the way to visits and sleep problems.

At the insistence of the foster parents, Ashley was provided counseling at a Family Service Center. The psychologist who met with Ashley there noted that Ashley saw the visits with her biological parents as a threat to her life with her foster parents, whom she considered her parents. After counseling Ashley for eight months, he recommended that Ashley remain with the foster parents.

In December 1988, when Ashley was almost five years old, her biological parents petitioned to have Ashley returned. At the hearing on this petition Dr. Zinn, a psychiatrist and director of adolescent psychiatry at Northwestern Memorial Hospital, testified that he had done evaluations on Ashley, her parents and the foster parents. Based on these evaluations, he believed that it was in Ashley’s best interest to remain with her foster parents and that Ashley would suffer irreparable damage if returned to her natural parents. Dr. Zinn also found that Ashley’s biological parents were not psychologically rehabilitated and did not have the emotional strength to adequately raise Ashley.

Despite this abundance of competent expert evidence, the trial court followed the recommendation of Dr. Anne Brown, an inexperienced psychologist who had no contact with the parties, and returned Ashley to her biological parents. Further, the trial court ordered that the foster parents refrain from any contact with Ashley.

On review this court determined that the trial court improperly balanced the best interest of the child against the rights of the parents, noting that the best interest of the child was not merely “part of an equation” but had to remain “inviolate and impregnable from all other factors.” In re Ashley K., 212 Ill. App. 3d at 879.

It is true that the court then went on to state:

“The circuit court cannot disregard expert medical testimony that is not countervailed by other competent medical testimony or medical evidence. Moreover, the circuit court, itself, cannot second-guess medical experts. If the circuit court does not follow medical evidence that is not refuted by other medical evidence, the circuit court is acting contrary to the evidence.”

Despite the above-quoted statement from Ashley K., we do not agree that this case, or the case of Violetta B., stands for the proposition that a trial court is compelled to follow the recommendation of the expert in custody matters, regardless of its credibility. Rather, we believe that the cases Ashley K. and Violetta B. reaffirm the notion that the best interest of the child is the paramount consideration and that qualified and competent medical testimony concerning the child for whom the custody decision is being made must not be disregarded when determining what is in that child’s best interest.

In the present case there was no competent medical evidence to indicate that C.B. would be at risk if custody was transferred to his grandmother. Drs. Hirsch and Dursunkaya merely applied the theory of psychological parenting in the abstract, without any basis in fact for doing so. Although medical experts, they did not demonstrate that they had sufficient knowledge of the salient facts and circumstances surrounding C.B.’s condition and his emotional well-being to give qualified opinions concerning his best interests.

It seems clear that in the present case the trial court awarded Wood custody, with some reservation, because it felt that it could not disregard the psychiatric testimony. However, as stated earlier, neither Ashley K. nor Violetta B. compels a trial court to abdicate its duty to exercise its own discretion and defer to the opinion of the expert, especially where, as here, there is insufficient basis for the expert opinion. Therefore, although considerable weight is generally given to the judgment of the trial court, which had the opportunity to view the witnesses and hear their testimony, a trial court’s decision must be reversed if it is against the manifest weight of the evidence. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417.) For the reasons stated above, we find that the trial court unreasonably relied upon expert testimony that was not shown to be relevant to the present case. We reverse the trial court’s award of permanent custody and remand for further proceedings to determine what is in C.B.’s best interest.

We realize that in cases such as this we must work against the clock. The mere passage of time causes changes in circumstances over which we have little control. We, therefore, urge the trial court to gather the necessary information to make a best interest determination posthaste, so that C.B.’s future may be settled as soon as possible.

Reversed and remanded.

McNULTY and COUSINS, JJ., concur.

       There was some indication that when Donna left for Atlanta she led Wood to believe that she would send papers which would relinquish custody of C.B. to Wood indefinitely. Petty claimed to be unaware of any such arrangement and no papers were ever sent to Wood by Donna.