author: JUSTICE LUND

text:
    KENNETH MORRIS et al., a Co-Partnership, d/b/a Pla-Mor Lanes, Plaintiffs-Appellees, v. AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—92—0540
    Opinion filed January 21, 1993.
    Rehearing denied February 10, 1993.

      Duncan B. Cooper III and David A. Perkins, both of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellant.
    Nelson & Stipp, P.C., of Hoopeston (Gordon R. Stipp, of counsel), for appellees.
   JUSTICE LUND

delivered the opinion of the court;

Defendant appeals from an order of the circuit court of Vermilion County awarding attorney fees and penalties in an action to recover under an insurance policy for damages to a bowling alley destroyed by fire. The insurer, defendant Auto-Owners Insurance Company, refused to pay plaintiffs under the policy, claiming they had violated the policy terms by fraud, false swearing, misrepresentation made during the claim investigation process, and arson. At a hearing following the jury verdict in favor of plaintiffs, the trial court held that defendant’s refusal to pay under the policy had been vexatious and unreasonable and awarded attorney fees and penalties pursuant to section 155 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1989, ch. 73, par. 767). Defendant paid the judgment awarding the limit of coverage under the policy and appeals only the order granting attorney fees and penalties. Based on the facts stated below, we reverse.

In 1982, plaintiffs purchased the Pla-Mor Lanes bowling alley, located in Hoopeston, Illinois, from Robert and Ray Chestnut, for $225,000. The down payment of $50,000 was borrowed from the City National Bank of Hoopeston (Bank). The balance of $175,000 was to be paid to the Chestnuts in monthly payments of $1,774.96 over a 15-year period. In 1988, the $50,000 loan was refinanced and increased to $140,500 to cover the cost of new pinsetters. Monthly payments on this loan were $2,093. A second loan for $12,090 was taken out in 1989 to purchase additional repair parts. A third loan for $7,000 was taken out to repair the parking lot. This loan was an unsecured, single-payment note that would come due in September 1990. In March 1990, just prior to the fire, a loan of $16,000 was approved by the Bank but was still pending. At the time of the fire and destruction of Pla-Mor Lanes on April 11, 1990, all its contract and creditor obligations were current.

Defendant issued a commercial fire insurance policy to Kenneth and Joyce Morris in 1987. The policy provided for replacement coverage up to $325,000, plus personal property and equipment up to $80,000. The policy also covered business income or lost earnings up to $40,000. The policy had been purchased through L. Kincade and Associates Insurance Agency, where Joyce Morris had been employed since September 1989.

On April 11, 1990, at 9:51 p.m., a fire and explosion completely destroyed the building. Plaintiffs submitted a claim for insurance benefits on May 11, 1990, totaling $541,964.30. This claim was rejected as being in excess of the policy coverage of $445,000. An amended claim was filed on May 29, 1990, for the full policy limit of coverage, and this claim was denied on August 9, 1990. Defendant paid Robert Chestnut and Ray Chestnut $115,000 as additional insured parties and named beneficiaries under the policy. A sum of $137,968.19 was paid to the Bank as an additional named insured party and lien-secured creditor.

Plaintiffs contend that the insurer’s denial of their fire loss claim was vexatious and unreasonable. While the question of whether the insurer’s action and delay is vexatious and unreasonable is a factual one, it is a matter for the discretion of the trial court. Accordingly, the trial court’s determination will not be disturbed on review unless an abuse of discretion is demonstrated in the record. (Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 832, 433 N.E.2d 378, 383.) Section 155(1) of the Code states:

“Attorney fees. (1) In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $25,000;
(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.” 111. Rev. Stat. 1991, ch. 73, par. 767(1).

It is well established that no single factor, taken by itself, is controlling in determining whether an insurer is guilty of vexatious delay in refusing to settle. Rather, the totality of the circumstances, taken in broad focus, will determine the matter. (Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 124, 371 N.E.2d 1147, 1149.) A refusal to settle is not vexatious per se. If there is a bona fide dispute about coverage, delay in settling a claim may not violate the statute. (Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 999, 493 N.E.2d 638, 645.) In deciding whether attorney fees and penalties are appropriate under section 155 of the Code, we need only review the evidence existing prior to trial to determine the existence of a bona fide dispute.

The destruction of Pla-Mor Lanes was investigated by a total of five different arson investigators: a special agent for the United States Treasury Department, Bureau of Alcohol, Tobacco, and Fire Arms; two investigators for the Illinois State Fire Marshal’s office; as well as two professional investigators hired by the insurer. Each investigator filed reports concluding that the exact cause of the fire and explosion was unknown. Even so, four of the five investigators concluded that the fire was of incendiary origin, being intentionally set and accelerated. The fifth investigator, James Oliver of the Illinois State Fire Marshal’s office, concluded that the cause of fire was undetermined, suspicious in origin, and had reason to believe that the fire was “more intentionally set than accidentally set.”

These conclusions were based on the overall investigation, including the nature of the fire and explosion, elimination of other possible causes, and the short time frame between the time the last person left the bowling alley and the explosion. Another key factor was that money was stolen from the bowling alley safe and from a freezer associated with the lunch-counter operation on the premises. Other crimes committed in a building at the time of a fire are considered a common cover-up for arson.

The Morris home is located approximately one block north of the bowling alley. On the evening of the fire an employee, Clayton Hinkle, opened the back door of the bowling alley to see if Kenneth Morris was at his nearby home, which was within view from the door. Although he did not distinctly remember locking the door afterward, it was a habit for him to do so and he assumed that he had locked the door. After the fire, investigators found the door unlocked.

At the time of the fire, Joyce Morris was at home, talking on the telephone with the wife of Rick Lawson. Kenneth Morris, accompanied by Lawson, was driving out in the country just outside of town drinking beer. According to one of the arson investigators, Kenneth became very nervous when asked to describe exactly where he had gone on the night of the fire. He stated that he and Lawson drove to a bar in the East Lynn area. When reminded of the fact that East Lynn does not have a bar, Kenneth changed his story, stating that they drove to a bar in Rossville. When asked for the name of the bar and if anyone could verify they were there, Kenneth again changed his account, stating that they actually just rode around in the country.

About a week after the fire, Kenneth Gustine and his wife were driving down a road outside Hoopeston. In testimony, the road is often referred to as either the “Landfill Road” or “Lovers’ Lane.” The Gustines were smoking marijuana and driving around because they did not want to smoke in front of their children. As they were driving, they noticed a bowling bag about 10 yards off the road, underneath a tree. They retrieved the bag and found that it contained checks payable to Pla-Mor Lanes and its lunch counter. They decided to hold onto the bag, thinking they could profit in one manner or another. Kenneth Gustine considered the possibility of blackmail, but was unable to decide on a course of action. On cross-examination, he revealed that one year prior to the fire, Kenneth’s brother, Mike Morris, threatened to prosecute Nancy Gustine for writing some bad checks.

A few days later, the Gustines were again out driving and smoking marijuana on the “Landfill Road” when they passed a pickup going in the opposite direction. As the pickup passed, they recognized Kenneth Morris as the driver, with someone else in the passenger seat. Kenneth Gustine looked through his rearview mirror and saw Morris’ brake lights go on near the spot where they had previously found the bowling bag filled with checks. Nancy turned in her seat and verified these events.

Soon after, Timothy Crabtree drove down the road in the same direction as the Gustines. He drove past the parked pickup and recognized Morris and Lawson sitting inside. As he moved on, he noticed the Gustines and stopped to talk. They asked Crabtree whom he had seen in the truck and, after learning it was Morris and Lawson, they told Crabtree all about the bowling bag filled with checks. At this point, Gustine decided to hand over the bowling bag to the Hoopeston police. Crabtree was not drinking, nor did he smoke any marijuana.

A few days later, Crabtree attended a firemen’s ball in Hoopeston and claims to have overheard a conversation between Kenneth Morris and Trida Pierce. Morris allegedly talked about his activities on the night of the fire. According to Crabtree, Morris said that on the night of the fire he had been driving down the “Landfill Road.” According to Crabtree’s testimony, Morris’ statement established that he was driving past the same stretch of road where the bowling bag was eventually found. At trial, Pierce denied that Morris had ever spoken to her about this.

Kenneth Morris was given a polygraph test by the Illinois State Police to investigate whether he had participated in setting the fire. The results of these tests were only admitted into evidence at the hearing on the motion to award attorney fees. Police found indications of purposeful noncooperation on a number of specific questions, such as, “Did you plan with anyone to set fire to your bowling alley?” A second polygraph test was given, resulting in the same conclusion of purposeful noncooperation. Hinkle was also given a polygraph test. The test indicated deception when he denied planning to set fire to Pla-Mor Lanes. The examiner noted signs of purposeful noncooperation and, in a subsequent conversation with a Federal investigator, Hinkle admitted that he “helped” his polygraph examination by altering his respiratory rate.

Auto-Owner’s Insurance Company hired the accounting firm of Campos & Stratis of Hoffman Estates, Illinois, to evaluate the financial condition of the Pla-Mor Lanes bowling alley. The investigation found that while the bowling alley seemed to be generating cash, the partner’s draw was relatively flat and then fell in 1990. Sales had been declining since 1986. In a review of assets and liabilities just four months before the fire, it was shown that liabilities exceeded assets by $132,776.98. The report stated:

“We have seen no evidence that would suggest that the insureds’ financial condition had improved at the time of the fire. We have reason to believe that the financial condition was worse at the time of the fire than it was at December 31, 1989[,] based upon declining sales and profits.
*** [T]he business was not going to generate enough cash to remain current on loan payments. *** Cash would have had to have been put into the business just to break even for the year.
It is our opinion *** that the insureds’ financial condition would be greatly improved by receiving the claimed insurance policy limits. It is our opinion that Pla-Mor Lanes was insolvent and that future operations were not going to generate cash that would have improved its financial condition that would have enabled Pla-Mor Lanes to be a solvent, going concern.”

The report concluded that receiving the insurance policy limits of $445,000 would have enabled the insureds to pay off all outstanding liabilities and have excess cash totaling $181,000. This excess cash was calculated to be the equivalent of approximately 121/3 years of operating the bowling alley based upon projected cash profits for 1990.

We recognize that some of the evidence summarized above was successfully rebutted, in whole or in part, at trial. This fact is irrelevant to our inquiry. The proper focus of our determination is only whether defendant reasonably relied upon evidence sufficient to form a bona fide dispute. An arson defense to an insurance claim is most commonly established by circumstantial evidence and is comprised of three basic elements: incendiarism, access, and motive. (Dark v. United States Fidelity & Guaranty Co. (1988), 175 Ill. App. 3d 26, 31, 529 N.E.2d 662, 666.) Evidence of incendiarism was firmly established, as was evidence of financial motive.

Evidence of the second element, access, was limited to the fact that, at the time of the fire, Joyce Morris was at home, only one block away from the rear entrance of the bowling alley. She had keys to the premises, which were normally kept locked. The back door, which faced her home, was later found by fire investigators to be unlocked. When the fire started, she was talking on the phone with Rick Lawson’s wife. Kenneth Morris, accompanied by Lawson, was driving around the countryside just a few minutes from the bowling alley. Both Kenneth and Joyce rely on the Lawsons for their alibis.

The only evidence suggesting a direct link between the Morrises and the fire is testimony of Nancy and Kenneth Gustine and Timothy Crabtree. While this evidence suggests a connection involving Kenneth, it has no bearing on Joyce’s involvement. We agree with the trial court’s finding that defendant produced no evidence to connect Joyce to the fire loss. We note, however, that shortly after completing depositions in the case, defendant offered to settle with Joyce for one-half the proceeds available under the policy. The offer was made on May 30, 1991, and was conditioned upon her rebuilding or replacing the business, according to the policy terms. In October 1991, defendant was informed by its accountant that plaintiffs’ business interruption loss totaled $40,000, the limit of coverage. About a month later, defendant offered Joyce $20,000, one-half the value under the policy. Given the suspicious nature of the fire and surrounding circumstances, we find defendant was entitled to fully explore the possibility of Joyce’s involvement through the discovery process. The fact that an offer to settle was made soon after depositions were completed is sufficient to refute the trial court’s conclusion of vexatious delay.

In regard to Kenneth, the court found (1) the polygraph examination was inconclusive; (2) a failure of proof and no evidence to connect him to the fire; and (3) that it was unconscionable for defendant to rely on the testimony of the Gustines and Crabtree, which the court found noncredible. At the hearing on the motion for a finding of vexatious refusal held on February 28, 1992, the court stated its reasons for holding defendant’s reliance on the testimony of Kenneth Gustine and Crabtree to be unconscionable.

“These were people that, by their own admissions, ride out in the country, riding around, smoking marijuana, a substance which everyone knows can affect one’s ability to see and recall, one’s ability to perceive things (Hearing Transcript, February 28,1991, p. 51).”

Later, at a hearing on a post-trial motion, the court stated:

“The evidence that the company is relying upon appears to be the statements of the Gustines and Mr. Crabtree. And the Gus-tines I would find to be not credible witnesses. I think they are not. They had admitted they violated the law, which smoking marijuana or even having possession of marijuana is a violation of the Illinois Statutes. They admitted they had been, at least Mr. Gustine had admitted that he was thinking of blackmail, which certainly significantly affects his credibility. That’s a violation of the law.”

At the February 28, 1992, hearing, the trial court agreed that defendant had reasonably relied upon the opinions of the arson investigators who determined that the fire had been intentionally set. The court also found that it was reasonable to infer that whoever took the money from the safe and the lunch counter had inside information or knowledge regarding the location of the money. Defendant argues that the trial court’s only complaint was defendant’s reliance on the testimony of Kenneth Gustine and Crabtree. Defendant contends the court’s riding states, in effect, that defendant had a duty to reject the testimony of witnesses who were consuming marijuana during the time period that was the subject of their testimony.

We disagree. Although the possession and use of marijuana appears highly significant to the court’s decision, the court also considered a variety of other factors such as the Gustines’ thoughts of blackmail and the bad checks written by Nancy Gustine to Mike Morris. While we do not fault the trial judge for her negative evaluation of the Gustines as witnesses in determining the issues now before this court, the totality of the information available to defendant prior to trial must be considered. Missing from the court’s analysis is the fact that the Gustines’ testimony was corroborated by Crabtree, who was neither using marijuana nor drinking alcohol. Also missing is any mention of Crabtree’s testimony that he overheard Morris say that he was driving on the “Landfill Road” on the evening of the fire. Gus-tines’ and Crabtree’s testimony were relevant and probative. Perhaps the jury, as well as the court, rejected the Gustines’ testimony — but why should the defendant be charged with prior knowledge of the fact finder’s valuation of testimony?

We find the trial court’s emphasis on the credibility of the Gustines’ testimony to be out of proportion to the wide body of evidence relied upon by defendant in its decision to deny coverage. Defendant’s actions were based upon evidence which has as its foundation the reports of numerous certified experts concerning an event surrounded by a wealth of suspicious circumstances. There was evidence indicating that the fire was the result of arson, the bowling alley was in financial difficulty, Morris was seen parked in the country near a spot where checks stolen from the bowling alley were later found, and Morris changed his story regarding his whereabouts on the night of the fire. Morris’ purposeful noncooperation with the polygraph tests, while not admissible on the question of guilt, must also be considered in evaluating defendant’s decision to deny coverage.

The rule of law applicable to this case is adequately stated as follows:

“[T]he statutory penalty for vexatious refusal of an insurer to pay a claim should not be inflicted unless the evidence and circumstances show that such refusal was wilful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial-, and it is not enough that the judgment, after trial, is adverse to the insurer.” (Emphasis added.) (44 Am. Jur. 2d Insurance §1772, at 760 (1982).)

Furthermore, the statute from which the judgment is now appealed must be strictly construed, because the provisions are penal in nature and in derogation of the common law. 44 Am. Jur. 2d Insurance §1772, at 759 (1982).

We hold the evidence existing prior to trial was justification for the defendant’s position and the finding of vexatious litigation must be reversed.

Reversed.

McCULLOUGH and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    JAMES E. McKAY, Plaintiff-Appellant, v. PINKERTON’S, INC., et al., Defendants-Appellees.
    Third District
    No. 3-92-0275
    Opinion filed December 3, 1992.
    Rehearing denied February 5, 1993.

      James E. McKay, of Sterling, appellant pro se.

    Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee Pinkerton’s, Inc.
    Jonathon I. Fieldman, of Sidley & Austin, of Chicago, for appellee Iowa-Illinois Gas and Electric Company.

      Dennis R. Fox, of Califf & Harper, P.C., of Moline, for appellee Commonwealth Edison Company.
   JUSTICE STOUDER

delivered the opinion of the court:

The pro se plaintiff, James E. McKay, appeals from the dismissal of his claim against the defendants, Pinkerton’s, Inc., Commonwealth Edison Company (Edison), and Iowa-Illinois Gas and Electric Company (Iowa-Illinois). We affirm.

The record shows that the defendant was employed by Pinkerton’s as a security guard for a nuclear power plant owned by the other two defendants in this case. The plaintiff was an at-will employee who signed a contract with Pinkerton’s wherein he agreed that he would never reveal any information acquired during his employment to anyone except Pinkerton’s or to individuals he was required by law to inform.

The plaintiff admits that he revealed information learned in the course of his employment to Edison. Thereafter, on April 21, 1977, Pinkerton’s fired the plaintiff for violating the terms of his employment contract. Pinkerton’s stated that the reason for the dismissal was that the plaintiff had reported alleged safety and security violations at the Edison Nuclear Plant to third parties.

In the years since his termination, the plaintiff has repeatedly attempted to state a cause of action for wrongful discharge. With the help of five different attorneys, he has filed four complaints alleging a total of 21 counts. Finally, on March 13, 1992, after careful consideration, the trial court granted the defendants’ motions to dismiss the complaints. The court also denied the plaintiff’s motion for summary judgment against Pinkerton’s. The court, while expressing sympathy for the plaintiff, nonetheless found that the plaintiff had failed to sufficiently allege a cause of action against the defendants.

The record also shows that the underlying basis for all of the counts filed by the plaintiff was that his discharge was wrongful since he only disclosed the information to protect the lives and property of citizens from a nuclear disaster.

On appeal, the plaintiff first argues that the court erred in dismissing his complaints since he properly alleged a cause of action. Specifically, he contends that he alleged the tort of “retaliatory discharge,” and that his discharge violated a clearly mandated public policy.

A motion for summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c).) In ruling on the motion, the court should construe the pleadings, affidavits, and exhibits most strictly against the moving party and most liberally in favor of the opponent. Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 461 N.E.2d 612.

An employer may discharge an employee at will for any reason or for no reason at all, except when the discharge violates a clearly mandated public policy. In order to state a valid cause of action for retaliatory discharge, the plaintiff must allege that he was discharged in retaliation for his activities and that his discharge violated a clear mandate of public policy. (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354.) While there is no precise definition of what constitutes clearly mandated public policy, generally it concerns what is right and just, and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.

In the case at hand, the plaintiff alleged in his complaint that the termination of his employment contravened a public policy of protecting lives and property of citizens from hazards associated with radioactive material. Specifically, he argued that his termination violated section 5851 of the Atomic Energy Act (42 U.S.C. §5851 (1978)). This section protects employees who report nuclear hazards from being fired for reporting such violations.

Unfortunately for the plaintiff, this statute is not applicable to his case because it was not enacted until 18 months after his employment was terminated. As such, this statute cannot be used to show that his employer’s actions contravened a clearly mandated public policy. See Gould v. Campbell’s Ambulance Service, Inc. (1986), 111 Ill. 2d 54, 488 N.E.2d 993.

In addition, our research has failed to reveal any statute in existence at the time of the plaintiff’s termination which set forth a clearly mandated public policy regarding the reporting of nuclear safety violations. While such reporting may be in the best interest of the public, we must be mindful of the fact that the plaintiff signed a contract with Pinkerton’s which stated he would not reveal any information acquired in the course of his employment to anyone but Pinkerton’s or as required by law.

Since we are unaware of any law in effect at the time of his employment which required the plaintiff to report safety violations to anyone, we find that the plaintiff’s complaint failed to state a cause of action for retaliatory discharge. As such, we hold that the trial court properly allowed the defendants’ motions to dismiss those counts.

Based on this finding, we also uphold the trial court’s dismissal of the plaintiff’s counts which alleged that Edison and Iowa-Illinois were vicariously liable to him under a master-servant or principal-agent theory. As stated, the plaintiff failed to properly allege any underlying wrongful discharge by Pinkerton’s. As such, even if such relationships existed, these defendants would not be liable since the plaintiff failed to state a cause of action against Pinkerton’s.

We now turn to the plaintiff’s contention that Edison’s conduct amounted to tortious interference with his contract with Pinkerton’s. In count VI of his complaint, the plaintiff alleged that Edison advised Pinkerton’s that it should terminate the plaintiff’s employment for reporting safety violations to individuals other than Pinkerton’s.

The elements necessary to establish a prima facie cause of action for tortious interference with a contractual relationship are: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relationship; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) the subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages. Lusher v. Becker Brothers, Inc. (1987), 155 Ill. App. 3d 866, 509 N.E.2d 444.

We have already determined that the plaintiff was an at-will employee. Consequently, he had no enforceable contractual right against his termination. Edison therefore could not have tortiously interfered with his contract by urging his termination. Accordingly, we find that the court properly dismissed count VI of the complaint.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


author: JUSTICE GORMAN

text:
    EDWARD McINTYRE, Plaintiff-Appellant, v. STEVEN SIMNICK, Adm’r of the Estate of Thomas Simnick, Deceased, Defendant-Appellee.
    Third District
    No. 3-92-0256
    Opinion filed November 30, 1992.
    Roger C. Elliott, of Elliott & McClure, of Momence (Paul E Michel, of counsel), for appellant.
    Brittain & Ketcham, P.C., of Elgin (Daniel E. Compton, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This is an action for damages arising from an explosion of materials stored in defendant’s garage. Plaintiff’s first amended complaint was dismissed with prejudice for failure to state a cause of action. We affirm.

In June 1991, plaintiff Edward McIntyre filed a complaint alleging a cause of action for negligence under the doctrine of res ipsa loqui tur. After this complaint was dismissed without prejudice, plaintiff filed an amended complaint.

Plaintiff’s first amended complaint alleges that on September 2, 1990, defendant Thomas Simnick (now deceased) owned and possessed a home with detached garage in Gilman, Illinois. It also alleges that the garage and its contents and the surrounding premises were under the management and control of defendant. Plaintiff further alleges that defendant stored various flammable and explosive materials and instrumentalities, including pressurized storage tanks containing acetylene gas and large quantities of gunpowder, in the garage. Plaintiff alleges that on September 2, 1990, he was defendant’s guest in the garage. At approximately 2 a.m. on that date, an explosion occurred there and a fire engulfed the area. Plaintiff alleges that the explosion would not have occurred in the absence of defendant’s negligence and that plaintiff did nothing that caused or contributed to the explosion. Finally, plaintiff alleges that he suffered severe and permanent injuries as a result of the explosion.

Following the dismissal of plaintiff’s first amended complaint with prejudice for failure to state a cause of action, plaintiff did not move to amend the first amended complaint. Plaintiff appeals.

The issue for review is whether plaintiff has alleged a negligence cause of action under res ipsa loquitur.

The doctrine of res ipsa loquitur raises an inference of negligence from otherwise inexplicable facts and circumstances by allowing proof of general negligence through circumstantial evidence. (Imig v. Beck (1986), 115 Ill. 2d 18, 503 N.E.2d 324.) The application of the res ipsa loquitur doctrine is a question of law which must be decided in the first instance by the trial court. (Imig, 115 Ill. 2d 18, 503 N.E.2d 324.) Under the doctrine of res ipsa loquitur, the facts of the occurrence show prima facie the defendant’s negligence if the plaintiff establishes (1) that the occurrence is one that ordinarily does not occur in the absence of negligence and (2) that the defendant had exclusive control of the instrumentality that caused the injury. (Dyback v. Weber (1986), 114 Ill. 2d 232, 500 N.E.2d 8.) As to the element of control, the Restatement (Second) of Torts, §328D, Comment g, at 161 (1965) provides as follows:

“The plaintiff may sustain [its] burden of proof *** based on a showing of some specific cause for the event which was within the defendant’s responsibility, or a showing that the defendant is responsible for all reasonably probable causes to which the event can be attributed. Usually this is done by showing that a specific instrumentality which has caused the event, or all reasonably probable causes, were under the exclusive control of the defendant. Thus the responsibility of the defendant is proved by eliminating that of any other person.”

The appellate court will review the trial court’s grant of defendant’s motion to dismiss on the pleadings to determine whether the allegations in plaintiff’s complaint, interpreted in a light most favorable to plaintiff, are sufficient to state a cause of action upon which relief may be granted. Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 577 N.E.2d 1344.

In Powell v. Star Fireworks Manufacturing Co. (1987), 162 Ill. App. 3d 647, 515 N.E.2d 1280, plaintiffs sued the defendant, a fireworks manufacturer, for an explosion which caused property damage. Plaintiffs’ allegations stated that the explosion was caused by methane gas coming from a mine shaft on property which defendant owned. The gas allegedly came into contact with a boiler pilot light situated on defendant’s property and exploded. The appellate court affirmed the dismissal of the res ipsa counts. It noted that the allegations failed to show that the mine shaft was under the control of defendant. Even assuming control to be sufficiently alleged, the court found that the other circumstances alleged gave no indication that the explosion would not ordinarily have occurred absent negligence by the defendant.

Plaintiff argues that the storage requirements set forth under the Illinois Explosives Act (Ill. Rev. Stat. 1991, ch. 96½, par. 1—1001 et seq.) and several court decisions, including Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 207 N.E.2d 305, Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770, and Siniarski v. Hudson (1949), 338 Ill. App. 137, 87 N.E.2d 137, support an inference of negligence here. However, it cannot be said in this case that the explosion would not normally have occurred in the absence of negligence because plaintiff has not alleged what exploded or how it ignited. In the three cases above cited by plaintiff, the instrumentality causing the explosion and the source of ignition were identified. Here, under the allegations set forth, there could have been many reasons for this explosion, including arson or the ignition of household or lawn chemicals by a cigarette butt.

As to control, plaintiff asserts that Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569, establishes that exclusive control is not required, but rather that it is necessary only to show enough control to support an inference that the defendant was negligent. Although the pleadings were not set forth, the facts in that case showed that a chisel and piece of file had gotten into and damaged a boring mill gear box owned by defendant-counterclaimant. Plaintiff had repaired the gear box on three occasions; the gear box was normally sealed and required extensive operations to open; there was no evidence that the box was opened other than when it was being repaired; and plaintiff had the responsibility to supervise the laborers assisting him. In the instant case, using the Lynch court’s formulation of the amount of control required, plaintiff’s complaint fails to allege sufficient control by defendant.

Plaintiff makes a blanket allegation that defendant was in control of everything in and around the garage. However, there is no allegation that the gunpowder or acetylene gas exploded and there is no allegation specifying what instrumentality caused the explosion. Without an indication of what triggered the explosion or what exploded, there can be no circumstantial evidence that the instrumentality setting it off was within the defendant’s control or responsibility. In sum, because of these deficiencies, plaintiff’s amended complaint does not state a cause of action for negligence under the res ipsa loquitur doctrine.

We have considered remanding this case to allow plaintiff an opportunity to amend his complaint. We have rejected this option because plaintiff could have moved the trial court to change its order and to allow plaintiff leave to amend his pleadings. The trial court then could have exercised its discretion as to whether or not to allow plaintiff to amend. When plaintiff chose to file this appeal, that action was tantamount to standing on the pleadings.

Accordingly, for the reasons set forth above, the judgment of the circuit court of Iroquois County is affirmed.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE SLATER

text:
    WARREN OUWENGA et al., d/b/a Ouwenga Vegetable and Grain Farms, Plaintiffs-Appellees, v. NU-WAY AG, INC., Defendant-Appellant.
    Third District
    No. 3-92-0083
    Opinion filed December 3, 1992.

      Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (R.J. Lannon, Jr., of counsel), and Karen C. Eiten, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellant.
    J. Dennis Marek, of Ackman, Marek, Boyd & Simutis, of Kankakee (Robert W. Boyd, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Following a bench trial in the circuit court of Kankakee County, plaintiffs Warren, Sharon and Richard Ouwenga, d/b/a Ouwenga Vegetable & Grain Farms, were awarded judgment and damages against defendant Nu-Way Ag, Inc., for breach of an implied warranty arising from the sale of certain agricultural chemicals. On appeal, defendant contends that the trial court erred in: (1) finding that defendant breached an implied warranty of merchantability; (2) awarding damages for a crop loss on 48 acres; (3) awarding damages for lost trucking revenue; (4) awarding damages for “expenses associated with the kill”; and (5) awarding prejudgment interest. We affirm in part and reverse in part.

Plaintiffs own and operate a vegetable and grain farm. Defendant is in the business of providing herbicides and other chemicals to area farmers. In June of 1988, plaintiffs contacted defendant and requested application of a mixture of nitrogen and Treflan herbicide to certain fields on plaintiffs’ farm. On June 30, 1988, employees of defendant prepared three loads of chemicals and spread them over 50 acres of the farm. During the first load, the chemicals were applied to a 22-acre field identified as field 10. Field 10 was planted with cabbage seeds on July 1, 1988. Seven to ten days later, the cabbage plants on that field sprouted and died. Plaintiffs suspected that the problem was caused by heat stress or a condition known as crusting. They consulted with defendant, who assured them that the chemicals had been properly applied as requested.

On July 23, 1988, plaintiffs replanted field 10 with cabbage. When plaintiffs replanted the cabbage, they were forced to plant cucumbers instead of cabbage on another field, field 12, in order to keep to their harvesting schedule. Plaintiffs could not plant both field 10 and field 12 with cabbage at the same time because they did not have the labor and equipment necessary for the simultaneous harvest of both fields. The cabbage planted on field 10 again sprouted and died.

After the second failure of field 10, plaintiffs began to suspect a chemical kill. In early August, plaintiffs had a horticulture expert run soil tests on samples from field 10. The tests revealed that the soil contained metribuzine, a triazine commonly used for weed control on soybean crops. Metribuzine is injurious to cabbage. Plaintiffs have never used a chemical containing metribuzine. At the time defendant applied the chemicals to plaintiffs’ field, defendant carried a product containing metribuzine. Dr. John Masiunas, an expert in vegetable herbicides, examined field 10 on August 14. He concluded that the cause of the cabbage kill was an improper application of a chemical, probably a triazine.

Plaintiffs filed a two-count complaint alleging defendant breached an implied warranty of fitness for a particular purpose and an implied warranty of merchantability under the Uniform Commercial Code (111. Rev. Stat. 1989, ch. 26, pars. 2 — 315, 2 — 314) (the Code). Plaintiffs alleged that the chemical mixture sprayed on field 10 by defendant on June 30 contained metribuzine and that this caused the crop failure. Following a two-day bench trial the court entered judgment in favor of plaintiffs. The court awarded damages in the amount of $137,957.52 for lost cabbage crops on 48 acres, $15,434.44 for lost trucking revenue, and $2,713.85 for expenses associated with the kill. The court also awarded prejudgment interest on all damages except the lost trucking revenue.

We first address defendant’s contention that the trial court erred in finding that defendant breached an implied warranty of merchantability. Section 2 — 314 of the Code provides in relevant part:

“(1) Unless excluded or modified (Section 2 — 316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. ***
(2) Goods to be merchantable must be at least such as
(c) are fit for the ordinary purposes for which such goods are used.” (Ill. Rev. Stat. 1989, ch. 26, par. 2—314.)

Defendant argues that plaintiffs failed to establish that the chemicals used by defendant were not “fit for the ordinary purposes for which such goods are used.” In essence, defendant is claiming that plaintiffs failed to prove that defendant’s chemicals killed the cabbage. If the chemicals did kill the cabbage, they were certainly not fit for their ordinary purpose.

Whether an implied warranty has been breached is a question of fact, and the trial court’s determination on that issue will not be set aside unless it is against the manifest weight of the evidence. (Midland Supply Co. v. Ehret Plumbing & Heating Co. (1982), 108 Ill. App. 3d 1120, 440 N.E.2d 153.) It is well settled that the defective condition of a product can be shown by circumstantial evidence. Erzrumly v. Dominick’s Finer Foods, Inc. (1977), 50 Ill. App. 3d 359, 365 N.E.2d 684.

We find that the evidence presented by plaintiffs in this case, although completely circumstantial, was sufficient to support the trial court’s finding that defendant’s chemicals killed the cabbage on field 10. Soil tests on samples from the affected field revealed the presence of metribuzine, a triazine herbicide injurious to cabbage. Dr. Masiunas, a vegetable herbicide expert, examined the field in August of 1988 to determine the cause of the kill. He was able to rule out the possibility of a disease or insect problem, a drifting over of herbicide applied on adjoining fields, or chemicals being washed in from adjoining fields. Dr. Masiunas concluded that the cause of the kill was an improper application of a triazine herbicide such as metribuzine. The only herbicide used by plaintiffs contained no metribuzine. At the time defendant applied chemicals to plaintiffs’ field on June 28, 1988, defendant had a product in stock called Preview, which contained metribuzine. Most importantly, defendant applied three loads of chemicals to plaintiffs’ field on June 28. Defendant’s records showed that the first load covered 22 acres, the same 22 acres killed. Based on these facts, the trial court could reasonably conclude that defendant applied metribuzine to the field on June 28, thereby breaching an implied warranty to provide merchantable goods, to wit, chemicals suitable for use on cabbage.

Defendant contends that the trial court ignored the testimony of defendant’s employees who stated that Preview could not be mistaken for Treflan, and that on June 28, 1988, only Treflan and nitrogen were applied to plaintiffs’ field. The trial court was in the best position to weigh the evidence and judge the credibility of the witnesses, and we will not disturb its findings on these issues. DeLong v. Cabinet Wholesalers, Inc. (1990), 196 Ill. App. 3d 974, 554 N.E.2d 574.

Defendant also contends that it did not breach an implied warranty of fitness for a particular purpose. Our review of the record indicates that the trial court found a breach of an implied warranty of merchantability. Because we have affirmed that finding, we need not decide whether defendant also breached an implied warranty of fitness for a particular purpose.

Defendant next raises a number of issues concerning the amount of damages awarded to plaintiffs. Defendant first contends that the trial court erred in awarding damages for lost crop profits on 48 acres. Defendant acknowledges that lost profits are a proper element of damages for breach of warranty (Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168), and defendant raises no argument concerning the method and figures used by plaintiffs and the trial court to calculate the loss of profits per acre. However, defendant contends that the court erred in awarding damages for lost profits on the 26 acres identified as field 12 along with the affected 22 acres of field 10. Defendant argues that plaintiffs’ decision to replant field 10 with cabbage, and plant cucumbers instead of cabbage on field 12, was unreasonable and constituted a failure to mitigate damages. We disagree.

Ron Ouwenga testified concerning plaintiffs’ planting and harvesting schedule. Plaintiffs’ labor, equipment, and processing facilities allow them to harvest, process and transport 20 to 30 acres of cabbage in approximately two weeks. Plaintiffs plant fields every 10 to 14 days so that they will have a continuous harvest but will not be overburdened at any one time. By July 23, 1988, it was clear to plaintiffs that something was wrong with the cabbage on field 10. At that point, plaintiffs were preparing to plant field 12. Plaintiffs wanted to avoid replanting field 10 at the same time that they planted field 12 because they would not be able to harvest both fields simultaneously. Plaintiffs therefore decided to plant cucumbers on field 12 and replant field 10 with cabbage. Cucumbers have a shorter period of maturation than cabbage.

In light of what plaintiffs knew at the time, this decision was reasonable. On July 23, plaintiffs did not know, and had no reason to suspect, that the failure of field 10 was the result of a chemical kill. Plaintiffs had never suffered a chemical kill before. They first believed the crop failure may have been caused by a heat stress or crusting problem because they had had such problems in the past. Furthermore, defendant told plaintiffs that defendant had applied the proper chemicals as ordered by plaintiffs. Not until after the second planting of field 10 failed did plaintiffs suspect a chemical kill. Under these circumstances, plaintiffs’ decision to replant field 10 and plant cucumbers on field 12 to keep to the harvesting schedule was not unreasonable. If not for the failure of the crops on field 10, field 12 would have been planted with the more profitable cabbage, not cucumbers. The trial court properly included in the damage award the lost profits from the 26 acres of field 12, minus the profits realized on the cucumbers.

Defendant next contends that the trial court erred in awarding plaintiffs $15,434.44 for lost profits to their trucking operation. Defendant argues that plaintiffs failed to prove this element of damages with a reasonable degree of certainty. While it is not necessary that damages for breach of warranty be calculated with mathematical precision (Burras v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168), basic contract theory requires that damages be proved with reasonable certainty and precludes damages based on conjecture or speculation (Bockman Printing & Services, Inc. v. Baldwin-Gregg, Inc. (1991), 213 Ill. App. 3d 516, 572 N.E.2d 1094).

In this case, plaintiffs established that the chemical kill not only resulted in lost profits on the cabbage, but also caused a loss of profits to their trucking operation. Plaintiffs presented evidence to show that the market price of cabbage at the time during which the affected field would have been harvested was $6 per package. This figure was used to calculate lost profits. However, this price reflected the market price for cabbage purchased at plaintiffs’ farm. This did not include the profit plaintiffs make by hauling the cabbage to different parts of the country.

We find, however, that plaintiffs failed to present sufficient evidence to establish the amount of lost trucking profits with any degree of reasonable certainty. Ron Ouwenga compared the gross trucking revenue from November of “other years,” apparently 1987, with that of November 1988, and determined that gross revenue in 1988 was down approximately $15,000. He attributed this decrease to the fact that plaintiffs had less cabbage to haul in November of 1988 because of the chemical kill. However, plaintiffs were unable to establish a net loss of trucking revenue. Plaintiffs failed to offer any evidence of savings they realized as a result of the kill, such as fuel, labor and other expenses associated with the operation of their trucking fleet. Moreover, no evidence was presented to show how much cabbage was raised in 1987 or any “other years.” The evidence showed that the plaintiffs suffered through a severe drought in 1988. This may have affected plaintiffs’ trucking revenue as compared to other years, especially in light of the fact that plaintiffs’ revenues for grain hauling also decreased in 1988 by $20,000. Finally, no documented evidence of lost trucking profits was presented. The sum of the evidence concerning the amount of lost revenue consisted of the following testimony of Ron Ouwenga:

“Q. [Plaintiffs’ attorney]: Did you — in fact, were you able to determine for the month of November of 1988 what the comparison of gross revenue was compared to these other years?
A. Yes.
Q. And how did the gross trucking revenue compare to these other various years?
A. Fifteen thousand dollars and something. I don’t know the exact figure.
Q. So a number in excess of fifteen thousand dollars?
A. Yeah.
Q. Are you telling the Court this is the number that your trucking revenue was down for that one particular month?
A. For one month.
Q. Now, would all of this production have been done in just that one month?
A. Probably not the — probably—that’s a minimum for that month. It probably would have began a couple of weeks in October, toward the end of October and probably extended into December may be a week.
Q. So the trucking revenue in general was down substantially more than fifteen thousand in the principal month?
A. Yeah. And that was the most clear cut number we could come up with. That month would have been all that cabbage, so—
Q. Would your gross revenues reflect the fact that you were able to find some other work for those drivers?
A. Yeah, somewhat.
Q. And, obviously, if you are not hauling cabbage and the trucks are sitting you would have saved gasoline. Were, in fact, the trucks sitting or being operated?
A. They were being operated when we could find work for them. The work that we established for them was short term. You know, we had it on short notice, so we couldn’t lock in a good job. Much of the work and the main purpose of the work that we lined up was to keep the drivers busy. If we don’t keep them busy we have to lay them off and they’ll find a job else where.
Q. How would you compare the gross loss for November with what would have been the net loss? I mean, are you telling me that you really didn’t save any expenses at all?
A. Maybe some, but not much. It would be difficult to determine any expenses we would have saved.
Q. Let’s be generous now. About how much?
A. I don’t know. I would say a couple thousand dollars maybe.
Q. So a net loss of at least thirteen thousand?
A. I would say that would be fair. The — now the work that we did line up for the drivers was — what I am saying is it was strictly — you know, most of that we didn’t have planned. It was strictly to keep them busy. So for that work we may have not even broke even on that work. It’s just strictly to keep them busy because they’re available to us as employees.
Q. Whatever you generated by finding substitute work though, would have been reported in your gross revenues?
A. Yeah. That would be reported in the gross revenue.
Q. Even after that — reporting what that is, you still determined there is still a fifteen thousand plus loss?
A. Right. Right. And that — that number could be different too.”

In our opinion, a simple comparison between plaintiffs’ gross trucking revenue of November of 1988 and November of “other years” was an insufficient basis upon which to award damages. Without more evidence, an award based on that figure was purely speculative. Plaintiffs failed to establish with reasonable certainty the actual amount of lost profits suffered by its trucking operation as a result of defendant’s breach of warranty. Accordingly, we reverse the trial court’s award of $15,434.44 for lost trucking revenue.

Defendant next contends that the trial court erred in awarding plaintiffs $2,713.85 for “expenses associated with the kill.” This damage award suffers from the same infirmity as the award for lost trucking revenue discussed above. The evidence presented at trial on this item was simply insufficient to determine the extent of plaintiffs’ damages with any reasonable certainty. Plaintiffs presented no documentary evidence of this loss. The only evidence of these expenses consisted of a few brief statements in the testimony of Ron Ouwenga. He stated as follows:

“Q. [Plaintiffs’ attorney]: Tell me what your expenses have been with regard to trying to determine the loss and what— what was the contaminate.
A. We were requested to put together a report, which I did, of — well, a loss report. It took several weeks of my time. We paid for the soil tests that were taken.
Q. Do you remember what that was?
A. The exact number I don’t.
Q. What other expenses were there?
A. There are various administrative, office expenses, typing and things like that. Which this took several weeks. The paying for the experts to come in and look at the field.
Q. Did you pay them?
A. Well, we paid for entertainment for the day. Things like that.”

We are again compelled to find that plaintiffs failed to prove the amount of their damages with reasonable certainty. The award of $2,713.85 for “expenses associated with the kill” is therefore reversed.

Finally, defendant contends that the trial court should not have awarded prejudgment interest. We agree that the award was improper. The trial court relied on section 2 of “An Act in relation to the rate of interest ***” (Ill. Rev. Stat. 1989, ch. 17, par. 6402) to award prejudgment interest on the damages attributable to the crop loss and the expenses associated with the kill. Section 2 provides:

“Creditors shall be allowed to receive interest at the rate of five (5) per centum per annum for all monies after they become due on any bond, bill, promissory note, or other instrument of writing; *** and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1989, ch. 17, par. 6402.)

Absent an agreement between the parties, prejudgment interest is properly awarded only when specifically provided for by statute (Fen- ton v. Board of Trustees (1990), 203 Ill. App. 3d 714, 561 N.E.2d 105), and only if the damages are liquidated or subject to exact computation (Alguire v. Walker (1987), 154 Ill. App. 3d 438, 506 N.E.2d 1334).

Initially, we disagree with the trial court’s finding that the damages in this case were “clearly and simply ascertainable by computation.” Defendant had no way of knowing the extent of plaintiffs’ damages prior to litigation of this case. In fact, plaintiffs submitted alternative measures of lost profit damages to the trial court in their closing argument. Moreover, our determination that the damage award for “expenses associated with the kill” was improper because those damages were insufficiently proven defeats the claim that damages were subject to exact computation. See Alguire, 154 Ill. App. 3d at 448, 506 N.E.2d at 1431 (court’s determination that certain compensatory damage awards were improper defeated claim that damages were precisely measurable).

Even if the damages here were “simply ascertainable by computation,” prejudgment interest was not warranted in this case. Under the statute, plaintiffs would be entitled to interest only in the event of an “unreasonable and vexatious delay of payment” by defendant. Clearly, no such delay occurred in this case. Neither a good-faith dispute concerning the existence of a legal obligation nor the defense of a lawsuit can be regarded as an unreasonable and vexatious delay of payment. (Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, 565 N.E.2d 1021; Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) Here, it is apparent that defendant had a good-faith defense to liability. No action of defendant, other than defense of this suit, occasioned the delay in payment. For these reasons, we reverse the trial court’s award of prejudgment interest.

In summary, we affirm the trial court’s finding that defendant breached an implied warranty of merchantability. The award of damages in the amount of $137,957.62 for loss of the cabbage crop is affirmed. The damages awarded for expenses associated with the kill and loss of trucking revenue are reversed. The award of prejudgment interest is reversed.

Affirmed in part; reversed in part.

HAASE and McCUSKEY, JJ., concur.


author: JUSTICE McCUSKEY

text:
    MARILYN GEELAN, Indiv. and as Adm’r of the Estate of Brenda Geelan, Deceased, et al., Plaintiffs-Appellants, v. THE CITY OF KANKAKEE et al., Defendants-Appellees.
    Third District
    No. 3-92-0247
    Opinion filed December 14, 1992.
    Rehearing denied January 20, 1993.
    Law Offices of Harry A. Schroeder, of Chicago Heights (Harry A.. Schroeder, of counsel), for appellants.

      Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard, and Lorrie A. Vick, all of Baker & McKenzie, of Chicago (Thomas W. Cushing, of counsel), for appellee Illinois Central Gulf Railroad.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff appeals the trial court’s grant of summary judgment in favor of defendant in a negligence action involving an automobile collision with an underpass pier. Plaintiff contends the trial court erred in finding the plaintiff could not establish any facts showing proximate causation between defendant’s alleged negligence and the death of plaintiff’s decedent. We agree with the trial court’s findings and affirm.

Plaintiff, Marilyn Geelan, is the surviving parent and administrator of the estate of Brenda Geelan. Plaintiff’s decedent died from injuries she received in a single-vehicle collision on January 18, 1988. Plaintiff alleged that at 11:18 p.m. the decedent was driving an automobile westbound on East Brookmont Boulevard in Kankakee. Near 100 East Brookmont the road passed under a railroad trestle controlled by defendant, Illinois Central Gulf Railroad. The accident occurred when the decedent’s vehicle collided with an underpass pier.

Plaintiff sought recovery from defendant under the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) and pursuant to the Survival Act (Ill. Rev. Stat. 1987, ch. 110½, par. 27—6). Plaintiff alleged defendant was negligent in (1) “failing] to provide and maintain adequate and proper lighting and illumination under the said underpass,” and (2) “failpng] to provide and/or maintain down lights to illuminate the underpass pier.”

Defendant moved for summary judgment based upon the absence of evidence establishing any causal relationship between its alleged negligence in illuminating the underpass pier and the death of the plaintiff’s decedent. The trial court granted defendant’s motion. The trial court in its memorandum opinion found the plaintiff could not establish any proximate cause for the accident. The trial court determined that without the decedent’s testimony, it was not possible to know whether inadequate lighting caused the decedent to hit the underpass pier. The trial court also was unwilling to consider the possibility that plaintiff’s reconstruction expert could opine that poor lighting caused the accident.

We agree with the trial court’s finding that the plaintiff cannot offer any competent evidence to establish defendant’s alleged negligence was the proximate cause of the decedent’s accident. To establish proximate cause, a plaintiff must demonstrate with reasonable certainty that a defendant’s alleged negligence caused the injury for which plaintiff seeks recovery. (McInturff v. Chicago Title & Trust Co. (1968), 102 Ill. App. 2d 39, 46, 243 N.E.2d 657, 661.) Liability cannot be premised, however, upon speculation or conjecture. (D’Olier v. General Motors Corp. (1986), 145 Ill. App. 3d 543, 548, 495 N.E.2d 1040, 1044.) Without the decedent’s testimony, speculation is all the plaintiff can offer to show that poor lighting caused the decedent’s collision with the underpass pier.

We find the trial court properly relied upon the analysis and reasoning stated in Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 489 N.E.2d 409. The plaintiff in Monaghan was injured when he was thrown from his motorcycle. The plaintiff had no recollection of the circumstances of the accident, but he speculated that his motorcycle struck a median strip under construction. The plaintiff alleged the City of Park Ridge was negligent in failing to illuminate, barricade or warn of the median strip. (Monaghan, 140 Ill. App. 3d at 922-23, 489 N.E.2d at 409-10.) The court in Monaghan affirmed a grant of summary judgment for the defendant. The trial court found that even assuming the plaintiff struck the median strip, one would have to infer (1) he didn’t see the median strip, and (2) that he didn’t see it because of one or more of the city’s alleged breaches of duty (including the median strip’s lack of illumination). The Monaghan court determined the mere possibility that the plaintiff struck the median strip by reason of any alleged breach of duty by the city was insufficient to show proximate cause.

“[A]n inference of negligence cannot be established on inferences which are merely speculative in nature [citation]. *** [T]he inferences that plaintiff did not see the strip and that his failure to see it was due to alleged breaches by Park Ridge are merely speculative in nature. Moreover, assuming that plaintiff struck the median strip, the mere possibility that he did so by reason of any alleged breach of duty by Park Ridge is not sufficient to show proximate cause [citations].” (Emphasis added.) Monaghan, 140 Ill. App. 3d at 924-25, 489 N.E.2d at 411.

The trial court’s judgment in the instant appeal is also supported by the reasoning in Salinas v. Werton (1987), 161 Ill. App. 3d 510, 515 N.E.2d 142. In Salinas, the plaintiff’s decedent was hit by a van while assisting a tow truck operator. The van struck the decedent while he was standing on the shoulder of the road. The plaintiff alleged the tow truck operator was negligent in failing to place flares near the tow truck. The driver of the van was not available to testify in the action. (Salinas, 161 Ill. App. 3d at 512-13, 515 N.E.2d at 143-44.) The court in Salinas affirmed the trial court’s grant of summary-judgment on the grounds that it was pure speculation and conjecture as to what caused the van to leave the road and hit the decedent. The Salinas court reasoned as follows:

“Any inference that the van left the road because it could not slow down due to inadequate warning is based on pure speculation. It is possible that the driver of the van saw the flashing lights on the tow truck and slowed down, but nonetheless lost control of his van. It is also possible that the van left the road for reasons wholly unrelated to the presence of the tow truck. The circumstances must justify an inference of probability as distinguished from mere possibility. [Citation.] To submit this question to a jury would require them to make a determination of liability based upon impermissible inferences.” (Emphasis added.) Salinas, 161 Ill. App. 3d at 515, 515 N.E.2d at 145.

We note the reasoning in Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 510 N.E.2d 1176, is similarly instructive. In Waite the plaintiff was struck by a bus when he stepped into a reverse flow lane while crossing the street. The plaintiff argued that scaffolding could have obscured his vision of the oncoming bus. The court in Waite noted the plaintiff did not present any evidence that he looked in the direction allegedly obscured by the scaffolding. Waite affirmed the trial court’s entry of summary judgment in favor of the defendant and reasoned as follows:

“The mere possibility that a four-inch canopy support post might have obstructed plaintiff’s vision if he had looked to his left is insufficient to establish a causal relationship between defendants’ alleged negligence and plaintiff’s injuries.” (Emphasis added.) Waite, 157 Ill. App. 3d at 620, 510 N.E.2d at 1179.

Based upon our analysis and the reasoning of the preceding authorities, we conclude the plaintiff would be unable to present any evidence, other than mere speculation, as to why the decedent hit the underpass pier. Therefore, we affirm the trial court’s finding in favor of defendant.

Plaintiff also argues that the trial court improperly rejected the proposed testimony of her reconstruction expert. The plaintiff responded to defendant’s motion for summary judgment by arguing that her reconstruction expert would rely upon the physical evidence detailed in the coroner’s report in order to testify concerning the proximate cause of the accident. We find the trial court properly refused to consider the plaintiffs offer to produce a reconstruction expert.

• 2 First, the proposed expert’s testimony was not properly presented to the trial court in the form of a deposition or affidavit. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Second, none of the evidence the plaintiff’s reconstructionist would rely upon suggests the decedent could not see where she was going or that inadequate lighting proximately caused the accident. Plaintiff contends her reconstruction expert would have relied upon the following evidence: (1) 103 feet of skid marks prior to impact; (2) the car pinned against the east side of the trestle; (3) damage to the passenger side of the vehicle; and (4) damage to the center pillar of the underpass (suggesting decedent’s vehicle struck it). The expert’s reliance upon these facts for the purpose of showing the defendant’s alleged negligence would be mere speculation. Therefore, the trial court properly granted summary judgment in favor of the defendant because mere speculative inferences are insufficient to establish proximate cause.

Plaintiff also now argues for the first time that defendant’s alleged violation of a safety statute is evidence of defendant’s negligence. Plaintiff argues that rail carriers have a duty to maintain their property in a safe manner pursuant to the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1987, ch. 95½, par. 18c—7401). Although a violation of a safety statute is prima facie evidence of negligence, the plaintiff failed to allege any statutory violation in her complaint. Therefore, we decline to address this issue because a court of review, in the exercise of its appellate jurisdiction, cannot determine an issue not presented in the pleadings. Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 659, 422 N.E.2d 907, 914.

For the reasons indicated, we affirm the judgment of the circuit court of Kankakee County.

Affirmed.

BARRY, P. J., and STOUDER, J., concur.


text:
    WINSTON E. RAGON, Plaintiff-Appellant, v. GERALD L. DAUGHTERS, as Chief of Police of the Village of Creve Coeur, et al., Defendants-Appellees.
    Third District
    No. 3-92-0273
    Opinion filed December 22, 1992.
    G. Edward Orr, of Reardon, Orr & Dvorak, of East Peoria, for appellant.
    Rochford & Associates, of Peoria (Michael D. Gifford, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, Winston Ragon, filed a complaint in the circuit court of Tazewell County seeking administrative review of an order of defendant, Board of Fire and Police Commissioners of the Village of Creve Coeur (the Board), that terminated plaintiff’s employment with the Creve Coeur police department. The circuit court affirmed the decision of the Board and plaintiff appeals.

In May of 1990, plaintiff was hired by the Creve Coeur police department as a probationary police officer. In July 1990, Creve Coeur Police Chief Gerald Daughters ordered plaintiff to attend a basic training course at the Police Training Center (the Center) in Springfield. Plaintiff was instructed to attend classes beginning September 30 and continuing until December 14.

On October 1, Chief Daughters received a message on his answering machine from plaintiff indicating that he had left the Center and would not be able to attend classes due to a court hearing on October 3 concerning the custody of his child. Daughters contacted the director of the Center and arranged for plaintiff to be readmitted to classes if he returned after the court hearing on October 3. Daughters then ordered plaintiff to return to class immediately after his court appearance, and plaintiff told Daughters that he would do so.

On October 4, plaintiff contacted Daughters and told him that he had not returned to the Center because his court appearance had lasted until approximately 8:30 p.m. on the prior evening and additional court dates were scheduled. Daughters again contacted the Center and enrolled plaintiff in the class session beginning January 6, 1991.

Plaintiff contacted Daughters on January 6 and said that he was not going to attend class. Plaintiff stated that he was again having child custody problems and that he would present Daughters with a memorandum of explanation on January 7. Plaintiff went to Daughters’ office on January 9 to discuss the situation. Plaintiff indicated that he was not refusing to attend the training course but would rather attend at a different time, preferably during the summer when he could arrange child care.

Daughters filed charges against plaintiff with the Board alleging neglect of duty, disobedience of orders and absence from duty without leave. At a hearing before the Board on February 8, 1991, plaintiff admitted that he was guilty of the charges alleged in the complaint, but asked that the Board consider his personal problems as factors in mitigation. The Board found plaintiff guilty of the alleged misconduct and terminated his employment. The Board’s decision was affirmed by the circuit court on administrative review.

On appeal, plaintiff contends that he was not fired “for cause” as required by section 10—2.1—17 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17). That section provides that no officer may be dismissed except for cause upon written charges and after an opportunity to be heard at an impartial hearing. A “cause” for discharge has been defined as a substantial shortcoming which renders the employee’s continuance in office detrimental to the discipline and efficiency of the service, and something which the law and public policy recognize as good cause for no longer holding the position. Griggs v. North Maine Fire Protection Board of Fire Commissioners (1991), 216 Ill. App. 3d 380, 576 N.E.2d 1082; Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 449 N.E.2d 115.

We need not decide whether the evidence presented at the hearing was sufficient to discharge plaintiff for “cause” because plaintiff was a probationary officer. It is well settled that probationary police officers may be discharged for any reason and are not entitled to a pretermination hearing or prior written notice of charges. (Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422, 338 N.E.2d 397; Levitt v. Gorris (1988), 167 Ill. App. 3d 88, 520 N.E.2d 1169; Kapsalis v. Board of Fire & Police Commissioners (1986), 143 Ill. App. 3d 465, 493 N.E.2d 56.) In Romanik, our supreme court specifically held that “the protection afforded by section 10—2.1—17 does not extend to probationary officers.” (Romanik, 61 Ill. 2d at 425, 338 N.E.2d at 399.) Because plaintiff was a probationary officer, he was not entitled to a determination of “cause” for discharge.

Plaintiff contends that the Board was estopped from discharging him for anything less than “cause.” Plaintiff argues that because the Board afforded him the procedural protection of a hearing under section 10—2.1—17, the Board was also required to give plaintiff the substantive protection of that section, i.e., a determination that he was fired for “cause.” This argument is without merit. As discussed above, the “for cause” standard applies only to fully appointed officers and does not apply to probationary officers. The Board could have discharged plaintiff without written notice of the charges and without an opportunity to be heard. The fact that the Board held a hearing pursuant to section 10—2.1—17, a procedure which could only benefit plaintiff, does not mean plaintiff was entitled to the substantive protection afforded to fully commissioned officers under that section. See Doyle v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 449, 363 N.E.2d 79 (extension of additional due process rights, to the benefit of plaintiff, does not change the rule of Romanik).

Plaintiff contends that because the notice of hearing he received stated that the hearing would be held pursuant to section 10 — 2.1—17, he believed that he was entitled to the “for cause” standard set out in that section. However, the record clearly indicates that plaintiff knew throughout the course of these proceedings that, as a probationary officer, his discharge was subject to a lesser standard. Plaintiff himself told the Board that he recognized that he was not entitled to a “for cause” determination, and requested an extension of his probationary period, a punishment not provided for under section 10 — 2.1—17. Plaintiff was certainly aware of his probationary status and the ramifications of that status at his discharge hearing.

For the reasons stated above, the order of the circuit court of Tazewell County is affirmed.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GUTIERREZ, Defendant-Appellant.
    Third District
    No. 3—92—0069
    Opinion filed December 23, 1992.

      Richard H. Parsons, of Peoria, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovee, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Following a jury trial, the defendant, Robert J. Gutierrez, was convicted of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A—2), two counts of aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24—1.2(a)(2)), attempted residential burglary (Ill. Rev. Stat. 1991, ch. 38, pars. 8—4(a), 19—3(a)) and unlawful use of a weapon by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24—1.1(a)). The defendant was sentenced to concurrent terms of 20, 15, 15, 7, and 5 years’ imprisonment.

The defendant raises four issues on appeal: (1) whether he was denied his right to a fair trial because, during closing argument, the prosecutor improperly vouched for the veracity of the State’s witnesses and called the defendant and defense witnesses liars; (2) whether the State met its burden of disproving the defendant’s voluntary intoxication defense; (3) whether the prosecutor improperly placed the burden of proving the voluntary intoxication defense upon the defendant during his closing argument; and (4) whether the trial court abused its discretion in imposing sentence.

We reverse and remand for a new trial because we find that the prosecutor, in his closing argument, improperly argued that the burden was on the defendant to prove his intoxication defense. This improper argument denied the defendant his constitutional right to a fair and impartial trial.

At trial, three witnesses testified that they observed, from across the street, a long-haired man remove a screen from a window at the Schlarman House. The Schlarman House is a low-income residential facility located at 707 N.E. Madison Street in Peoria. This incident occurred at about 5 p.m. on June 5, 1991. After removing the screen, the long-haired man then went around a corner of the Schlarman House.

Virginia Churchhill, a 59-year-old resident at the facility, testified that, around 5:30 p.m., she saw the defendant in the area between the unlocked outside doors to the Schlarman House and the locked inside security door. Churchhill saw the defendant push over a small table and a newspaper vending machine. The defendant acted like he was trying to hide behind these items, and Churchhill thought he was sick or something. She opened the security door and asked him to move so that she could leave. The defendant then pushed his way into the building. Churchhill tried to push him out. She asked the defendant what he was looking for, but he did not say a word. She said he looked around like he was afraid. The defendant then pulled a small gun out of his pocket. He ran into the community room of the facility, and Churchhill went to call the police.

Georgia Morton, age 71, testified that she saw the defendant struggling with Churchhill. She stated the defendant looked “kind of wild,” like he did not know where he was or what he was doing. Morton also testified that the defendant had trouble getting the gun out of his pocket.

Three witnesses who were present in the community room testified that the defendant came into the room, turned a chair over, got behind the chair and fired the gun once or twice. One of the witnesses stated that the defendant “acted like he was scared or something.” The defendant tried to get out of a sliding glass door in the community room, which was locked, and then went out the door to the lobby.

Churchhill again saw the defendant when he came out of the community room. He tried to hide behind a small, round storage table he had knocked down and then fired more shots. One shot went into an apartment. Churchhill then ran back down the hall. She characterized the defendant’s behavior as “very strange.”

Priscilla Miller testified that she was a police officer and was called to the Schlarman House around 5:30 p.m. on June 5, 1991. Miller saw the defendant “staggering” across the lawn towards the road as she pulled up. When she saw a gun in his hand, she pulled her weapon and told the defendant to drop his gun. The defendant continued to walk toward her. Miller again yelled at him to drop his gun. The defendant then dropped his gun to the ground. Miller testified that she believed the defendant was under the influence of “something” when she came into contact with him. A stipulation was presented that a bullet found inside the Schlarman House was fired from the gun recovered from the defendant.

The defendant testified that he was 32 years old and had had problems with alcohol since he was 19. The defendant said he began drinking beer around 7 a.m. on June 5, 1991. He testified that he drank beer at home and at several different bars. The defendant estimated he drank that day “in the neighborhood of 50 beers.” He remembered going to his father’s bar about 3:30 p.m. The defendant remembered drinking some beer there and then telling someone that he was going home. The next thing he remembered was waking up in a police department holding cell. The defendant lived about 2V2 blocks from the Schlarman House. However, he said that he didn’t know anybody there and didn’t intend to steal anything.

The defendant’s father testified that he saw the defendant about 11:30 a.m. The defendant was supposed to work at his father’s bar that afternoon. However, he was too intoxicated to work. Joseph Delgado testified he saw the defendant coming out of a bar in downtown Peoria around 2:45 p.m. In Delgado’s opinion, the defendant was under the influence of alcohol. Lucky Hedgepeth, age 68, also testified for the defense. He was a resident at the Schlarman House and saw the defendant come out of the facility on June 5. He stated that the defendant’s face was chalky. Hedgepeth said the defendant looked glassy, like he was out of his mind or out in space.

Theodore Mathews testified he had been a clinical psychologist since 1968. He evaluated the defendant prior to trial. Mathews concluded the defendant had a borderline personality disorder complicated by chronic, severe alcoholism. Based upon the defendant’s reported drinking on June 5, 1991, Mathews concluded that it would not be unreasonable to expect a blackout. Mathews also concluded the defendant’s level of drinking would be consistent with the suspension of both judgment and reasoning. During cross-examination Mathews stated there would be some impairment of motor skills in a person who had consumed 50 beers and that such a person would have difficulty removing a screen.

In rebuttal, the State presented the testimony of Pat Rabe, a police detective, who interviewed the defendant approximately one hour after his arrest. Rabe testified that the defendant did not slur his speech or have any difficulty comprehending the questions put to him. Rabe also admitted that he observed the defendant earlier at the Schlarman House. Rabe concluded the defendant appeared to have been drinking or was under the influence of drugs when he first observed him at the Schlarman House.

During closing argument, the prosecutor argued that he believed the State’s witnesses were all credible. In discussing the testimony of the defense witnesses, however, he argued that it was “absolutely unbelievable.” The prosecutor also argued the defense witnesses had a motive to lie. Additionally, the prosecutor argued that either Mathews or the defendant was lying and that the defendant had to have lied at some point. In addition, the prosecutor argued that, “[bjeing drunk does not excuse your behavior. It simply isn’t the law.” He argued, “[t]hey state some absolutely unbelievable intoxication defense. It’s not there. They didn’t prove it. Mathews didn’t prove it. Mr. Gutierrez didn’t prove it.” Later, the prosecutor argued that the defense witnesses did not establish the intoxication defense. We note that no objection was made to any of the prosecutor’s comments either during the trial or in the defendant’s post-trial motion.

The defendant first contends on appeal that it was improper for the prosecutor to state his personal opinion regarding the credibility of the State and defense witnesses. The defendant concedes that his arguments must meet the plain error standard because there was no objection at trial and the issue was not raised in a post-trial motion.

A “prosecutor has the right to comment on the evidence, draw all legitimate inferences deducible from the evidence even if they are unfavorable to defendant, and comment on the credibility of the witnesses.” (People v. Johnson (1992), 149 Ill. 2d 118, 145, 594 N.E.2d 253, 267.) It is not permissible, however, for the prosecutor to state his personal opinion regarding the veracity of witnesses or to vouch for the credibility of witnesses. (People v. Roach (1991), 213 Ill. App. 3d 119, 124, 571 N.E.2d 515, 518.) After a careful review of the record, we conclude the prosecutor only briefly referred to his “belief” that the State’s witnesses were credible. Therefore, based on the evidence in this case, we cannot say that these prosecutorial comments were sufficiently egregious to constitute plain error.

The defendant next argues that the State’s evidence was not sufficient to meet its burden to prove beyond a reasonable doubt that the intoxication defense did not apply. As part of this argument, the defendant also points out that the prosecutor misstated the law regarding the intoxication defense when he argued that the defendant and the defense witnesses did not “prove” the defense.

A defense of voluntary intoxication exists where the intoxication is “so extreme as to suspend the power of reason and render [the defendant] incapable of forming a specific intent which is an element of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 6—3(a).) The intoxication must be so extreme as to suspend all of the defendant’s powers of reason. (People v. Kyse (1991), 220 Ill. App. 3d 971, 974, 581 N.E.2d 285, 287.) The defendant is correct that, once some evidence of an affirmative defense such as voluntary intoxication is presented, “the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 3— 2(b).) Thus, if the evidence presented is sufficient to raise the affirmative defense of voluntary intoxication, the burden is on the State to rebut that defense by proving beyond- a reasonable doubt that the defendant was aware of his actions at the time of the offense. People v. Ehrich (1988), 165 Ill. App. 3d 1060, 1067, 519 N.E.2d 1137, 1141.

The defendant contends that the State did not meet its burden because the evidence presented by both the State and the defense showed that the defendant had been drinking heavily, appeared to be under the influence of alcohol, and engaged in such bizarre behavior that his power of reason had to have been suspended. The defendant notes the evidence showed that he appeared “wild,” “glassy” and “out of his mind.” He also acted scared, inexplicably tried to hide behind several rather small objects, fumbled with his gun and did not say anything the entire time he was inside the Schlarman House. This behavior was described by a State witness as “very strange.” The first police officer on the scene testified that she saw the defendant “staggering” across the lawn and stated she thought the defendant was under the influence of “something.” The defendant also notes his expert witness concluded that the defendant’s level of drinking would be consistent with a blackout and with the suspension of judgment and reasoning.

The State argues the voluntary intoxication defense was not available to the defendant for the offenses of aggravated discharge of a firearm and the unlawful use of a weapon by a felon. The State contends that these offenses are general intent crimes rather than specific intent crimes. However, the State did not raise this argument in the trial court and did not object when a voluntary intoxication defense instruction regarding these offenses was given to the jury. The principle that an issue not raised in the trial court is considered waived applies equally to the State as well as the defendant in a criminal case. (People v. Adams (1989), 131 Ill. 2d 387, 395, 546 N.E.2d 561, 564-65.) Therefore, we find the State has waived this argument.

The State also responds that sufficient evidence was presented from which a jury could find that the defendant’s power of reason was not entirely suspended. The State relies on the defendant’s testimony, which showed that he had a clear, detailed memory of his actions earlier that day. The State also relies on evidence that the defendant was capable of removing a screen, was able to walk around the building and inside the Schlarman House, was able to understand the police officer’s order to drop his weapon, and was able to understand and answer questions one hour after the incident.

When the sufficiency of the evidence is questioned in a criminal case, the test to be employed on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found -the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) A jury’s guilty verdict may be affirmed where there is credible evidence upon which the jury could reasonably conclude that the defendant was not so extremely intoxicated at the time of the offenses that his power of reason was totally suspended. (Ehrich, 165 Ill. App. 3d at 1068, 519 N.E.2d at 1142; see also People v. Leger (1992), 149 Ill. 2d 355, 390, 597 N.E.2d 586, 601.) Also, a trier of fact is not obligated to rely upon the testimony of experts to the exclusion of lay testimony regarding the defendant’s degree of intoxication. Ehrich, 165 Ill. App. 3d at 1068, 519 N.E.2d at 1142.

From our review of the record, we find there was substantial evidence presented that the defendant was extremely intoxicated and engaged in very strange behavior. Based upon this evidence, a jury certainly could have concluded that the defendant’s power of reason was totally suspended. However, we note there was also substantial evidence presented from which the jury could infer (1) that the defendant was aware of his actions at the time of the offense, and (2) that the defendant’s intoxication was not so extreme as to suspend all of the defendant’s powers of reason. Therefore, based upon the Collins standard, after viewing the evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence presented from which the jury could find the defendant guilty of the essential elements of the crimes beyond a reasonable doubt.

The defendant, however, has also argued that the prosecutor misstated the law regarding the intoxication defense during closing argument. It is a basic principle of our criminal justice system that the prosecutor owes the defendant a duty of fairness. This duty extends throughout the trial and includes closing statements. Therefore, the prosecutor has an ethical obligation to refrain from presenting improper and prejudicial argument. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68; See I ABA Standards for Criminal Justice, “The Prosecution Function,” §§3—5.6, 3—5.8 (2d ed. 1982).

The State argues that the defendant has waived on appeal any argument that the prosecutor’s comments were improper concerning the voluntary intoxication defense because they were not objected to during trial. The State correctly points out that in order to properly preserve a matter for review, a trial objection and a written post-trial motion specifically articulating the issue sought to be raised are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) The defendant acknowledges this fact, but urges this court to address the issue under the plain error exception to the waiver doctrine.

In order to overcome the waiver doctrine, the defendant must establish that the error now complained of on appeal was a plain error. (People v. Carlson (1980), 79 Ill. 2d 564, 576-78, 404 N.E.2d 233, 238-39.) In other words, it must be plainly apparent from the record that an error substantially affecting the rights of the defendant occurred. (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227, 231.) The purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to a defendant so that he is not denied his right to a fair and impartial trial. People v. Underwood (1978), 72 Ill. 2d 124, 130, 378 N.E.2d 513, 516.

We note from the record that the defendant’s counsel did not object to the prosecutor’s closing argument. However, whether or not the prosecutor’s improper remarks were objected to at trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from the improper comments. Carlson, 79 Ill. 2d at 577, 404 N.E.2d at 239.

We believe that a grave injustice would occur if we accepted the State’s waiver argument. We find that it is plainly apparent from the record that the effect of the prosecutor’s improper closing argument denied the defendant his constitutional right to a fair and impartial trial. Therefore, we must, in order to preserve justice, invoke the plain error exception to the waiver doctrine.

The evidence concerning the defendant’s voluntary intoxication defense was very closely balanced. During closing argument, the prosecutor implied that voluntary intoxication was not a valid defense and repeatedly stated that the defendant and the defense witnesses did not “prove” or “establish” the intoxication defense. However, it was, in fact, the State’s burden to prove beyond a reasonable doubt that the intoxication defense did not apply because the defendant was aware of his actions when the offenses were committed. The State argues that the prosecutor did not misstate the law because he was simply commenting on the defendant’s failure to present “some evidence” to support his affirmative defense. We cannot agree. In this case, adequate evidence was clearly presented in support of an intoxication defense. We note that the State’s own witnesses testified the defendant engaged in extremely bizarre behavior and was “under the influence.” Thus, this was not a situation where a reasonable argument could be made that the State did not need to prove that the defense did not apply. We therefore conclude that the prosecutor’s closing argument can only be interpreted as a statement that the defendant had to prove his defense of voluntary intoxication. We find the prosecutor’s argument to be a clear misstatement of the law.

It is reversible error for the prosecution to attempt to shift the burden of proof to the defense. (Leger, 149 Ill. 2d at 399, 597 N.E.2d at 606; see also People v. Wilson (1990), 199 Ill. App. 3d 792, 797, 557 N.E.2d 571, 574.) This is true notwithstanding the fact that the jury is otherwise properly instructed regarding the burden of proof. (People v. Weinstein (1966), 35 Ill. 2d 467, 471, 220 N.E.2d 432, 434; People v. Lopez (1987), 152 Ill. App. 3d 667, 677, 504 N.E.2d 862, 869.) When an error is not properly preserved for review in a criminal case, as here, the plain error doctrine may be invoked where the evidence is closely balanced or where the error is of such magnitude that the defendant was denied a fair trial. People v. Ward (1992), 154 Ill. 2d 272, 294.

We cannot say with a reasonable degree of certainty that the prosecutor’s improper argument did not contribute to the defendant’s guilty verdicts. Also, we cannot say that the jury could not have reached a contrary verdict had the improper argument not been made. Therefore, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Because we have reversed the defendant’s convictions, we need not consider the defendant’s final contention that the trial court abused its discretion in imposing sentence. However, we do dismiss as ludicrous the defendant’s suggestion that the court erred when it did not order a TASC (Treatment Alternatives to Street Crime) evaluation because the defendant clearly would not be eligible for the TASC program.

For the reasons indicated, the judgment of the circuit court of Peoria County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

BARRY, P.J., and SLATER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAY SCOTT CLARK, Defendant-Appellant.
    Third District
    No. 3-92-0048
    Opinion filed December 23, 1992.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Clay Scott Clark, was convicted of murder and sentenced to 26 years of imprisonment (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)). He filed a direct appeal and this court affirmed his conviction. (People v. Clark (1988), 165 Ill. App. 3d 210, 518 N.E.2d 763.) The defendant then filed a post-conviction petition, which the court dismissed as frivolous and patently without merit. The defendant appeals.

The defendant filed a pro se petition for post-conviction relief on December 12, 1991. On December 20, 1991, a hearing was held in the defendant’s absence. At that hearing, the State orally moved to dismiss the defendant’s petition because it was patently without merit. The State supported its argument by referring to relevant case law. The sole issue on appeal is whether the trial court was improperly tainted by the State’s premature motion to dismiss.

The defendant argues that the trial judge did not follow the proper procedure pursuant to the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.). Specifically, he argues that the State was improperly allowed input into the trial judge’s summary dismissal of the petition, and that the petition was dismissed pursuant to the State’s oral motion to dismiss. Accordingly, the defendant argues that the dismissal must be reversed and the cause should be remanded for the appointment of counsel and further consideration under sections 122 — 4 through 122 — 6 of the Act. We agree. Therefore, we reverse and remand.

The State contends that People v. Mitchell (1991), 218 Ill. App. 3d 401, 578 N.E.2d 297, is controlling. We disagree. In Mitchell, this court recognized that neither the Post-Conviction Hearing Act nor case law states that premature filing of a motion to dismiss by the State per se contaminates the process and precludes the trial judge from independently determining whether a post-conviction petition has any merit. This court went on to note that the trial judge’s finding showed an analysis of the petition which did not indicate reliance on the State’s motion to dismiss. We believe that the State’s reliance on Mitchell is misplaced.

The defendant supports his argument with the case of People v. Merritte (1992), 225 Ill. App. 3d 986, 589 N.E.2d 190. In Merritte, this court held that premature input by the State had tainted the trial court’s independent decision on its dismissal of the defendant’s post-conviction petition. The facts of Merritte show that the State argued its motion to dismiss at length before the court. Further, in Merritte, the trial court dismissed the defendant’s petition “based on the reasons stated by counsel in his argument.” We find Merritte controlling in this appeal.

In the instant case, like Merritte, the trial judge’s dismissal of the post-conviction petition was tainted by the State’s premature motion to dismiss. The State orally argued that the defendant’s petition was patently without merit. Further, the State used case law to support its oral argument and supplemented its motion with copies of two cases. In a written order, the trial court dismissed the petition “upon representations of the People in a review of the Court file[.]” In accordance with Merritte, and based upon the court’s written order, we find that the State’s premature motion and oral argument clearly tainted the trial court’s decision.

Consequently, we reverse the judgment of the circuit court of Will County and remand for further proceedings.

Reversed and remanded.

BARRY, P.J., and STOUDER, J., concur.