text:
    LOREN DUNN, as Adm’r of the Estate of Reta Bryant, Deceased, Plaintiff-Appellee and Cross-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant and Cross-Appellee (George Shaw, Defendant).
    Fourth District
    No. 4—90—0606
    Opinion filed June 26, 1991.
    Rehearing denied July 25, 1991.

      Lord, Bissell & Brook, of Chicago, and Craig & Craig, of Mattoon (Hugh C. Griffin, Nancy Shaw, Richard F. Record, Jr., and Kenneth F. Werts, of counsel), for appellant.
    ■ Brent D. Holmes and Mitchell K. Shick, both of Heller, Holmes, Hefner & Eberspacher, Ltd., of Mattoon, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On September 12, 1986, plaintiff Loren Dunn, as administrator of the estate of Reta Bryant, deceased, filed suit in the circuit court of Coles County against defendants Illinois Central Gulf Railroad Company (ICG), George Shaw, and Elmer Black. Damages were sought for the allegedly wrongful death of the decedent and funeral expenses incurred as a result of a train, owned and operated by ICG, on its property striking an automobile operated by decedent on October 30, 1984, at Neoga. Subsequently, amendments were made whereby Black was dismissed as a defendant and ICG or Shaw was charged in the first four counts with negligence. In the fifth count, ICG was charged with wilful and wanton violation of section 73 of “An Act concerning public utilities” (Act) (Ill. Rev. Stat. 1983, ch. lll2/3, par. 77) and Illinois Commerce Commission (Commission) regulations pursuant thereto. Punitive damages and attorney fees for plaintiff were requested in that count.

On April 4, 1990, following a jury trial, the circuit court entered judgments on the following verdicts: (1) in favor of defendant Shaw, who was the engineer of the train; (2) in favor of plaintiff and against ICG, finding ICG guilty of negligence and awarding compensatory damages in the sum of $453,048.75 (the jury found total damages in the sum of $604,065 but found the decedent guilty of 25% contributory negligence which required reduction); and (3) in favor of plaintiff and against ICG for $425,000 punitive damages because of ICG’s wilful and wanton violation of the Act and resultant regulations (the jury found total punitive damages in the sum of $500,000 but found decedent guilty of 15% contributory wilful and wanton conduct also requiring reduction). In a post-trial proceeding, the court awarded plaintiff’s attorney fees in the sum of $351,219 pursuant to section 73 of the Act.

The jury answered “yes” to a special interrogatory inquiring whether ICG had violated one or more rules of the Commission, or one or more provisions of the Act.

The ICG appeals the portion of the judgments awarding punitive damages and attorney fees. It contends (1) because of the time frame of legislative amendments, plaintiff had no right to recover under section 73 of the Act; (2) the evidence was insufficient to permit the jury to find it guilty of wilful and wanton violation of the Act or Commission regulations; (3) the punitive damages award should have been reduced by 25% rather than 15%; and (4) the attorney fees award was unreasonable. Plaintiff has cross-appealed the same portion of the judgments, maintaining that (1) any reduction of the punitive damages award on comparative fault principles is contrary to public policy; (2) the evidence did not justify any reduction of that award for comparative fault; and (3) in addition to attorney fees, the circuit court should have awarded plaintiff expenses.

At the time of the collision causing decedent’s death, section 73 of the Act stated in pertinent part:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.
In every case of a recovery of damages by any person or corporation under the provision of this section, the plaintiff shall be entitled to a reasonable attorney’s fee to be fixed by the court, which fee shall be taxed and collected as part of the costs in the case.” (Ill. Rev. Stat. 1983, ch. lll2/3, par. 77.)

At that time, section 10.3(a) of the Act included within the definition of the word “[pjublic utility” any entity

“that owns, controls, operates or manages, within this State *** for public use, any *** property used *** for ***:
(a) the transportation of persons or property.” Ill. Rev. Stat. 1983, ch. lll2/3, par. 10.3(a).

The dispute over the right of plaintiff to recover under section 73 of the Act arises from three amendatory acts of the legislature enacted in 1985 during the same General Assembly and all having the effective date of January 1, 1986. ICG maintains the combined effect of this legislation was to nullify the statutory remedy by which plaintiff obtained punitive damages and attorney fees in a proceeding which was initiated after the effective dates of the three acts. ICG contends the legislation did not save statutory rights of action arising under the Act and, accordingly, the new legislation should be given a retroactive effect. (Clouse v. Heights Finance Corp. (1987), 156 Ill. App. 3d 975, 977, 510 N.E.2d 1, 2; see Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034.) Plaintiff denies that the new legislation destroys its rights to seek punitive damages and attorney fees. We agree with plaintiff.

Public Act 84-796 (Pub. Act 84-796, eff. Jan. 1, 1986 (1985 Ill. Laws 4856)) was passed on June 27, 1985, and created an Illinois Commercial Transportation Law (CTL) (Ill. Rev. Stat. 1985, ch. 951/2, par. 18c — 1101 et seq.). The legislation was stated to intend to “facilitate a coordinated approach to regulation of motor carriers, rail carriers” (Ill. Rev. Stat. 1985, ch. 95*12, par. 18c — 1102(a)). That legislation made no provision for recovery of punitive damages for violation of its provisions of Commission regulations or for the award of attorney fees incident to any recovery for such violations. Public Act 84 — 796 also amended section 10.3 of the Act to provide that a “[rjailroad” does not come within the definition of a “[pjublic utility.” 1985 Ill. Laws 4856, 4937-38; see Ill. Rev. Stat. 1985, ch. lll2/3, par. 3 — 105.

Then, on June 30, 1985, the General Assembly passed Public Act 84-617 (Pub. Act 84-617, eff. Jan. 1, 1986 (1985 Ill. Laws 3980)), which was designated as the Public Utilities Act (1985 Utilities Act) (Ill. Rev. Stat. 1985, ch. lll2/3, par. 1 — 101 et seq.). Section 3 — 105 of the 1985 Utilities Act, as contained in Public Act 84 — 617, included railroads within the definition of a “[p]ublic utility” (Ill. Rev. Stat. 1985, ch. lll2/3, par. 3 — 105; see 1985 Ill. Laws 3980, 3990-91) but, as we will explain, this provision was subsequently removed from the 1985 Utilities Act by Public Act 84 — 1025 (Pub. Act 84 — 1025, eff. Jan. 1, 1986 (1985 Ill. Laws 6534)). Section 5 — 201 of the 1985 Utilities Act (Ill. Rev. Stat. 1985, ch. lll2/3, par. 5 — 201) contained the same provision for civil damages, including punitive damages and attorney fees, as did section 73 of the Act which was in force until January 1, 1986. Section 4 — 205 of the 1985 Utilities Act stated, in part:

“This amendatory Act of 1985 shall not have the effect to release or waive any right of action by the State, the Commission, or by any body politic, municipal corporation, person or corporation for any right or penalty which may have arisen or accrued or may hereafter arise or accrue under this Act or any law of this State.” Ill. Rev. Stat. 1985, ch. lll2/s, par. 4 — 205.

Finally, on October 30, 1985, Public Act 84 — 1025 was passed. It amended the 1985 Utilities Act in various ways. Section 3 — 105(a) of the 1985 Utilities Act was amended to strike reference in subsection (a) thereof to the term “[p]ublic utility” including entities engaged in “the transportation of persons or property” (1985 Ill. Laws 6534, 6538; see Ill. Rev. Stat. 1985, ch. lll2h, par. 3 — 105(a)). Public Act 84 — 1025 also added language to section 1 — 102(d) of the 1985 Utilities Act to set forth a State policy that the 1985 Utilities Act “shall not apply in relation to motor carriers, rail carriers *** as defined in the [CTL]” (1985 Ill. Laws 6534, 6535; see Ill. Rev. Stat. 1985, ch. lll2/3, par. 1 — 102(d)). Unlike Public Act 84 — 617, Public Act 84 — 1025 did not purport to save any right arising under prior legislation.

Where, as here, several acts on the same subject are passed during the same General Assembly, the legislative record is open for examination. (People ex rel. Brenza v. Fleetwood (1952), 413 Ill. 530, 548, 109 N.E.2d 741, 751.) The most logical explanation for the three acts is (1) the legislature intended to separate the regulation of public transportation from that of entities, such as electric utilities, serving the public in other ways; (2) Public Acts 84 — 796 and 84 — 617 were intended to accomplish this; (3) for some reason Public Act 84 — 617 continued to refer to transportation entities even though this was contrary to the general intent of the General Assembly; and (4) Public Act 84 — 1025 was revisionary legislation enacted for the purpose of making the 1985 Utilities Act consistent with that intent. That the foregoing was the legislative intent is explained by the statements of the House cosponsors of House Bill 740 (84th Ill. Gen. Assem., House Bill 740, 1985 Sess.), which became Public Act 84 — 1025, Representative Breslin and Representative Hastert. Representative Breslin explained the bill was for the purpose of reconciling the CTL and the 1985 Utilities Act. (84th Ill. Gen. Assem., House Proceedings, Oct. 30, 1985, at 135 (statements of Representative Breslin).) Representative Hastert explained that reference to transportation entities had remained in the 1985 Utilities Act because of fear that Public Act 84— 796 might not pass, leaving railroads and other transportation entities without regulation. 84th Ill. Gen. Assem., House Proceedings, Oct. 30, 1985, at 137 (statements of Representative Hastert).

Thus, the clear legislative intent was to divide regulation between CTL and the 1985 Utilities Act. As the Act was the vehicle by which existing statutory rights of action arose, the 1985 Utilities Act, Public Act 84 — 617, was the logical vehicle for preserving those rights, which was the aim to be accomplished by the savings clause in section 4— 205 of the 1985 Utilities Act to which we have referred. Had the 1985 Utilities Act in its present form, with coverage of railroads and other transportation entities eliminated, been enacted first and with its savings clause, no reasonable argument could be made that any cause of action under section 73 of the Act possessed by plaintiff had been extinguished. Defendant’s theory has plausibility only because Public Act 84 — 617 contained references to transportation entities not intended to be in the final form of that legislation. Furthermore, the significance of Public Act 84 — 796 being passed prior to Public Act 84 — 617 is greatly diminished by the fact that both acts took effect at the same time.

As correctly cited by plaintiff, section 6 of the Statute on Statutes states:

“Two or more Acts which relate to [the] same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict.” (Ill. Rev. Stat. 1989, ch. 1, par. 1105.)

Accordingly, we construe this legislation together in a way to give full effect to each act according to what we have described as the clear legislative intent. We hold that any action which plaintiff had under section 73 of the Act was not extinguished by the three acts or any one of them. Our decision is consistent with the rule that, ordinarily, amendatory acts should be construed to have only prospective application. Wilson-Raymond Constructors Co. v. Industrial Comm’n (1980), 79 Ill. 2d 45, 54-55, 402 N.E.2d 584, 589.

The following facts surrounding the tragic collision giving rise to this case are undisputed. The collision occurred on October 30, 1984, a warm and hazy but dry fall day, at approximately 12:14 p.m. Prior to the collision, decedent, Reta Bryant, was traveling north on U.S. Route 45 in Neoga and turned left onto Ninth Street. She then proceeded across ICG tracks at a speed of approximately 10 miles per hour. Ninth Street was at least a 17-foot-wide oil-and-chip gravel street which intersected the tracks at a 90-degree angle. The crossing was protected only by standard railroad crossbuck signs on each side of the crossing and a sign on the crossbucks which warned of the presence of “two tracks.” Also on either side of the crossing on Ninth Street, approximately 28 feet on either side of the crossing, black and yellow warning signs had been placed. Plaintiff’s experts agreed the signs were properly placed and maintained. The ICG passenger train which collided with the automobile driven by decedent was traveling in a southerly direction at approximately 80 miles per hour. Decedent had completely crossed the northbound track and had almost completed crossing the southbound track when the back part of the automobile was hit by the engine of the train.

The allegations, which formed the basis for plaintiff’s request for punitive damages for violations trader section 73 of the Act, were contained in amended count V of the complaint. Plaintiff alleged there that ICG violated valid Commission regulations in that it (1) knowingly failed to construct pavement for the Ninth Street crossing which was 18 feet or greater in width; (2) failed to construct or reconstruct approaches to the crossing which were level for the two feet nearest the crossing and had a grade of no greater than 1% for the next 25 feet from the crossing; (3) failed in the same manner in allowing a grade in excess of 5% for the portion of Ninth Street east of the crossing which was within ICG’s right-of-way; (4) failed to clear brush from the right-of-way for a distance of not less than 500 feet from the crossing; (5) failed to construct and maintain the crossing and its approaches in such a way as to make it safe; and (6) knowingly drove and operated the train at an excessive speed. Allegations (3), (4), and (5) were also alleged to set forth violations of section 58 of the Act (Ill. Rev. Stat. 1983, ch. lll2/3, par. 62), which set forth various requirements for railroad grade crossings.

The major thrust of plaintiff’s proof of the statutory and rule violations alleged in count V come from the testimony of Dr. John Baerwald, an expert in and retired professor of traffic engineering at the University of Illinois. He testified that, in his opinion, defendant was in violation of each of the statutory and rule provisions. Testimony had been presented that the width of the Ninth Street approach to the crossing from the east, which was entirely on ICG property, was 17 feet rather than 18 feet. He did not give that substantial significance, but indicated that the narrow nature of the approach tended to cause a driver to concentrate more on the possibility of vehides coming in the opposite direction than of the presence of trains on the track. He recognized evidence that Route 45 was 85 feet east of the east track and that the grade of the track was 10 feet higher than Route 45. Accordingly, the grade of the approach was much steeper than the permissible grade of 5%. He maintained this also tended to cause a driver coming from the east to concentrate upon the difficulty of getting across the track rather than watching for oncoming trains.

Dr. Baerwald also testified that the steep grade of the access diminished the view of the driver approaching the crossing. In assessing the dangerous nature of the crossing as a whole, Dr. Baerwald noted substantial obstruction in the southwest and southeast quadrant of the crossing, consisting of sheds to the south and trees to the north. He explained this did not affect the collision which is the subject matter of this case, but it did bear upon the hazardous nature of the crossing and the reasonableness of requiring that the crossing be closed or flasher lights installed. He also deemed some obstruction to exist as to the decedent’s view of the oncoming train had she looked to the north. Photographs of the scene at the time indicate some very low brush on that part of the right-of-way. Evidence introduced at trial indicated brush around the sign warning of two tracks which could have been three or four feet high. However, this brush was not very wide and would not have obstructed the decedent’s view to the north as she drove up the approach. Dale Frances, an expert consulting engineer called by plaintiff, admitted no brush on the right-of-way within 500 feet north of the crossing obscured the decedent’s view.

Dr. Baerwald testified that in determining the protection necessary at a railroad crossing, consideration should be given to (1) the condition of the approach, (2) the grade of the approach, (3) the width of the approach, (4) the obstructions to view, and (5) the traffic. From information he had obtained concerning the average number of vehicles using the crossing per day and the number of trains using the tracks, he reached an opinion that the crossing was very hazardous. He reached this opinion even though the records indicated that no collision had occurred there in the past five years. Testimony had been presented of several near misses in those five years and of collisions more than five years earlier. He concluded that flasher lights should have been installed or the crossing closed.

The undisputed evidence shows an ICG field engineer had studied the Ninth Street crossing and recommended to ICG that the crossing be closed. Further undisputed evidence showed ICG officials attempted to get Neoga officials to agree to closing of the crossing, but these officials refused to do so. Apparently, two other crossings were within the Neoga city limits and were protected by flashers and Neoga officials feared these crossings would be too busy if the Ninth Street crossing was closed. They recommended the crossing be protected by lights and gates. Evidence was introduced that ICG officials refrained from seeking Commission permission to close the crossing because of a perceived practice of the Commission to deny closure requests when municipal officials objected. ICG officials did consider installation of flashing lights but rejected the idea.

ICG does not dispute that the foregoing evidence was sufficient to support the determination of the jury that it was guilty of negligence which was a proximate cause of decedent’s death. It does not claim error in the judgment for compensatory damages. It disputes that the evidence can support a determination it wilfully and wantonly violated the Act and Commission regulations enacted pursuant to the Act.

In maintaining the evidence supported the award of punitive damages under section 73 of the Act, plaintiff relies most strongly upon the upholding of such awards in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929, and National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919. In Churchill, the defendant railroad had continued to obscure a crossing by storing boxcars on a side track after previous accidents at the crossing and after constant requests by local authorities to refrain from doing so. The crossing was protected by flasher lights, which were in operation. In National Bank, the view of the decedent at a crossing without gates or lights was obscured by trees, shrubbery, and a house, all on railroad property, until a vehicle was virtually on the tracks. The engineer of the train striking the automobile carrying the decedent testified he did not see the vehicle until the moment of the collision. Plaintiff also cites the decision of this court in Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199, wherein a plaintiff was permitted to recover punitive damages pursuant to section 73 of the Act. The crossing where that collision occurred was shown to have been very defective for a long period of time to the knowledge of the railroad, and the railroad had done nothing to correct it.

ICG points out that in Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780, a directed verdict for the defendant as to a count seeking punitive damages under section 73 of the Act was upheld, even though the defendant railroad had permitted the view of the crossing where a train-car collision occurred to become obscured by large trees on the right-of-way. Churchill and National Bank were distinguished on the basis that in Mathis, no collision at the crossing or prior complaints as to the obstruction had been made. ICG also calls our attention to Del Muro v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 473, 464 N.E.2d 772, where a judgment n.o.v. on a punitive damages award under section 73 of the Act was upheld on review. That defendant had allowed a barbed wire around the enclosure of a substation to fall into disrepair. A seven-year-old boy had been able to climb the fence and climbed onto a transformer from which he received burns resulting in his subsequent death. Although evidence was presented that the defect in the wire had existed for some time, no evidence was presented of complaints to the defendant of the situation. Evidence was presented of a comprehensive safety program of the defendant. The Del Muro court stated that the proof necessary to support a section 73 award of punitive damages is the same as that under a common law wilful and wanton charge. Del Muro, 124 Ill. App. 3d at 481, 464 N.E.2d at 778.

The most significant case cited by ICG is the recent decision of the supreme court in Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 563 N.E.2d 397. There, a punitive damages award in favor of a user of a shotgun and against the manufacturer of the gun was set aside. The gun barrel had exploded when fired, injuring the plaintiff. Evidence was presented of 94 other instances of other barrel explosions in the manufacturer’s shotguns, and in a prior case against that defendant, an expert witness for that plaintiff had testified to the existence of the defect claimed by the plaintiff in the case before the court. The Loitz court stated that punitive damages are not favored in the law, citing various cases, the most recent of which is Deal v. Byford (1989), 127 Ill. 2d 192, 537 N.E.2d 267. Loitz recognized concerns have arisen over the proliferation of punitive damages awards, as exemplified by the legislative concern shown by the enacted prohibition against such awards in medical and legal malpractice cases. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1115.) The Loitz court then set forth the requirements for an award of punitive damages in these words:

“ ‘Since the purpose of punitive damages is not compensation of the plaintiff but punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate — which is to say, conduct involving some element of outrage similar to that usually found in crime. The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others.’ (Restatement (Second) of Torts §908, comment b, at 464-65 (1979).) In this context, willful and wanton misconduct ‘ “approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it.” ’ Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457[,501 N.E.2d 830, 839].” Loitz, 138 Ill. 2d at 415-16, 563 N.E.2d at 402.

We examine the conduct of which the jury could have found ICG guilty in light of the quoted Loitz language. Clearly, the knowing failure to widen the approach to the crossing by an additional one foot falls far short of being a significant part of the elements described in Loitz. Various photographs introduced in evidence make clear that shrubbery on the right-of-way to the north of the crossing had little to do with the decedent’s ability to see the train coming from that direction at 80 miles per hour. The only growth of any size was around the warning sign and might have obscured the view when the vehicle was parallel to the sign. Unquestionably, the steepness of the approach to the tracks from Route 45 impaired the decedent’s ability to see the oncoming train. However, considering the grade of Route 45 and that of the track, and the short distance between them, ICG had little reasonable practical opportunity to remedy the steepness of the approach.

Thus, the only things ICG could have done to substantially improve the ability of the decedent to have avoided the collision would have been to obtain permission to close the crossing or to install lights or gates. Especially considering the objection of the City of Neoga to the closure of the crossing, we do not deem the failure of ICG to seek Commission approval for closing the crossing to come close to a requirement of Loitz for establishment of wilful and wanton conduct. Accordingly, we are left with the question of whether the failure of ICG to install flashing lights or crossing gates at the Ninth Street crossing could be the basis of the punitive damages award.

In determining the culpability which could be assessed against ICG for not providing lights or gates, we must consider other items of evidence which were not otherwise material. Evidence was introduced of substantial obstructions to view on the west side of the tracks. Although these were no impediment to the decedent, they do bear upon the strength of a need for lights or gates and the degree of culpability the jury could assess for failure of ICG to do so. Likewise, evidence of the number of trains passing through Neoga, the number which were fast passenger trains, and the number of people using the crossing was significant. Dr. Baerwald testified these factors strongly indicated the need for lights. He also indicated the crossing was rendered more hazardous because vehicles came off of Route 45, which was a busy highway, and then with only a short time for the drivers to change their attention from the highway to the tracks, reached the railroad tracks.

We recognize that while, as Dr. Baerwald testified, installation of lights at a crossing may reduce the chances of collisions with trains by as much as 80%, lights do not eliminate the hazard. In Churchill, the crossing was protected by flashing lights which were in operation at the time of the collision. ICG may have concluded that attempting to obtain agreement with the City of Neoga to close the crossing was the best route to follow in view of the problems at the crossing. In any event, we find any fault upon the part of ICG in not installing lights or gates falls short of that “ ‘which is to say, conduct involving some element of outrage similar to that usually found in crime,’ ” as required for wilful and wanton conduct in Loitz. The judgment for punitive damages must be set aside.

As the punitive damages award is being set aside, we need not consider to what extent, if any, such an award should be reduced by fault of the plaintiff.

The circuit court awarded plaintiff $351,219.50 in attorney fees. This sum was 40% of plaintiff’s total recovery of $878,048.75. Evidence was presented that plaintiff had entered into a contingent-fee contract whereby his attorneys were to receive one-third of the recovery which could be obtained without suit or 40% of the recovery resulting from litigation. Evidence was presented that this was a usual, customary, and reasonable contract. Defendant objects to the amount of the fee because it amounts to a very high rate for the 620.95 hours of work stipulated by the parties to have been performed by plaintiff’s counsel. Defendant does recognize that any reduction or elimination of the punitive damages award would reduce the fees under the contract accordingly.

In Renken v. Northern Illinois Water Co. (1989), 191 Ill. App. 3d 744, 547 N.E.2d 1376, this court passed upon the propriety of an attorney fee awarded under section 5 — 201 of the 1985 Utilities Act (Ill. Rev. Stat. 1987, ch. lll2/3, par. 5 — 201), successor to section 73 of the Act, in regard to the type of utility involved there. Attorneys working under a one-third contingent-fee contract had recovered a net of only $2,183.70 for their client, but the circuit court awarded them $8,162.50 in fees. This was based upon 65.3 hours of work performed by those attorneys at an hourly rate of $125 per hour. This court upheld the award, stating “courts are not to rely arbitrarily on a contingency arrangement as the standard for determining a reasonable attorney fee.” (Renken, 191 Ill. App. 3d at 752, 547 N.E.2d at 1381.) This court concluded that a contingency-fee contract is but one of the factors to consider in determining an appropriate fee, but that “where a contingency fee represents the standard remuneration for the type of case involved, the contingency fee may adequately serve as the final award.” Renken, 191 Ill. App. 3d at 752, 547 N.E.2d at 1381.

Before awarding the fee, the circuit court heard testimony indicating that a contingent-fee contract was the method for attorney compensation for plaintiff’s attorneys in almost all tort cases and that railroad crossing cases were considered to be hard to win. Nothing in our decision in Renken precluded the circuit court from opting to make an award on the basis of the contingent-fee contract even though, as the case turned out at the trial level, the award was very high on an hourly rate. The reliance on the contingent-fee contract was not arbitrary. However, because of our decision reversing the punitive damages award, we must remand for a new determination as to fees.

In passing upon plaintiff’s cross-appeal, we need not consider plaintiff’s contention that any reduction in the punitive damages award on comparative fault principles is contrary to public policy as we have determined no punitive damages award should have been made. For the same reason, we need not decide whether the evidence justified any reduction. Plaintiff is unable to cite any authority to support its request for expenses in addition to attorney fees. Even where a statute has authorized some recovery of expenses of litigation, this court has indicated “litigants should not be permitted to recover as costs items other than those specified in the statute authorizing such awards.” (Emphasis added.) (Calcagno v. Personalcare Health Management, Inc. (1991), 207 Ill. App. 3d 493, 502, 565 N.E.2d 1330, 1336.) We do not deem these expenses to be a component of attorney fees. No recovery of attorney fees or expenses of litigation is permitted by the common law. (Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41, 43.) Statutes permitting special remedies in derogation of the common law “are to be strictly construed” and “[njothing will be read into such statutes by intendment or implication.” (In re Special Education of Walker (1989), 131 Ill. 2d 300, 304, 546 N.E.2d 520, 522.) Plaintiff is not entitled to expenses of litigation.

Although ICG does not argue that any error occurred in regard to the judgment for compensatory damages, defendant has appealed all judgments against it. Accordingly, we affirm the judgment in favor of plaintiff and against ICG for compensatory damages in the sum of $453,048.75 and reverse all other judgments against ICG. We remand the cause to the circuit court of Coles County for the sole purpose of determining attorney fees to be awarded to plaintiff and against ICG.

Affirmed in part; reversed in part and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    BOHN HEAT TRANSFER, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—90—0758
    Opinion filed June 26, 1991.
    Rehearing denied July 26, 1991.

      Michael R. Cornyn, of Thomas, Mamer & Haughey, of Champaign, for appellant.
    Dukes, Martin, Helm & Ryan, Ltd., of Danville (John R. Martin, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Bohn Heat Transfer (Bohn) seeks money damages for losses incurred when one of its electrical transformers leaked a fluid containing toxic polychlorinated biphenyls (PCB’s) after it was serviced by defendant General Electric Company (GE). Bohn brought six counts, based on contract, warranty, and negligence, and also a wilful and wanton version of each. The trial court entered summary judgment for GE on the contract, warranty, and negligence counts, and Bohn voluntarily dismissed the remaining counts based on wilful and wanton theories. Bohn appeals the grant of summary judgment. We affirm the trial court’s judgment on the contract and warranty counts, but reverse on Bohn’s negligence claim and remand for trial.

In the contract at issue, GE agreed to repair two transformers at Bohn’s plant. Each transformer stood over 7 feet tall, weighed 12,700 pounds, and was approximately 5 feet in width and length. The transformers each contained approximately 375 gallons of pyranol, a coolant containing PCB’s. After GE repaired the transformers, one of the transformer’s gaskets leaked amounts of PCB-laden pyranol.

In the three counts at issue, Bohn alleged (1) GE’s actions constituted a breach of the parties’ contract, (2) GE breached the implied warranty that its repair work would be performed in a good and workmanlike manner, and (3) GE acted negligently in its repair. In each count, Bohn sought damages for the cleanup of the pyranol, replacement of premises destroyed during the cleanup, and loss of production hours while the plant was shut down.

The parties’ contract specifically disclaimed any warranty of merchantability or fitness for a particular purpose, and excluded consequential or incidental damages. It also provided Bohn’s exclusive remedy for defective repair was for GE to reperform the service, or replace defective parts. Further, GE limited its liability under the contract to the price of the specific product or service giving rise to the claim. The parties agree this case should be governed by New York law as specified in their contract.

According to the terms of the contract, Bohn admits its claim against GE should fail. However, Bohn argues that under New York law the court should not give effect to the provisions limiting or excluding GE’s liability. Section 5 — 323 of the New York General Obligations Law (N.Y. Gen. Oblig. Law §5 — 323 (McKinney 1989)) attempts to deter contractors’ shoddy workmanship by rendering void provisions in their service contracts exempting themselves from liability for negligence. (St. Vincent’s Medical Center v. Vincent E. Iorio, Inc. (N.Y. Sup. Ct. 1974), 78 Misc. 2d 968,_, 358 N.Y.S.2d 993, 996.) It states:

“Every covenant, agreement or understanding in or in connection with or collateral to any contract or agreement affecting real property made or entered into, whereby or whereunder a contractor exempts himself from liability for injuries to person or property caused by or resulting from the negligence of such contractor *** as a result of work performed or services rendered in connection with the construction, maintenance and repair of real property or its appurtenances, shall be deemed to be void as against public policy and wholly unenforceable.’’ (Emphasis added.) N.Y. Gen. Oblig. Law §5 — 323 (McKinney 1989).

The trial court granted GE summary judgment on Bohn’s counts alleging breach of contract, breach of implied warranty, and negligence. The court ruled the parties’ contract contained express warranties which provided, by its terms, the sole and exclusive remedies for Bohn. The court rejected Bohn’s argument that section 5 — 323 nullified the contract’s provisions exempting GE from negligence liability because section 5 — 323 did not apply as the transformers were not “appurtenances,” and held, even if section 5 — 323 applied, its provisions were not violated because the contract permissibly limited GE's liability.

Neither the statute nor any of the cases define “appurtenance.” New York courts have held that section 5 — 323 applies to an alarm system attached to a sprinkler system in a building (Melodee Lane Lingerie Co. v. American District Telegraph Co. (1966), 18 N.Y.2d 57, 218 N.E.2d 661, 271 N.Y.S.2d 937) and to elevator maintenance work (Rogers v. Dorchester Associates (1973), 32 N.Y.2d 553, 300 N.E.2d 403, 347 N.Y.S.2d 22); but not to electric generators (Auburn Steel Co. v. Westinghouse Electric Corp. (1990), 158 A.D.2d 938, 551 N.Y.S.2d 101), or to fire and burglar alarms unconnected to sprinkler systems (Florence v. Merchants Central Alarm Co. (1980), 51 N.Y.2d 793, 412 N.E.2d 1317, 433 N.Y.S.2d 91).

Black’s Law Dictionary defines “appurtenance” as including “[something annexed to another thing more worthy as principal ***. [Citation.] An article adapted to the use of the property to which it is connected, and which was intended to be a permanent accession to the freehold.” (Black’s Law Dictionary 94 (5th ed. 1979).) It is clear the transformer is appurtenant to real property as it is (1) mounted and bolted to a 12-inch thick concrete pad and enclosed by a steel cage also mounted to the floor; (2) applied to the same purpose as the realty to which it is attached, i.e., supplying power to the plant; and (3) the transformer was intended to be permanently attached to the plant, as it was installed when the plant was built and the plant is unable to operate without the transformers. Thus, this contract involves “services rendered in connection with *** real property or its appurtenances,” and section 5 — 323 applies (N.Y. Gen. Oblig. Law §5 — 323 (McKinney 1989)).

Applying section 5 — 323 to the parties’ contract, it becomes apparent the contract’s provisions improperly limited GE’s liability for its negligence, and thus violated section 5 — 323. Section 5 — 323 voids contractual provisions in which a contractor “exempts himself from liability,” but permits contractors to limit their negligence liability if they provide increased coverage for their potential negligence for an increase in the contract price.

In Melodee Lane, New York’s highest court stated that parties may limit their negligence liability under section 5 — 323, but only when “there is a voluntary choice of obtaining full or limited liability by paying under a graduated scale of rates proportioned to the responsibility in *** service rendered.” (Melodee Lane, 18 N.Y.2d at 69, 218 N.E.2d at 667, 271 N.Y.S.2d at 946.) An option must be offered to the other party to pay an increased amount for the services rendered, in order to receive increased coverage for the contractor’s negligence, for the provision to “constitute *** a valid limitation rather than an exemption of liability which that statute forbade.” (Melodee Lane, 18 N.Y.2d at 69, 218 N.E.2d at 667, 271 N.Y.S.2d at 946.) In Long Island Lighting Co. v. IMO Delaval, Inc. (S.D.N.Y. 1987), 668 E Supp. 237 (hereinafter LILCO), a contractual provision limiting a contractor’s liability was held valid under section 5 — 323 where he provided insurance to cover losses due to his negligence, and the other party had the option of obtaining greater insurance coverage. LILCO, 668 F. Supp. at 243-44.

In the instant case, GE attempted to limit its liability by providing repair as Bohn’s sole remedy, and limiting its liability to reperformance of the service or the price of the contract. As in Melodee Lane, there was no option for Bohn to pay a higher service charge and increase GE’s liability for its potential negligence. Thus, the limit on GE’s liability is rendered invalid to the extent it attempts to protect GE from liability due to its negligence.

Nevertheless, the breach of contract claim was properly dismissed on summary judgment, as it does not allege negligence, and is thus unaffected by section 5 — 323. Bohn’s sole remedy for GE’s alleged breach of contract is repair of its allegedly defective work, which it has already performed. The breach of implied warranty count was likewise properly dismissed on summary judgment as it also does not allege negligence, and the contract expressly disclaimed any implied warranties of merchantability or fitness for a particular purpose.

Bohn’s negligence claim is the only count affected by section 5— 323, and it was improperly dismissed on summary judgment. Although the contract attempts to limit GE’s liability for negligence by providing the sole remedy of repair and limiting its liability to the price of the contract, these provisions — insofar as they apply to Bohn’s negligence — are rendered unenforceable by section 5 — 323.

While Bohn may proceed on its negligence count, it is unable to recover damages resulting from lost production hours. Losses due to business interruption are economic losses to which section 5 — 323 does not apply. Section 5 — 323, by its very terms, prohibits contractors from exempting themselves from liability for “injuries to personfs] or property.” (Emphasis added.) (N.Y. Gen. Oblig. Law §5 — 323 (McKinney 1989).) Loss of business profits due to the plant’s shutdown are not damages to persons or property, and may properly be excluded. (LILCO, 668 F. Supp. at 244 (“Exemptions from liability for economic losses are not rendered void or unenforceable under section 5 — 323”).) Thus, the contract’s provision exempting GE from consequential or incidental damages should be given effect to the extent it applies to the purely economic losses caused by the plant’s shutdown.

In conclusion, the trial court’s order granting summary judgment is affirmed as to the contract and warranty counts, i.e., counts I and III. However, section 5 — 323 applies to the parties’ contract, which improperly limited GE’s negligence liability without providing Bohn an opportunity to obtain greater protection against GE’s potential negligence for an increased contract price. Accordingly, the order of summary judgment is reversed as to the negligence count, count V, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

LUND, P.J., and STEIGMANN, J., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSCAR M. GOMEZ, Defendant-Appellant.
    Second District
    No. 2—89—0574
    Opinion filed June 18, 1991.
    Rehearing denied July 24, 1991.

      G. Joseph Weller, Thomas A. Lilien, and Manuel S. Serritos, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

After a jury trial, defendant was found guilty of seven counts of first degree murder, and judgment of conviction was entered on each guilty verdict. Although the State sought the death penalty, the court sentenced defendant to 40 years’ imprisonment with his sentences to run concurrently. Defendant appeals, asserting that: (1) the State’s entirely circumstantial case did not prove defendant guilty beyond a reasonable doubt; (2) the trial court’s failure to grant a continuance of the hearing on defendant’s post-trial motion alleging ineffective assistance of his trial counsel was an abuse of discretion; and (3) the trial court incorrectly entered judgment and sentence on each of the seven guilty verdicts, and such sentence was excessive. We reverse defendant’s conviction and vacate his sentence.

Sometime on Tuesday, May 24, 1988, 80-year-old Julia Menoni (victim) was murdered in her home. The victim’s body was not discovered until 5 p.m. on Wednesday, May 25, 1988, approximately 24 hours after her murder. The victim’s glasses were found in her kitchen, in which chairs had also been overturned. Drawers and cabinets in the bedroom and kitchen were open and had apparently been ransacked. The victim had been killed, and her body was discovered on the couch in the living room, which adjoined the kitchen. Neither the living room nor a den, which also adjoined the kitchen, had been ransacked. The victim’s home was rather run-down and cluttered and best described as less than neat and clean.

The victim was killed in a particularly brutal fashion. She had been beaten, stabbed twice, strangled, and her throat slashed. Thus, a great deal of blood was present at the scene. Additionally, the victim had been struck in the back of the head with a gallon can of paint with enough force to dent the can and bend the lid, thereby spraying the victim and the living room with paint.

Next to the victim’s home was a transient rooming house, which the victim owned and in which she rented rooms on a weekly basis. Similar to the victim’s home, the rooming house, too, was relatively run-down. Approximately 22 men lived in the 11 rooms in the rooming house, paying a little less than approximately $30 each per week in rent. Many of the roomers, including defendant, worked seasonally as landscapers and returned to homes and families in the southwest during the winter months. An apartment located above the victim’s detached garage was rented on a monthly basis to a tenant with children. Both the roomers and the apartment tenant paid the victim in cash, with the weekly rents paid on Sunday or Monday each week. Rents were paid to the victim in her kitchen, with the roomers seated inside the kitchen in a chair next to the back kitchen door while the victim made out a receipt or made change. On occasions when more than one roomer arrived at a time to pay rent, one would sit and the others would stand in the kitchen. The victim made change from cash kept in her apron and placed the cash rent receipts under one of a number of layers of table cloths on her kitchen table. The victim’s kitchen was 11 by 14 feet and, in addition to the typical kitchen appliances and cabinets, contained a table and three chairs.

The victim’s body was discovered by three of the roomers from the adjacent rooming house. Not having seen the victim for over a day, the roomers entered the house after knocking and discovered the victim’s body. One of the roomers had a local shop owner call the police, who were directed through the back kitchen door and into the living room of the house by the apartment tenant.

Evidence collected from the victim’s house by the police included a fingerprint from an open and apparently ransacked kitchen drawer located 11 feet 11 inches from the back kitchen door. Three hairs were found respectively on the victim’s chin, hip, and on the sheet used to move her body. Two floor tiles with footprints in paint on them were collected as evidence, and over $100,000 in cash was found hidden throughout the rooms of the victim’s home, including $180 found in a small leather wallet in the kitchen drawer from which the fingerprint had been obtained. Numerous other paint and blood samples were also collected, which were eventually identified as originating either from the smashed paint can or from the victim. Additionally, still other hairs, fingerprints, and blood samples, which were either not identified or incapable of identification, were collected. The police also collected from the hallway of the rooming house a drop of blood located IV2 to 3 feet from the door of the room shared by defendant with another roomer and paint from the exterior doorknob and door frame of that room.

On Monday, May 23, 1988, defendant did not work at his landscaping job due to the weather, but he spoke with his sister at the bank where she worked to purchase a money order with his prior week’s pay to send to his wife and son in Eagle Pass, Texas. On May 21, 1988, defendant’s wife had written to tell him of their son’s eye infection and her need for money to pay for his hospitalization. Defendant did not report for work on May 24, but his sister again saw him on the street with two other individuals, at which time he was wearing the same clothes as the day before.

The apartment tenant testified to having heard voices and smelled something burning in the alley next to the garage and beneath her windows at 5:30 p.m. on May 24, 1988. Upon checking the source of the smoke, she discovered sheets and a towel with bloodstains were being burned. However, when she entered the rooming house and shouted to find the person responsible, no one answered.

At 10:30 p.m. of the evening of May 24, 1988, defendant went to his employer’s home in an attempt to borrow $100, which his employer refused to lend him. In the early morning hours of May 25, 1988, defendant spoke with his roommate, offering to share a pizza and beer with him, and defendant’s roommate saw him in their room later that morning when the roommate left for work. Later that day, defendant again visited his sister at the bank and was again wearing the same clothes as the previous two days.

Defendant took his belongings from his room and traveled to Kenosha, Wisconsin, on May 25, 1988, where he registered with the State in an attempt to obtain employment at a local large car manufacturing plant. He obtained a temporary position at that plant and worked over the Memorial Day holiday weekend. Defendant’s prior employer, a landscaper, testified that it was not uncommon for employees to change or leave jobs without notice.

During his stay in Kenosha, defendant encountered some difficulty with the individuals with whom he was staying and contacted the police for aid in recovering his property, including his wallet. On June 2, 1988, after learning that the police wished to question him about events surrounding the victim’s death, defendant’s brother and father traveled to Kenosha to pick up defendant and drove him to the police station investigating the victim’s death. Defendant remained at the police station from 4 a.m. until 8 a.m. on June 2, 1988, where he voluntarily answered questions and at that time also voluntarily provided the police with his fingerprints and hair samples, as well as access to his belongings.

Defendant’s father gave him $125 on June 5, 1988, so that defendant could travel to Texas to join his family, and on June 6, 1988, defendant with his wife and child went to live with his mother in Eagle Pass, Texas, located five miles from the Mexican border. Later that day, defendant’s mother received several unusual phone calls, and, eventually, the police called and explained that an Illinois warrant had been issued for defendant’s arrest. Defendant spoke with the police, who informed him they would arrive in 45 minutes to arrest him. However, after several hours defendant and his family advised the police he would turn himself in voluntarily, and as they left for the Texas police station, the police arrived and followed their car as an escort.

The fingerprint found at the murder scene on the kitchen drawer was that of defendant. Although the drop of blood found in the hallway of the rooming house near the door of defendant’s room was too small to allow positive identification, tests revealed that it was not defendant’s, but it was possible that it was the victim’s. Further, tests performed on the three unidentified hairs found at the scene revealed that they shared some similarities with defendant’s hair, although they also were dissimilar in several other respects. The State’s expert admitted that hair generally does not possess sufficiently unique characteristics to allow positive identification. So, too, the paint samples taken from defendant’s shirt, key chain, and the room doorknob and doorjamb, although paint again lacks unique characteristics to allow positive identification, could have shared a common origin with the paint found in the can with which the victim had been struck. However, no technology exists to determine the length of time paint has been on a surface. The paint impressions of footprints left on the victim’s tiled kitchen floor did not match defendant’s shoes, nor did the other blood, hair, and fingerprint samples match those of the defendant.

Defendant was indicted on seven counts of first degree murder-murder (intent to kill), murder (strong probability of death or great bodily harm), felony murder (home invasion), felony murder (robbery), felony murder (attempted robbery), felony murder (armed robbery), felony murder (attempted armed robbery). (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) The State argued that defendant’s fingerprint on a ransacked kitchen drawer located almost 12 feet from the doorway and chair where tenants were allowed, the presence on the victim’s body or in the immediate vicinity thereof of hairs that were similar to defendant’s, paint found on defendant’s shirt, key chain, doorknob and doorjamb that could have shared a common origin with the paint in the can used to bludgeon the victim, and blood outside the doorway to his room that could have been that of the victim were evidence that defendant had murdered the victim. The State argued that defendant had been motivated by the need for money, as evidenced by his attempt to borrow from his employer and his wife’s letter requesting money. It was the State’s contention that defendant murdered the victim in the course of or for the purpose of robbing her and that his flight to Kenosha and, eventually, to Texas, indicated a guilty mind.

Defendant did not deny that his fingerprint was in the victim’s kitchen, but argued that it had gotten there when he entered the kitchen to pay his rent to the victim. Because neither the paint nor hair evidence was a positive identification, defendant argued that the hair was not his or had come to rest on the victim as airborne matter from a prior visit and that the paint on his belongings had gotten there when he had painted a house several months before. Defendant denied any flight and asserted that resort to the police in Kenosha and cooperation with the police after his return from Kenosha indicated his lack of guilt. Finally, defendant asserted that his return to Texas was merely motivated by concern for his family and pointed to his failure to utilize the opportunity to flee into Mexico when notified of the warrant for his arrest and his voluntary submission to arrest as totally belying an attempted flight from justice.

The jury found defendant guilty of all seven counts of murder. Defendant’s court-appointed trial counsel filed post-trial motions and, further, sought and was granted permission on February 24, 1989, to have the hair evidence retested by another lab, which would take approximately two weeks. The State’s expert had testified at trial that he had prepared for his testimony by reviewing his procedures and results, which were not contained in his report, to satisfy his own mind that he was sure of his opinion. Based on that testimony, interpreted to express some reservations, defendant’s trial counsel sought to preserve and retest the evidence to determine if newly discovered evidence might become available, which could then be pursued through proper procedure.

On March 13, 1989, defendant’s trial counsel was replaced with new counsel, who was granted a continuance to complete his review of the record and prepare an amended post-trial motion to include allegations of ineffective assistance of counsel, if appropriate, based in part on defendant’s trial counsel’s failure to have the hair evidence independently tested initially. On May 4, 1989, the day before hearing on that motion, defendant’s counsel sought a one-day continuance to allow the lab to complete its testing to confirm its initial opinion that the hair found on the victim was not the defendant’s. However, the State had also contacted the defendant’s expert after notification of the new expert’s contrary findings, and the expert indicated to the State that he did not have all the necessary materials and had not made a full comparison of the hairs from which to form an opinion.

The court denied both defendant’s request for a continuance and ■his post-trial motions and entered judgment on all seven guilty verdicts. On May 12, 1989, a sentencing hearing took place, and the court found defendant eligible for the death penalty. However, the court found the mitigating factors of defendant’s lack of prior criminal history, family ties, character and background as making reoccurrence unlikely. The court, therefore, sentenced defendant to 40 years’ incarceration in the Department of Corrections on each count, with the sentences to run concurrently. Defendant appeals and asserts that his conviction, based as it was on entirely circumstantial evidence, was in error because the State failed to prove him guilty beyond a reasonable doubt; the trial court abused its discretion in denying his request for a continuance to allow testimony at the hearing on his post-trial motion alleging ineffective assistance of counsel; and the court incorrectly imposed judgment and sentence on all seven charged offenses arid that such sentence was excessive.

Turning to defendant’s first-asserted error, he argues that the entirely circumstantial evidence adduced by the State failed to prove him guilty beyond a reasonable doubt. We agree.

It is the function of the jury to determine the credibility of the witnesses and assess the weight to be afforded evidence, and we may not lightly set aside such findings, nor substitute our own judgment for that of the jury. (People v. Boclair (1989), 129 Ill. 2d 458, 474; People v. Stevenson (1962), 25 Ill. 2d 361, 365.) However, it is our duty, and we will not hesitate to reverse a judgment of conviction where the evidence is such that no rational trier of fact could have found a defendant guilty beyond a reasonable doubt because, taken in the light most favorable to the prosecution, the evidence is so palpably contrary to the verdict or the verdict is so unreasonable, unsatisfactory, or improbable as to raise a reasonable doubt of defendant’s guilt. (Boclair, 129 Ill. 2d at 474-75; People v. Walker (1987), 154 Ill. App. 3d 616, 626.) To sustain a conviction, the evidence must support a reasonable and moral certainty that the defendant committed the crime. People v. Berland (1978), 74 Ill. 2d 286, 308, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.

Circumstantial evidence is sufficient to sustain a conviction if it satisfies proof beyond a reasonable doubt of the elements of the crime charged. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; People v. Turner (1990), 193 Ill. App. 3d 152, 157.) It is not necessary, however, that each link in the chain of circumstances be proved beyond a reasonable doubt. (People v. Jones (1985), 105 Ill. 2d 342, 350; People v. Migliore (1988), 170 Ill. App. 3d 581, 591-92.) Rather, it is sufficient if all the circumstantial evidence taken together satisfies the jury beyond a reasonable doubt of the defendant’s guilt. Jones, 105 Ill. 2d at 350.

Fingerprint evidence is circumstantial evidence (People v. Malmenato (1958), 14 Ill. 2d 52, cert. denied (1958), 358 U.S. 899, 3 L. Ed. 2d 148, 179 S. Ct. 222), and when a conviction is based solely on such circumstantial fingerprint evidence, the fingerprints must further satisfy both physical and temporal proximity criteria. (People v. Rhodes (1981), 85 Ill. 2d 241; People v. Poole (1981), 99 Ill. App. 3d 939, 942; People v. Van Zant (1980), 84 Ill. App. 3d 355, 357, rev’d on other grounds sub nom. People v. Rhodes (1981), 85 Ill. 2d 241; People v. Donahue (1977), 50 Ill. App. 3d 392, 393.) The fingerprints must have been found in the immediate vicinity of the crime and under such circumstances that they could only have been made at the time the crime occurred. Rhodes, 85 Ill. 2d at 249.

In this instance, a single fingerprint belonging to defendant was found in the kitchen of the victim’s house. Defendant does not deny he was in the kitchen on at least two occasions prior to the murder when he paid his rent to the victim. Further, although the State argues that defendant’s fingerprint was found almost 12 feet from the area in which roomers were customarily allowed when they paid their rent, the State’s own witness conceded that when more than one roomer at a time arrived in the kitchen to pay the victim their rent, some would stand outside the designated area within the kitchen. Thus, the State has failed both the physical and temporal proximity requirement of fingerprint evidence. If this sole fingerprint were the only evidence adduced by the State of defendant’s guilt, we would find defendant was not proved guilty beyond a reasonable doubt.

However, although the State’s case was based entirely on circumstantial evidence, it was not based solely on fingerprint evidence. We must consider whether the other circumstantial evidence, the hair, paint, blood, and defendant’s alleged flight, taken together with the fingerprint evidence as a whole could have satisfied the jury of "defendant’s guilt beyond a reasonable doubt.

As admitted by the State’s witness, blood, hair and paint do not possess the necessary unique qualities of fingerprints to allow positive identification. As such, blood, hair and paint have relatively little probative value. (People v. Mann (1975), 30 Ill. App. 3d 508, 513.) The mere physical probabilities inferred from blood, hair and paint samples alone are insufficient to sustain a conviction beyond a reasonable doubt. (See People v. Brown (1984), 122 Ill. App. 3d 452, 455.) Absent other evidence, such probability evidence is inadmissible because its relation to a defendant is too tenuous to render it relevant. (People v. Schulz (1987), 154 Ill. App. 3d 358, 366.) Only when such evidence is only one link in a chain of circumstantial evidence (People v. Gillespie (1974), 24 Ill. App. 3d 567, 574), or used to exclude a defendant or another individual as the perpetrator is such evidence admissible. (People v. Johnson (1972), 8 Ill. App. 3d 457, later proceeding (1976), 37 Ill. App. 3d 328.) Hair evidence specifically has been allowed to corroborate eyewitness or other physical evidence when it was identical (People v. Giangrande (1981), 101 Ill. App. 3d 397, 403) or microscopically indistinguishable from that of the defendant. (People v. Walsh (1980), 80 Ill. App. 3d 754, 761, 765.) Although probability evidence based on hair or blood is admissible as minimally probative when it corroborates eyewitness testimony (Brown, 122 Ill. App. 3d at 455; Walsh, 80 Ill. App. 3d at 761), it is not admissible when unsupported by other evidence. (Schulz, 154 Ill. App. 3d at 366.) Further, such evidence has been permitted when it demonstrated a temporal and physical proximity similar to that required of fingerprints. See Giangrande, 101 Ill. App. 3d at 403; Johnson, 8 Ill. App. 3d at 460-61.

Reviewing the probability evidence advanced by the State, we find it to be, at best, of minimal probative value. The paint merely “could have shared a common origin.” Moreover, the paint in the can used to bludgeon the victim was an extensively distributed house brand of a national hardware chain. The blood evidence, a single drop found in a public hallway outside the room that defendant shared with another boarder, could possibly have been that of the victim. Finally, the hair evidence could have come from defendant and, although it shared several similar characteristics, it also differed in several respects. The relative lack of value of the State’s blood, hair and paint evidence in this instance is apparent when compared to the facts of other cases where, as a threshold question, even the relevancy of such evidence was challenged.

In Giangrande, the victim had been dismembered and her torso and limbs placed in plastics bags that were then placed in two boxes that were taped shut and left in a farmer’s soybean field. Other boxes, bags, and rubber gloves were found near the body as well. The boxes came from the home of the defendant, who was the victim’s husband, and bags, rubber gloves, and tape similar to those found with the body were also found in the defendant’s home. A bloodstain on the bed rail of the defendant and victim’s shared bed matched that of the victim, and the carpet beneath the stain had been removed and replaced. The State’s expert testified that the method of dismembering the victim’s body had been done by someone with an understanding of flesh, and defendant was a meat cutter by trade. The defendant had argued with the victim the morning of her death and admitted difficulty dealing with the victim, for which he was receiving counseling. The site where the victim’s body was found was accessible from defendant’s home. Finally, two of the three hairs found on the underside of the tape used to seal the box containing the victim’s torso were microscopically indistinguishable from the defendant’s arm hair. Giangrande, 101 Ill. App. 3d at 401, 403.

The evidence supporting admission of similar hair and blood probabilities was even more pronounced in Johnson. The victim had been beaten and raped in the backseat of her automobile. Blood matching that of the victim was found on the defendant’s under shorts, hairs similar to defendant’s were found in the backseat of the victim’s car, hairs similar to the victim were found on the person of the defendant. Blood groupings based on semen recovered from the victim matched that of the defendant, but did not match that of her boyfriend, who had escaped from the car during the rape and gone for help. The defendant’s teeth impression matched that found in a bite mark on the victim’s breast. The victim testified that she had been ordered into the backseat with a shotgun, and a shotgun belonging to defendant’s stepfather was found near the scene next to a footprint matching the heel of defendant’s boot. Defendant was found in the victim’s car with the victim, ostensibly driving her to the hospital after finding her near her car, when the police returned with her boyfriend to the scene. Finally, the victim identified the voice of the defendant as that of her assailant. Johnson, 8 Ill. App. 3d at 460-61.

In addition to the hair, blood, and semen-based blood evidence in Mann, a pair of military-issued eyeglasses with a prescription identical to that worn by the defendant, who was in the military, were found at the scene. The probability of another individual with the identical prescription was one in four trillion. The probability evidence further excluded the victim’s husband as possible source of the semen. Mann, 30 Ill. App. 3d at 511-12.

By comparison, the hair, blood and paint evidence in this instance is of little probative value. Therefore, it is totally inadequate to provide the corroboration necessary to the State’s circumstantial fingerprint evidence, which lacks the requisite temporal and physical proximity to alone sustain a conviction. The State, however, urges defendant’s flight as an additional fact of circumstantial evidence to support the totality of its evidence in this case.

The State urges not only defendant’s travel to Kenosha, Wisconsin, but to Texas as examples of his attempt to flee and thereby evade justice. However, while in Kenosha, defendant approached the police to solve another problem, which is hardly the conduct of a criminal in hiding. So, too, upon learning of the police’s desire to question him, defendant returned to Illinois of his own free will and voluntarily not only answered questions, but provided fingerprints and hair samples. Nor does defendant’s travel to Texas represent an attempt to evade justice. Although within a few miles of the Mexican border, defendant made no attempt to leave the jurisdiction of the United States even after he learned that a warrant had been issued for his arrest. The State’s evidence of defendant’s flight to evade justice is, at best, controverted and more realistically is simply improbable. We should decline to give such improbable evidence the extraordinary weight that would be necessary to substantiate the State’s faulty fingerprint evidence. Thus, defendant was not proved guilty beyond a reasonable doubt.

For these reasons, defendant’s convictions are reversed, and his sentences are vacated. (See Burks v. United States (1978), 437 U.S. 1, 18, 57 L. Ed. 2d 1, 14, 98 S. Ct. 2141, 2150-51.) In light of the resolution of this issue, defendant’s second and third contentions need not be addressed.

Reversed.

BOWMAN and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    THE CITY OF WHEATON, Plaintiff-Appellee, v. ROBERT A. SANDBERG et al., Defendants-Appellants.
    Second District
    No. 2—90—0640
    Opinion filed May 3, 1991.
    Rehearing denied July 24, 1991.

      John E. Waghorne, of Addison, for appellants.
    Edward J. Walsh, Jr., of Walsh & Knippen, Chartered, of Wheaton (Brian J. Diamond, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, Robert and Karen Sandberg et al., appeal the trial court’s denial of the defendants’ motion to dismiss and traverse an action by the plaintiffs, the City of Wheaton (City), to condemn their property. The defendants contend the City acted beyond its home-rule authority in adopting the ordinance on which this eminent domain action is based. In addition, defendants claim the enabling ordinance is invalid because it is preempted by State law. Defendants also claim that, even if the ordinance is not preempted by State law, it is unconstitutional as being unreasonable, arbitrary and vague. We hold the City did not exceed its home-rule authority in adopting the ordinance authorizing the City to exercise its power of eminent domain. In addition, we hold the ordinance is not preempted or in any way limited by the State redevelopment law. However, we agree with the defendants that the ordinance is unconstitutionally vague and unreasonable. Accordingly, the trial court order dismissing the defendants’ motion to dismiss and traverse is reversed.

The City of Wheaton is a home-rule municipality. (Ill. Const. 1970, art. VII, §6.) In August 1984, the City of Wheaton passed Ordinance No. E — 2023, “AN ORDINANCE PERTAINING TO THE REDEVELOPMENT OF REAL ESTATE WITHIN THE CITY OF WHEATON, ILLINOIS” (enabling ordinance). Sections 1 through 8 of this ordinance, while not specifically amending the city code, are now included therein as chapter 8, article V, sections 8 — 98 through 8— 105. The ordinance enables the City to determine whether a particular area or parcel of land is in need of redevelopment. After such a determination, the City is permitted to designate the area a redevelopment area and acquire that land by gift, purchase or condemnation for the purpose of redevelopment.

In July 1986, the City passed two additional ordinances: No. E— 3131, designating the central business district of downtown Wheaton a redevelopment area (redevelopment ordinance), and No. E — 3132, authorizing the acquisition of the property located at the northwest corner of Main and Front Streets for the purpose of redevelopment (acquisition ordinance). The property designated for acquisition in the City’s redevelopment plan belongs to the defendants, Robert and Karen Sandberg.

The property consists of a two-story building located in the heart of the Wheaton business district. In 1974, the building was substantially destroyed by fire, but was restored and rebuilt early in 1976. The first floor consists of three small commercial units and one large commercial unit. The largest unit is located on the comer of Main and Front Streets. The second floor is divided into nine offices and three residential apartments.

Most of the building has been occupied with regularity since 1976. However, the largest commercial unit, located directly at the comer of Main and Front Streets, has been chronically vacant since that time. The City commenced this action to condemn the four separate retail locations on the first floor, in addition to miscellaneous nonretail space on the second floor. In its acquisition ordinance, the City found that the subject property had been periodically and chronically vacant since 1974 and thus created an adverse aesthetic and economic impact on the central business district.

The defendants filed a motion to dismiss and traverse, alleging among other things that, as a home-rule municipality, the City of Wheaton did not have the authority to institute such an eminent domain action. In addition, the defendants claimed the property was in no way blighted or in need of rehabilitation as required for redevelopment. The trial court granted this motion. The City filed a motion to reconsider. Upon reconsideration, the court vacated its order granting the defendants’ motion to dismiss and traverse and held the enabling ordinance was a valid exercise of the home-rule powers of the City. The matter was set for hearing.

After a three-day evidentiary hearing on the defendants’ motion to dismiss and traverse, the motion was denied. The trial court ruled the City had properly designated certain property in its central business district a redevelopment area. In addition, the court held the subject property qualified as property in need of redevelopment within the meaning of the enabling ordinance as of the date of the filing of the eminent domain action. The defendants filed a motion to reconsider the denial. The motion was denied. The matter proceeded to trial for a determination of just compensation. The jury awarded compensation in the amount of $600,000. The amount of compensation is not contested by the parties on appeal.

On appeal, defendants contend the trial court’s denial of the defendants’ motion to dismiss and traverse should have been granted because the enabling ordinance (No. E — 2023) on which this action is based is invalid because it is preempted by the uniform State standards created by the Commercial Redevelopment and Renewal Areas Act of the Illinois Municipal Code. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 74.2—1 et seq.) In addition, defendants argue, even if the ordinance is not preempted or limited by State law, it is unconstitutional as unreasonable, arbitrary and vague. We turn now to our discussion of the first issue.

I. PREEMPTION

The City of Wheaton (City) derives its home-rule powers from the Illinois Constitution of 1970. (Ill. Const. 1970, art. VII, §6.) The constitution permits municipalities to exercise any power and perform any function pertaining to its government and affairs, except as limited by that section. (Ill. Const. 1970, art. VII, §6(a).) Section 6(1) provides that home-rule units may perform concurrently with the State any power or function of a home-rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive. (Ill. Const. 1970, art. VII, §6(Z).) Moreover, the Illinois Constitution of 1970 specifically provides that home-rule powers should be construed liberally. (Ill. Const. 1970, art. VII, §6(m).) Our State courts have consistently recognized these broad powers. See City of Carbondale v. Yehling (1983), 96 Ill. 2d 495; County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494.

In determining whether a municipality’s actions are a valid exercise of its home-rule authority, our supreme court has set out a three-part analysis. (County of Cook v. John Sexton Contractors, 75 Ill. 2d at 508.) First, the court must decide whether the exercise of power by the municipality is a home-rule power and a power “pertaining to its government and affairs.” Second, the court must determine whether the legislature has “specifically” limited the local exercise of the power at issue or whether the legislature has “specifically” declared the State’s exercise to be exclusive, thereby totally preempting a home-rule unit’s exercise of its constitutional power. Finally, if no specific action has been taken, then the court must determine the proper relationship between the local ordinance and the State law. County of Cook, 75 Ill. 2d at 508.

We turn now to the first part of the analysis: whether the exercise of eminent domain is a valid home-rule power “pertaining to the local government and affairs” of the City of Wheaton. Our supreme court has held the exercise of eminent domain power by a home-rule municipality to eradicate blight and redevelop its business district is of local concern and, accordingly, a valid exercise of home-rule power. (City of Carbondale v. Yehling (1983), 96 Ill. 2d 495.) In that case, the court held a home-rule unit is not proscribed from enacting a home-rule eminent domain ordinance in order to stimulate economic development in its central business district. (City of Carbondale, 96 Ill. 2d at 499-500.) The court stated these concerns were sufficiently local in character to “pertain to the local government and affairs” as required by the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §6). (City of Carbondale, 96 Ill. 2d at 500.) The ordinance at issue in that case was struck down on other grounds. Clearly, in this instance, the City’s exercise of eminent domain is a valid home-rule power.

We must now determine whether the legislature has specifically limited or preempted this power. A careful examination of the Commercial Renewal and Redevelopment Areas Act (Act) of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 74.2—1 et seq.) reveals no such specific limitations or declarations of exclusive power on the part of the State. Thus, we find the legislature has not limited or preempted the exercise of this power.

Finally, our analysis turns to the proper relationship between the City’s ordinance and the provisions of the Act. The Illinois Constitution provides for the concurrent legislation by the State and a home-rule municipality of any area not limited or preempted by the State. (Ill. Const. 1970, art. VII, §6.) The question facing this court concerns whether the Act, which sets up minimum requirements for a finding of blight, creates a scheme of uniform standards by which even home-rule units must abide. Defendants contend the City’s enabling ordinance is invalid because its definition of a “blighted area” differs from the definition of “blight” found in the Act.

The purpose of the Act is to enable municipalities to eradicate blight. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 74.2—1.) The Act authorizes a municipality to acquire property within the redevelopment plan by eminent domain. However, the term “[c]ommercial redevelopment plan” is defined by the Act as “the comprehensive program for the clearing or rehabilitation and physical development of a commercial blight or conservation area.” Ill. Rev. Stat. 1987, ch. 24, par. 11— 74.2 — 2(e).

To qualify for redevelopment under the Act, the area in question must be a “blighted” or “conservation” area as defined in the Act itself. The Act defines a “[cjommercial blight area” as:

“[A]ny improved or vacant area of not less in the aggregate than 2 acres located within the territorial limits of a municipality where, if improved, industrial, commercial and residential buildings or improvements, because of a combination of 5 or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light or sanitary facilities; inadequate utilities; or excessive land coverage; deleterious land use or layout; depreciation or lack of physical maintenance; lack of community planning, are detrimental to the public safety, health, morals or welfare ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 24, par. 11 — 74.2—2(b).

The City’s ordinance requires only one of the above factors be present in order for an area to qualify as “blighted” under the ordinance. (Before this action was instituted against the defendants, the City amended the ordinance by substituting the words “redevelopment area” for “blighted area.”) The City’s ordinance also differs from the Act in that it requires only “vacancies in all or part of any building” as one of those factors. In its findings of fact, the City cited the partial vacancy of the subject property as the determinative factor in deciding to condemn the defendants’ property.

The question becomes whether the City of Wheaton can condemn property upon the finding of only one of the above-mentioned elements and, in addition, an element that appears in substantially different form in the City ordinance than it does in the Act. The Act specifies that excessive vacancies may be one of the five elements necessary for a finding of blight, while the ordinance merely provides for vacancy alone, in all or any part of the building as sufficient for a finding of blight.

The defendants argue the Act created a uniform set of standards by which the City must abide. In support of this contention, they cite the cases of County of Cook v. John Sexton Contractors (75 Ill. 2d 494), and City of Chicago v. Pollution Control Board (1974), 59 Ill. 2d 484. In those cases, our supreme court concluded that home-rule units may legislate concurrently with the General Assembly on environmental control, but that such legislation must conform with the uniform standards established by the legislature. However, the circumstances surrounding those cases were different from those in the present case.

Those cases deal specifically with the home-rule unit’s capacity to legislate in the area of environmental control. The supreme court cited article XI of the Illinois Constitution in support of its conclusion. (County of Cook, 75 Ill. 2d at 514-15; City of Chicago, 59 Ill. 2d at 489.) That article states that the General Assembly shall provide by law for the implementation and enforcement of the public policy set forth in that section mandating the State to provide and maintain a healthful environment. (Ill. Const. 1970, art. XI, §1.) In City of Chicago, the court also reviewed excerpts from the General Government and Local Government Committees of the constitutional convention on the environmental article.

The court concluded that there was no doubt that it was the intention of those committees that the General Assembly must provide the leadership in the fight against environmental pollution. However, in the present case, there is no evidence indicating the necessity for uniform standards under the Commercial Renewal and Redevelopment Areas Act. Nor does this court perceive an overriding policy interest on the part of the State in keeping these standards uniform. Accordingly, the defendants’ argument regarding the uniform standards established by the Act must fail.

II. CONSTITUTIONALITY OF THE ORDINANCE

Although the ordinance is not preempted by the Act, this court finds it invalid on constitutional grounds. The defendants assert the ordinance is arbitrary, unreasonable and vague on its face. We agree.

An ordinance may be upheld if it bears a rational relationship to a legitimate governmental interest where there is no suspect classification or fundamental interest involved, and there is a presumption in favor of validity of the ordinance. (Springfield Park District v. Buckley (1986), 140 Ill. App. 3d 524, 530.) The party challenging it bears the burden of showing that it is unreasonable. Springfield Park District, 140 Ill. App. 3d at 530.

Defendants assert that a finding of vacancy, alone, in all or any part of a building, is arbitrary and unreasonable and not rationally related to the end sought to be achieved by the ordinance. The goal of the ordinance, to eradicate blight and renew development in the central business district, is a legitimate governmental interest. However, the language used in the ordinance is so vague and overly broad it renders the ordinance unreasonable.

An ordinance or statute violates due process guarantees when its terms are so incomplete, vague, indefinite and uncertain that men and women of ordinary intelligence must necessarily guess at their meaning and differ as to their application. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1986), 144 Ill. App. 3d 325, aff’d (1987), 118 Ill. 2d 389; Krebs v. Thompson (1944), 387 Ill. 471.) The law is clear that a legislative act which is so vague, indefinite and uncertain that the courts are unable, by accepted rules of construction, to determine, with any reasonable degree of certainty, what was intended will be declared void. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389; Mayhew v. Nelson (1931), 346 Ill. 381; People ex rel. Travis v. Rogier (1927), 326 Ill. 310.

The phrase “vacancies in all or part of any building” is vague and overly broad. Buildings are often vacant either in whole or in part. In fact, many buildings, such as office buildings, hotels, motels and hospitals, are seldom filled to capacity. Under the language of this ordinance, an owner of property, either wholly or partially vacant, cannot be certain whether the property is at risk of condemnation. The ordinance does not specify whether any vacancy is sufficient to justify the condemnation of the property, or whether the vacancy must be excessive, chronic or permanent. Due process requires the terms of the ordinance be clear enough so that every citizen of Wheaton may know how the ordinance will operate to affect their rights when it is utilized. We agree with the defendants that the City’s ordinance is impermissibly vague.

In addition, the City’s requirement that only one of the elements listed need be found in order to justify condemnation of the property is equally unreasonable, arbitrary and overly broad. That section recites the following factors as detrimental to the public safety, health, morals or welfare making it necessary to redevelop the property:

“[A]ge; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures, or parts thereof, below minimum City and B.O.C.A. code standards; vacancies in all or part of any building; overcrowding of structures and community facilities; lack of ventilation, light, or sanitary facilities; inadequate utilities; or excessive land coverage; deleterious land use or layout; depreciation or lack of physical maintenance; or any other condition which is detrimental to the public safety, health, morals or welfare ***.” Wheaton, Ill., Municipal Code ch. 8, art. V, §8 — 98(b).

Requiring the presence of only one of the above-mentioned factors in order to justify condemnation is unreasonable, arbitrary and overly broad because it does not put the average person on notice as to exactly when the ordinance will be utilized. By the terms of the ordinance, the City could condemn a building merely because of its age or because of the lack of adequate light or ventilation. Such a requirement cannot withstand constitutional challenge. The ordinance does not bear a rational relationship to the legitimate governmental interest in redeveloping blighted areas. Accordingly, we find the ordinance to be inoperative and invalid.

For the reasons stated above, the judgment entered by the circuit court of Du Page County in favor of the City of Wheaton is reversed.

Reversed.

UNVERZAGT and GEIGER, JJ., concur.