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    FRANCIS HOPKINSON, Adm’r of the Estate of Rita Hopkinson, Deceased, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—3258
    Opinion filed March 28, 1991.

      William H. Farley, of Chicago Transit Authority, and Arnstein & Lehr, both of Chicago (Arthur L. Klein, Patrick F. Geary, and John T. Wagener, of counsel), for appellant.
    Ambrose & Cushing, P.C., of Chicago (Thomas M. Cushing, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Francis Hopkinson, administrator of the estate of Rita Hopkinson, brought this wrongful death action against defendant, the Chicago Transit Authority (CTA), following decedent’s rape and murder by an unknown assailant at a CTA “el” train station. A jury awarded plaintiff $1,500,000 in damages, and judgment was entered on the verdict.

On appeal, the CTA contends that it is immune from actions for failure to prevent criminal attacks by third persons, pursuant to a retrospective application of section 27 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1985, ch. 111⅔, par. 327); that the CTA owed no duty to decedent to protect her from the criminal attack of third persons; that decedent was not an invitee on CTA premises when first accosted; that plaintiff’s expert witness was not qualified to render expert opinions; that evidence of prior criminal incidents was improperly admitted; that an undisclosed witness was improperly permitted to testify as an expert; that the CTA was improperly excluded from arguing to the jury about the lack of prior similar incidents; and that the CTA was improperly barred from introducing evidence of police patrols at the CTA station.

At trial, it was established that on Sunday, May 28, 1978, between 9 a.m. and 9:30 a.m., decedent was raped and stabbed to death at the Austin/Lombard station of the Congress “el” train line which connects Chicago and Oak Park.

The CTA station platform, located below street level, runs between two ticket booth areas which are up at street level. A passenger may enter at the east end of the station, where an east-west ramp runs down to the platform.

The attack on decedent occurred at the west end of the station, about four blocks away, where a passenger may enter at Lombard Avenue. The Lombard entrance consists of a nearly enclosed ticket booth area, surrounded by metal sheeting and opaque fiberglass. A passenger would enter the ticket booth area through a floor-to-ceiling turnstile with interlocking horizontal steel bars. He would then walk down a three-flight stairway, and then walk through a 200-foot walkway. Finally, he would walk up a few steps to the 500-foot platform itself. It is then necessary to walk the length of the platform to the Austin end, where the trains stop.

The Lombard stairway and walkway are encompassed by opaque corrugated fiberglass paneling approximately four feet tall, and a roof. On the platform itself, there are numerous metal wind partitions, covered with billboards, set in the middle of the platform.

Both the Austin and Lombard ticket booths were not staffed on Sundays, and fares were collected on the train.

The CTA train platform is set below street-level excavation. Starting at the south end of the excavation is a cement retaining wall which runs east-west, and which is built from the ground up to the street. Parallel to the wall are east-west railroad tracks, then the east-west CTA tracks and platform, and then the east-west Eisenhower Expressway.

The 22-year-old, 5-foot-tall, 88-pound decedent left home at about 8:45 a.m., planning to study at the University of Illinois medical school in Chicago where she was a student. She carried a purse, lunch, books and school papers. Her father dropped her at an Austin Boulevard bus about one mile north of the Congress “el” station. A transfer found in decedent’s purse indicated she was on the southbound bus just before 9 a.m.

Diane DeMarro Jelison testified for plaintiff that she was 14 years old on the day in question. Between 8:50 and 9 a.m., Jelison and two friends went through the Lombard Avenue entrance and walked to the east end of the platform. Jelison also testified that from the street you could not see the platform or the Lombard walkway which leads to the platform. Jelison saw several people on the platform, including a black man sitting on a bench. He stared at Jelison in a “weird” way that caused her to be very frightened. Several minutes later, a train arrived, and Jelison and her friends boarded. The man did not board the train. She later described the man to the Oak Park police.

Tom Hejna testified for defendant that sometime after 9 a.m., he was playing baseball in a park, across the street and about 350 feet from the Lombard end of the “el” station. The park was street level, above the expressway and the “el” platform. One end of the park ran parallel with the platform.

Hejna testified that shortly after 9 a.m., while playing centerfield, he saw decedent on Lombard Avenue, outside of the Lombard entrance to the “el” station, with a black man. The man was “leading her by the hand into the station.” Decedent appeared “reluctant,” but not in danger. Hejna had no idea whether or not they had just exited the Lombard station.

Decedent and the man walked into the station and were in and out of his view after that time. Hejna could see the first flight of the stairway. At one point, he saw decedent run down the stairway, followed by the man, who then led her back up the stairway. Panels obstructed his view, and he could not tell whether she was fully clothed or injured at that time. Hejna could occasionally see them through the rear opening in the Lombard entrance, and at one point saw the girl seated on the ground while the man stood near her.

Hejna eventually saw another man, Kenneth Bobeo, enter the station at Lombard Avenue. Hejna then saw Bobeo run down the stairs, and after a short delay, decedent ran after Bobeo. The assailant then exited the station onto Lombard Avenue. He looked down at the platform, and then ran away.

Hejna was not certain how long this all took, but he remembered playing portions of two half-innings in centerfield, and between those, his team played a full half-inning up at bat.

Kenneth Bobeo testified for plaintiff that he entered the station at Lombard Avenue between 9 and 9:30 a.m. He could not see into the area very well until he had actually passed through the turnstile. Bobeo then saw decedent, naked from the waist down, standing on the top stair of the stairway leading down to the platform. Decedent pointed to a “completely obscured area around the corner inside that entrance area.” A black male then moved from that area toward Bobeo and stabbed him twice in the chest. Bobeo began running down the stairs and through the walkway to the platform, yelling at decedent to run, too. At one point, Bobeo fell. He then turned and saw decedent running behind him on the platform, and noticed she was covered with blood. Bobeo finally collapsed on the platform, unconscious.

Bobeo later described the assailant to the Oak Park police, and that description matched the one given by Jelison of the man she had seen on the platform at 9 a.m. Bobeo also testified that from the street, it was almost impossible to see into the Lombard stairway and walkway.

At about 9:32 a.m., the police arrived. The assailant was never apprehended.

William Thomas, a CTA motorman, testified for both parties. He stated that he drove an eastbound train into the Austin/Lombard station shortly after 9 a.m. Looking up to the street level, he saw a bus stopped at the Austin entrance to the station. He saw several passengers, but did not see the man Jelison described and did not see decedent.

Rafael Davila, a CTA conductor, testified for defendant that he was on a 9:06 a.m. westbound train. He scanned the platform for passengers, and saw several, but did not see the man Jelison described, or decedent. After the train reached the end of the line it turned around. The now eastbound train arrived at the Austin/Lombard station shortly after 9:30 a.m., when he saw a lady lying on the platform, and he radioed for help.

Dr. Michael Wolfson Kaufman, a pathologist, testified for plaintiff that he reviewed the medical examiner’s records regarding decedent. Decedent suffered four chest wounds which perforated the surface of the lungs. Any one or more of the wounds could have been fatal. She also suffered a knife wound which penetrated completely through the heart and was a fatal wound. There was also a stab wound in the vaginal area. Ultimately, decedent bled to death. It would have taken anywhere from 5 to 15 minutes to bleed to death, depending on the sequence of the wounds.

Lieutenant Paul Briggs of the Oak Park police department testified for plaintiff that he was called to the scene of the murder on May 28, 1978. Just inside the Lombard entrance he found decedent’s purse, shoe, jeans, lunch and school papers. A CTA transfer was found in the purse. He observed a little blood inside the Lombard ticket booth area, and a trail of blood on the stairway and walkway, including footprints, handprints and pools of blood.

Briggs also testified that you could not see into the ticket booth area from the street. He testified that from the baseball field on Garfield, and looking into the Austin or the Lombard entrance, it was not possible to see most of the “el” platform. Standing on either Austin or Lombard Avenue, you could not see the tunnels on the opposite ticket booths because they are partially walled and roofed with opaque paneling.

Michael Fitzsimmons testified that in 1978 he was deputy chief of police for Oak Park. He related a series of extensive complaints, community outcry and studies relating to the serious crimes committed at the Austin/Lombard and Oak Park/East Avenue stations. These meetings included the Oak Park police, CTA security representatives and citizens. At one point, CTA representatives were given a survey showing that in the first five months of 1975, the number of serious crimes committed at these two stations had increased 110%. The Oak Park police recommended to the CTA that the opaque panels obstructing the view of persons in the walkway and stairway be removed; that the Lombard station be closed during slow times; that an alarm system be installed at the stations, linking them to the police station; and that a study be completed. The CTA representatives stated that they would consider the recommendations; however, none of them were ever implemented.

Plaintiff’s counsel read into the record letters from congressmen to the CTA regarding the Austin/Lombard station’s dangerous conditions, particularly the concealment dangers of the fiberglass walls.

Timothy O’Mahoney testified as an expert witness for plaintiff, over defendant’s objections. He opined that the CTA should have known that a serious crime such as the attack on decedent was highly likely to occur, due to prior criminal incidents which had occurred during the past five years on the Austin/Lombard station and the Oak Park/East Avenue station, located a half mile away. O’Mahoney also pointed to the opportunity for concealment due to the design of the Lombard Avenue entrance.

O’Mahoney also opined that the incident could have been prevented by the CTA’s use of certain security methods. He suggested a “no-hide” architecture including the removal of the opaque fiberglass panels, installing closed circuit TV, having a ticket agent on duty, bells to announce an arriving train, public telephones on the platform, closing the Lombard entrance when no agent was on duty, CTA security patrols, public education about transit safety, and encouraging passengers like Jelison to report strange things they saw. None of these security devices were in place at the time of decedent’s death.

Lieutenant Robert Hanley of the Chicago police department testified as an expert witness for defendant. He testified that a period of one to three months, rather than five years, should be used to trace criminal activity patterns. “Any farther back than that is vague because the criminal moves from one location to another location.” Sometimes they would look back at files for a period of one year, but after that they had to return the files “downtown to put them in the memory bank.” Hanley offered the opinion that the Lombard Avenue entrance did not present an unreasonable risk of harm due to areas of concealment because it was fully “open to the public” and, once inside the Lombard turnstile, allowed a “total view of the whole terminal.”

He believed, “from the reports that [he] read,” that decedent was not accosted on the platform, but instead was walked by the assailant from nearby Flournoy Street into the “el” station, down to the platform where they stayed briefly, and back up the stairs again. If he was mistaken and the reports did not show that decedent had come from Flournoy Street, Hanley would change his opinion about decedent’s not being accosted from the platform.

Hanley testified that a closed circuit TV system had been tested on a portion of the CTA transit line and had been found ineffective. Hanley believed the CTA could not have known such a serious crime was likely to occur at this station. Hanley believed that 56 incidents over five years at two stations revealed no discernible pattern of serious crime. The police only considered it a “pattern” requiring action when there was evidence of a “repeater,” i.e., numerous crimes committed at the station within a month.

The CTA first contends that the trial court erred in refusing to dismiss the action based on the enactment of section 27 of the Metropolitan Transit Authority Act, which provides:

“Neither the Authority, the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.” Ill. Rev. Stat. 1985, ch. 111⅔, par. 327.

Defendant argued at the 1988 trial that the statute should be applied retrospectively to the 1978 attack of decedent.

This court recently held section 27 to be a substantive amendment with a prospective application. (Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84.) We find nothing in defendant’s argument here which would alter our holding in Young.

Prospective application of a statute is preferred. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034.) A statutory amendment creates a presumption of intent for prospective application where the change is “substantive” rather than “procedural.” (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309, 522 N.E.2d 1195, 1198.) The presumption can be rebutted by either the express language of the Act or by necessary implication drawn from the Act itself. Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d at 309.

A procedural change in law generally prescribes methods of enforcing rights, and embraces pleading, evidence and practice, i.e., legal rules which direct the means to bring parties into court or the manner in which the court process shall proceed. It facilitates suit against a party. In contrast, a substantive change in law establishes, creates, defines or regulates rights, and thus could actually “ ‘make[ ] one a party to a suit?’ ” Rivard, 122 Ill. 2d at 310-11, quoting Ogdon v. Gianakos (1953), 415 Ill. 591, 596, 114 N.E.2d 686.

In Rivard, the court held that the law governing whether or not unincorporated associations could be sued was substantive. At common law, injured parties enjoyed no rights against unincorporated associations. The statute at issue in Rivard altered this substantive law by establishing the right of unincorporated associations to sue and to be sued.

In Moshe v. Anchor Organization for Health Maintenance (1990), 199 Ill. App. 3d 585, 557 N.E.2d 451, this court held that a statutory immunity granted to health plan corporations operated to prevent a cause of action from coming into being and therefore was substantive in nature, as was the subsequent legislation abolishing the immunity. Moshe, 199 Ill. App. 3d at 600-01.

Similarly, in the present case, the law governing whether or not the CTA can be sued is substantive. Prior to the enactment of the amendment to section 27 (Ill. Rev. Stat. 1985, ch. 111⅔, par. 327) in September 1985, the CTA could be sued for injury caused to a passenger by a third person. This was a common law substantive right. After the statute became effective, that substantive right was abolished.

Although we have held that section 27 bars a cause of action and thus is the kind of amendment which requires prospective application, we must go on to ask whether the legislature has indicated an intent to apply the new law retrospectively. See Board of Education of School District No. 170 v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 479, 461 N.E.2d 567, citing United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4.

The express language of section 27 contains no reference to a retrospective intent. We find further that the Act contains no necessary implication or “logical necessity” (In re Application of County Treasurer (1973), 14 Ill. App. 3d 1062, 1066, 304 N.E.2d 9, 12) of retrospective application of section 27.

The CTA relies on State Farm Mutual Auto Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 463 N.E.2d 129, where the court held that interspousal immunity was a procedural bar because it could be waived, and was not a substantive bar to causes of action between spouses. In Young v. Chicago Transit Authority, we rejected this argument because the statutory immunity granted under amended section 27, “in contrast to interspousal immunity, is non-waivable and prevents a cause of action from coming into being.” Young, 209 Ill. App. 3d at 93. See also Moshe v. Anchor Organization for Health Maintenance, 199 Ill. App. 3d at 601, 557 N.E.2d at 461.

We note further that if a tortfeasor waives his immunity from liability for injury he caused to his spouse, he must pay any judgment entered against him. In contrast, if the CTA were permitted to waive its immunity from liability for failure to protect passengers from criminal assaults, the cost of compensating injured passengers would be “a burden which would be ultimately borne by taxpayers and fare-paying passengers.” Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 238, 531 N.E.2d 1.

The CTA also argues, as it did in Young v. Chicago Transit Authority, that the amendment to section 27 is procedural because it merely affects plaintiff’s remedy, since it does not eliminate all causes of action arising from the criminal attack—only the causes of action against the CTA itself. We reject that argument here for the same reasons stated in Young, 209 Ill. App. 3d at 92. See also Moshe v. Anchor Organization for Health Maintenance, 199 Ill. App. 3d at 600-01, 557 N.E.2d at 460.

The CTA next contends, as it strenuously argued throughout the trial, that plaintiff failed to prove that decedent was an invitee to whom the CTA owed a duty of protection from the criminal attack of a third party. The CTA argues that the status of decedent was a question to be decided by the jury, not by the court as a matter of law. Thus, it argues that the court erred in refusing to let the jury decide whether the CTA owed decedent a duty of protection.

Every litigant has the right to have the jury instructed on his theory of the case, and in order to justify the giving of an instruction, “some evidence” in the record must support the theory. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 724, 504 N.E.2d 781.) However, where all the facts and inferences therefrom lead to only one conclusion, the matter of whether a party is an invitee may be decided without recourse to a jury. Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 97 N.E.2d 290 (court affirmed ruling that plaintiff was invitee as matter of law, and jury instruction that plaintiff was invitee did not invade province of jury); Sumner v. Hebenstreit (1988), 167 Ill. App. 3d 881, 884-85, 522 N.E.2d 343, 346 (question of whether plaintiff was licensee or trespasser properly determined as a matter of law); Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 1102, 495 N.E.2d 679, 681 (question of whether plaintiff was an invitee or licensee was properly determined as a matter of law); Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 672-73, 299 N.E.2d 108, 120-21 (proper to rule that, as a matter of law, plaintiff was a social guest); Jacobsma v. Goldberg’s Fashion Forum (1973), 14 Ill. App. 3d 710, 711, 303 N.E.2d 226, 228 (court affirmed trial court’s determination that, as a matter of law, plaintiff had lost his status as invitee and was volunteer, and thereby properly refused to submit question to jury); Johnson v. Shell Oil Co. (1970), 131 Ill. App. 2d 1032, 264 N.E.2d 278 (abstract only) (court affirmed trial court’s decision to not submit to jury issue of whether plaintiff was invitee or licensee, notwithstanding that instruction to jury that defendant was under duty of ordinary care was tantamount to express finding that plaintiff was an invitee as a matter of law, which was not error under the evidence). Cf. Sims v. Chicago Transit Authority (1955), 7 Ill. App. 2d 21, 129 N.E.2d 23 (reversible error to submit question of carrier and passenger relationship to jury where evidence showed as a matter of law plaintiff ceased to be a passenger and became an invitee to whom defendant owed only the duty of ordinary care).

Generally, the question of whether the parties stood in such a relationship to each other that the law imposed on defendant a duty of reasonable care for plaintiff’s safety is a question of law for determination by the court. Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427, 1431, citing Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 480, 475 N.E.2d 822, 825; Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617, 618-19.

A duty to protect one against the criminal attacks of third persons exists only where a special relationship exists between the actor whose negligent conduct creates the risk and the person suffering the harm. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 556, 328 N.E.2d 538.) One such special relationship is that of a common carrier-passenger. Rowe v. State Bank (1988), 125 Ill. 2d 203, 215-16, 531 N.E.2d 1358, 1364; Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 470 N.E.2d 1163.

If decedent were considered a “passenger,” the CTA would be bound to exercise the highest degree of care and prevent injuries which it reasonably could have foreseen and avoided. (McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 285, 371 N.E.2d 625.) The trial court here determined as a matter of law that decedent was not a “passenger” and that finding is not disputed on appeal.

As an invitee present on the CTA’s platform or property, but not on its train, the CTA is required to exercise only ordinary care to keep the property in a reasonably safe condition for use. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 374, 50 N.E.2d 497, 501.) The trial court here found that as a matter of law decedent was an invitee.

“Counsel, I am ruling as a matter of law that she is an invitee * * *
* * *
She was in my opinion, under the evidence, under the circumstances such that she was entering upon the premises for a purpose consistent with the purpose of the operator of the train. She came there basically to get upon the train. Now, that’s the ruling of the Court. It will not be submitted. She was an invitee.”

The test for whether or not someone is an invitee is: (1) if he enters the premises of another by express or implied invitation; (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land; and (3) there is a mutuality of benefit or a benefit to the owner. Figueroa v. Evangelical Covenant Church, 879 F.2d 1427, citing Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 710, 474 N.E.2d 920, 922.

There is little question that a person entering a station platform to catch a train is entering by invitation and that there is a benefit to the owner. The CTA, in practical effect, focuses its arguments on the second part of the three-part test, i.e., whether decedent’s entry was connected with the CTA’s business. The CTA contends that the focus must be on the time decedent was first accosted by the assailant. It argues there is “substantial evidence which logically supports an inference that [decedent] was not on defendant’s premises at the time she was first accosted.”

We believe the CTA’s attempt to split the attack into fragmented bits of time results in an artificial and unreasonable view of the evidence before the jury. The evidence and any reasonable inferences drawn therefrom establish that decedent physically entered the CTA station at Austin and was then accosted by the assailant.

Shortly before 9 a.m., decedent’s father dropped her at the Austin Boulevard bus station. The transfer found in decedent’s purse indicated she was on the bus at 9 a.m. She planned to transfer to the Congress “el” and take the train to school. The jury could only reasonably infer that, because she was found at this “el” stop, she did in fact exit the bus at the Congress station.

The Austin bus stops right outside the door to the Austin Boulevard Congress “el” station. Decedent would need to walk three or four steps from the bus to enter the “el” station door. For the assailant to accost decedent at this point would mean he would have to grab her almost as she stepped off the bus, on .this seven-lane street in broad daylight, with no other buildings nearby on this overpass crossing the expressway, and somehow steer her from the door which was only a few steps away. Such an inference cannot reasonably be drawn from the evidence.

In addition, the assailant was seen on the platform shortly after 9 a.m. by Jelison, and the same man was described by Bobeo as the assailant.

Moreover, when decedent was seen by Hejna outside of the Lombard Avenue entrance, she carried no purse, books or papers, all of which she carried when her father left her at the bus stop, and all of which were found lying inside the Lombard Avenue entrance. The only possible reasonable inference to be drawn from the evidence is that prior to being seen outside the Lombard entrance with the assailant, decedent had been accosted by him inside the “el” station.

There is no evidence in the record to support a reasonable inference that decedent would exit the Austin bus, ignore the door to the Austin “el” station entrance four steps away, although that entrance is always open, and walk the four blocks around the expressway where there was not even a sidewalk, over to the Lombard Avenue entrance, which was often locked on weekends.

The CTA argues, however, that even if decedent attained an invitee status, she lost that status when- she and the assailant exited the station at Lombard and returned for the opportunity to use the ticket booth area for the rape and stabbing, conduct not connected to the CTA’s business. We also reject this theory.

In Neering v. Illinois Central R.R. Co., a woman entered the train station platform at the far end, walked all the way to the station warming house at the other end of the platform and sat on a bench, and was then accosted by a man. She ran out the door and down the platform. The man chased her, knocked her off the platform, jumped down, and pulled her under the platform, where he raped and beat her.

The victim’s physical movement off the station platform never entered the court’s analysis of whether she was an invitee, although it specified that a duty to exercise ordinary care applied only to “station buildings and other appurtenances” such as platforms. Neering, 383 Ill. at 374, 50 N.E.2d at 501. See also Figueroa v. Evangelical Covenant Church, 879 F.2d 1427 (plaintiff abducted from parking lot, and later raped and stabbed; emphasis is on place of abduction, not departure from defendant’s property); Small v. McKennan Hospital (S.D. 1989), 437 N.W.2d 194 (victim was invitee of hospital, as a matter of law, where she was abducted from parking ramp, taken elsewhere and killed); Jardel Co. v. Hughes (Del. 1987), 523 A.2d 518 (victim was business invitee of shopping mall owner where she was abducted from mall parking lot, taken to a remote site adjacent to the mall, beaten and raped).

In Rotheli v. Chicago Transit Authority (1955), 7 Ill. 2d 172, 176-77, 130 N.E.2d 172, the court rejected the type of fine-line factual distinctions the CTA tries to make here. In Rotheli, the court criticized its earlier opinion in Feldman v. Chicago Rys. Co. (1919), 289 Ill. 25, 124 N.E. 334, where the court made a distinction between two passengers who were injured after exiting a bus. The court distinguished them on the basis that one had finished his journey and one intended to transfer to another bus. In Feldman, the court held the duty owed by the carrier to each person was different, that a higher degree of care was owed to the transferring passenger. In Rotheli, the court explained its criticism:

“The ends of justice are not served by constructing theories to support a former decision by fine-line factual distinctions where a disturbing element continually provokes in the judicial mind a doubt that substantial justice has been done. To pronounce that two passengers, both injured after alighting from a common carrier, are viewed differently by the law merely because one intends to transfer to another conveyance of the same carrier while the other does not is an unwitting creation of a condition of basic injustice.” Rotheli, 7 Ill. 2d at 176-77, 130 N.E.2d at 172.

The same reasoning applies in the present case. The CIA’s argument that decedent lost her status as invitee when she was forced out of the Lombard entrance and back in again creates an artificial line which is unjust and ignores the realities of the entire circumstances surrounding this brutal crime. A person does not arbitrarily pass from one status to another based upon mere suspicions, and the court must view all of the surrounding facts and circumstances in determining the person’s status. See Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343.

See also Nixon v. Mr. Property Management Co. (Tex. 1985), 690 S.W.2d 546, where the majority court found a 10-year-old rape victim who had been forced into an. adjacent building was owed a duty by the property owner under an ordinance. The court filed four separate opinions discussing her status as invitee. One concurring opinion noted the lower court’s “groping for a designation for a ten year old girl who has been forcibly dragged off the street into an apartment complex.” The opinion referred to these “duty fictions.” (Nixon, 690 S.W.2d at 551-52 (Kilgarlin, J., concurring).) Another opinion noted that it would “be manifestly unjust to classify her as trespasser when she was dragged onto the property by a rapist.” Instead, the court must view “all the circumstances.” Nixon, 690 S.W.2d at 554 (Spears, J., concurring).

In the case before us, we conclude that the trial court correctly held that the only possible reasonable inference supported by the evidence was that decedent entered the Austin entrance to the “el” station and was accosted by the assailant within the station.

In a related argument, the CTA argues that the trial court erred in refusing to direct a verdict for defendant and in denying defendant’s motion for a judgment notwithstanding the verdict.

A directed verdict or judgment notwithstanding the verdict should be granted only where all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Here, for the reasons stated above, we find that when all of the evidence of the issue of decedent’s status as an invitee is viewed in an aspect most favorable to plaintiff, it does not so overwhelmingly favor the CTA that no contrary verdict based on that evidence could ever stand.

The CTA next contends that the trial court abused its discretion in permitting O’Mahoney to testify as an expert witness. The qualification of an expert witness rests largely in the sound discretion of the trial court, and its determination will not be reversed absent a gross abuse of discretion. (Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 302 N.E.2d 257.) A witness may be qualified as an expert based on knowledge, skill, experience, training or education. (Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037.) The witness must possess knowledge of a specialized nature beyond that of the average person on a factual matter material to the litigation. 134 Ill. 2d R. 220. See, e.g., Gordon v. Chicago Transit Authority, 128 Ill. App. 3d 493 (court rejects CTA’s argument that O’Mahoney was not a public transit security expert), cited in M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §702.2, at 497 (5th ed. 1990); see also Young v. Chicago Transit Authority, 209 Ill. App. 3d at 95 (court rejects CTA’s argument that O’Mahoney was not a public transit security expert, finding argument was waived).

O’Mahoney received training and experience as a military policeman; as an army reservist; as a CTA security officer; as a special officer with the Milwaukee Railroad in commuter rail stations; and as security supervisor in Water Tower Place in Chicago. He has attended numerous courses in law enforcement. Among other things, O’Mahoney participated in meetings with the CTA, between 1978 and 1981, regarding transit security problems and solutions. He has also made on-site security inspections of commuter transit lines in six major cities.

Certainly this training and experience resulted in his possession of knowledge of a specialized nature beyond that of the average person. (See 134 Ill. 2d R. 220.) Furthermore, defense counsel was permitted to explore these qualifications on cross-examination before the jury. We find no abuse of discretion in qualifying O’Mahoney as an expert in rapid transit security.

The CTA next contends that the trial court erred in allowing O’Mahoney to render his opinion on causation between decedent’s attack and the CTA’s failure to provide safe premises. Specifically, the CTA complains that O’Mahoney “conceded that the devices would not have prevented the assault if the decedent was not initially confronted by her assailant on the platform,” and that O’Mahoney “was aware of no evidence demonstrating that she was first accosted there.” The CTA concludes that O’Mahoney’s opinions regarding the CTA’s “alleged negligence would have no relevance without this illusionary foundation, because the alleged negligent acts would otherwise have no causal relationship to her death.”

As the CTA itself recites, the rule is that an expert may base an opinion on assumptions, if they are supported by facts or reasonable inferences from the facts. (Smith’s Transfer Corp. v. Industrial Comm’n (1979), 76 Ill. 2d 338, 350, 392 N.E.2d 14.) We have already held that the only reasonable inference which could be drawn from the evidence was that decedent was first accosted on the CTA premises. Moreover, defense counsel thoroughly explored the possibility of decedent’s being accosted outside the station when it cross-examined O’Mahoney.

The CTA’s reliance on Shaner v. Tucson Airport Authority, Inc. (1977), 117 Ariz. 444, 448, 573 P.2d 518, 522, is misplaced. In Shaner, no evidence was presented at trial. The court granted defendant’s motion for a directed verdict following plaintiff’s opening statement. Moreover, the opening statement showed that there was no evidence of what occurred in the parking lot from which the murder victim was abducted. In contrast, here, the brutal rape and murder all occurred on the CTA’s premises. In addition, we disagree with the Shaner court’s holding that plaintiff’s security expert, who would testify that the poor lighting and inadequate security were a proximate cause of the kidnapping and death, is not the proper subject of expert testimony since it required no special knowledge and would have been of no aid to the jury. (Shaner, 117 Ariz. at 448, 573 P.2d at 522.) We find Shaner of no value in our decision here.

The CTA next contends it was prejudiced by the improper admission of evidence of certain prior criminal incidents. It asserts that the “cornerstone of [O’Mahoney’s] opinion was a list of 56 criminal incidents which occurred between 1973 and 1978 at the Austin/Lombard station and at Oak Park/East, another station located approximately one-half mile away.”

Initially, we note that O’Mahoney based his decision on much more than the prior criminal incidents. The CTA, however, objects to the time span of five years, to the inclusion of the Oak Park/East “el” station, and to the inclusion of crimes involving only vandalism or property damage, contending that this evidence was insufficient as a matter of law to prove notice or reasonable foreseeability.

In order to prove the CTA’s liability for negligence, plaintiff was required to establish that the CTA had notice of the existence of a dangerous condition at its Austin/Lombard station platform at the time of decedent’s injury. Miller v. Chicago Transit Authority (1966), 78 Ill. App. 2d 375, 223 N.E.2d 323.

The trial court’s judgment in regard to the admission or exclusion of evidence will not be disturbed absent a clear abuse of discretion. (Veer v. Hagemann (1929), 334 Ill. 23, 28, 165 N.E. 175.) Moreover, in regard to the jury’s finding that the attack was foreseeable based on the notice the CTA had of the conditions at the station, we note that a jury verdict will not be disturbed unless it is palpably erroneous, the opposite verdict is clearly compelled, or findings appear to be unreasonable, arbitrary and not based on the evidence. Friedland v. Allis Chalmers Co. of Canada (1987), 159 Ill. App. 3d 1, 511 N.E.2d 1199.

An expert may base his opinion on facts and data not in evidence. The burden is on the opponent to explore this foundation on cross-examination. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) Prior to O’Mahoney testifying before the jury, the court held an extensive in camera hearing to determine exactly which types of crimes O’Mahoney could rely upon as a basis for his opinion regarding notice to the CTA.

In regard to the use of a five-year time period, O’Mahoney testified that he relied on the Mandex Corporation’s study of transit crime problems. The study recommended examining a five-year period for a trend analysis. O’Mahoney testified that experts in the field would rely on such a time period. “Longer periods of time are useful for purposes of very detailed studies ***.” O’Mahoney also testified that physical changes were made to the Austin/Lombard station in 1976, 2V2 years before the murder, and that for an accurate comparison he would go back an equal amount of time before the change as a balance in analyzing any significant effect the physical changes had on the crime pattern. It was on this basis that the trial court permitted him to testify about crimes occurring in a five-year period. We find no abuse of discretion.

In regard to the use of both the Austin/Lombard and the Oak Park/East Avenue stations, O’Mahoney testified that they had nearly identical architectural designs and were only one-half mile apart. In addition, the security factors were similar, the hours of the ticket booth operation were similar, and the neighborhoods were similar. The court properly restricted the comparison testimony to these two stations. (See Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997, 376 N.E.2d 680 (court found criminal conduct on one “el” station was relevant to subsequent attack of passenger on adjacent “el” station).) Notably, of the 56 incidents considered at these two stations, only 12 were at the Oak Park station, and eight of those were property damage cases.

In regard to the types of crimes considered, following the in camera hearing, the court ruled that only certain types of crimes could be considered, including certain criminal damage cases. Other incidents, such as those occurring on the train, which then happened to result in an arrest at the Austin/Lombard station, could not be included. See Gordon v. Chicago Transit Authority, 128 Ill. App. 3d 493 (O’Mahoney considered crimes against both person and property).

O’Mahoney testified that he relied on a Carnegie Melon report where researchers considered lesser crimes because it indicated a crime atmosphere or the openness of crime in a particular area. He testified that experts in the field would normally rely on reports of such incidents. Moreover, vandalism to the station property was a highly visible crime which could act as “an advertisement that crime can be committed here and in the sense it’s significant *** then types of crime will go beyond just damage to property.” We agree with the reasoning stated by the court in Jardel Co. v. Hughes (523 A.2d at 525):

“Jardel’s proposed foreseeability standard-limited to specific crimes — is unrealistic. Criminal activity is not easily compartmentalized. So-called ‘property crimes,’ such as shoplifting, may turn violent if a chase ensues and, as the evidence in this case indicates, family quarrels may become violent with the risk that deadly weapons may be used. Moreover, the repetition of criminal activity, regardless of its mix, may be sufficient to place the property owners on notice of the likelihood that personal injury, not merely property loss, will result.” Jardel, 523 A.2d at 525, citing Foster v. Winston-Salem Joint Venture (1981), 303 N.C. 636, 641-42, 281 S.E.2d 36, 40; Murphy v. Penn Fruit Co. (1980), 274 Pa. Super. 427, 418 A.2d 480; Nalian v. Helmsley-Spear, Inc. (1980), 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451.

Significantly, on cross-examination it was repeatedly brought out that the prior criminal incidents considered by O’Mahoney included various types of crime. For example, at the Austin entrance to the station, there were four batteries, 11 robberies, and one sexual assault. In contrast, at the Lombard end of the station there were six sexual assaults, and five “other” crimes, including two to four property damage incidents. Even having put the types of crimes in this perspective, the jury could find it highly probative to the issue of notice to the CTA of a dangerous condition that six sexual assaults occurred on the Lombard side of the station.

We find it was well within the discretion of the trial court to impose the limitations it did on the evidence of prior similar incidents. The jury could weigh this testimony and the weaknesses brought out in cross-examination, along with the testimony of defendant’s expert witness.

The CTA’s reliance on Miller v. Chicago Transit Authority is misplaced. In Miller v. Chicago Transit Authority, the court found an offer of proof of incidents occurring half mile from the Monroe Street platform where the surroundings are very different, four to eight years prior to the assault at issue, to be too remote in both time and place. That offer of proof, however, was overall found to be too vague, and the court was quite critical of the informal nature of the offer of proof. The offer of proof merely stated that several officers would testify “ ‘that there were several complaints received over a period of time prior to 11/25/56 as to assaults, robberies and various crimes in and about the platforms in the area of the subway near Monroe and State Street.’ ” (Miller, 78 Ill. App. 2d at 379.) The evidence here is far more detailed than the Miller offer of proof’s vague reference to “several complaints” which occurred “over a period of time” and “in the area of the [Monroe/State Street] subway,” in regard to “various crimes.”

The CTA next contends that Lt. Briggs should not have been permitted to offer expert testimony. The CTA specifically points to Briggs’ testimony regarding the cause of decedent’s wounds, and the pattern of blood at the scene, showing decedent was repeatedly attacked, “in direct contradiction to the eyewitness testimony.”

A lay witness may offer an opinion if it is helpful to a clear understanding of his testimony or a determination of a fact in issue. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 483 N.E.2d 524, citing Federal Rule of Evidence 701(b).) There must be a proper foundation establishing the witness’ personal knowledge of facts that form the basis of his opinion. (People v. Robinson (1981), 102 Ill. App. 3d 884, 429 N.E.2d 1356.) “The opinion of the [lay] witness must also be rationally based on the witness’s perception, meaning only that it must be one that a person could normally form from observed facts.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §701.1, at 482-83 (5th ed. 1990).

Briggs testified that he believed a superficial wound across the bridge of decedent’s nose showed a pattern which matched the gold chain around her neck. “It was my opinion that the wound on her nose was caused by this chain.” There was a proper foundation, as the police officer merely noted the same pattern on the necklace and on the wound on decedent’s nose. The opinion was rationally based on the officer’s perception. We find no error here, particularly in light of the fact that whether or not the necklace made a superficial wound on decedent’s nose is far removed from the ultimate issue in this case.

Briggs testified on direct examination, without objection from defendant, that there was a little blood in the ticket booth area, a trail of blood on the stairway and walkway, and more blood on the platform. Asked the significance of the various areas of bloody droplets, pools, footprints and handprints, Briggs testified without objection that decedent appeared to have fled from the Lombard ticket booth and ran toward Austin, and had dropped to her knees several times.

“Q. And you get that from the indications from the handprints on the wall?
A. Handprints on the wall, footprints, pools, droplets, indicating running, pools indicating stopped, footprints indicating running again. Handprints from ground level to those — they found smearing up as if to get up and to start, and droplets again until the next pool.
* * *
*** [I]f you follow the blood pattern, stopped here indicating to us that she had once more gone down, possibly attacked again here (indicating) and finally came to rest again, footprints, bloodprints, came to rest.”

On cross-examination, Briggs was asked several questions about the conclusions he had reached from the appearance of the blood trail. For example:

“Q. If you’re just speaking now of the appearance of the pools of blood then that would not be sufficient for you to draw the conclusion that she was being attacked throughout the length of her attempt to escape?
A. Yes, it would bring me to that conclusion. However, I would have my opinion reinforced later through other facts.
Q. Would the location of the pools of blood and the handprints on the wall also or instead indicate to you that perhaps she had just fallen down at that point and picked herself back up?
A. No.
Q. That would not be a sufficient explanation for the pools of blood and the handprints?
A. No.”

On redirect, Briggs was asked to clarify what he considered in determining decedent was not attacked just in the ticket booth area, but also in the tunnel area. Briggs specified that he considered the number and types of fatal or near-fatal wounds. “She could not have survived for the entire length of flight as described on those drawings.”

Defendant then offered his first objection on this subject. Defendant limited the objection, however, to the ground that there was no foundation for a police officer’s giving a medical opinion as to whether or not the wounds were fatal and whether or not she could not have survived them. Defense counsel argued:

“He’s not a doctor. And as far as the possibility that I opened this up, I thought I was very careful to limit my questions just to the pool of blood that he saw and the handprints.”

The court ruled that Briggs’ statement was not a medical conclusion. The CTA waived this issue by failing to specifically object to Briggs’ testimony that the pattern of blood found at the scene indicated she was repeatedly attacked between the Lombard entrance and the platform. To preserve an issue for appellate review, a party must make an objection stating specific grounds, and other grounds not stated are waived on appeal. Akers v. Atchison, Topeka & Santa Fe Ry. Co. (1989), 187 Ill. App. 3d 950, 543 N.E.2d 939; Kelleher v. Toledo, Peoria & Western R.R. Co. (1970), 129 Ill. App. 2d 110, 262 N.E.2d 744.

Moreover, the CTA must show that an error, if any, resulted in prejudice. (City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 418 N.E.2d 63.) If in fact an error was made, we see no prejudice requiring reversal here. Notably, the pathologist testified that the five chest wounds included a wound which went straight through the heart, and wounds which perforated the lungs. He stated that any one of the wounds might have been fatal. He opined that decedent bled to death within the first 5 to 15 minutes, depending on which wound was inflicted first. An error in the admission of opinion testimony of lay witnesses is not reversible error where it is superfluous testimony. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d 217, 483 N.E.2d 524.) Thus, the issue of the fatal nature of the wounds was admissible through this expert, and any comment by Briggs was cumulative.

In addition, defendant cannot complain now where it brought out this particular aspect of the line of questioning on cross-examination, thereby permitting plaintiff to clarify further on redirect examination. See Sny Island Levee Drainage District v. Meyer (1963), 27 Ill. 2d 530. 190 N.E.2d 356.

Furthermore, the error, if any, does not materially affect the outcome of the trial, and thus does not require reversal. (See Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.) Whether or not decedent was stabbed both in the ticket booth area and in the adjacent stairway or pathway was not a material issue at trial. See Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373.

The CTA next contends that the trial court erred in excluding certain argument. An in limine order limited the admission of prior incidents of criminal conduct “to the issue of notice to the CTA” and such evidence could “not [be] offered or argued to show that danger did not exist on the Austin/Lombard ‘L’ platform in question in this case.” We agree with the trial court that there was no error since the CTA argued extensively that it had no notice of danger to its passengers; conducted thorough cross-examination on the issue; and offered expert testimony regarding the significance of prior criminal acts or lack thereof. The cases relied upon by the CTA are strict liability actions, where the evidence of the absence of prior accidents involving the same or similar products is admissible. See Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 40, 541 N.E.2d 643.

In any event, arguing the absence of similar crimes has a limited value, since “it is clear that a long history of good fortune does not relieve a party from exercising ordinary and reasonable care in the operation of his particular business enterprise. Once the negligence conduct produces a foreseeable risk or injury, the actor may not find refuge in a ‘long history of good fortune.’ ” Small v. McKennan Hospital, 437 N.W.2d at 201, quoting Tanguma v. Yakima County (1977), 18 Wash. App. 555, 569 P.2d 1225; Butler v. L. Sonneborn Sons, Inc. (2d Cir. 1961), 296 F.2d 623.

The CTA next complains that prior to trial the court also granted plaintiff’s motion to bar evidence of any activity of the Oak Park police department’s patrolling the Austin/Lombard “el” station. Plaintiff grounded her motion on the fact that the CTA has a nondelegable duty of care towards its passengers. Gordon v. Chicago Transit Authority, 128 Ill. App. 3d 493.

The CTA has waived this alleged error by its failure to make an offer of proof of the excluded evidence at trial. (See Miller v. Chicago Transit Authority, 128 Ill. App. 3d 493.) An offer of proof enables the reviewing court to determine whether the exclusion was erroneous and harmful, as it discloses the nature of the offered evidence. Wright v. Stokes (1988), 167 Ill. App. 3d 887, 522 N.E.2d 308.

Moreover, we note that the CTA argues that the excluded evidence of the Oak Park patrols was relevant because of plaintiffs claim that the station was “isolated.” Lieutenant Briggs testified, however, that from the street it was very difficult to see the platform, and almost impossible to see into the ticket booth area, down the stairway or into the walkway leading to the platform. Other witnesses testified similarly. The CTA might be referring to some type of patrol where the officer would exit the patrol car and walk through the station itself. If so, that merely highlights the importance of including an offer of proof so that a reviewing court might better consider any alleged error. The exact nature of the excluded evidence is not readily apparent to this court, absent an offer of proof.

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

Judgment affirmed.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    CHICAGO CITY BANK AND TRUST COMPANY, Plaintiff-Appellant, v. DRAKE INTERNATIONAL, INC., et al., Defendants (Lawrence A. Jaffe, Defendant-Appellee).
    First District (5th Division)
    No. 1—89—2593
    Opinion filed March 28, 1991.

      Richard M. Franklin, of Baker & McKenzie, of Chicago, for appellant.
    Michael H. Davidson, of Robbins, Rubinstein, Salomon & Greenblatt, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Chicago City Bank & Trust Co., appeals from an order staying a contempt proceeding against defendant, Lawrence A. Jaffe, under the automatic stay provision of the Bankruptcy Code (11 U.S.C. §362(a) (1988)). We consider the following two issues: (1) whether this court has jurisdiction under Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) to review an interlocutory order staying the contempt proceeding pending bankruptcy; and (2) whether the contempt proceeding was criminal in nature and exempt from the automatic stay of the Bankruptcy Code. For the following reasons, we reverse and remand.

Plaintiff obtained a judgment against defendant for $427,289.53 and began enforcement proceedings. Defendant was served with a citation to discover assets under section 2—1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1402), which prohibited him from transferring or otherwise disposing of assets. The citation also stated that the failure to comply could subject the party to contempt proceedings.

When he eventually submitted to an examination, defendant admitted that after he was served with the citation, he deposited the proceeds of a certificate of deposit in his wife’s checking account. From that deposit of $63,000, he gave $4,500 to each of his three children, $7,500 to his nephew for payment of a loan, $21,500 to the Internal Revenue Service, and the remainder to his attorney.

Plaintiff moved for a rule to show cause why defendant should not be held in contempt of court for violating the terms of the citation when he distributed the proceeds of the certificate of deposit. Before the hearing on plaintiff’s motion, defendant filed a petition for bankruptcy under chapter 7 of the Bankruptcy Code (11 U.S.C. §701 et seq. (1988)). At the hearing, defendant sought a stay of the contempt proceedings under the automatic stay provision of the Bankruptcy Code (11 U.S.C. §362(a) (1988)). He argued that plaintiff sought a finding of civil contempt, which would be automatically stayed, rather than criminal contempt, which would continue despite the bankruptcy. Plaintiff responded that the proceeding was criminal in nature and, therefore, not stayed.

The record does not contain an order entered on September 1, 1989, which was the day of the hearing.

Plaintiff filed a notice of interlocutory appeal on September 22, 1989, stating it was appealing from an order entered on September 1, 1989, which stayed the contempt proceeding.

On September 29, 1989, the trial judge entered an order stating “the parties before the Court have treated the Rule to Show Cause as being an effort to hold [defendant] in civil contempt and that therefore all further proceedings against [defendant] are stayed under the automatic stay provisions of the Bankruptcy Code.” The order was entered nunc pro tunc as of September 1,1989.

Opinion

Initially, this court questioned whether the trial judge’s entry of the nunc pro tunc order on September 29 was proper when it was entered after plaintiff’s notice of appeal was filed and there was no order entered September 1 in the record.

A nunc pro tunc order can be entered to supply the record with an order which was made previously but omitted from the record. (Z.R.L. Corp. v. Great Central Insurance Co. (1990), 201 Ill. App. 3d 843, 559 N.E.2d 259.) However, it cannot be used to correct judicial error, supply omitted judicial action, or give a judgment retroactive effect. In re Blume (1990), 197 Ill. App. 3d 552, 554 N.E.2d 1100.

In this case, in response to our rule to show cause, plaintiff submitted its copy of an order entered September 1 which was not entered in the court file. The September 29 order is identical to the September 1 order with the addition of entering the order nunc pro tunc as of September 1. Accordingly, the September 29 order was properly entered nunc pro tunc to supply the record with the September 1 order which was inadvertently omitted.

Next, defendant moved this court to dismiss plaintiffs appeal for lack of jurisdiction under Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). Rule 307(a)(1) provides that “[a]n appeal may be taken to the Appellate Court from an interlocutory order of court *** granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”

Defendant argues that the trial judge did not issue a stay but “merely recognized” the stay of the bankruptcy court. This argument is contradicted by the language of the order which specifically stated “all further proceedings against [defendant] are stayed under the automatic stay provisions of the Bankruptcy Code.”

Defendant also argues that even if the judge issued a stay, it was not appealable under Rule 307(a)(1). Plaintiff, on the other hand, contends that its appeal was proper because a stay order is the equivalent of injunctive relief.

The supreme court has recognized a policy of broadly construing the meaning of the term “injunction” used in Rule 307(a)(1). (In re a Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292.) Whether an order is appealable as an injunction under Rule 307(a)(1) depends on the substance of the action, not the form of the order. In re a Minor, 127 Ill. 2d 247, 537 N.E.2d 292.

Defendant relies primarily on Gorr v. Board of Fire & Police Commissioners (1984), 129 Ill. App. 3d 327, 472 N.E.2d 587, which was dismissed for lack of jurisdiction under Rule 307(a)(1). In Gorr, the appellate court found that an order granting a stay of an administrative agency’s decision was not appealable because it was not specifically listed in Rule 307(a)(1). Also, the stay was not the equivalent of an injunction because it could be granted without applying the standards required for an injunction.

Generally, however, an order ruling on the request for a stay of the trial court’s proceedings has been considered the equivalent of the grant or denial of an injunction and, therefore, appealable under Rule 307(a)(1). Beard v. Mount Carroll Mutual Fire Insurance Co. (1990), 203 Ill. App. 3d 724, 561 N.E.2d 116; People v. Kerr-McGee Chemical Corp. (1986), 142 Ill. App. 3d 1104, 492 N.E.2d 1003; J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 456 N.E.2d 889; Allied Contracting Co. v. Bennett (1982), 110 Ill. App. 3d 310, 442 N.E.2d 326; Medline Industries, Inc. v. Pascal (1974), 23 Ill. App. 3d 346, 319 N.E.2d 310.

Further, the supreme court has cited with approval an appellate court case reviewing the decision of a trial court to stay its proceedings even though the order used the term “stay” and not “injunction.” Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1, citing Valente v. Maida (1960), 24 Ill. App. 2d 144, 164 N.E.2d 538 (as stated in In re a Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292).

In this case, plaintiff has appealed under Rule 307(a)(1) from an order staying the trial court’s proceedings pending defendant’s bankruptcy. Although the order states that the parties treated the matter as one for civil contempt, the substance, rather than the form, of the order must be considered. Generally, orders of the trial court staying its own proceedings are considered appealable under Rule 307(a)(1) and, therefore, this court has jurisdiction to consider plaintiff’s appeal. Defendant’s motion to dismiss this appeal is denied.

Lastly, the merits of this appeal concern whether the trial judge properly stayed the contempt proceeding against defendant in response to his filing for bankruptcy. The automatic stay provision of the Bankruptcy Code applies to certain proceedings but exempts “a criminal action or proceeding against the debtor.” (11 U.S.C. §362(a), (b)(1) (1988).) The question on appeal is whether the contempt proceeding against defendant was criminal in nature, which would not be stayed with defendant’s bankruptcy.

Civil contempt is coercive in nature and used to compel future action while criminal contempt is punitive in nature and used to punish past misconduct. (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 558 N.E.2d 404.) The supreme court has found that the sanction contemplated for violating a citation to discover assets is criminal contempt because it is intended to punish the party rather than to compel compliance. (Bank of Aspen v. Fox Cartage, Inc. (1989), 126 Ill. 2d 307, 533 N.E.2d 1080.) A criminal contempt proceeding is exempt from the automatic stay provision of the Bankruptcy Code. In re Marriage of Lueck (1986), 140 Ill. App. 3d 836, 489 N.E.2d 443.

In this case, plaintiff sought a finding of contempt for defendant’s alleged violation of the citation to discover assets. Under Bank of Aspen, such a proceeding was for criminal contempt and, therefore, not subject to automatic stay when defendant filed for bankruptcy.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.


author: JUSTICE GORDON

text:
    GARY LaPOOK, Indiv. and as Adm’r of the Estate of Mary Patricia LaPook, and Adm’r of the Estate of Baby LaPook, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—3808
    Opinion filed March 28, 1991.
    Rehearing denied April 25, 1991.

      Terrence E. Leonard, Chartered, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff filed a three-count complaint seeking damages for the wrongful death of his wife and unborn child. The second count, alleging that the treatment by Chicago fire department paramedics was wilful and wanton and proximately caused the deaths, was the only count which went to the jury. The jury returned a verdict for the plaintiff, but also answered a special interrogatory which the trial court found to be inconsistent with the general verdict. Upon defendant’s motion, the court then entered judgment on the special interrogatory. For the following reasons, we affirm the judgment of the trial court.

On October 12, 1978, Mary Patricia LaPook, age 32 and seven months pregnant, collapsed in the lobby of the Brunswick Building, 69 West Washington in Chicago. Chicago fire department paramedic Unit 41, Timothy Timm and Frank Howe, arrived on the scene at 2:12 p.m. Paramedic Timm was the officer in charge.

Paramedic Timm testified that he had little independent recollection of the incident, but based on his recollections and the “run sheet” which he filled out for each call, he testified as to the following facts: Mrs. LaPook was unconscious when he and paramedic Howe arrived on the scene. Mrs. LaPook’s blood pressure and pulse rate were both taken and both measured zero. Her respiration was 16, slightly below normal. Mrs. LaPook was also given oxygen. They attached a cardiac monitor to her which indicated a normal sinus rhythm of 80. Based upon these readings, Timm determined that Mrs. LaPook’s condition was possibly shock caused by hypovolemia (low blood volume). In accordance with the paramedics’ standing medical orders for shock due to trauma and/or blood loss, an intravenous solution (IV) was given to Mrs. LaPook.

Timm and Howe continued to monitor Mrs. LaPook’s vital signs. She regained consciousness and informed them she was seven months pregnant and had a history of an enlarged spleen. She also complained of pain in her shoulders. At 2:30 p.m., Unit 45 consisting of paramedics Staerk, Kruse and Ingram arrived on the scene. After speaking to Timm, they left, returning to base at 2:45 p.m.

Also, at 2:30 p.m., Mrs. LaPook’s respiration dropped to zero and her heart went into sinus tachychardia (abnormally fast heart beat). At 2:32 p.m., Timm called Northwestern Memorial Hospital. Standard procedure required that once the hospital was contacted, the paramedics must follow its instructions, not their standing medical orders. The hospital ordered a second IV which was given at 2:40 p.m.

At 2:48 p.m., Mrs. LaPook was transported to the hospital. Paramedic Howe testified that during the ride, she again complained of pain and asked to be rolled on her side. At 2:54 p.m., less than one minute before she reached the hospital, she went into cardiac arrest. Timm and Howe performed CPR on her as they transported her from the ambulance to the emergency room.

Dr. Robert Franzen, the attending emergency room physician, testified that he and the emergency room staff attempted to revive Mrs. LaPook. Her heart was stimulated with a cardiac facing wire, a heart monitor was attached, and she was given two more IV solutions, three units of whole blood and some albumin. In spite of their efforts, Mrs. LaPook died at 3:32 p.m. The cause of her death was intra-abdominal bleeding with irreversible hypovolemia. Approximately 20 minutes later, after a cesarean operation was performed, Baby LaPook was pronounced dead.

Two experts testified on behalf of plaintiff. Both were of the opinion that the paramedics should have started two I Vs immediately and Mrs. LaPook should have been transported to the hospital more quickly. All that the paramedics did could have been done in 10 tol5 minutes and Mrs. LaPook should then have been immediately transported to the hospital. It was apparent that Mrs. LaPook was in critical condition and needed expert medical help fast. Both opined that had the paramedics acted more quickly, Mrs. LaPook’s chances for survival would have been greater.

Two experts testified on behalf of defendant. Both believed that the paramedics had not deviated from the expected prehospital standard of care in Chicago in 1978. Both also believed that Mrs. LaPook's enlarged spleen complicated by cirrhosis of the liver and pregnancy was an extremely rare condition and that she had little or no chance of survival, no matter how quickly the paramedics had acted.

During the jury instruction conference, the defendant tendered the following two special interrogatories:

“1. Was Paramedic Thomas Howe guilty of wilful and wanton misconduct on October 12, 1978?
If and only if yes, go on to answer the next question:
2. Was such wilful and wanton misconduct a proximate cause of the deaths?”

And:

“1. Was Paramedic Timothy Timm guilty of wilful and wanton misconduct on October 12,1978?
If and only if yes, go on to answer the next question:
2. Was such wilful and wanton misconduct a proximate cause of the deaths?”

The plaintiff objected to the form and substance of the interrogatories, stating that Timm and Howe should not be singled out because they were not named defendants. He suggested using the term “paramedics.” The plaintiff also stated that the element of proximate cause should be included in the special interrogatory in one question. The court agreed with the plaintiff, suggesting that there should be one interrogatory asking whether “either or both were guilty of wilful and wanton misconduct,” and refused the instructions. The defendant amended the instructions pursuant to the plaintiff’s suggestion and later tendered the following special interrogatory to the court:

“Were the paramedics guilty of wilful and wanton conduct that contributed to or proximately caused the deaths of the decedents?”

The court asked plaintiff if he would like to make any specific objections to the instruction. He responded that he had no specific objection, only a general one as to the necessity of giving a special interrogatory in this case.

During the course of its deliberation, the jury sent the following questions to the judge:

“Your Honor, we would like clarification of the following points:
1. In the attached document, is the word ‘knowing’ a reference to the paramedics’ medical experience and expertise? That is, based on their previous experience and expertise, does this mean that they should have recognized the seriousness of Mrs. LaPook’s situation, based their actions thusly, knowing do [sic] otherwise result in her possible death?
Or,
2. Does ‘knowing’ mean that they acted maliciously to endanger her life, therefore, stood by and did nothing?
3. We believe we heard both you and either both or one of the judges [sic] mention that we should not consider the word ‘wilful and wanton’ to include malicious intent on the part of the paramedics. Is this true? That is, we should not construe the paramedics’ actions as purposely to cause Ms. LaPook’s harm or injury?
4. If we were to rule for the plaintiff against the defendant, could the paramedics be charged with her murder and tried as criminals? Or is this something which should not affect our decision?
5. Do the words ‘conscious disregard’ mean the paramedics did not act appropriately based on the situation they encountered with Mrs. LaPook on 10/12/78 and on their medical experience and expertise? Again, if their actions were inappropriate, we should not construe their actions to be the result of malicious intent? Is this true?”

Later the jury sent the following question to the judge:

“Question. Your Honor Genesen, regarding the page that states: ‘Were the Paramedics guilty of wilful and wanton conduct that contributed to or proximately caused the death of the decedents’ does the verdict automatically define how this page is filled out? That is, a finding for the plaintiff automatically represents a ‘yes’ on this page.”

During the discussion as to how to handle these questions, the court and the attorneys determined to give the jury further instructions defining wilful and wanton. The plaintiff tendered the following definition from Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293:

“A wilful and wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

The defendant objected to that definition on the basis that Schneider-man was not a medical malpractice case. It tendered the following definition of wilful and wanton from Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 660, 343 N.E.2d 589:

“In order to constitute willful and wanton misconduct the injury must either have been intentionally inflicted or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others.”

The plaintiff objected to this definition because it introduced to the jury the term “grossly negligent,” which had not been previously defined. In determining to read both definitions to the jury, the trial court stated, “I think that that way if I’m in error, I’m in error on both sides.”

The court first read the additional definition of wilful and wanton submitted by the plaintiff. It then prefaced the reading of the one submitted by the defendant by saying, “The other, which is going to be typed, and is perhaps another way of saying it, reads as follows,” which plaintiff claims drew attention to that definition.

As to the question regarding charging the paramedics for Mrs. LaPook’s murder, the plaintiff argued that it should be answered plainly and simply “No.” He believed that to do otherwise would leave a question in the minds of the jurors as to whether it was probable. Sympathy for the paramedics might then affect the jury’s decision. The defendant argued that the question of murder was irrelevant to the jury’s determination and it should simply be told “it should not affect your decision.” The trial court determined, over plaintiff’s objection, to inform the jury that “normally civil verdicts do not affect criminal prosecutions under normal circumstances, and, therefore, this is something which should not affect your decision.”

As to the later question regarding the special interrogatory, the trial court suggested that it would inform the jurors “no, it’s not automatic.” The plaintiff objected to that and suggested the trial court inform the jury that it had to decide each and every verdict form based on the evidence and the law. The defendant had no objection to that as long as the word “separate” was used. The court informed the jury “my answer will be not necessarily. You should decide each verdict separately.”

The jury returned a general verdict in favor of the plaintiff in the aggregate sum of $900,000. The jury also answered the special interrogatory in the negative. The defendant moved for judgment based on the special interrogatory. The trial court entered judgment on the special interrogatory, ruling that its answer was inconsistent with the jury’s general verdict and not against the manifest weight of the evidence and thus controlling.

The plaintiff filed a motion to reconsider and a post-trial motion. The trial court denied both motions and plaintiff timely appealed.

Opinion

On appeal, plaintiff argues that the answer to the special interrogatory did not dispose of all the issues in the case and is therefore not inconsistent with the general verdict. Plaintiff alleges that by using the plural “paramedics,” the defendant excluded the possibility that only one paramedic was guilty of wilful and wanton misconduct. In the alternative, plaintiff argues that the answers the court gave to the jury’s questions during deliberations impermissibly confused the jury and denied him a fair trial.

Defendant urges that the answer to the special interrogatory is inconsistent with and therefore controlling of the verdict. Further, defendant contends that plaintiff has waived any objections to the special interrogatory because he did not specifically object to it at the instructions conference and in fact suggested the language which defendant incorporated in the draft ultimately given to the jurors. Finally, defendant argues that the answers which the trial court gave to the jury’s questions were proper and thus plaintiff was not denied a fair trial.

We turn first to the issue of whether plaintiff has waived his objections to the answer to the special interrogatory. It is beyond dispute that a failure to specifically object to a special interrogatory when preferred at the instructions conference will ordinarily waive any claim of error in the giving of that special interrogatory. This is particularly true in this instance where plaintiff himself suggested the alternate language which defendant substituted in the draft of the special interrogatory finally given. See Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 387, 385 N.E.2d 664.

Plaintiff, however, does not purport to rest his appeal upon the contention that it was error to have given the special interrogatory to the jury. Rather, plaintiff urges that having given an interrogatory which does not fully cover an ultimate issue, the resultant answer was not inconsistent with the general verdict, and cannot therefore control the verdict. This contention was not waived by the plaintiff notwithstanding his failure to specifically object to the interrogatory when preferred and notwithstanding his affirmative support of the final language at the instruction conference. Even if plaintiff is bound by the answer to the special interrogatory because he failed to challenge it before it was given, his failure to object will not serve to extend or otherwise modify the plain meaning and scope of the answer. See Struthers v. Jack Baulos, Inc. (1977), 52 Ill. App. 3d 823, 368 N.E.2d 148, where the court stated as follows:

“While plaintiff was bound by the answer to the interrogatory because he failed to specifically challenge it at the conference on instructions, he can be bound only as to those issues actually decided by the jury’s special verdict.” (52 Ill. App. 3d at 827.)

Accord Silverman v. First Federal Savings & Loan Association (1981), 94 Ill. App. 3d 274, 418 N.E.2d 864, stating:

“Although plaintiff may have waived any objection to the form of the interrogatory by making only a general objection to it at the instructions conference [citation], even so, the special finding will be deemed to control the general verdict only if it is inconsistent with it.” 94 Ill. App. 3d at 280.

We must therefore now look to the merits of plaintiff’s contention that the special interrogatory is not inconsistent with the general verdict. The purpose of a special interrogatory is not to instruct the jury, but to act as a check upon the deliberations of the jury as to an ultimate question of fact. (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 362, 484 N.E.2d 542.) If the special interrogatory is inconsistent with the general verdict, the special interrogatory will control. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1108; Shaheed, 137 Ill. App. 3d at 362.) Where the special interrogatory does not cover all of the issues submitted to the jury and a reasonable hypothesis exists to permit the general verdict to be construed consistently with the special interrogatory, they cannot be said to be absolutely irreconcilable and the special finding will not control. (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 350, 150 N.E. 276; Devine v. Federal Life Insurance Co. (1911), 250 Ill. 203, 206, 95 N.E. 174; Smilgis v. City of Chicago (1981), 97 Ill. App. 3d 1127, 1130, 423 N.E .2d 1288.) If the special findings do not cover all of the issues presented to the jury and are not solely determinative of the case, a reasonable hypothesis consistent with the general verdict exists. The general verdict, then, responds to the issues not covered by the special interrogatory. Because those issues may be controlling as to the jury’s decision, the statute does not apply. Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 1019, 278 N.E.2d 453.

Here plaintiff argues that in using the plural “paramedics,” the jury was led to believe that it had to find more than one of them guilty of wilful and wanton conduct. Yet to find the city liable, only one of the paramedics had to be guilty of wilful and wanton conduct, not more than one of them.

Terms that are of common usage are to be understood in their conventional sense (Saldana, 74 Ill. 2d at 388; Larson v. Com monwealth Edison Co. (1965), 33 Ill. 2d 316, 323, 211 N.E.2d 247) and need not be defined or explained in instructing the jury. (De Rosa v. Albert F. Amling Co. (1980), 84 Ill. App. 3d 64, 75, 404 N.E.2d 564.) The question is, then, how ordinary people acting as jurors would understand the use of the plural. Mudd v. Goldblatt Brothers, Inc. (1983), 118 Ill. App. 3d 431, 439, 454 N.E.2d 754.

As is the case with instructions, special interrogatories should be construed in light of what an ordinary person would understand them to mean, and not on the basis of mere abstract mathematical analysis as an exercise in symbolic logic. (See Hulke v. International Manufacturing Co. (1957), 14 Ill. App. 2d 5, 142 N.E.2d 717.) Moreover, while the court may not look to the contextual evidence to construe the meaning of a special interrogatory (Wicks, 319 Ill. at 350), a special interrogatory should be read together with the jury instructions to determine how the interrogatory was understood by the jury and whether there was any confusion. (See Vuletich v. Bolgla (1980), 85 Ill. App. 3d 810, 817, 407 N.E.2d 566 (stating “[sjpecial interrogatories must be considered together with and in light of other instructions of the court”). Accord Bruske v. Arnold (1969), 44 Ill. 2d 132,136-37, 254 N.E.2d 453; Smilgis, 97 Ill. App. 3d at 1130.

Here even without reference to the instructions, it would be contrary to common understanding for the jurors to read the special interrogatory so as to elicit a finding which would pertain only to all of the paramedics in their entirety as opposed to any single one of the paramedics, even though a technical analytical construction would permit such an interpretation. It is manifest that the plaintiff’s attorney himself did not consider the interrogatory in that light when he suggested substituting the generic term “paramedics” in place of defendant’s original draft which avoided any possible ambiguity by designating each paramedic under his proper name in a separate interrogatory.

Whatever technical basis might otherwise exist to support the analytical construction urged by the plaintiff substantially dissipates when the interrogatory is read in the context of the jury instructions. Here the “vicarious liability” instruction given without objection stated as follows:

“The Defendant is a Municipal Corporation and can act only through its employees. Any wilful and wanton act or omission by its employees is the wilful and wanton act or omission of the Municipal Corporation.”

Clearly in this instruction, the term “its employees” refers to any single employee. Thus any wilful or wanton act by any employee is attributable to the City. When the special interrogatory is read in conjunction with this instruction, it leaves no reasonable basis upon which to predicate that the jurors would have construed the special interrogatory as requiring misconduct on the part of each and every paramedic rather than by any single one of them. Accordingly, plaintiff’s contention that the jury’s answer to the special interrogatory is not inconsistent with the verdict and therefore should not have controlled the verdict must fail.

We next consider plaintiff’s contention that the trial court’s answers to the jury’s questions denied him a fair trial. It is within the trial court’s discretion whether to respond to a jury’s request for clarification. (Kingston v. Turner (1987), 115 Ill. 2d 445, 463, 505 N.E.2d 320.) However, the trial court should make every effort to clear up any confusion in the minds of the jurors. (Hunter v. Smallwood (1975), 28 Ill. App. 3d 386, 391, 328 N.E.2d 344.) Even where an instruction is erroneous, a reversal is not warranted unless it clearly misled the jury and resulted in prejudice to the appellant. Amstar Corp. v. Aurora Fast Freight (1986), 141 Ill. App. 3d 705, 710, 490 N.E.2d 1067.

Plaintiff argues that the trial court erred in using defendant’s definition of wilful and wanton because it introduced the term “grossly negligent” which had not been previously defined to the jury. Plaintiff further contends that the trial court exacerbated that error by its prefatory remarks drawing special attention to the defendant’s definition. Whether “negligent” had or had not been previously defined and whether “grossly” is a term of common understanding are questions we need not reach. The jury had been given three compatible definitions of the term “wilful and wanton misconduct.” Collectively they provided a correct and comprehensible definition the term. There is no reason to presume that the jury was confused or misled by the trial court’s effort to provide additional clarification. We therefore see no prejudice to the plaintiff.

Plaintiff’s next argument concerns the court’s answer to the jurors’ question as to whether the paramedics could be charged' with murder and tried as criminals. Specifically, the plaintiff contends that the court’s failure to answer unequivocally “No” failed to remove the issue from the jurors’ minds, causing confusion, creating sympathy for the paramedics and denying plaintiff his right to a fair trial.

Were every inconsistency between answers to special interrogatories and general verdicts held to be evidence of confusion sufficient to justify reversal, the entire purpose of the special interrogatory would be defeated. The special interrogatory serves a control function over a general verdict. (Sommese v. Mating Brothers, Inc. (1966), 36 Ill. 2d 263, 267, 222 N.E.2d 468, 470.) The legislature recognized that a jury might return inconsistent answers, and provided that in such an event, the special interrogatory controls over a general verdict. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1108.) The Illinois Supreme Court has stated that this rule is based upon a recognition of the jury’s ability to more clearly understand a particularized special interrogatory than a general verdict which is a composite of all the questions in a case. Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 266, 226 N.E.2d 16, 19.

Plaintiff, however, contends that the court’s refusal to respond to the jury’s question about possible murder charges against the paramedics with an absolute “No” caused the jurors to answer the special interrogatory in the negative out of fear of hurting the paramedics. This contention does not question or dispute the factual accuracy of the trial court’s response. A reviewing court may set aside a jury determination only if it is clearly satisfied that the jury’s finding was occasioned by passion or prejudice or is wholly unsupported by the evidence. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 623, 126 N.E.2d 836, 841.) Here plaintiff would require us to speculate that sympathy for the paramedics was the basis for the jury’s answer to the special interrogatory. As long as there is a plausible basis for the result reached by the jury, we should not engage in such speculation or conjecture. The jury’s answer to the special interrogatory is not inconsistent with the evidence. The trial court, in entering judgment on the special interrogatory, found it was not against the manifest weight of the evidence. The record on review amply supports that finding. As a result, we are not persuaded that the jury’s finding was occasioned by sympathy for the paramedics as the plaintiff contends, nor can we say that it is unsupported by the evidence.

Finally, we look to whether the court erred when it responded to the jurors’ questions “does the verdict automatically define how this page [the special interrogatory] is filled out? That is, finding for the plaintiff automatically represents a yes on this page?” by saying “[m]y answer will be not necessarily. You should decide each verdict separately.” To inform the jury that the special interrogatory and general verdict must be consistent constitutes reversible error. (Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 268, 22 N.E.2d 468; Chase v. Morgan Cab Co. (1971), 2 Ill. App. 3d 203, 206, 276 N.E.2d 393.) Here, the court merely told the jurors that the general verdict form did “not necessarily” define how the special interrogatory was to be completed. The court did not, as plaintiff asserts, tell them, in effect, that they could be completed inconsistently. While the court, in its discretion, could have declined to respond to the jury’s question, the answer given was not incorrect.

Plaintiff also argues that in telling the jury to decide each verdict separately, the court was in clear contradiction of a previous instruction which informed the jury to consider the instructions as a whole. Plaintiff had suggested that the court should inform the jury that it should “decide each and every verdict form based on the evidence and the law.” Although the court told the jury to “decide each verdict separately” rather than using plaintiff’s phrase, we believe that the two terms carry the same general connotation and the trial court did not abuse its discretion in so answering.

Based on the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.

      It should be noted that while the oral transcript of the jury instructions is the one printed in the text, the written instruction on this point contained in the record and apparently submitted to the jury is even clearer. It provides as follows:
      “The Defendant is a Municipal Corporation and can act only through its employees. Any wilful and wanton act or omission of an employee serving within the scope of his or her employment is the wilful or wanton action or omission of the Municipal Corporation.”