author: PRESIDING JUSTICE WELCH

text:
    KENDAL CHAMBERS et al., Plaintiffs-Appellees, v. DAVID FLOTA et al., Constituting the Board of Fire and Police Commissioners of the City of Mt. Vernon, Defendants-Appellants.
    Fifth District
    No. 5—88—0706
    Opinion filed December 4, 1989.

      David R. Leggans, of Howard & Howard, of Mt. Vernon, for appellants.
    Long, Rabin & Young, Ltd., of Springfield, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This is an appeal by defendants David Flota, A.L. Dawson and Gene Bolerjack, constituting the Board of Fire and Police Commissioners of the City of Mt. Vernon (hereinafter Board), from a judgment of the circuit court of Jefferson County reversing the Board’s decision which upheld the suspension by the police chief of Mt. Vernon of three Mt. Vernon police officers, plaintiffs Kendal Chambers, Paul E. Johnson and Charles Lamont. We affirm the judgment of the circuit court reversing the decision of the Board which sustained the suspension of the plaintiffs/officers.

Officers Johnson, Lamont and Chambers were suspended by the chief of police of Mt. Vernon for two days, four days and three days, respectively, on April 20, 1987. Officer Johnson was suspended for failure to obey a direct order of a superior. Officers Lamont and Chambers were suspended for failure to obey a direct order of a superior and for failure to follow the chain of command. They appealed their suspensions to the Board of Fire and Police Commissioners, which upheld the suspensions by order dated October 26, 1987. Plaintiffs filed their complaint for administrative review in the circuit court of Jefferson County on November 16, 1987. By order dated October 28, 1988, the circuit court reversed the decision of the Board and vacated plaintiffs’ suspensions.

The facts which gave rise to the suspensions are as follows. Located in the Mt. Vernon police station were a soda vending machine, a cigarette vending machine and a snack vending machine. The machines had been placed in the building at the request of the local unit of the Policeman’s Benevolent and Protective Association (hereinafter PBPA). The PBPA had ordered the product for the machines, paid for them and retained the profit in a special account. Officer Lamont was president of the local unit of the PBPA, Officer Chambers was secretary of that association, and Officer Johnson was a member of the association who was charged with maintaining the cigarette machine and funds therefrom.

On March 18, 1987, the city manager of Mt. Vernon sent a memorandum to the chief of police asking for an accounting of all revenues and expenditures relating to the vending machines in the police station from May 1, 1986, to the present, and asking that all profits therefrom be turned over to the city finance director. The police chief forwarded the city manager’s memo to Officers Mendenall and Johnson and civilian employee Betty Kryger, the individuals in the police department who were charged with maintaining the machines and accounting for the proceeds therefrom.

On March 21, 1987, Charles Lamont and Kendal Chambers sent a memorandum to the city manager asking him to reconsider his request relating to the police department vending machines. The memo was sent from PBPA Unit No. 50 and was signed by Lamont as president of that association and Chambers as secretary of that association. The memo explained that the funds from the vending machines had been used by the PBPA for donations to various charitable causes and organizations, that the machines had been operated by the PBPA since 1979 with the knowledge and approval of the city, and that the membership of the PBPA had voted that if the city did not reconsider its decision, the PBPA would ask the vending machine companies to remove the machines from the police station. This memorandum was not shown to or sent to the chief of police, nor did Officers Lamont or Chambers discuss this matter with the chief.

On April 3, 1987, Officer Lamont visited the office of the city manager to discuss the dispute over the vending machines. Officer Lamont visited the city manager while he was off duty and did not appear in uniform. In addition, all of the soda was removed from the vending machine by the PBPA.

On April 6, 1987, the police chief sent a memorandum to Officers Lamont and Chambers instructing them to refill the vending machines and to turn over all monies from the machines to the city finance director. The memo set forth the chief’s belief that the chain of command had not been followed by Lamont and Chambers and that matters relating to the vending machines were police departmental administrative matters. The memo instructed the officers to comply with the city manager’s requests relating to the vending machines. A similar memo was sent to Officers Mendenall and Johnson and to Betty Kryger.

Officer Johnson sent a memo to the city manager explaining that the cigarette machine and funds therefrom belonged to the PBPA and that he did not have authority from the PBPA to turn over those funds. Officer Johnson did not provide an accounting as ordered.

On April 20, 1987, the Board sent a letter to the police chief explaining that it had met regarding the dispute over the vending machines and felt that some disciplinary action should be taken against the officers involved. On that same date, the police chief suspended Officers Lamont, Chambers and Johnson. Officer Mendenall did not face suspension because he had complied with the city manager’s request regarding the soda machine.

On appeal the Board upheld the chief’s suspensions, finding that all of the officers had failed to comply with direct written orders of their chief, that the orders had been directed to the officers in their capacities as police officers and had come down through the chain of command, that the vending machines were located at the police station on city property, and that Officers Lamont and Chambers had failed to follow the chain of command. The Board expressly found that it could not and need not determine rightful ownership of the funds from the vending machines.

The circuit court reversed the decision of the Board as against the manifest weight of the evidence. The court found that pursuant to police department policy, an officer need not obey a direct order when to do so would require the commission of an unlawful act. The court further found that the funds from the vending machines belonged to the PBPA and that to surrender those funds to the city would “arguably violate criminal statutes relating to theft and conversion.” Thus, the officers had no obligation to follow the chief’s orders that they turn over funds from the vending machines. The court further found that Officers Lamont and Chambers had not violated the “chain of command” principle because the dispute over the vending machines was between the city and the PBPA and Lamont and Chambers were acting in their capacity as officers of the PBPA. The court vacated the officers’ suspensions.

A court’s review of an administrative agency’s decision regarding suspension is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence, and then it must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for suspension does or does not exist. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885; Lakin v. Gorris (1983), 113 Ill. App. 3d 1034, 448 N.E.2d 215.) In deciding if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for suspension does or does not exist, the test is whether the conclusion is arbitrary, unreasonable or unrelated to the requirements of the service. (Lakin, 113 Ill. App. 3d at 1040, 448 N.E.2d at 219.) In the instant case, we find that suspension of the officers is unrelated to the requirements of their service as police officers.

In refusing to turn over the monies from the vending machines, the officers were acting in their capacities as officers of the PBPA and not as police officers. The officers’ actions with regard to the vending machines were totally unrelated to their duties as police officers and did not affect in any way their service as police officers. Thus, the order of the chief of police that the officers turn over monies from the vending machines was not a proper order, and the officers should not have been suspended for failing to obey it. Furthermore, because Officers Lamont and Chambers were acting in their capacities as officers of the PBPA, they had no obligation to foUow the chain of command with respect to the dispute over the vending machines.

We find that the Board’s conclusion that cause existed to suspend these officers was arbitrary and unreasonable because it was unrelated to the requirements of their service as police officers. Accordingly, we affirm the judgment of the circuit court of Jefferson County reversing the decision of the Board of Fire and Police Commissioners of the City of Mt. Vernon and vacating the officers’ suspensions.

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

Affirmed.

CHAPMAN and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
      In re M.L.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.R., Respondent-Appellant).—In re M.K.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.R., Respondent-Appellant).
    Fifth District
    Nos. 5—88—0560, 5—88—0561 cons.
    Opinion filed December 5, 1989.

      Steve W. Quinn, Public Defender, of Salem, for appellant.
    William R. Hoffeditz, Special Prosecutor, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The parental rights of M.R., mother of M.L.R. and M.K.R., were terminated on August 17, 1988, pursuant to order of the circuit court of Marion County. M.R., the respondent in this consolidated appeal, raises two issues for our review. The first issue is whether proper service of process was made on the minor M.L.R. The second issue is whether the circuit court’s finding that respondent was an unfit parent was supported by clear and convincing evidence.

M.R. argues that the circuit court did not have jurisdiction of the proceedings at the termination hearing since proper service of process had not been made on M.L.R. It is undisputed that the petitions to terminate parental rights as to each child, filed June 23, 1986, were served upon the Department of Children and Family Services. Service was not made personally on each child. At the time the petitions were filed, M.L.R. was nine years of age, and M.K.R. was three years of age. Service of process as to M.K.R. is not contested by the respondent on this appeal.

At the time the petition in question was filed, section 4—3 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 704—3) required that “[t]he summons shall be directed to the minor and to each person named as a respondent in the petition.” The statute was later amended, effective January 12, 1987, to require that “[t]he summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition.” (Ill. Rev. Stat., 1987 Supp., ch. 37, par. 704—3 (Pub. Act 84—1460 §1, eff. Jan. 12, 1987).) Our supreme court in In re Pronger (1987), 118 Ill. 2d 512, 517 N.E.2d 1076, held that this 1987 amendment to section 4—3 excuses service of summons upon a minor in a juvenile neglect proceeding. The Pronger court held that the section as amended allowed for service upon the child’s legal guardian or custodian to establish jurisdiction. The court’s decision was applied retroactively to the effective date of section 4—3 prior to that section’s amendment. Subsequent to the Pronger decision, the statute was again amended to provide:

“The summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition, except that summons need not be directed to a minor respondent under 8 years of age for whom the court appoints a guardian ad litem if the guardian ad litem appears on behalf of the minor in any proceeding under this Act.” Ill. Rev. Stat., 1988 Supp., ch. 37, par. 804—14.

In the case at bar respondent urges us to adopt the reasoning of the court in In re D.S. (1988), 168 Ill. App. 3d 76, 522 N.E.2d 625. That court held that the effect of section 4—14 was to reinstate the requirement of service on the minor respondent, at least as to minors eight years of age or older. We decline to adopt the holding in that case. We choose instead to follow the rationale of the court in In re R.W. (1988), 176 Ill. App. 3d 868, 531 N.E.2d 924, where the court thoroughly examined the legislative debates to discern the legislature’s intent in enacting section 4—14. We believe that where a guardian ad litem was appointed, was served with process, and appeared on behalf of the minor, no useful purpose as contemplated by the legislature would be served by requiring personal service on the minor.

We now turn to the issue of whether the circuit court’s conclusion that respondent was an unfit parent was supported by clear and convincing evidence.

M.L.R. was bom January 27, 1977. On March 17, 1983, a petition for adjudication of wardship was filed by the Department of Children and Family Services of the State of Illinois (hereinafter, Department) alleging that the child was neglected or dependent. On March 18, 1983, M.L.R. was placed in the temporary custody of the Department. An adjudicatory hearing was conducted May 12, 1983, on behalf of M.L.R. At that hearing evidence was adduced that on March 11, 1983, police officer Mitchell McClaren received a call concerning an incident at M.R.’s home. Upon arriving there he found M.R. on the sofa with M.L.R. on her lap. M.R. was holding a steak knife to the child’s abdomen. Officer McClaren testified that M.R. continued to maintain a threatening hold over the child for 30 minutes. It was not until M.R. “made some sort of move” that J.R., M.R.’s husband, was able to grab the knife away from her.

J.R. testified at the adjudicatory hearing that M.R. has a history of emotional or mental problems. He testified that at the time of the incident his wife was pregnant and was experiencing problems with the pregnancy. She was in great pain, but neither he nor his wife could find a doctor who would treat her. Every doctor they contacted to provide obstetrical care refused to render services on behalf of M.R. M.R. testified that she was in so much pain and so desperate that she grabbed M.L.R.

An order of adjudication was entered May 17, 1983, finding M.L.R. to be neglected by reason of physical abuse. The court entered an order on August 9, 1983, placing custody of M.L.R. with the Department.

M.K.R. was born April 29, 1983. On January 13, 1984, a petition for adjudication of wardship was filed by the Department alleging that M.K.R. was neglected “due to the fact that she has had a red and raw genital area and a rash covering her genital area and buttocks for an extended period of over 5^2 months.” That same day a hearing was held and M.K.R. was placed in the temporary custody of the Department. An order of adjudication was entered December 6, 1984, finding M.K.R. to be neglected by reason of physical harm. The court entered an order at that time placing custody of the minor with the Department, where she remains in custody at this time.

Petitions to terminate the parental rights of M.R. and J.R. as to both children were filed on June 23, 1986. J.R., the natural father of M.L.R. and M.K.R., executed final and irrevocable surrenders for purposes of adoption as to each of M.L.R. and M.K.R. on September 4, 1986. The hearing was held on the petition to terminate parental rights on August 5,1988. M.R. attended that hearing.

At the hearing Dr. Rachel Tompkins, a psychologist, testified that she examined M.R. at the Alton Mental Health Center in August of 1987, and that she spent approximately six to seven hours conducting an interview and tests of M.R. before making her diagnosis. Dr. Tompkins testified that as regards M.R.’s capacity to parent, based upon her diagnosis, she saw M.R. as “quite deficient in many of the qualities, such as good judgment, frustration tolerance and willingness to take responsibility for one’s own behavior, as well as the needs of others, which contribute to parenting capability.”

Although Dr. Tompkins testified that she only saw M.R. at the one evaluation conducted in August of 1987, and testified that she never observed M.R. interact with her own children or with any children, Dr. Tompkins testified as to her opinion of whether M.R.’s ability to parent would change in the future. Dr. Tompkins testified that “the characteristics would be unlikely to change without a committed involvement in very long term psychotherapy, if then.” She explained, “they can be considered to endure for such a length of time that she will probably not be able to assume parental responsibility in an effective manner while her children are young and in need of such care.”

Dr. Saber Girgis, a psychiatrist, also testified at the hearing. He testified that M.R. had been a patient of his since October of 1985. When M.R. was first admitted to the mental health facility in October 1985, he diagnosed her as a schizophrenic, chronic undifferentiated type. He prescribed medication and was successful in stabilizing her condition. Dr. Girgis testified that when he last examined M.R., one week prior to April 2, 1988, she was symptom free and in complete remission, which meant that M.R. had no delusions, hallucinations or suspicions.

When asked whether M.R.’s present condition would be likely to change in the future, Dr. Girgis testified that “some schizophrenics can live a lifetime without relapse, and some are relapsed very frequently, and it also depends on how much stress they are exposed to. If they are exposed to a highly stressful environment, they break easily.” Dr. Girgis testified that an example of such an environment would be “if the child antagonizes you, in general, or if the child will not accept you as a parent, this, in itself, is highly stressful.”

The doctor testified that if M.R. continues to take her medication on a regular basis, and she continues to see a psychiatrist, he believed she could “stay out in good shape.” He explained, however, that whether a person with M.R.’s diagnosis is able to deal with large amounts of stress in an effective manner “depends on how much support she is getting. *** If she gets a lot of support, which can equalize or neutralize the effect of the stress, she can cope. If there is no support, and the stressor is overwhelming, she would react adversely and even shrink back down, so it depends on the interplay of two factors. One of them is stress, and the other is support.”

The circuit court found that respondent was unable to discharge her parental responsibilities due to mental illness, that there was sufficient justification to believe that such inability would extend beyond a reasonable time period and that an inordinate amount of time cannot be allowed to pass before the minor finds a stable home. Our review of the record confirms the trial court’s decision.

It is clear that respondent is mentally impaired. Respondent contends, however, that the trial court’s conclusion is incorrect since the testimony of Dr. Saber Girgis was that if M.R. stays under close supervision of a psychiatrist, she would be able to deal with highly stressful situations, including discharge of her parental duties.

A parent’s right to a minor child may be terminated by a trial court after a finding that the child has been neglected under the Juvenile Court Act and after the parent has been found unfit under the Adoption Act. (Ill. Rev. Stat. 1987, ch. 37, par. 802—3; ch. 40, par. 1501(D); In re Devine (1980), 81 Ill. App. 3d 314, 321-22, 401 N.E.2d 616, 621-22.) Section l(D)(p) of the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(p)) provides the standard for finding the parent unfit to have a child based on mental inabilities:

“[I]nability to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness or mental retardation *** and there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time period.”

The unfitness of a parent must be proven by clear and convincing evidence. (In re Dixon (1980), 81 Ill. App. 3d 493, 501, 401 N.E.2d 591, 597; In re Love (1977), 50 Ill. App. 3d 1018, 1023, 366 N.E.2d 139, 142.) The finding of the trial court should be given great deference since the trial court’s opportunity to view and evaluate the parties and their testimony is superior to that of a reviewing court. In re Brown (1981), 86 Ill. 2d 147, 152, 427 N.E.2d 84, 87.

The two doctors who testified gave similarly negative prognoses for respondent’s future potential of being a capable parent. Dr. Tompkins opined that M.R.’s inability to assume potential responsibility in an effective manner would be unlikely to change without a committed involvement in long-term psychotherapy, if at all. Dr. Girgis testified that M.R.’s ability to parent and to deal with the stressful environment which parenting sometimes exudes would depend on the interplay of stress and support M.R. experiences.

We find that the testimony by both doctors was sufficient justification for the trial court’s finding that respondent’s mental impairment would extend beyond a reasonable time. An inordinate amount of time cannot be allowed to pass before the minors find a stable home. (In re E.J.F. (1987), 161 Ill. App. 3d 325, 331, 514 N.E.2d 544, 549.) For the foregoing reasons we conclude that the circuit court’s finding of unfitness is supported by clear and convincing evidence. The circuit court of Marion County is affirmed.

Affirmed.

WELCH, P.J., and HOWERTON, J., concur.


author: JUSTICE HOWERTON

text:
    ROBERT B. EARNHART et al., d/b/a Earnie’s Finer Food and Spirits, Plaintiffs-Appellants, v. DIRECTOR OF THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0267
    Opinion filed December 6, 1989.

      Thomas W. Burkart, of Hamel, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiffs, Robert and Debra Earnhart, d/b/a Earnie’s Finer Food and Spirits, raised money for the Multiple Sclerosis Society by running horseshoe games, road, rallies, golf matches, concerts with door prizes and Las Vegas nights. Not having a license as required by the Charitable Games Act (Ill. Rev. Stat. 1987, ch. 120, par. 121 et seq.), they were assessed a civil penalty of $250 by the Illinois Department of Revenue.

Plaintiffs sued the Director of the Department and the manager of the Department’s Charitable Games Division in Madison County for declaratory and injunctive relief, challenging the constitutionality of the Charitable Games Act (the Act).

The circuit court upheld the constitutionality of the Act, and the plaintiffs appeal. We affirm.

While plaintiffs’ case was pending in the circuit court, plaintiffs also sought administrative review of the decision to assess them the civil penalty made by the Department of Revenue. Therefore, at the outset, we address whether plaintiffs can seek judicial relief without first exhausting their administrative remedies.

Although as a general rule one must exhaust administrative remedies before obtaining judicial review, an exception applies when a party challenges the constitutionality of a statute.on its face. County of Kane v. Carlson (1987), 116 Ill. 2d 186, 199, 507 N.E.2d 482, 486; Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552, 359 N.E.2d 113, 117.

We now address plaintiffs’ constitutional claims.

I

Plaintiffs claim that the Charitable Games Act is not specific as to what is a “charitable game.” In consequence of that infirmity, plaintiffs make three constitutional attacks upon the Act: (1) the Act is unconstitutionally vague, denying them due process; (2) the Act is over-broad, reaching beyond gambling to other games, and therefore, denies them due process; and (3) the Act is an unlawful delegation of legislative authority, since it does not specify the games to which it applies, thereby allowing the Department of Revenue to determine what games are to be licensed under the Act. Each of these arguments necessarily turns on whether the Act is specific as to the games to which it applies.

The Act lists the only games which may be conducted at a charitable games event; they are: (a) roulette; (b) black-jack; (c) poker; (d) pull-tabs; (e) craps; (f) bang; (g) beat the dealer; (h) big six; (i) gin rummy; (j) five-card-stud poker; (k) chuck-a-luck; (1) keno; (m) hold-em-poker; and (n) merchandise wheel. (Ill. Rev. Stat. 1987, ch. 120, par. 1128 (15); 86 Ill. Adm. Code 435.160 (Supp. 1987).) Furthermore, “charitable games” is defined in the Illinois Administrative Code as “[t]he fourteen games of chance involving cards, dice, wheels, random selection of numbers, and gambling tickets enumerated in section 435.160 *** which may be conducted at charitable games events.” 86 Ill. Adm. Code 435.110 (Supp. 1987).

The express purpose of the Act is to permit not-for-profit organizations to conduct charitable games as well as to reaffirm that gambling in Illinois, for noncharitable purposes, is not to be allowed. (Ill. Rev. Stat. 1987, ch. 120, par. 1121.1(c).) The Act further provides that “[a]ny person who conducts or knowingly participates in an unlicensed charitable game commits the offense of gambling in violation of section 28—1 of the Criminal Code of 1961, as amended.” Ill. Rev. Stat. 1987, ch. 120, par. 1132.

The intent of the legislature is clear. Only the 14 games listed in the Act can be played at a charitable games event, and then only if licensed under the Act. A “charitable game” is licensed gambling.

The intent of the legislature having been found, and the statute examined, we address each of plaintiffs’ constitutional attacks upon the Act.

We first note, however, that there is a strong presumption of the constitutionality of a statute, and the burden of demonstrating its invalidity is on the challenging party. Bernier v. Burris (1986), 113 Ill. 2d 219, 227, 497 N.E.2d 763, 767; Meeker v. Tulis (1985), 134 Ill. App. 3d 1093, 1096, 481 N.E.2d 810, 813.

We find that plaintiffs have not met their burden.

A

Plaintiffs first contend that the Charitable Games Act is unconstitutionally vague, denying them due process because the term “charitable game” is not defined in the Act, and therefore, persons of ordinary intelligence must necessarily guess at the Act’s meaning and application. Plaintiffs heavily rely on Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 402, 494

N.E.2d 196, 201, citing Mayhew v. Nelson (1931), 346 Ill. 381, 387, 178 N.E. 921, 923, wherein the court said:

“A law must be complete in all its terms and conditions *** so that every person may know, by reading the law, what his rights are and how it will operate when put into execution. [Citations.] *** A legislative act which is so vague *** or which is so incomplete *** that it cannot be executed, will be declared to be inoperative and void.”

On the other hand, a statute does not violate due process on the grounds of vagueness if the duty or obligation imposed is prescribed in terms definite enough to serve as guide to those who must comply with the statute. Fagiano v. Police Board (1983), 98 Ill. 2d 277, 282, 456 N.E.2d 27, 29.

We believe that persons of ordinary intelligence upon reading the Act would know from the Act that: (1) only those games listed above could be played at a charitable games event, (2) the event would have to be licensed under the Act, and (3) a failure to obtain a license or the playing of a game. not listed even with a license would be gambling in violation of the Criminal Code. We hold the Act constitutional, able to withstand this attack.

B

Plaintiffs next contend the Act is unconstitutional because it is overbroad. They attack the Act, claiming the term “charitable game” can include more than gambling.

Our courts have ruled that a statute is overbroad if it can be reasonably interpreted to prohibit conduct which is constitutionally protected. People v. Klick (1977), 66 Ill. 2d 269, 273, 362 N.E.2d 329, 331; Grayned v. City of Rockford (1972), 408 U.S. 104, 114-15, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302.

This attack likewise fails in view of the clarity and specificity of the games covered by the Act. The Act only allows specified games to be played and requires a license for the event. Failure to obtain a license or playing a nonspecified game results in illegal gambling. Each game listed, furthermore, is a rather well-known game of chance, which we, although perhaps not well acquainted with any, nevertheless have no compunction in so noting judicially. The Act, therefore, is not overbroad; it does not reach beyond its purpose.

C

Plaintiffs next attack the Act as an unlawful delegation of legislative authority, claiming that because it does not specify the games to which it applies, it delegates unlawfully power to the Department of Revenue to determine what games are covered by the Act.

As a general rule, legislative delegation of authority to an administrative agency must provide sufficient identification of the following: (1) the persons and activity subject to the regulation; (2) the harm sought to be prevented; and (3) the means intended to be available to the agency to prevent the harm. (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372, 369 N.E.2d 875, 879.) Plaintiffs attack this Act only as to the first of these three requirements. Plaintiffs’ contention fails, because, as seen above, the Act limits its application to specific games.

II

Plaintiffs’ last constitutional attack upon the Act claims a violation of the equal protection clause of the fourteenth amendment of the United States Constitution. (U.S. Const., amend. XIV.) They contend that they are denied equal protection because the Act allows a license to not-for-profit organizations but denies a license to enterprises run for profit.

In making their denial of equal protection claim, plaintiffs make two arguments. First, plaintiffs claim that solicitation of contributions is speech, protected under the first amendment of the United States Constitution (Heffron v. International Society for Krishna Consciousness, Inc. (1981), 452 U.S. 640, 646, 69 L. Ed. 2d 298, 305, 101 S. Ct. 2559, 2563; Village of Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 631, 63 L. Ed. 2d 73, 82, 100 S. Ct. 826, 833), and therefore, the Act infringes upon a fundamental right, creating a suspect classification, requiring this court to scrutinize strictly the Charitable Games Act. Second, plaintiffs argue, in the alternative, that if the classification is not suspect, nevertheless, the Act violates equal protection as guaranteed by the fourteenth amendment to the United States Constitution, because the classification created by the Charitable Games Act is arbitrary and not rationally related to a legitimate governmental interest. Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 312-13, 49 L. Ed. 2d 520, 524, 96 S. Ct. 2562, 2566-67; Eisenstadt v. Baird (1972), 405 U.S. 438, 446, 31 L. Ed. 2d 349, 358, 92 S. Ct. 1029, 1035.

A

We address plaintiffs’ first argument that the Act infringes upon their first amendment right of speech, and therefore, the classifications affecting them must be subject to strict scrutiny under the equal protection clause.

Cantwell v. Connecticut (1940), 310 U.S. 296, 84 L. Ed. 2d 1213, 60 S. Ct. 900, appears to be the seminal case dealing with the legitimacy of State regulation of solicitation of charitable contributors. Cantwell was decided upon the free exercise clause; nevertheless, Cantwell has been understood to “have implied that soliciting funds involves interests protected by the First Amendment’s guarantee of freedom of speech.” Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 629, 63 L. Ed. 2d 73, 82, 100 S. Ct. 826, 832, citing Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 761, 48 L. Ed. 2d 346, 358, 96 S. Ct. 1817, 1825; Bates v. State Bar of Arizona (1977), 433 U.S. 350, 363, 53 L. Ed. 2d 810, 823, 97 S. Ct. 2691, 2698.

Cantwell, Schaumburg, and Bates involved solicitation door to door or on the streets, or involved the dissemination of information by the charitable organizations themselves. No case law cited by plaintiffs indicates that a right of freedom of expression exists with regard to gambling. Expressing religious or political beliefs, or soliciting contributions to aid such beliefs, is considerably different from conducting Las Vegas Nights in a bar. Furthermore, all of these cases involved

“a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes ***. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech ***.” Schaumburg, 444 U.S. at 632, 63 L. Ed. 2d at 84, 100 S. Ct. at 833-34.

An examination of the record in this case does not reveal State regulation of speech. Nowhere is it claimed that the State required a license to disseminate information about multiple sclerosis; nowhere is it claimed the State required a license before being able to advocate raising money to treat multiple sclerosis; nowhere is it claimed that the State required a license before allowing plaintiffs to advertise that they would hold a Las Vegas night in their bar; nowhere is it claimed that the State required a license before plaintiffs could inform people that the event would raise money to fight multiple sclerosis; nowhere is it claimed that the State required a license before plaintiffs could persuade others to come and participate; and nowhere is it claimed that the State licensed plaintiffs’ speech inside the bar during the event itself. The activity licensed was not speech; it was gambling. Therefore, no fundamental right was infringed by the Act.

B

Having determined that the Act does not burden a fundamental right, we next address plaintiffs’ second equal protection argument that the legislation bears no rational relationship to a legitimate governmental interest. Bernier v. Burris (1986), 113 Ill. 2d 219, 228-29, 497 N.E.2d 763, 767; Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 368, 489 N.E.2d 1374, 1382.

The legislature enacted the Charitable Games Act to provide methods of fund-raising for not-for-profit charitable organizations to enable them to meet their charitable purposes. (Ill. Rev. Stat. 1987, ch. 120, par. 1121.1(a).) The legislative intent was to regulate strictly who may be licensed, as well as when and where charitable game events may be played, and to prescribe recordkeeping of funds raised, all in order to protect not-for-profit organizations and the people of the State of Illinois from the abuses associated with gambling. Ill. Rev. Stat. 1987, ch. 120, par. 1121.1; 86 Ill. Adm. Code 435.100 (Supp. 1987).

It has long been recognized that the legislature may regulate, restrict or even prohibit gambling activities. (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138, 379 N.E.2d 290, 292.) Allowing not-for-profit charitable, religious or educational organizations to be licensed while excluding for-profit enterprises is rationally related to the State’s interest in providing not-for-profit organizations with a method of fund-raising while at the same time protecting the public from abuses associated with gambling. Allowing charitable organizations to obtain a license, while excluding for-profit enterprises, only recognizes that benevolent organizations have a public purpose greater than that of enterprises run for profit.

As further evidence of rationality, the Act does not rob for-profit enterprises of their chance to strike a blow for charity. They, too, are brought into the fold, yet on their own merits. For-profit entities, like plaintiffs, have an opportunity to participate in raising money for charitable organizations through charitable games by applying for a “providers’ license.” Any person, firm or corporation may obtain a providers’ license whereby they can conduct charitable games. (Ill. Rev. Stat. 1987, ch. 120, par. 1125.) There are several rooms in the house of “Charitable Games”: conductor; provider; and supplier. Each has its own purpose and its own license, and the Act places upon each different obligations in accordance with its role.

Differentiating between charitable, religious and educational organizations, on the one hand, and a private restaurant on the other, allowing the former to conduct charitable games, while forbidding the latter, is rationally related to the State interest of providing a means by which not-for-profit organizations may raise funds, but at the same time protecting against the abuses associated with gambling. Accordingly, the Act does not deprive plaintiffs of equal protection of law.

The judgment of the circuit court is affirmed.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


text:
    DAVID SCHULTZ, Plaintiff-Appellant, v. W.C. SIDDENS, d/b/a Maeco Contractors, et al., Defendants-Appellees.—DAVID SCHULTZ, Plaintiff-Appellant, v. W.C. SIDDENS, d/b/a Maeco Contractors, et al., Defendants-Appellees.
    Fifth District
    Nos. 5—87—0493, 5—88—0245 cons.
    Opinion filed December 6, 1989.
    Rehearing denied January 11, 1990.

      Law Offices of Robert L. Douglas, Ltd., of Robinson (Robert L. Douglas and Fred W. Johnson, of counsel), for appellant.
    Douglas A. Enloe and Larry N. Sloss, Jr., both of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

These consolidated appeals arise out of a traffic accident involving a motorcycle driven by the plaintiff, David Schultz, and a tractor driven by defendant, Steven Neeley, an employee of codefendant, W. C. Siddens. On July 21, 1984, the plaintiff was traveling west on Route 33 toward Robinson, Illinois, when he came upon a line of approximately seven vehicles backed up behind the defendant’s tractor, which was pulling a disc. The tractor, which was equipped with two yellow flashing caution lights and a “slow moving vehicle” sign, was traveling approximately 15 miles per hour. The posted speed limit on Route 33 is 55 miles per hour. When the plaintiff came upon the line of vehicles following the tractor he slowed and followed behind them. Some time thereafter, the plaintiff moved into the eastbound lane of traffic in an attempt to pass the vehicles and the tractor. Before the plaintiff could complete this maneuver, the tractor turned left into a driveway which led to a garage and storage area owned by defendant Siddens. There was conflicting testimony concerning whether the driver of the tractor signaled his intention to make the turn. The plaintiff collided with the disc, severing his leg. The trial court entered judgment upon a jury verdict in favor of the defendants and the plaintiff’s post-trial motion was denied.

NO. 5—87—0493

In this appeal, the plaintiff contends that the trial court erred in granting defendants’ motion to strike a portion of the complaint and that defense counsel’s comments in closing argument constituted reversible error. For the reasons stated below, we reverse and remand for a new trial.

Prior to trial, the plaintiff was granted leave to amend his first amended complaint by adding an allegation that the defendants were negligent in operating the tractor in violation of section 11—1418 of the Illinois rules of the road (Ill. Rev. Stat. 1983, ch. 95½, par. 11—1418). That section provides:

“Farm tractor operation regulated. No person shall operate a farm tractor on a highway unless such tractor is being used as an implement of husbandry in connection with farming operations.
For the purpose of this Section, use of a farm tractor as an implement of husbandry in connection with farming operations shall be deemed to include use of such tractor in connection with the transportation of agricultural products and of farm machinery, equipment and supplies as well as transportation of such tractors in connection with the obtaining of repairs thereto, and the towing of a registered truck not more than 8,000 pounds for use as return transportation after the tractor is left at the place of work or repair.” Ill. Rev. Stat. 1983, ch. 95½, par. 11—1418.

The defendants’ motion to strike the amended portion of the complaint was granted by the trial court. The plaintiff maintains that this was error, and argues that section 11—1418 is a public safety statute which establishes a standard of care, and that violation of a safety statute is prima facie evidence of negligence. The plaintiff contends that section 11—1418 was enacted to promote safety on the highways by controlling and limiting the movement of tractors. Plaintiff argues that, at a minimum, he should have been allowed to present evidence at trial showing the applicability of the statute and that violation of the statute constituted a proximate cause of the plaintiff’s injuries.

The defendants contend that the uncontroverted evidence at trial showed that the tractor was being used to transport farm equipment and therefore no violation of the statute occurred. Furthermore, the defendants maintain that even if the statute were violated, such a violation is not evidence of negligence because section 11—1418 is regulatory in nature and does not set forth a standard of care. The defendants contend that section 11—1418 is analogous to section 6—101 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95½, par. 6—101), which prohibits a person from driving a motor vehicle without a valid license. The defendants cite Westefer v. Rybacki (1970), 125 Ill. App. 2d 66, 69, 259 N.E.2d 810, 812, and Wilson v. Hobrock (1951), 344 Ill. App. 147, 152, 100 N.E.2d 412, 415, for the proposition that driving without a license is not causally related to the question of due care. The defendants further argue that a violation of section 11—1418 cannot, as a matter of law, constitute the proximate cause of the plaintiff’s injury because the injury is not the natural and probable result of the statutory violation.

There is no question that “ ‘violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence.’ ” (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390, 356 N.E.2d 93, 97, quoting Dini v. Naiditch (1960), 20 Ill. 2d 406, 417, 170 N.E.2d 881, 886.) The primary question is whether section 11—1418 was intended to promote the safety of those traveling the highways of this State, as the plaintiff contends, or whether it is merely regulatory in nature like the licensing statute at issue in Westefer and Wilson. “In ascertaining the legislature’s intent, a court must consider a statute in its entirety and note the subject it addresses and the legislature’s apparent objective in enacting it.” (Hettermann v. Weingart (1983), 120 Ill. App. 3d 683, 690, 458 N.E.2d 616, 621, citing Gill v. Miller (1983), 94 Ill. 2d 52, 56, 445 N.E.2d 330, 333.) We believe that the objective of the legislature in enacting section 11—1418 was obviously to limit the presence of farm tractors on highways. We cannot imagine, nor does the defendant suggest, any plausible reason for such a restriction other than to minimize the dangers which such vehicles pose to the safe movement of traffic. Such dangers include those associated with the necessarily slow speed at which such vehicles travel. We find, therefore, that section 11—1418 was designed for the protection of human life or property. We note that our construction of section 11—1418 is supported by its placement in the section of the Illinois Vehicle Code known as the “Rules of the Road.” The majority of the subsections contained in this portion of the Illinois Vehicle Code are concerned with the safe movement of traffic. (See, e.g., Ill. Rev. Stat. 1983, ch. 95½, pars. 11—601 (general speed restrictions), 11—707 (no passing zones), 11—1401 (unattended motor vehicles).) In contrast, section 6—101, which requires drivers to be licensed, is contained in a section of the Illinois Vehicle Code which generally deals with administrative matters concerning the issuance and revocation of licenses. See, e.g., Ill. Rev. Stat. 1983, ch. 95½, pars. 6—109 (examination of applicants), 6—303 (driving while license is suspended or revoked).

Before liability can be predicated on a statutory violation, however, the violation must be a proximate cause of the injury. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 79, 117 N.E.2d 74, 78.) The defendants argue that if section 11—1418 was violated, it cannot constitute the proximate cause of the plaintiff’s injury because the injury is not the natural and probable result of the violation. We believe that such a determination is best resolved by the jury. (Davis, 64 Ill. 2d at 395, 356 N.E.2d at 100; Ney, 2 Ill. 2d at 84, 117 N.E.2d at 80.) In the instant case the jury was deprived of the opportunity to make such a determination due to the trial court’s error in striking the allegation of the statutory violation from the complaint. In addition, this error prevented the plaintiff from introducing evidence at trial in support of his claim that section 11—1418 was violated. As such, the defendants’ contention that the evidence at trial showed that no violation of the statute occurred must also fail. We therefore reverse the judgment in favor of the defendants and remand this cause for a new trial.

Having decided that a new trial is necessary, we will address plaintiff’s contention that defense counsel improperly commented on the defendant’s ability to pay. During his closing argument defense counsel stated:

“MR. ENLOE [Defense Counsel]: Mr. Johnson repeated to you that the only thing they’re here for is compensation, and this is a lawsuit where they are here asking you to take money away from Mr. Siddens and to take his property—
MR. DOUGLAS [Plaintiff’s Counsel]: Objection. That is not taking away from Mr. Siddens, Your Honor. There has been a special fund set up for that. That is inappropriate.
MR. ENLOE: Your Honor, I don’t know what he’s talking about.
MR. DOUGLAS: Well, that’s inappropriate. It’s not coming from Mr. Siddens. I object.
THE COURT: I’ll overrule the objection. Go ahead and continue.
MR. ENLOE: We’d ask for a mistrial at this point, Your Honor.
THE COURT: You may renew that matter later. Go ahead with your argument.
MR. ENLOE: At any rate, special funds are not — this is a suit against Mr. Siddens. Maeco is the Company that’s been sued in this case, and that is Mr. Siddens doing business as Maeco Construction Company, and that’s what they’re asking you to do. They’re asking you to take away his property and give it to — .
MR. DOUGLAS: Your Honor, we are not asking to take any property away from Mr. Siddens. I object. That’s inappropriate, and a misstatement.
THE COURT: All right. I’m going to sustain the objection, since it’s being so highly objected to, and I’m sure the Jury understands what the effect of one party having to another party is, so I’ll ask the Jury not to consider the statement of Mr. Enloe with regard to this, and to strike this from your minds.”

Reference to a defendant’s ability to pay a judgment is improper and may constitute reversible error. (See Panelle v. Chicago Transit Authority (1964), 31 Ill. 2d 560, 561, 202 N.E.2d 484, 485; Hickey v. Chicago Transit Authority (1964), 52 Ill. App. 2d 132, 139-40, 201 N.E.2d 742, 746.) “This rule is based upon the assumption that juries tend to favor those who are least able to bear the loss resulting from an injury.” (DiPaolo v. Johnson (1973), 15 Ill. App. 3d 735, 739, 305 N.E.2d 194, 197.) To constitute reversible error, the language complained of must be reasonably understood to refer to the financial status of one of the parties, and it must result in prejudice to the complaining party. McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 223, 481 N.E.2d 787, 795.

In the instant case, we believe that defense counsel’s remarks that the plaintiff was asking the jury to take away the defendant’s money and property were obviously designed to elicit sympathy for the defendant and prejudice the jury. Since we have already reversed this cause and remanded for a new trial, however, we need not decide whether these comments would, by themselves, require reversal. We simply note that such comments are improper and should not be repeated at retrial.

NO. 5—88—0245

In this appeal, the plaintiff and defendants in cause No. 5—87—0493, discussed above, appeal from an order of the circuit court requiring each of them to pay court reporter fees for a transcription of the report of proceedings. The record indicates that the plaintiff requested the court reporters to prepare transcripts of only the closing arguments and the arguments presented during the post-trial motion. The defendants then designated additional portions of the trial proceedings that they deemed necessary for inclusion to complete the record on appeal. The plaintiff did not object to the inclusion of the additional materials. Shortly after the record on appeal had been prepared and filed with this court, and approximately seven months after notice of appeal had been filed, the trial court, on its own motion, set a hearing to determine the responsibility for apportionment of court reporter fees. That hearing was continued on plaintiff’s motion, and the court thereafter directed the court reporters to file copies of the request for preparation of transcripts and the accompanying bills within 10 days. Counsel for plaintiff and defendants were directed to file any objections to these fees within 10 days thereafter. This docket entry was dated February 19, 1988. On March 14, 1988, the court made the following docket entry:

“No objections to the court reporters’ timely filed statements, for preparation of transcripts and copies, having been filed by the parties within the time allowed therefore, it is ordered that the parties pay the court reporters in full according to the statements submitted, if the parties have not already done so. Clerk to furnish a copy of this entry to all counsel and reporters.”

The defendants then filed a motion to vacate the order and asked the court to order the plaintiff to reimburse the defendants for the court reporter fees which they had paid. Plaintiff also filed a motion to vacate. On April 18, 1988, the trial court denied the motions to vacate in a written order. The court stated that the purpose of its March 14 order was to supervise compliance by the parties with section 5 of the Court Reporters Act (Ill. Rev. Stat. 1987, ch. 37, par. 655). The court found that its order did not relate to any matter on appeal, and did not affect the final outcome of the suit, but was merely collateral to the issues on appeal and therefore the court had jurisdiction to issue the order.

Oil appeal, both the defendants and the plaintiff argue that the trial court lacked jurisdiction to order payment of the reporter fees. While it is generally true that a trial court is divested of jurisdiction once a notice of appeal has been filed, this rule does not apply to matters which do not affect a judgment and are merely collateral. (See Chicago Title & Trust Co. v. Czubak (1978), 67 Ill. App. 3d 184, 185, 384 N.E.2d 765, 766; Southland Corp. v. Village of Hoffman Estates (1970), 130 Ill. App. 2d 311, 318, 264 N.E.2d 451, 455.) A court retains jurisdiction to determine the costs of furnishing transcripts after notice of appeal is filed because the amount due cannot be fixed until the transcript is complete. (People v. Johnson (1988), 175 Ill. App. 3d 908, 919, 530 N.E.2d 627, 635.) We find, therefore, that the payment of the court reporter fees was a collateral matter over which the trial court retained jurisdiction.

In addition to the jurisdictional argument, both parties raise separate arguments concerning the fees. The plaintiff argues that the amount assessed by the trial court exceeds the amount allowed under section 5. That section states, in pertinent part:

“Unless and until otherwise provided in a Uniform Schedule of Charges which may hereafter be provided by rule or order of the Supreme Court, a court reporter may charge not to exceed 25$ per 100 words for making transcripts of his notes. The fees for making transcripts shall be paid in the first instance by the party in whose behalf such transcript is ordered and shall be taxed in the suit.” (Ill. Rev. Stat. 1987, ch. 37, par. 655.)

Plaintiff also contends that the statute does not authorize a reporter to charge for copies of transcripts independently made, which was apparently done in this case. We find that the plaintiff has waived these issues. The trial court allowed the parties 10 days to make objections to the charges submitted by the court reporters, and plaintiff did not object. Moreover, plaintiff did not object to the amount of the charges in his motion to vacate. Plaintiff’s failure to object constituted a waiver of these issues for purposes of review. See City of Champaign v. Roseman (1958), 15 Ill. 2d 363, 368-69,155 N.E.2d 34, 38.

Defendants contend that the trial court erred in denying them reimbursement from the plaintiff for the fees which defendants paid to the court reporters. The defendants argue that under Supreme Court Rule 323(a) (107 Ill. 2d R. 323(a)) the plaintiff was responsible for the entire costs of the transcripts. Supreme Court Rule 323(a) provides:

“A report of proceedings may include evidence *** and any other proceedings that the party submitting it desires to have incorporated in the record on appeal. The report of proceedings shall include all the evidence pertinent to the issues on appeal.
Within 14 days after the filing of the notice of appeal the appellant shall make a written request to the reporter to prepare a transcript of the proceedings that he wishes included in the report of proceedings, and a copy of the request shall be served upon every other party with the docketing statement required by Rule 303(g). Within 7 days after service on the appellee of the docketing statement and a copy of the request for transcript the appellee may serve on the appellant a designation of additional portions of the proceedings that the appellee deems necessary for inclusion in the report of proceedings. Within 7 days after service of such designation the appellant shall request the reporter to include the portions of the proceedings so designated or make a motion in the trial court for an order that such portions shall not be included unless the cost is advanced by the appellee.” (Emphasis added.) 107 Ill. 2d R. 323(a).

The defendants argue that because the plaintiff failed to make a motion in the trial court as required by the rule, he is responsible for the entire cost of the transcript. We agree. The appellant bears the burden of providing a complete record on appeal. (Smith v. City of Greenville (1983), 115 Ill. App. 3d 39, 41, 450 N.E.2d 389, 391; Saint Joseph Hospital v. Downs (1978), 63 Ill. App. 3d 742, 744, 380 N.E.2d 529, 531.) Under the plain language of Rule 323, if the plaintiff wished to avoid responsibility for preparing the additional portions of the proceedings designated by the defendant, he was required to make a motion in the trial court. Plaintiff did not make such a motion. The defendants, on the other hand, made a timely motion to vacate the order requiring them to pay court reporters’ fees and sought reimbursement from the plaintiff for fees already paid. We find that the trial court erred in ordering the defendants to pay court reporters’ fees and in denying their motion for reimbursement. Therefore, that portion of the trial court’s order requiring the defendants to pay reporters’ fees is vacated, and the court is directed to enter an order requiring the plaintiff to reimburse the defendants for those costs.

No. 5—87—0493, Reversed and remanded.

No. 5—88—0245, Affirmed in part; vacated in part and remanded with directions.

RARICK and HOWERTON, JJ., concur.


author: JUSTICE WELCH

text:
    ANDREW GRIMMIG, Plaintiff-Appellant, v. ST. CLAIR COUNTY et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0351
    Opinion filed December 6, 1989.
    Steven E. Katzman, of Belleville, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, William F. Kopis, and Gerald Haberkorn, of counsel), for appellees Hellmuth, Obata & Kassabaum, Inc., and Weisenstein, Hausmann, Ganschinietz & Klingel, Inc.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Andrew Grimmig, appeals from the order of summary judgment entered May 31, 1988, in the circuit court of St. Clair County in favor of defendants, two architecture firms, Hellmuth, Obata & Kassabaum, Inc. (HOK), and Weisenstein, Hausmann, Ganschinietz & Klingel, Inc. (WHGK).

On October 19, 1984, plaintiff, a blind man, was injured as he exited the circuit court of St. Clair County through the handicap exit. On February 28, 1986, plaintiff filed his original complaint, which named St. Clair County as the sole defendant. Defendants HOK and WHGK, the architecture firms, were added as party defendants in plaintiff’s amended complaint filed October 3, 1986. In his amended complaint, plaintiff alleged negligence on behalf of HOK and WHGK, individually, in the design of the premise wherein plaintiff was injured.

The specific allegations of negligence pleaded in plaintiff’s complaint against defendants HOK and WHGK were the following acts or omissions:

1. Negligently and carelessly designed the exit for handicapped persons in that it failed to provide for the safety and protection of blind persons;
2. Negligently and carelessly designed the brick ledge leading from the exit for handicapped persons next to the steps leading down to the intersection of Washington and First Streets;
3. Negligently and carelessly failed to design a railing or barrier of any kind to prevent blind people from walking onto the brick ledge; and,
4. Negligently and carelessly failed to design a warning of the brick ledge’s presence next to the steps leading down to the intersection of Washington and First Streets.

Each of these allegations speak in terms of “design” or “failure to design.” No allegation of negligence other than the “design” or “failure to design” is spoken of in these allegations, or at any other point in the counts against the defendant architecture firms.

In response to plaintiff’s amended complaint, defendants HOK and WHGK filed answers denying plaintiff’s allegations of negligent design. Additionally, HOK and WHGK each filed an affirmative defense claiming that plaintiff’s complaint was barred by the applicable statute of limitations. On October 30, 1987, HOK and WHGK filed a motion for summary judgment, stating that all design and specifications for the St. Clair County court building were completed on or before January 19, 1972, and, therefore, plaintiff’s complaint filed in 1986 was barred by the applicable statute of limitations.

Section 13—214 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(b)) states that “[n]o action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” On May 31, 1988, the trial court granted summary judgment in favor of HOK and WHGK. Plaintiff appeals. We affirm.

When a plaintiff appeals from the entry of summary judgment in favor of defendant, the question on review is whether there is a genuine issue as to any material fact. (Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 514 N.E.2d 68.) Although the non-moving party should not be required to prove its case to avoid summary judgment, they must present some factual basis which would arguably entitle them to judgment in their favor. (Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 458 N.E.2d 990.) In the case now before us, plaintiff has failed to present any genuine issue of material fact; therefore, the entry of summary judgment was proper.

As stated above, section 13—214 limits to 10 years the liability of any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(b).) The legislature’s intent in passing section 13—214 was to circumscribe the potentially unlimited tort liability of those who design and construct buildings, and the application of this statute of limitations has been upheld by Illinois courts. (See Blackwood v. Rusk (1986), 148 Ill. App. 3d 868, 500 N.E.2d 69, and Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, cited therein.) Plaintiff in the present case presents no persuasive reason to deviate from application of section 13—214.

In his brief, plaintiff states that no reported Illinois case has addressed the question regarding at what point the statute of limitations under section 13—214 begins to run. Plaintiff then proceeds to cite authority from other jurisdictions in support of the alternative propositions that the statute of limitations should not begin to run until: (1) the construction of the St. Clair County courthouse was completed; (2) the professional relationship between the defendant architects and St. Clair County had terminated; or (3) St. Clair County gave final approval to defendants’ design plans. We refuse to accept these proposed times for the initiation of the statutory period within which an action may properly be brought under section 13—214. Instead, we apply the statute as written, giving effect to its plain and unambiguous terms. County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.

Under section 13—214, the statute of limitations lasts 10 years from the alleged act or omission. In this case, plaintiff’s complaint alleges that defendant architects designed the courthouse exit such that it was unsafe for a blind person, or failed to design the exit such that it was safe for use by a blind person. This allegedly negligent design, or failure to design, constitutes the “act or omission” referred to in section 13—214. Accordingly, section 13—214 limits to 10 years the liability of defendant architects for their work in designing the courthouse.

Plaintiff states in his response to defendants’ motion for summary judgment that the statute of limitations does not begin to run until the design plans submitted by defendants are approved. According to plaintiff, defendants indicated in their answers to interrogatories that they were unaware of the date upon which the design plans were approved" The interrogatories containing such a response were not attached to plaintiffs’ response to the motion for summary judgment, nor do we find them as part of the common law record on appeal.

In his brief filed on appeal, plaintiff contends that the statute of limitations does not begin to run until the termination of the relationship between defendants and St. Clair County, which allegedly continued during construction of the designed structure. According to plaintiff, defendants indicated in their response to interrogatories that they had a representative on location at the work site during parts of the construction. This, plaintiff argues, brings into question the date upon which defendants’ “act” or “omission” terminated for the purpose of determining the initiation date for the statute of limitations, thus presenting a question of fact sufficient to preclude summary judgment. Again, the record does not contain the interrogatories containing such a response.

Because plaintiff has failed to present any factual support for the preceding claims, they may be considered only surmise or conjecture, which is not sufficient to establish a genuine issue of material fact necessary to withstand a motion for summary judgment. (Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 468 N.E.2d 477.) The very purpose of summary judgment procedures is to determine whether any genuine issue of material fact exists and to summarily dispose of cases where none does exist so as to avoid congestion of trial calendars and the expense of unnecessary trials. In the present case, plaintiff’s complaint contains allegations against defendants HOK and WHGK complaining of their negligence in designing the exit of the court building. Plaintiff’s complaint does not allege negligence on behalf of these defendants in supervising, managing or observing the construction of the court building.

Defendants, on the other hand, instead of relying on surmise or conjecture to support their motion for summary judgment, submitted a copy of the cover of the design specifications dated January 19, 1972, a copy of plan sheets dated January 19, 1972, and an affidavit establishing that the drawings and specifications of the courthouse were issued on or about January 19, 1972. The affidavit further states that no alterations or changes of the plans were made after January 19, 1972. Because plaintiff’s injury occurred on October 19, 1984 (more than 10 years after defendants’ acts or omissions), the statute of limitations had expired, and defendants could not be held liable for plaintiff’s injuries.

Section 13—214 was interpreted similarly in Zielinski v. A. Epstein & Sons International, Inc. (1989), 179 Ill. App. 3d 340, 534 N.E.2d 644. In Zielinski, the architect and general contractor of a building were named as defendants in a personal injury action arising out of an accident occurring in the structure designed by defendant architect and constructed by defendant contractor. Defendants successfully moved for summary judgment, arguing that plaintiff’s action was barred by the statute of limitations because more than 10 years had elapsed between the time of completion of the actual work performed and the time of plaintiff’s injury. The appeal in Zielinski focuses on the same question we are asked to address in the instant case—at what time the statute of limitations begins to run.

Plaintiff in Zielinski argued that, although the actual work performed by defendants may have been completed more than 10 years prior to his injuries, there remained paper work necessary to complete the job. Additionally, plaintiff argued that there was a continuation of a special relationship which offered the possibility that defendants may have been required to correct any problems arising prior to the final closing of the job. In sum, plaintiff argued that the statute of limitations did not begin to run until the last act associated with the construction had been completed. The appellate court affirmed the summary judgment in favor of defendants, finding unpersuasive plaintiff’s argument that paper work and a continuing relationship could postpone initiation of the statute of limitations.

On the record before us we find Zielinski authoritative and rule that plaintiff’s injury in the case now before us occurred more than 10 years after, the acts or omissions alleged as the basis for defendants’ liability. Consistent with the intention of section 13—214 to limit to 10 years the potential liability of architects, and other persons involved in the construction or improvement of structures (Blackwood v. Rusk (1986), 148 Ill. App. 3d 868, 500 N.E.2d 69), we find that the acts or omissions for which defendant architects could arguably be subject to liability occurred more than 10 years prior to plaintiffs injury; therefore, defendants were entitled to summary judgment as a matter of law.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby affirmed.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


text:
    EDGAR L. AMOS, JR., Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—88—0352
    Opinion filed December 6, 1989.

      Thomas W. Alvey, Jr., and Kurt E. Reitz, both of Thompson & Mitchell, of Belleville, for appellant.
    Glenn E. Bradford and Terrence V. O’Leary, both of Morris B. Chapman & Associates, Ltd., of Granite City, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Norfolk & Western Railway Company, appeals from a judgment entered against it January 22, 1988, by the circuit court of Madison County. A jury had rendered a verdict in favor of plaintiff, Edgar L. Amos, Jr., in his Federal Employer’s Liability Act action against defendant in the amount of $800,000 for injuries sustained while employed by defendant railroad.

Plaintiff was employed by defendant as a conductor and switch-man. On the morning of August 22, 1984, part of plaintiff’s duties was to throw a switch known as the production pocket lead switch. Plaintiff had had trouble throwing this switch in the past and had reported the difficulty to defendant. On that morning, while plaintiff was attempting to throw the switch, it suddenly became stuck and plaintiff felt a pain in his lower back. He was taken to the hospital and has received treatment ever since.

Defendant raises three issues on appeal: (1) whether the trial court erred in refusing to submit to the jury defendant’s tendered instruction on plaintiff’s duty to mitigate his damages by seeking employment as soon as possible after the injury; (2) whether the trial court erred in admitting into evidence under the business record exception to the hearsay rule plaintiff’s exhibits 3, 4 and 5, which were summaries of recorded statements of three railroad employees taken by a railroad claim agent; (3) whether the trial court erred in denying defendant’s motion in limine to exclude the testimony of David Bayer, an employee of defendant, who was called by plaintiff but not revealed as a witness to defendant until the day before trial began. We will set forth the facts only as they are necessary to our disposition of this cause.

At trial, defendant tendered two alternate jury instructions on plaintiff’s duty to mitigate his damages. The first, based on Brown v. Chicago & North Western Transportation Co. (1987), 162 Ill. App. 3d 926, 516 N.E.2d 320, reads as follows:

“An injured party is under a legal obligation to mitigate his damages, that is to minimize the economic loss resulting from his injury, by resuming gainful employment as soon as such can reasonably be done.
Failure of the injured party to make reasonable effort to minimize damages does not prevent all recovery for economic loss, but it does preclude recovery for damages or losses which could have been avoided had a reasonable effort to lessen damages been made.”

The second jury instruction is based on Baker v. Baltimore & Ohio R.R. Co. (6th Cir. 1974), 502 F.2d 638, and reads as follows:

“The law does require that any person who sustains a personal injury must mitigate his damage to the extent reasonably possible. Therefore, with respect to any claim of the plaintiff concerning a reduction in earning power, future lost wages or any inability to earn as much in the future as he would have been able to earn but due to the injuries sustained in October of 1984, [sic] the plaintiff was required to mitigate his damage, and such mitigation may include further scholastic training, vocational rehabilitation training or any other preparation reasonably necessary to improve the plaintiff’s earning ability in light of his injury.”

Plaintiff objected, arguing that, although plaintiff’s duty to mitigate damages is properly argued to the jury, it is not properly the subject of an instruction. Plaintiff pointed out that the instruction is not an Illinois Pattern Jury Instruction, nor has such an instruction been approved by the United States Supreme Court, the Seventh Circuit Court of Appeals, the Illinois Supreme Court or the Fifth District Appellate Court.

The trial court refused defendant’s instructions, refusing to follow the decision of the First District Appellate Court in Brown v. Chicago & North Western Transportation Co. (1987), 162 Ill. App. 3d 926, 516 N.E.2d 320, until the Illinois Supreme Court or the Fifth District Appellate Court followed suit.

In Brown, plaintiff was injured while working for defendant railroad. He brought suit to recover for his injuries pursuant to the Federal Employer’s Liability Act (hereinafter FELA). A jury returned a verdict in favor of plaintiff for the value of his past and future lost wages, pain and suffering and for his disability. Defendant appealed, arguing that the trial court erred in failing to instruct the jury on plaintiff’s duty to mitigate his damages by resuming gainful employment as soon as such could reasonably be done.

The appellate court reversed the trial court, holding that an employee does have a duty to mitigate damages by returning to gainful employment as soon as reasonably possible. Furthermore, a party is entitled to an instruction based on its theory of the case if there is record evidence to support it. The court found the question to be, then, whether there was record evidence to support the defendant’s allegation that plaintiff had failed to make a reasonable effort to mitigate his damages. The appellate court found that there was sufficient evidence to raise a factual question for the jury concerning plaintiff’s alleged failure to mitigate from which a jury might reasonably conclude that plaintiff was indifferent to finding alternative employment. That evidence was that plaintiff refused to cooperate with the defendant’s efforts to place him in another position within the company, plaintiff refused defendant’s plans to provide him with free rehabilitation and counseling services, and plaintiff refused defendant’s offers to fund vocational or scholastic training calculated to assist him in obtaining alternative employment.

The evidence further showed that one of plaintiff’s physicians advised him that he could return to work and that his injury was not serious or chronic. All medical tests consistently, indicated that there was nothing objectively wrong with plaintiff. A physician certified in rehabilitation examined plaintiff and testified that plaintiff’s injury precluded any employment involving lifting, standing or walking. He concluded that plaintiff’s physical limitations could be permanent in nature, but also admitted that plaintiff might fully recover. A psychiatrist testified that he advised plaintiff to pursue the employment and rehabilitation opportunities offered by defendant. A vocational rehabilitation counselor testified that, considering plaintiff’s physical limitations, plaintiff could hold a job with a salary ranging from $10,400 to $18,000.

We find that Brown accurately concluded that under applicable Federal cases an employee has a duly to mitigate his damages by returning to employment as soon as reasonably possible. (Brown, 162 Ill. App. 3d at 932, 516 N.E.2d at 325.) However, we also find that there was not sufficient evidence in the record to warrant the giving of the mitigation instruction in this case. We therefore affirm the trial court’s refusal to submit the tendered instruction to the jury.

Before setting out the relevant evidence adduced at trial, we point out that the burden of proving plaintiff’s failure to mitigate damages is on the defendant. (Brown, 162 Ill. App. 3d at 935, 516 N.E.2d at 327.) The evidence adduced at trial on this point is as follows. Plaintiff testified that he completed the tenth year of formal schooling, but received mostly “D” grades and some “C” grades. He dropped out of school and found employment at a cafeteria. He then enlisted in the Navy, where he served as an aircraft mechanic. While in the Navy, plaintiff received his “GED.” Plaintiff served in the Navy 4½ years and received an honorable discharge. He then became employed at McDonnell-Douglas in St. Louis as an air frame mechanic. Plaintiff left that job in less than a year because he did not feel competent to perform it. In 1966, plaintiff went to work for a railroad as a switchman. He worked for a railroad as a switchman and conductor until his accident. As a conductor, plaintiff was in a supervisory position over the other train crew members.

Following his accident, plaintiff continued to suffer pain in his back. He treated with a chiropractor who referred him to Dr. Shoedinger. Dr. Shoedinger attempted to treat plaintiff’s injury conservatively. The pain was lessened somewhat, but remained severe. Plaintiff had surgery on his back in November 1985. This surgery did not help plaintiff at all. His right heel and right buttock were numb from nerve damage. The numbness in the heel eventually went away, but his right buttock remains numb. Thereafter, plaintiff received ultrasound treatment two times a week, which helped but did not completely alleviate the pain.

Plaintiff also sought treatment from Dr. Chen, a specialist in pain management. Plaintiff received several nerve blocks, which helped control the pain only temporarily.

Plaintiff described his condition at the time of trial. He testified that his lower back feels as if it is completely "wore out” and his tailbone feels like “bone against bone.” Plaintiff described his pain as unbearable at times. He must lie down at least once a day with a heating pad for 30 to 40 minutes. He is unable to sit or stand in one place for long and suffers cramps if he walks too much. He has suffered pain since the accident. Plaintiff is unable to lift anything. When he sits in a chair it must have arms, which he uses to lift his weight with his elbows. If plaintiff pushes himself too hard, he has to go to bed for two or three days.

Plaintiff testified that approximately two years after his accident, defendant offered him full rehabilitative services at no charge. Plaintiff told the defendant that if his attorney approved it, he would accept the offer and referred the defendant to his attorney. Plaintiff did not believe defendant had contacted his attorney.

Dr. George R. Shoedinger III, plaintiff’s orthopedic surgeon, testified that he first saw plaintiff in November 1984. X rays taken in September 1984 revealed evidence of a ruptured disc in plaintiff’s low back. Shoedinger attempted to treat plaintiff conservatively. Because plaintiff’s pain was intolerable, he was admitted to the hospital in January 1985. A myelogram was performed and revealed several defects in plaintiff’s spine. In January 1985, plaintiff was treated with a procedure called chemonucleolysis, which involves injecting a substance into a spinal disc to dissolve the cartilage therein. Plaintiff’s condition did not improve, and surgery was performed on his back in September 1985. Following surgery plaintiff continued to have severe pain in his back. Shoedinger informed plaintiff that he would not be able to return to his former job. Plaintiff would be unable to engage in unrestricted lifting, bending, pushing, pulling, twisting and other torsional motions of his back. Plaintiff would be unable to work in a job that required such activity. Shoedinger testified that plaintiff’s condition was permanent.

Dr. T.Z. Chen testified that he is a physician specializing in pain management and anesthesiology. He first saw plaintiff in September 1987. He placed plaintiff on medication for pain and, in September 1987, performed four lumbar epidural nerve blocks. This helped only temporarily. Chen was of the opinion that plaintiff would be unable to engage even in a light duty or bench-type job. Plaintiff is unable to sit for extended periods of time, he cannot push or lift objects, nor is he able to twist his torso from side to side.

James England, Jr., testified that he is a rehabilitation counselor. Plaintiff was referred to England by plaintiff’s counsel to evaluate plaintiff’s employability. Before seeing plaintiff, England reviewed plaintiff’s medical record. England met with plaintiff and obtained a history from him. England administered two tests to plaintiff. One was an academic achievement test and the other was a motor coordination test. England’s initial evaluation of plaintiff took approximately four hours. England discussed with plaintiff his symptoms and physical problems, his past work activity, his medical treatment and how plaintiff spent his time since his injury.

The academic achievement test administered to plaintiff revealed that plaintiff reads at the end of the seventh-grade level, spells at the end of the eighth-grade level and performs math at the end of the ninth-grade level. England found that plaintiff had the ability to learn new things.

The motor coordination test is designed to test how fast a person can move his dominant hand back and forth in a quick activity. The purpose is to determine whether the individual could be involved in a job that required rapid writing or rapid movement of the hands in general, as on an assembly line. Plaintiff scored substantially below average on this test. England found that plaintiff had very few transferable job skills.

Based upon plaintiff’s medical records and England’s evaluation, England was of the opinion that plaintiff would not be able to return to his job with the railroad. England was unable to find any type of employment which plaintiff could perform based on his overall limitations. Plaintiff would be unable to get through an eight-hour day without alternately sitting, standing or lying down. He is unable to sit without leaning on his elbows to take the weight off his back, and his motor coordination is slow. Taking all of these factors together, plaintiff would be unable to perform even a job that would allow him to alternately sit and stand, such as assembly-type work or work at a self-service gas station. Plaintiff is unable to perform work on a sustained basis and could not retain even a sedentary job. England did not think that vocational rehabilitation would help plaintiff.

Defendant presented the testimony of Douglas Cole, an occupational therapist and director of a work-hardening therapy program, and June Blaine, a vocational rehabilitation counselor. Cole testified that at the request of defendant, he reviewed plaintiff’s medical records, plaintiff’s deposition, the deposition of Dr. Shoedinger and the vocational evaluation of plaintiff’s rehabilitation counselor, James England. Based upon plaintiff’s physical limitations as described by Dr. Shoedinger, Cole was of the opinion that plaintiff could work at the sedentary or light level. Cole believed that plaintiff would benefit from additional therapy.

On cross-examination, Cole admitted that if plaintiff was restricted from any torsional movement it would impede his ability to perform a sedentary or light-level job. Cole also admitted that he had never met nor evaluated plaintiff personally and that a physical evaluation would be necessary before Cole could be sure of his opinion.

June Blaine, a vocational rehabilitation counselor, testified that she reviewed Dr. Shoedinger’s deposition and medical reports, plaintiff’s deposition and medical records, James England’s report and Douglas Cole’s deposition. She found that plaintiff had several transferable work skills. They were good, solid work attendance, skills as a mechanic and supervisory skills as a conductor for the railroad. She opined that, based upon Dr. Shoedinger’s restrictions on plaintiff’s activities, plaintiff could be placed in employment. She testified that numerous employers are interested in employing disabled people.

On cross examination, she testified that the restriction on torsional movements is quite significant. Blaine never met personally with plain-, tiff.

While a party is entitled to an instruction based on his theory of the case if there is record evidence to support it (Brown, 162 Ill. App. 3d at 932, 516 N.E.2d at 325), we do not think that defendant presented sufficient evidence to raise a factual question as to whether plaintiff took reasonable actions to mitigate his damages by returning to employment as soon as possible after his injury. The weight of the evidence shows that plaintiff has been at all times unable to return to any type of employment. The two expert witnesses presented by defendant had never met, examined or interviewed plaintiff. The question is whether plaintiff acted reasonably in failing to seek employment. Defendant has not presented sufficient evidence that plaintiff acted unreasonably in failing to seek employment after his injury. Where the evidence shows that a plaintiff is unable to obtain employment because of his injuries, it is reasonable that he not seek employment.

The instant case differs from Brown, where the evidence as to plaintiff’s disability was conflicting. Plaintiff in Brown was advised by one of his physicians that his condition was not serious and that he could return to work. A vocational rehabilitation counselor testified that the plaintiff in Brown could return to work. Furthermore, in Brown, the plaintiff refused to cooperate with his employer, who offered him another position with the company or free rehabilitation services. The court in Brown found that there was sufficient evidence that plaintiff had acted unreasonably in failing to seek other employment following his injury to submit the question to the jury.

In the instant case, plaintiff’s physician testified to plaintiff’s serious and permanent disability. Furthermore, the instant plaintiff did not refuse defendant’s offer of rehabilitative services, but referred the offer to his attorney. Defendant did not present sufficient evidence to warrant the giving of a mitigation instruction.

The second argument set forth by defendant is that the trial court erred in admitting into evidence plaintiff’s exhibits 3, 4 and 5. The exhibits are summaries of recorded statements of three railroad employees taken by the railroad claim agent approximately one month after plaintiff’s accident. The summaries relate to events on the day plaintiff was injured and are not favorable to the defendant. Defendant argues that the exhibits were improperly admitted into evidence because they constitute hearsay and do not fall within the business records exception to the hearsay rule. Defendant relies on the United States Supreme Court decision in Palmer v. Hoffman (1943), 318 U.S. 109, 87 L. Ed. 645, 63 S. Ct. 477, which held that admission of such reports was improper because accident reports are prepared in anticipation of future litigation rather than in the ordinary course of business, and the motivation in their preparation may affect their trustworthiness. However, in Poltrock v. Chicago & North Western Transportation Co. (1986), 151 Ill. App. 3d 250, 502 N.E.2d 1200, it was held that this rule does not apply where the report is sought to be admitted against the party who prepared it. Where the report is damaging to the party who prepared it, as here, there is no reason to question its trustworthiness. As in Poltrock, the summaries of defendant’s employees’ statements were properly admitted under the business records exception to the hearsay rule.

Defendant also argues that the summaries should not have been admitted under the business records exception to the hearsay rule because, as summaries of oral statements, they contain conclusions and opinions of the individual making the summary, and because they) are written summaries of an oral statement, they involve double hearsay. That the summaries may contain the conclusions or opinions of the preparer do not disqualify them under the business records exception to the hearsay rule. Instead, that fact affects only the weight of the evidence, not its admissibility. (Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 407, 487 N.E.2d 798, 806.) Nor do we find anything in Supreme Court Rule 236, which sets forth the business records exception to the hearsay rule, which disqualifies what the defendant refers to as double hearsay. (107 Ill. 2d R. 236.) Rule 236 expressly states that lack of personal knowledge by the maker of the record may affect its weight, but not its admissibility. Both the oral statements and the summaries were made by employees of defendant in the regular course of defendant’s business. In any event, the individual who prepared the summaries testified at trial as to their accuracy and was subject to cross-examination with respect to the contents of the summaries.

Finally, defendant argues that the summaries should not have been admitted because they were not prepared within a reasonable time after the accident. It is true that in order to be admissible as an exception to the hearsay rule, business records must have been prepared within a reasonable time after the act or occurrence to which they relate. (People ex rel. Schact v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 344, 448 N.E.2d 950, 957.) The oral statements upon which the summaries are based were taken on September 11, September 12 and September 24, 1984, within approximately one month of the occurrence to which they relate. We think this is a reasonable time in which to take the oral statements. The record does not indicate when the summaries were prepared. However, the oral statements were preserved by tape recording so that the summaries based thereon could be checked for accuracy against the tape recordings and are sufficiently reliable to be admissible.

The final argument raised by defendant is that the trial court erred in refusing to bar the testimony of David Bayer and the admission into evidence of plaintiff’s exhibit 1. David Bayer was a conductor on defendant’s railroad during and prior to August 1984. On August 9, 1984, Bayer prepared and submitted to the defendant railroad a report entitled “Unsafe and/or Hazardous Condition Report,” which describes the production pocket switch on which plaintiff was injured as being “hard to throw.” The report indicates that it was sent to numerous supervisory employees of defendant. Plaintiff did not discover the existence of this report or witness until sometime after January 11, 1988. Plaintiff did not reveal the existence of the report or witness to defendant until January 18, 1988. Plaintiff did not notify defendant that he intended to call Bayer as a witness until the morning trial was to begin. Trial of this cause began on January 19, 1988. At the time of trial, Bayer remained an employee of defendant railroad.

Immediately prior to the beginning of trial, defendant made an oral motion in limine to bar the testimony of Bayer or admission of the report under Supreme Court Rule 219(c)(iv) because neither the name of the witness nor the existence of the report was revealed in plaintiff’s answers to interrogatories. The trial court denied the motion, finding that plaintiff’s actions had not been to intentionally keep the existence of the witness or report secret from defendant. The trial court did offer defendant the opportunity to interview Bayer prior to his testimony, and indicated that, should that interview reveal something that would cause the defendant to require additional time, the court would consider such a request. Defendant contends that the trial court erred in not barring the evidence.

Whether to impose sanctions against a party for noncompliance with discovery rules is within the discretion of the trial court. (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 4, 422 N.E.2d 241, 243.) We find no abuse of discretion in the trial court’s refusal to bar the evidence. The court found that plaintiff did not act contumaciously in failing to disclose the evidence at an earlier date, and this finding is supported by the record. Indeed, the witness and the report were presumably within the control of defendant, although defendant denied that it had ever received the report. We find no error in the trial court’s denial of defendant’s motion in limine.

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

Affirmed.

GOLDENHERSH and RARICK, JJ., concur.