author: JUSTICE JOHNSON

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF SKOKIE et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—2532
    Opinion filed March 23, 1989.

      Raymond F. Simon and Joseph A. Spitalli, both of Chicago (Simon & Spitalli, James T. Murray, and Witwer, Moran, Burlage & Witwer, of counsel), for appellants.
    Barbara M. Meyer, Corporation Counsel, of Skokie (Jeffrey D. Greenspan, Assistant Corporation Counsel, of counsel), for appellee Village of Skokie.
    Don E. Glickman and Thomas F. Geselbracht, both of Rudnick & Wolfe, of Chicago, for appellees La Salle National Bank, American National Bank and Trust Company of Chicago, Mark Goodman & Associates, and Harms/ Old Orchard Venture.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, American National Bank and Trust Company of Chicago, as trustee under trust No. 62889, and Quartet Manufacturing Company, appeal from the judgment of the circuit court of Cook County finding that defendant, the Village of Skokie, complied with the standards set forth in its zoning ordinance (Skokie, Ill., Village of Skokie Official Zoning Ordinance §10.5 et seq. (1981)). Other defendants in this appeal are La Salle National Bank, as trustee under trust No. 102223, American National Bank of Chicago, as trustee under trust No. 62111, Mark Goodman & Associates, and Harms/Old Orchard Venture. The following issues are raised on appeal: (1) whether the Skokie Village Board of Trustees had the authority to grant the petition for site plan approval; (2) whether proper procedures were followed for the granting of modifications from the requisites of the “Office Research District”; and (3) whether the trial court’s judgment was contrary to the manifest weight of the evidence.

We affirm.

In 1985, Mark Goodman & Associates (hereinafter Goodman) applied to the Village of Skokie (hereinafter the Village) for site plan approval under the special use provisions of the Village’s zoning ordinance (Skokie, Ill., Village of Skokie Official Zoning Ordinance §10.5 et seq. (1981)) (hereinafter zoning ordinance or ordinance). The special use provisions of said ordinance provide:

“ARTICLE 13-ADMINISTRATION AND ENFORCEMENT
13.4.5.5 Decisions and recommendations of the Plan Commission.
A special use permit for any of the special uses contained in this ordinance may be granted and the applicable district regulations modified only if the evidence in the judgment of the Plan Commission sustains each of the following findings of fact with a minimum of five (5) concurring votes required:
13.4.5.5.1 The establishment, maintenance or operation of the special use will not be detrimental to or endanger the public health, safety, morals or general welfare; and the proposed building(s) or use at the particular location is necessary or desirable to provide a service or a facility which is in the public'interest and will contribute to the general welfare of the neighborhood or community.
13.4.5.5.2 The proposed building or use will not substantially change the character of the neighborhood, will not have an undue adverse effect upon adjacent property or property values in the neighborhood, will not unduly aggravate traffic conditions, and will not unduly burden essential public services such as drainage facilities, public utilities and those services pertaining to public health, public safety and public welfare in general.
13.4.5.5.3 The proposed building(s) or use will be designed, arranged and operated so as to permit the development and use of neighboring property in accordance with the applicable district regulations.
13.4.5.5.4 The proposed use will not alter or be contrary to the primary purpose of the zoning district or area in which it is proposed, when its effect is considered in conjunction with the cumulative effect of the number of various special uses of all types already in the adjacent area and in the Village as a whole.
13.4.5.5.5 The proposed use and its plan conforms with the general intent of the Official Comprehensive Plan.” (Skokie, Ill., Village of Skokie Official Zoning Ordinance §13.4.5.5 et seq. (1981).)

Defendant sought approval of a proposed five-story office building (hereinafter Harmswood building) located in the Village at the northeast comer of Harms Road and Old Orchard Road. The property on which the Harmswood building will be located is in the Village’s “Office Research District” (hereinafter OR District), a zoning district created under the zoning ordinance. The OR District is unique because of the properties located within the district. For this reason, all properties within the district require site plan approval under the special use provisions of the Village’s zoning ordinances. The OR District extends from the Edens Expressway on the east to Harms Road on the west and from Old Orchard Road on the north to Golf Road on the south. It contains six different office buildings and the courthouse.

On or about July 15, 1985, the Village’s Plan Commission (hereinafter the Commission) voted unanimously to deny Goodman’s request for site plan approval. Goodman presented to the Commission an alternative proposal for approval. After a hearing thereon, the Commission again voted to deny site plan approval. Despite the negative recommendation by the Commission, the Village Board of Trustees (hereinafter the Board) passed an ordinance approving the proposed site plan. In accordance with the zoning ordinance, the Board made the following findings:

“The subject use and its site plan meets the intent of the O-R Research District by retaining large areas of existing, mature landscaping, which is *** consistent with the adjacent Cook County Forest Preserve. *** The proposed building will not have any adverse effect on the public health, safety, morals, or general welfare of the community.
*** New developments along Old Orchard Road are creating a unified character of office/research facilities which are compatible with adjacent parks, open space, and single-family houses. *** The open character of the site plan will help maintain the values of adjacent property while unifying the character of Old Orchard Road from the Edens Expressway west to Harms Road.
When constructed and operated in compliance with the Petitioners’ proposed Site Plan, the subject building will not adversely effect [sic] the use or development of neighboring property in accordance with applicable district regulations. ***
*** The subject office use is encouraged by the Zoning Ordinance. *** The site plan has been arranged in a manner which will mitigate any adverse impact from the granted relief. There will also be no cumulative adverse impact when the various special uses of all types already in the adjacent area and Village are considered as a whole.”

The Harmswood building, as approved by the Village, will be a curvilinear five-story office building oriented towards the Cook County Forest Preserve to the south and west. Parking will be at grade and below grade in a parking basement. It will be approximately 230 feet away from the nearest single-family home to the north and 136 feet from the four-story Quartet office building to the east.

After hearing extensive evidence from all parties, the trial court upheld the findings of the Board. This appeal followed.

Plaintiffs’ initial contention is that the Board did not have the authority to grant the petition for site plan approval. Plaintiffs argue that, under the special use provisions of the zoning ordinance, the Board was prohibited from granting site plan approval after the Commission’s negative recommendation.

Section 13.4.5.7.2 of the zoning ordinance expressly states that the Board shall determine whether to issue special use permits:

“The Mayor and Board of Trustees may grant or deny any applications for a special use permit after receiving the recommendations of the Plan Commission, including the stipulation of additional conditions and guarantees, when they are deemed necessary for the protection of the public interest.” (Skokie, Ill., Village of Skokie Official Zoning Ordinance §13.4.5.7.2 (1981).)

In section 4.2.153 of the zoning ordinance, the Board’s authority to grant or deny special use permits is again stated:

“After due consideration in each case by the President and Board of Trustees of the Village of Skokie after receiving the report and recommendation of the Plan Commission relative to the impact of such use upon neighboring land, and of the public need for the particular use at the particular location, such ‘special use’ may or may not be granted by the President and the Board of Trustees.” (Skokie, Ill., Village of Skokie Official Zoning Ordinance §4.2.153 (1981).)

Although the above two provisions unequivocally indicate that the Board has the express power to grant or deny a special use permit, plaintiffs insist that the Board withdraw its power if the Commission did not issue a positive recommendation.

Plaintiffs’ suggestion that the Commission has the power to decide to deny a special use permit by making negative findings of fact is without merit. Provisions 13.4.5.7.2 and 4.2.153 of the zoning ordinance clearly demonstrate that the Board, not the Commission, is the body that determines whether to grant or deny site plan approval. If the Board lacked authority to issue a special use permit based on the negative recommendation of the Commission, there would be no logical purpose for requiring the Commission to submit its findings of fact on applications receiving a negative recommendation. The ordinance specifically states that “the Plan Commission shall have the following powers and duties: To prepare and recommend to the Mayor and Board of Trustees ***.” Skokie, Ill., Village of Skokie Official Zoning Ordinance §§13.4.2,13.4.2.1 (1981).

In Kleidon v. City of Hickory Hills (1983), 120 Ill. App. 3d 1043, the court was presented with a similar issue. There, as in the instant case, plaintiffs were property owners who challenged the validity of an ordinance which allowed development on neighboring property. The ordinance required the zoning board of appeals to make specific findings of fact before recommending variations. Plaintiffs alleged that the zoning board did not make proper findings of fact prior to the enactment of the ordinance. However, the court disagreed and ruled in favor of the defendants, stating the following:

“Reports or findings of an administrative body, even when required by statute, are merely advisory and do not affect the authority of the City Council where the latter has the final decision-making authority. [Citations.] Here the authority to grant variations is expressly reserved to the City Council. Therefore, the alleged failure by the Zoning Board to make findings of fact or any asserted deficiency regarding such findings does not invalidate the legislative action taken thereon by the City Council.” Kleidon, 120 Ill. App. 3d 1049-50.

Plaintiffs’ reliance on Geneva Residential Association, Ltd. v. City of Geneva (1979), 77 Ill. App. 3d 744, is misplaced. In Geneva the plan commission recommended to the city council to grant defendant a special use permit. However, its findings were not consistent with Geneva’s zoning ordinance. In its instructions to the trial court on remand, the court stated: “[I]f the court determines that the plan commission failed to make a required finding, but the evidence shows that the city council reassessed the record and on its own investigation made the required finding, then the ordinance granting the special use should be upheld.” Geneva Residential Association, Ltd., 77 Ill. App. 3d at 759.

As is evident in the record, the Board reassessed the proposal for site plan approval and made its own findings, which are clearly set forth in the ordinance approving the site plan. Thus, recommendations by the Commission are only advisory, and the final authority to grant or deny site plan approval is vested in the Board.

Plaintiffs next contend that the Board granted variances from the requirements of the OR District that were contrary to the zoning ordinance. The zoning ordinance contains minimum and maximum standards for developments in the OR District. Specifically, the Board permitted the Harmswood building to have some parking spaces that will be 8V2 feet wide, although the ordinance requires parking spaces to be nine feet wide. Contrary to the standard, the Board further permitted parking on the east side of the yard. Plaintiffs argue that the zoning board of appeals, not defendant Board, has the authority to grant or deny variances and that the ordinance provides no guidelines for the Board to make such a determination.

It is undisputed that the Harmswood building requires modifications from the standards set forth in the OR District. Pursuant to the ordinance, “the Zoning Board of Appeals shall have no authority to grant a variation from the provisions or conditions of this District. Modifications to any of the requisites of this District may be recommended by the Plan Commission for consideration by the Board of Trustees.” (Skokie, Ill., Village of Skokie Zoning Ordinance §10.5 (1981).) Notwithstanding plaintiffs’ claim that a variance was granted, we must agree with the trial court that the legislative intent is to draw a distinction between a “modification” and a “variation.” Modifications are what the Board granted in the instant case. Provision 10.5 of the zoning ordinance allows the Board to make modifications if the petitioner provides persuasive evidence that modifications are necessary and desirable. Thus, contrary to plaintiffs’ assertion, the ordinance does provide a standard for the Board to determine whether to grant modifications.

Plaintiffs cite Welton v. Hamilton (1931), 344 Ill. 82, to support their contentions. In Welton, plaintiff challenged the constitutionality of section 3 of the Illinois Zoning Act (1923 Laws of Illinois 268). Section 3 granted the city council authority to establish a zoning board of appeals which could determine and vary the application of zoning regulations without restriction. The court found this delegation of authority to be “arbitrary and unconstitutional because it is a delegation to an administrative body of the power of legislation, which can be exercised only by a legislative body.” (Welton, 344 Ill. at 95.) Welton, thus, is irrelevant to the present case.

Unlike Welton, here the Board has not attempted to delegate its legislative authority. Rather, it has expressly reserved its legislative duties by vesting in itself the final authority to determine whether a modification is necessary and desirable. Furthermore, Skokie is a home rule unit; therefore, it has the power to set its own zoning standards. (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 569.) We find, therefore, that proper procedures were followed in granting modifications to the requisites of the OR District.

Plaintiffs’ final contention is that the trial court’s judgment was contrary to the manifest weight of the evidence. Plaintiffs argue that the testimony at trial clearly demonstrated that the Harmswood building did not meet the requisites of the zoning ordinance for the OR District.

The standard of review of zoning issues is that the “trial court’s findings of fact will not be overturned unless they are against the manifest weight of the evidence.” (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 318.) Under Illinois law, a zoning ordinance is presumed valid. (Cosmopolitan National Bank, 103 Ill. 2d at 310.) “The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare.” (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80; La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.) Where “the reasonableness of the ordinance is fairly debatable, the decision of the municipal authorities must be upheld, and the trial court is not justified in substituting its judgment for that of the municipal authorities.” Schmidt v. City of Berwyn (1985), 134 Ill. App. 3d 36, 46.

Special uses are also entitled to a presumption of validity. This presumption is rebuttable only by clear and convincing evidence that the grant of special use will result in real or substantial harm to the public health, safety and welfare. York v. Village of Wilmette (1986), 148 Ill. App. 3d 108, 115.

In applying the above standards to the present case, we agree with the trial court that plaintiffs failed to establish that site plan approval did not comply with the requirements of the OR District. The trial court heard testimony from five land planners, two appraisers, an architect, a traffic engineer and various lay witnesses. Plaintiffs’ witnesses all argued that the Harmswood building did not meet the special use criteria because of its height and modifications to the parking requirements of the OR District, as discussed previously.

Peter Peyer, a land planner, testified that buildings of various heights occur throughout the OR District without adverse consequences. The district contains six different office buildings and a courthouse. The buildings are the 12-story Lincoln Properties/Bell & Howell building; the one-story Miller Joseph building; the two tower seven-story MRX/Searle buildings; the five- and six-story Brunswich buildings; the two- and three-story Portland Cement buildings; and the four-story Quartet building. The courthouse is two stories with an atrium approximately 58 feet in height. Peyer testified that the single-family neighborhood to the north would not be adversely affected by the height of the Harmswood building. Peyer came to this conclusion based on the distance from the residential property and fact that the setbacks are adequate to reduce the scale of the budding. The expert testimony of Allen L. Kracower, an urban planner and zoning consultant, and Neil King, a real estate broker, appraiser and counselor, was consistent with Peyer’s testimony.

Based on the testimony, the trial court stated:

“In the Court’s opinion, the plaintiff failed to show by credible evidence based upon the high standard that is required here that the approval was unreasonable or arbitrary. The Court finds that the evidence showed the impact of an extra story to be insubstantial [f]or the following reasons; there is no evidence of restriction of light or air by this five-story building upon the four-story building adjoining it. As a matter of fact, the ordinance only requires a 50 foot side yard setback. This building has 86 feet between it and the plaintiff’s [property line]. The view of the five-story building immediately to the west of plaintiff’s building *** is obstructed as far as looking at the forest preserve or anything beyond to the west or to some degree perhaps to the southwest. But the same thing would be true of the four-story building. The height impact on the users of the recreational park in the Court’s opinion is insubstantial. [One] hundred and sixty-one feet is what the ordinance required the building to be away from the northern border. [One] hundred eighty-one feet is what is proposed *** in my opinion the evidence shows [it is] not detrimental to the residential users of that park.”

We agree with the rationale and conclusion rendered by the trial court.

Regarding the modification to the requisites for parking, Peyer testified that practically each building, including the Quartet building, in the OR District had received some parking modifications to permit parking in both its front and rear yards. Kracower testified that parking yards are one of the most common modifications and are not problematic. King further noted that it was common practice to locate one parking lot adjacent to another without any adverse impact. He could not find any negative impact that would result from parking in the east side yard of the Harmswood building.

The trial court properly rejected the contentions of Quartet that the parking modifications to the east side yard were arbitrarily and capriciously granted. We must again agree with the trial court’s rationale that according to the plan the parking modification was placed in the least obtrusive location possible, next to a similar use of parking spaces. Furthermore, the record reveals the modification does not adversely affect the residents or park users to the north. The visitors and tenants of the Quartet building, when looking to the west, would first observe their own parking spaces and cars before observing those of the Harmswood building. Based on the foregoing, plaintiffs have failed to establish by clear and convincing evidence that the trial court incorrectly concluded that the Harmswood building met the criteria for site plan approval.

Additionally, Quartet’s contention that the surrounding single-family homes and its property will be diminished in value is also not supported in the record. Francis S. Lorenz, a real estate appraiser retained by plaintiffs, failed to cite specific homes that would be affected by the Harmswood building. He was also unable to state in what dollar amounts any of these homes or the Quartet building would be diminished in value. Rather, he relied on data irrelevant to the present case. For example, he compared two homes in Palatine, neither of which was near an office building. He also looked at homes in Schaumburg’s Lexington Field’s subdivision which showed a lower than market rate of appreciation and was adjoined by a 13-story and a 21-story office building. Overall, Lorenz presented no data to support his contention that the Quartet building or other homes in the area would be diminished in value by the presence of the Harmswood building.

Unlike Lorenz, King analyzed five different office complexes of varying heights within 50 to 125 feet or each other; he found that no one office budding had a negative impact on the other. Regarding the homes to the north, King noted two sales that occurred after the Harmswood site plan was approved. Both homes sold without any complications. One home sold for a higher price than expected. However, regardless of King’s testimony, plaintiffs fails to show any diminution in value of either the adjoining homes or the Quartet building.

Accordingly, the order of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
      In re MARRIAGE OF SALLY A. HOLDERRIETH, Petitioner-Appellee, and RICHARD C. HOLDERRIETH, Respondent-Appellant.
    First District (4th Division)
    No. 1—88—1142
    Opinion filed March 23, 1989.
    — Rehearing denied April 27, 1989.

      George E. Downs, of Palatine, for appellant.
    Stephen K. Bell, Ltd., of Wheaton (Stephen K. Bell and Joseph H. King, Jr., of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

The circuit court of Cook County entered a judgment dissolving the marriage of petitioner, Sally Holderrieth, now known as Sally Nielsen, and respondent, Richard Holderrieth. Sally and Richard entered into a settlement agreement, which was incorporated into the judgment of dissolution. The agreement provided, inter alia, that Richard would pay the “college and professional education expenses of the children.”

Subsequently, Sally and Richard’s son, Brian, began attending the Denver Automotive and Diesel College, Inc. Richard refused to pay Brian’s tuition and other expenses. Sally petitioned the trial court (1) to enforce the settlement agreement, and (2) to grant her the same post-judgment relief pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 513).

Following a bench trial, the trial court entered an order in favor of Sally, based solely on section 513 of the Marriage Act. Richard appeals, contending that the trial court erred because the school attended by Brian falls within neither the terms of the settlement agreement nor section 513 of the Marriage Act.

We reverse the order of the trial court.

Background

The trial court entered its judgment of dissolution on May 3, 1976. The judgment incorporated the settlement agreement of Sally and Richard. The pertinent provision from their agreement follows:

“L. That [Richard] shall pay for the college and professional education expenses of the children of the parties hereto, including, but not limited to, tuition, books, supplies, registration and other required fees, board, lodging assessments and charges, and round-trip transportation expenses between the college or professional school and the home of the children if they are in attendance at an out-of-town college or professional school; [Richard’s] obligation to pay such expenses is based on whether or not the children of the parties have a desire and aptitude for such a college or professional education, and [Richard’s] ability to pay such expenses.”

On November 6, 1987, Sally filed a “Petition For Rule To Show Cause.” She alleged that Brian was attending the Denver Automotive and Diesel College and that Richard refused to pay Brian’s expenses. She sought enforcement of paragraph L of the settlement agreement.

In his answer to Sally’s petition, Richard alleged that he knew nothing about Brian attending the school. Richard further alleged that, at the time of their dissolution, he and Sally did not intend for him to pay Brian’s expenses in attending a school such as the Denver Automotive and Diesel College.

The trial court held a hearing on Sally’s petition on March 11, 1988. The record shows that at the outset of the hearing, Sally sought and received leave to file, instanter: (1) an amended petition seeking enforcement of the settlement agreement, and (2) a petition seeking the same post-judgment relief under section 513 of the Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 513). Richard did not object to the amended petition to enforce and the section 513 petition. The trial court allowed Richard’s answer to Sally’s original petition to stand against her new petitions.

The record is contradictory at this point. As stated earlier, Sally filed a petition for post-judgment relief under section 513 of the Marriage Act. However, during closing argument, she based her claim exclusively on the settlement agreement. She plainly stated that section 513 does not apply to the instant case, because the settlement agreement provided for their children’s educational expenses.

The contradictions continue. On March 31, 1988, the trial court entered an order in favor of Sally. Despite her concession on the applicability of section 513 of the Marriage Act, the trial court based its order solely on section 513 of the Marriage Act. The record shows that the trial court did not decide whether the Denver Automotive and Diesel College fell within the terms of the settlement agreement. The court did not even address the issue. Rather, the court simply stated:

“Even if this Court were to accept [Richard’s] definitions of college and professional education to exclude trade school, [Richard] is still responsible for the payment of reasonable expenses relating [to] Brian’s education.”

The trial court based this conclusion on section 513 of the Act.

The court ordered Richárd to pay Sally $7,250.13 in expenses which she had already paid, and thereafter, $600 per month “until Brian finishes his trade school education.” Richard appeals.

Opinion

I

Richard first contends that the Denver Automotive and Diesel College is not a “college or professional school,” as prescribed by the settlement agreement. It is quite settled that the normal rules pertaining to the construction of contracts apply to the interpretation of provisions in a dissolution judgment. A court should construe the settlement provisions within the dissolution judgment so as to give effect to the intention of the parties. The court must determine the parties’ intent solely from the language of the instrument itself. White v. White (1978), 62 Ill. App. 3d 375, 378, 378 N.E.2d 1255, 1258; Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 548, 286 N.E.2d 113, 114.

The parties’ intent must be determined from the instrument as a whole and not from any one clause standing alone; meaning and intent must be given every part. No part should be rejected as surplusage unless absolutely necessary, since it is presumed that the parties inserted each provision deliberately and for a purpose. (White, 62 Ill. App. 3d at 378, 378 N.E.2d at 1258.) The court cannot place a construction on the instrument that is contrary to or different from the plain and obvious meaning of the language. Brown v. Miller (1977), 45 Ill. App. 3d 970, 972, 360 N.E.2d 585, 587.

If the instrument is incomplete or its language is ambiguous, extrinsic evidence may be introduced to explain the language. An instrument is ambiguous when the language used is reasonably susceptible to more than one meaning. However, language is not rendered ambiguous simply because the parties do not agree on its meaning. White, 62 Ill. App. 3d at 378-79, 378 N.E.2d at 1258.

In the case at bar, neither Sally nor Richard questions the completeness or validity of their settlement agreement. Indeed, each relies on the agreement in support of her or his position. Rather, Sally and Richard disagree on the meaning of the terms “college or professional education” and “college or professional school,” found in paragraph L of the dissolution judgment. Richard contends that the Denver Automotive and Diesel College is not a college or professional school, but rather is a trade or vocational school. Therefore, the settlement agreement does not obligate him to pay Brian’s expenses in attending the school.

We conclude that the term “college or professional,” as used in paragraph L of the dissolution judgment, is sufficiently unambiguous. “While the word [college] has other meanings, *** in its most common use ‘college’ designates an institution of learning *** which offers instruction in the liberal arts and humanities and in scientific branches, but not in the technical arts or those studies preparatory to admission to the professions.” (14 C.J.S. Colleges & Universities §1 (1939).) Other sources define the term “college” as follows:

“[2]d: [A]n independent institution of higher learning offering a course of general studies and [usually] preprofessional training leading to a bachelor’s degree.” (Webster’s Third New International Dictionary 445 (1981).)

And:

“l.a. A school of higher learning that grants the bachelor’s degree in liberal arts or science or both. *** c. A technical or professional school, often affiliated with a university, offering the bachelor’s or master’s degree.” The American Heritage Dictionary 291 (2d college ed. 1982).

Similarly, the term “profession” has been defined as follows:

“4a: [A] calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service.” (Webster’s Third New International Dictionary 1811 (1981).)

And:

“1. An occupation or vocation requiring training in the liberal arts or the sciences and advanced study in a specialized field.” The American Heritage Dictionary 989 (2d college ed. 1982).

In contrast, a “trade” is defined as “an occupation requiring manual or mechanical skill and training: a craft in which only skilled workers are employed” (Webster’s Third New International Dictionary 2421 (1981)), and an “occupation, [especially] one requiring skilled labor; craft” (The American Heritage Dictionary 1284 (2d college ed. 1982)). Indeed, the United States Supreme Court has defined the term “trade” as follows:

“Wherever any occupation, employment, or business is carried on for the purpose of profit, or gain, or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade.” (Emphasis added.) Atlantic Cleaners & Dyers, Inc. v. United States (1932), 286 U.S. 427, 436, 76 L. Ed. 1204, 1209, 52 S. Ct. 607, 610, quoting The Schooner Nymph (D. Me. 1834), 18 F. Cas. 506, 507 (No. 10,388).

Further, the terms “vocational school” or “trade school” are defined as follows:

“[V]ocational education n: training for a specific occupation in agriculture, trade, or industry through a combination of theoretical teaching and practical experience provided by many high schools in their commercial and technical divisions, and by special institutions of collegiate standing (as a college of agriculture, a school of engineering, or a technical institute).” (Webster’s Third New International Dictionary 2561 (1981).)

(See also Webster’s Third New International Dictionary 2422 (1981) (definition of “trade school”).) And:

“[Vocational school n. A school, [especially] one on a secondary level, that trains persons with special aptitudes for qualification in specific trades or occupations, as mechanics.” The American Heritage Dictionary 1353 (2d college ed. 1982).

See also The American Heritage Dictionary 1284 (2d college ed. 1982) (definition of “trade school”).

We need not further lengthen this opinion by contrasting additional definitions of a college or professional school with definitions of a trade or vocational school. (Compare, e.g., 15A Am. Jur. 2d Colleges & Universities §1 (1976), with 87 C.J.S. Trade 207-08 (1954); Black’s Law Dictionary 1338 (5th ed. 1979).) Clearly, these terms are not set in stone. A degree of flexibility and imprecision exists in the label “college or professional school or education” and also in the label “trade or vocational school or education.” Indeed, educational institutions need such flexibility to adapt to changing circumstances through the years. See Township of Princeton v. Institute for Advanced Study (1960), 59 N.J. Super. 46, 53-54, 157 A.2d 136, 140.

Despite the flexibility and imprecision in those terms, however, it is also clear that the concept of a college or professional school or education is different and separate from that of a trade or vocational school or education. Based on the above-cited authorities and custom, we join the other jurisdictions that have considered the issue and hold that a college refers to undergraduate study in the liberal arts or sciences leading, usually after four years, to a bachelor’s degree. Brown v. Brown (1984), 327 Pa. Super. 51, 55, 474 A.2d 1168, 1170 (and cases cited therein).

This record contains sufficient evidence to conclude that the Denver Automotive and Diesel College is not what is customarily referred to as a college or professional school. In his testimony, Brian described the school as both a “community college” and a trade school. Brian testified that the school’s program lasted 15 months. At the successful completion of the program, he would receive what is referred to as a two-year associate’s degree. Brian testified also that the school taught only automobile and diesel mechanics. He received no instruction in English, English literature, social studies, math, or the fine arts. He could not take his associate’s degree from the Denver school and transfer to a traditional college or university and begin his third year of study. The record also contains evidence that one can receive an education as an automobile or diesel mechanic in several ways, e.g., trade schools, but also training programs through automobile manufacturers and dealers, and engine manufacturers.

In paragraph L of their settlement agreement, Sally and Richard chose to use the phrase “college or professional” school or education no less than four times. They could have used broader language (e.g., “post-high school” education), or more specific language (e.g., “college, professional, trade, or vocational” school or education), had they so intended. Sally and Richard, however, did neither, and we must interpret their agreement based on the plain language that they used. Based on this record, we hold that the Denver Automotive and Diesel College is not a college or professional school. The Denver school, therefore, falls outside of the settlement agreement of Sally and Richard. Consequently, we hold that the settlement agreement does not obligate Richard to pay Brian’s expenses in attending the Denver school.

II

As we stated earlier, the trial court based its order on section 513 of the Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 513), rather than on the settlement agreement. Section 513 provides in pertinent part:

“§513. Support for Non-minor Children and Educational Expenses. *** The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” Ill. Rev. Stat. 1987, ch. 40, par. 513.

The trial court made no findings as to whether the Denver Automotive and Diesel College was a college or professional school. The court simply concluded that even if the Denver school fell outside of the settlement agreement, then section 513 of the Marriage Act would obligate Richard to pay Brian’s expenses in attending the school.

We conclude that the settlement agreement, rather than section 513 of the Marriage Act, controls the disposition of the case. It is well established that the parties in a dissolution proceeding may voluntarily settle their property interests. Ill. Rev. Stat. 1987, ch. 40, par. 502(a); Guyton v. Guyton (1959), 17 Ill. 2d 439, 444, 161 N.E.2d 832, 835; James v. James (1958), 14 Ill. 2d 295, 305, 152 N.E.2d 582, 587.

Further, Illinois courts look with favor upon agreements that determine the essential issues of property division, maintenance, and the custody, support, and education of the children. A court is unable to set aside such a settlement agreement, except as it pertains to children, unless there is clear and convincing evidence that the agreement was entered as the result of coercion, fraud or duress, or the agreement is contrary to public policy or morals (Stutler v. Stutler (1978), 61 Ill. App. 3d 201, 204, 377 N.E.2d 862, 864; Beattie v. Beattie (1977), 53 Ill. App. 3d 501, 505-06, 368 N.E.2d 178, 181-82; Gaddis v. Gaddis (1974), 20 Ill. App. 3d 267, 270, 314 N.E.2d 627, 630-31), or is unconscionable (Ill. Rev. Stat. 1987, ch. 40, par. 502(c)).

Generally, the obligation of a parent to support his or her minor child begins when the child is born and continues until the child attains majority. A parent cannot bargain away his or her obligation of child support. (Blisset v. Blisset (1986), 144 Ill. App. 3d 1088, 1091, 495 N.E.2d 608, 611, aff'd (1988), 123 Ill. 2d 161, 526 N.E.2d 125.) In cases of dissolution, however, section 513 of the Marriage Act authorizes a trial court to provide for the education of the child even after he reaches his majority, such provision coming out of the property and income of either parent, as equity may require. (Ill. Rev. Stat. 1987, ch. 40, par. 513.) Ordinarily, such orders are modifiable at all times, as changing circumstances warrant. In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 526-27, 512 N.E.2d 30, 35.

In the case at bar, however, Sally conceded during closing argument that the settlement agreement, rather than section 513, controlled the disposition of the case. We agree. Sally based her concession on In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015. The court in Houston noted that that case did not involve an initial award for education expenses made by the trial court either at the time of the dissolution judgment or in a post-judgment motion; the case did not even involve a request to modify such an award. Additionally, the original dissolution judgment did not reserve the question of educational expenses for future consideration. (150 Ill. App. 3d at 613-14, 501 N.E.2d at 1019.) The Houston court concluded that what was involved was a petition to enforce a settlement agreement and, consequently, section 513 did not apply. The court reasoned:

“To hold otherwise would convert every proceeding under section 502 (Ill. Rev. Stat. [1987], ch. 40, par. 502) into a de novo review of the settlement agreement, rendering that statute a nullity.” 150 Ill. App. 3d at 614, 501 N.E.2d at 1019.

We agree with the reasoning and conclusion of the Houston court. As with the agreement in Houston, the language of paragraph L of the settlement agreement is valid and unqualified. Sally does not even seek to have the agreement modified; rather, she seeks its enforcement. In his answer to Sally’s petition, Richard contended only that the Denver school fell outside of the settlement agreement. Richard is not attempting to evade a legal obligation. Sally conceded that section 513 did not apply, based on Houston.

Sally and Richard did not rely on the trial court for the adjustment of their marital rights so far as the education of their children was concerned. They did what they had a legal right to do — they adjusted those rights by mutual agreement. Like any other agreement based on full consideration, it is conclusive in the absence of unconscionability (Ill. Rev. Stat. 1987, ch. 40, par. 502(c)), fraud, coercion, duress, or a violation of public policy or morals (Horwich v. Horwich (1979), 68 Ill. App. 3d 518, 521, 386 N.E.2d 620, 621), or other considerations properly addressed by section 513 of the Marriage Act. This court reached the same conclusion in Gaddis v. Gaddis (1974), 20 Ill. App. 3d 267, 271-73, 314 N.E.2d 627, 631-33; see also In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 684-85, 426 N.E.2d 246, 250-51.

For the foregoing reasons, the order of the circuit court of Cook County is reversed.

Reversed.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE MURRAY JUSTICE PINCHAM,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID McCARTHY, Defendant-Appellant.
    First District (5th Division)
    No. 1—85—2485
    Opinion filed March 23, 1989.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Laura J. Diamant, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant David McCarthy appeals his jury conviction for murder. The fact that defendant shot and killed Adrienne Neal is undisputed. The record contains the following additional facts.

Defendant and Adrienne began dating in 1974 when they were both high school freshmen. In 1978, they had a child and then lived together for six months in 1979. After a second child was born to Adrienne and defendant in 1981, they again lived together until April 3, 1983 (Easter), when Adrienne ended the relationship and moved, with the two children, initially into her mother’s home and then into her own apartment. The couple were never legally married. On the day Adrienne moved out, her mother testified that defendant went to her home and smashed the windows of a car parked in the driveway belonging to Adrienne’s father. Two weeks later, defendant again went to the Neal home and physically assaulted Adrienne and her mother. Defendant denied these acts.

Early in May, Adrienne began dating an old grade school friend, Winifred Johnson, and defendant began “seeing” Michelle Gardner. Approximately 10 days before the shooting incident, defendant was referred by his probation officer to Englewood Mental Health Center and told a therapist that he was depressed and was having homicidal and suicidal thoughts. On June 3, defendant bought a gun. Three days later, he picked up Michelle, who testified that they drove around for about an hour and stopped several times, looking for some marijuana. Michelle said that she did not notice anything unusual about defendant and that there was no evidence that he had been drinking. Defendant testified that they had just driven around talking about Adrienne and the children and that they never stopped for marijuana. Around 11 p.m., defendant parked near Adrienne’s apartment building and, taking an object from beneath the seat, left Michelle in the car and went to the back of the building.

Defendant went up to Adrienne’s second-floor apartment and knocked on the back door. Adrienne’s sister, Anita, who was in the kitchen with her boyfriend, Woodrow McGuire, let defendant in. McGuire testified that earlier in the evening, defendant had gone to McGuire’s house and said, “I know Anita is hiding behind the door, tell her to take her last look.” Anita and McGuire then went to Adrienne’s house. Adrienne and Johnson came home and went into the bedroom. According to Anita and McGuire, defendant came into the kitchen and pointed a gun seven to eight inches away from Anita’s face and then knocked her to the floor, pulled her up again putting the gun to her head, and then dropped her back to the floor. Neither McGuire nor Anita saw any signs that defendant had been drinking.

Defendant then went to the bedroom, where he shot Adrienne five times. Johnson testified that he and Adrienne had fallen asleep in their underwear while watching television when they were awakened by Anita’s screams. They had both jumped out of the bed when defendant burst in and shot at Johnson, grazing him. Johnson ran out of the room and jumped off the back porch. Anita, McGuire, and Johnson all heard more shots as they were fleeing. The evidence shows that Adrienne was shot from two to six feet away. Defendant then fled to California, and Michelle followed to give him some belongings his mother had sent, after which Michelle returned to Chicago.

Defendant, and his sister, testified that after the Easter breakup, he became extremely depressed, suicidal, and began drinking heavily. Although not legally married, defendant stated that he thought of Adrienne as his “wife.” He also testified that he did not threaten Anita and that he had purchased the gun to kill himself, and that when he went to Adrienne’s home, he intended to kill himself if she refused to reconcile.

The record also indicates that defendant was seeing other women both before and after the Easter breakup, and that he, in fact, married one of them, Raydell Lacey, six months after killing Adrienne. In January 1984, defendant, accompanied by counsel, turned himself in to the police.

Before trial, the court granted the State’s motion in limine barring the testimony of the mental health therapist and also denied a defense motion to bar evidence of other crimes, i.e., breaking the car windows and the batteries against Adrienne and her mother. In the opening statement, defense counsel conceded that defendant shot his “common law wife” but asserted that the shooting was manslaughter resulting from the provocation of seeing her in bed with another man. However, the trial court refused to instruct the jury on voluntary manslaughter and defendant was convicted of murder and subsequently sentenced to 34 years’ imprisonment.

On appeal, defendant contends that the trial court committed error in refusing to give a voluntary manslaughter instruction, in permitting admission of other crimes evidence and barring the therapist’s testimony, and further, that defendant’s sixth amendment right to effective assistance of counsel was denied because his attorney conceded that defendant had shot Adrienne.

Defendant bases his voluntary manslaughter defense on the long, “marital-type” relationship between him and Adrienne, the breakup of which caused him to become extremely depressed with homicidal and suicidal thoughts. Under such circumstances, the sight of finding his “wife” in bed with another man caused him to act in the heat of passion when he killed her. Defendant asserts that there was evidence in the record suggesting provocation so that the jury, not the court, was entitled to determine the sufficiency thereof. The State argues that a marital-type relationship cannot give rise to serious provocation and, even if it could, there was no such relationship here since it had ended several months prior to the killing.

Voluntary manslaughter is a lesser included offense of murder and is a legal compromise between murder and exoneration. (People v. Dare (1986), 140 Ill. App. 3d 413, 488 N.E.2d 1304.) Voluntary manslaughter occurs when a person kills another without lawful justification while acting under a sudden and intense passion resulting from serious provocation; serious provocation is conduct sufficient to excite an intense passion in a reasonable person. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(a).) Where there is evidence in the record which, if believed by the jury, would reduce the crime of murder to manslaughter, the appropriate instruction should be given. (People v. Foster (1987), 119 Ill. 2d 69, 518 N.E.2d 82.) Moreover, whether the provocation is sufficient to cause intense passion is a matter to be determined by the trier of fact (People v. Yates (1978), 65 Ill. App. 3d 60, 382 N.E.2d 421) and a defendant is entitled to have the jury consider any legally recognized defense theory that has some foundation in the evidence, however tenous. People v. Dortch (1974), 20 Ill. App. 3d 911, 314 N.E.2d 324.

The categories of serious provocation recognized by Illinois courts are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse. (Peo ple v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78.) Thus, the issue in the present case is whether, on the facts of this case, defendant’s heat of passion defense can be legally recognized under the spousal adultery category of provocation. We find that it can, and therefore a voluntary manslaughter instruction should have been given to the jury-

In 1970, this court in People v. Newberry (1970), 127 Ill. App. 2d 322, 262 N.E.2d 282, sustained a conviction of manslaughter of a depressed and suicidal defendant who had killed his girlfriend of three years several weeks after she ended the relationship. There is no indication in Newberry as to whether the defendant and victim had been living together. However, it was in the later case of People v. Wesley (1978), 65 Ill. App. 3d 25, 382 N.E.2d 358, that this court recognized that the breakup of a marital-type relationship is an occurrence that can cause a sudden and intense passion resulting from provocation sufficient to reduce murder to voluntary manslaughter. While it is true, as the State points out, that in Wesley there was also mutual quarrel or combat, it is also apparent that the court recognized that “the testimony on the breakup of the common law marriage is significant here. Courts have found that the breakup of a marital-type relationship is a type of situation which can give rise to sudden and intense passions. [Citations.]” (Wesley, 65 Ill. App. 3d at 31, 382 N.E.2d at 362.) We note here that it has also been recognized, contrary to common law, that under certain circumstances, words informing a spouse of adultery can be the basis for provocation. People v. Flores (1988), 168 Ill. App. 3d 636, 522 N.E.2d 876; People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 301 N.E.2d 608.

Of course, the breakup of a marital-type relationship will not always support a voluntary manslaughter instruction. (See, e.g., People v. Miller (1981), 96 Ill. App. 3d 212, 421 N.E.2d 406 (argument over breakup of relationship insufficient provocation where deliberation and malice were evidenced); People v. Pequino (1978), 62 Ill. App. 3d 75, 379 N.E.2d 30 (killing occurred one year after breakup of relationship).) While we also agree that the breakup of a relationship does not always entitle a defendant to a manslaughter instruction, such an instruction should have been given in the present case.

This case contains an element missing in the cases referred to above — -it is undisputed that defendant found Adrienne and Johnson in their underwear, either in bed according to defendant, or near the bed according to Johnson. Defendant testified that he was depressed and suicidal when he went to Adrienne’s apartment to effect a reconciliation and, if unsuccessful, had planned to kill himself. Whether this was provocation sufficient to reduce the murder charge to manslaughter is an issue that should be resolved by a jury. Very slight evidence upon a given theory will justify a manslaughter instruction. (People v. Williams (1987), 164 Ill. App. 3d 99, 517 N.E.2d 745.) Defendant submitted evidence that he was distraught and suicidal over the breakup, had persistently attempted to reconcile, and found Adrienne, the mother of his two daughters, in bed with another man. These and other considerations urged by the State — e.g., whether defendant had a girlfriend after the breakup, the two-month lapse between the breakup and killing — are factors to be considered by a jury in determining whether defendant killed Adrienne with malice or in the heat of passion. Accordingly, it was reversible error not to give a voluntary manslaughter instruction in this case.

Since we must remand this case for a new trial, defendant’s other issues on appeal need only be briefly addressed. His objection to the admission of the “other crimes or bad acts” evidence that he committed batteries on Adrienne and her mother approximately six weeks before the killing is without merit. Although other crimes evidence is inadmissible if relevant only to establish a defendant’s propensity to commit the crime charged (People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949), it may be admitted if relevant for other purposes (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840). One of the accepted purposes is to show intent. People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.

In our case, in order to counter a defense of manslaughter, the State would have to prove defendant killed Adrienne with intent rather than in the heat of passion. The State further argues that the bad acts evidence was relevant to demonstrate the type of relationship that existed between defendant and Adrienne after their breakup. This also is a valid rationale for admission of the evidence. (See People v. Crayton (1988), 175 Ill. App. 3d 932, 530 N.E.2d 651; see also People v. Groleau (1987), 156 Ill. App. 3d 742, 509 N.E.2d 1337 (defendant’s altercation with his wife three weeks prior to her murder admissible to show motive and his state of mind).) Therefore, it was not error to admit the prior bad acts of defendant.

Similarly, there was no error in the denial of the testimony of the mental health therapist regarding defendant’s state of mind 11 days prior to Adrienne’s death. The defense of heat of passion depends on a defendant’s state of mind immediately prior to the killing, not what he was thinking 11 days before the event. As a result of our conclusions, there is no need to address the ineffectual assist-anee of counsel allegation.

For the above reasons, we reverse and remand this matter for a new trial.

Reversed and remanded.

COCCIA, J., concurs.

JUSTICE PINCHAM,

concurring in part and dissenting in part:

While I concur in the majority’s holding that the trial court erred in refusing to give a voluntary manslaughter instruction and in the reversal of the defendant’s murder conviction and remandment for a new trial, I dissent to the majority’s holdings that evidence of the defendant’s “other crimes or bad acts” was admissible against the defendant and “there was no error in the denial of the testimony of the mental health therapist regarding defendant’s state of mind 11 days prior to Adrienne’s death.” 181 Ill. App. 3d at 213.

The deceased, Adrienne Neal, discontinued living with the defendant, moved out and ended her relationship with him on April 3, 1983. Clearly, the testimony of Adrienne’s mother that the defendant on that date smashed the windows of Adrienne’s father’s car had absolutely no probative value on any issue in the case and was inadmissible on the defendant’s trial for the murder of Adrienne on June 6, 1983. This act by the defendant on April 3, 1983, was a manifestation of the defendant’s hostility towards Adrienne’s father at that time. It did not and it could not have established the defendant’s state of mind two months later on June 6, 1983, when he killed Adrienne. This is also true of Adrienne’s mother’s testimony of the defendant’s assault upon her and Adrienne two weeks after their April 3, 1983, breakup. Likewise, the testimony of Michelle Gardner that before the shooting she and the defendant stopped several times, looking for marijuana, had no probative value, was highly prejudicial and was inadmissible. If the prosecution was unable to make a case against the defendant confined to the gory facts of the instant homicide by the eyewitnesses, it should not have been allowed to buttress its case with the foregoing irrelevant inflammatory evidence. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499; People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667; People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155; see dissenting opinions in People v. Howard (1988), 169 Ill. App. 3d 536, 541-81, 523 N.E.2d 943; People v. Hayes (1988), 168 Ill. App. 3d 816, 821-44, 523 N.E.2d 1327; People v. Partin (1987), 156 Ill. App. 3d 365, 374-94, 509 N.E.2d 662; People v. Harris (1986), 147 Ill. App. 3d 891, 896-909; see People v. Wachal (1987), 156 Ill. App. 3d 331, 340-44, 509 N.E.2d 648 (Pincham, J., specially concurring).

The defendant was charged with and on trial for the June 6, 1983, murder of Adrienne Neal, during which trial he was compelled to defend against evidence of his commission of four separate, independent earlier offenses: (1) criminal damage to Adrienne’s father’s car; (2) and (3) assaults upon Adrienne and her mother; and (4) a conspiracy with Michelle Gardner to acquire marijuana, an illegal drug. Most assuredly, the prejudicial impact of this evidence clearly outweighed any probative value this evidence may remotely have had and it should not have been admitted. None of this evidence was admissible to and did not establish the defendant’s intent at the time he shot Adrienne.

Moreover, the defendant’s intent was not an issue in this case. The State’s eyewitnesses established, it was uncontested, the defendant admitted that he shot Adrienne — five times — and that he intended to shoot her and that he intended to kill her. His defense was not lack of intent. Such a defense on the facts in this case would have been absurd. Conversely, the defendant’s defense, as stated in his attorney’s opening statement, was that the shooting was voluntary manslaughter, that the defendant shot Adrienne under a sudden and intense passion resulting from the serious provocation of the defendant seeing Adrienne in bed with another man. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2 (presently second degree murder, Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2).) It was clearly erroneous to have admitted this evidence of the defendant’s “other crimes as bad acts.”

If evidence of the defendant’s damage to Adrienne’s father’s car on April 3, 1983, and evidence of the defendant’s assault upon Adrienne and her mother two weeks later was admissible to establish the defendant’s intent, i.e., his state of mind, when he shot Adrienne five times two months later, as the majority holds, certainly then the mental health therapist’s testimony “regarding defendant’s state of mind 11 days prior to Adrienne’s death” was likewise admissible to establish his state of mind at the time the defendant shot her. If “the defense of heat of passion depends on a defendant’s state of mind immediately prior to the killing, [and] not [on] what he was thinking 11 days before the event,” as the majority holds (181 Ill. App. 3d at 213), the same rule likewise applies to the defendant’s state of mind of intent, i.e., “the defendant’s state of mind immediately prior to the killing” and not what the defendant’s state of mind was, not “11 days before the event,” but rather, two months “before the event.”

Accordingly, I dissent to the majority’s holdings that the aforementioned evidence of the defendant’s “other crimes or bad acts” was admissible and that the aforementioned testimony of the mental health therapist was inadmissible.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL LOPEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—2409
    Opinion filed March 23, 1989.

      Michael J. Pelletier and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Lauren E. Brown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Angel Lopez appeals from his conviction for voluntary manslaughter and subsequent five-year sentence. In October 1984, defendant was arrested in West Palm Beach, Florida, where he was living, and confessed to the 1978 killing of 17-year-old Roberto Melendez. After his arrest and questioning, he was returned to Chicago.

According to defendant’s testimony, one evening in August 1978 he went to a Boys’ Club after leaving work around midnight. Later he and two friends drove to “Latin King turf” and asked Roberto Melendez to sell them some marijuana. Melendez refused three times and then pulled out a gun, threatening to shoot. As defendant and his friends drove away, Melendez shot three times, hitting the car and windshield. Defendant states that he was scared and mad. The next day, fearing gang retaliation, defendant put his father’s .22 rifle in the trunk of his car for protection. At the Boys’ Club, defendant was told that Melendez had threatened to get him.

Afterwards, as defendant drove through the Humboldt Park area on his way to work, he saw Melendez and several other persons, none of whom testified, on a porch with gang slogans painted on it. Melendez allegedly made an obscene gesture and drew a gun. Several blocks away, defendant stopped the car and retrieved the gun from the trunk, drove back past the house, and shot at the group three or four times “trying to scare him off.” He stated that he was very frightened and had no intention of killing anyone. Melendez died several days later and defendant and his brother fled to Florida to escape gang retaliation. Shortly thereafter, defendant’s family and girlfriend (now his wife) followed him to Florida for the same reason.

Defendant additionally testified that he was afraid of gangs in general and of “Mad Dog” Melendez in particular. He said that he had once hung around with a group called the “Latin Jivers” but had never been a gang member.

There was testimony from five witnesses, including defendant’s Florida employer of four years, that he was a hard-working, honest family man who was peaceful and nonviolent. Defendant had no past criminal record. Melendez’ father testified that the victim, a high school student, was not a gang member and had never been in trouble before. The State also introduced evidence indicating that “Mad Dog” Melendez and the victim were not the same person and that the victim had never been arrested.

Defendant was tried before a jury for murder. On cross-examination of defendant, the State questioned him about his failure to mention to the Florida authorities certain aspects relevant to his assertion of self-defense at trial. The jury was given instructions for murder, both types of voluntary manslaughter, and involuntary manslaughter, thereafter finding defendant guilty of voluntary manslaughter. Defendant was subsequently sentenced to five years’ imprisonment.

On appeal, defendant contends that his due process rights were violated by the State’s references to his post-arrest failure to state various details included in his trial testimony, that he was denied a fair trial by prosecutorial misconduct during closing arguments, and that he was improperly sentenced for several reasons. We affirm.

Defendant first argues that it was error for the State to refer to his post-arrest silence regarding his self-defense claim because there was no threshold inconsistency between defendant’s testimony and his pretrial statement. The State contends that defendant’s statement, given in Florida, occurred before his arrest and, thus, there could have been no constitutional violation by the prosecutor’s cross-examination regarding defendant’s silence as to his later assertions of self-defense. However, we do not need to resolve this issue since we agree with the State that there were material inconsistencies between the Florida statement and defendant’s trial testimony.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, it was held that due process precludes impeachment by cross-examination of a defendant’s exculpatory testimony offered for the first time at trial when he had failed to offer the explanation to the police after having been arrested and advised of his constitutional rights. However, an exception to this rule occurs if a defendant’s exculpatory testimony is inconsistent with statements he made after being advised of those rights. (Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180.) In other words, when a defendant does not remain completely silent after being advised of his Miranda rights, his failure to offer an exculpatory explanation may be used for impeachment purposes if it is inconsistent with later testimony. See People v. Graves (1986), 142 Ill. App. 3d 885, 492 N.E.2d 517.

Initially, we note that no objections to the questioning were made at trial and, further, that the record indicates no prejudice to defendant since the jury obviously believed his trial testimony in finding him guilty of voluntary manslaughter rather than murder. In any event, no error was committed. Defendant, after being advised of his Miranda rights, gave a half-hour voluntary statement to a West Palm Beach assistant State’s Attorney in his courthouse office. In this statement, defendant said that he was mad and upset because his car had been shot at several nights before the killing and that the bullets had ricocheted off the car. He also told the investigator that, several days later, he saw the man who had shot his car, whereupon defendant grabbed a gun he had in the backseat of the car and started shooting. He first said that he did not mean to kill and then said he was trying to kill the man, but “didn’t think he’d die from such a distance.” He also admitted to being very mad. Defendant answered affirmatively when asked if he had left Chicago because he was scared of being arrested. He was asked several times if he wanted to say anything else — to tell his side of the story — but never mentioned that he was afraid of Melendez or the Latin Kings. He never said that Melendez had a gun in his hand when he was shot or that Melendez had threatened defendant. He further stated that he had never heard of the name “Robert Melendez” and did not know the name of the man he had shot. Thus, it is apparent that there are several pertinent inconsistencies between this statement and defendant’s trial testimony.

The case of People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366, relied on by defendant, is inapposite to the situation in the present case. In Timmons, after being arrested, the defendant denied any involvement in the illegal activity charged and then later, at trial, produced an alibi for his whereabouts at the time of the illegal transaction. A person denying a crime and later explaining that he was not present during the crime is not inconsistent behavior. Both statements assert noninvolvement. That is not true in this case. The rationale involved in shooting a man because one is mad is inconsistent with a shooting motivated by fright. Being scared of Robert Melendez is not possible if one had never heard the name before. We therefore conclude that the prosecutor’s cross-examination and comments had a valid basis for impeachment purposes and thus were not violative of defendant’s due process rights.

We must also reject defendant’s claim that the prosecutor’s argument to the jury was so egregious as to deny him a fair trial. He argues that even though all but one of the various remarks were not objected to at trial, this court should consider the combined alleged improprieties as plain error. Generally, the failure to object to prosecutorial remarks at trial and to specifically elucidate them in a post-trial motion waives the issue for review. (People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.) Furthermore, improper arguments do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) The record in this case reveals absolutely no prejudice to defendant. In fact, the record indicates the contrary. The facts show that defendant could easily have been convicted of murder, but was found guilty only of manslaughter. There are no facts to indicate he could have been found not guilty as asserted by defendant. Accordingly, we find no reversible error.

However, this is not to say that this court sanctions the type of remarks made by the prosecutor in this case, especially the several references to the victim’s family. More and more often, we are reviewing cases in which the prosecutor treads a dangerous path and crosses the line between proper argument and prosecutorial misconduct. Rather than helping a prosecutor’s case, such remarks can jeopardize the State’s position, which result may well be what occurred in the present case.

Defendant’s final argument contends that he was improperly sentenced. He bases this contention on several factors: the trial court relied on an improper factor, reference to the victim’s family, in sentencing defendant to the penitentiary; the trial court made findings during sentencing inconsistent with the jury verdict; and it was an abuse of discretion to deny defendant probation when he had no prior record and had been completely rehabilitated subsequent to the killing.

We find no impropriety in the sentencing of defendant. The sentence was within the relevant statutory limits. (Ill. Rev. Stat. 1985, ch. 38, pars. 9—2(b), 1005—8—1(a)(4).) A reviewing court should afford great deference to a trial court’s imposition of sentence. (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) Furthermore, a trial court’s sentencing decision will not be disturbed absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

At defendant’s sentencing hearing, the trial court properly set forth the aggravation and mitigation factors and noted that probation was inappropriate because of the seriousness of the offense. The record of the sentencing hearing, read in its entirety, reveals no improper reliance by the court oh circumstances of the victim’s family despite one isolated reference to the family. Similarly, the trial court’s expression that it had reservations as to whether defendant had killed Melendez as a result of serious provocation is not inconsistent with the jury’s finding of voluntary manslaughter since the verdict did not indicate whether this finding was based on provocation or unreasonable belief of self-defense. Therefore, we cannot find any abuse of discretion in defendant’s sentence of five years, and accordingly, must affirm it.

Affirmed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE BUCKLEY

text:
    RONALD COURTNEY, Plaintiff-Appellant, v. ALLIED FILTER ENGINEERING, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—87—3622
    Opinion filed March 27, 1989.

      Katz, Friedman, Schur & Eagle, of Chicago (David E. Rapaport, of counsel), for appellant.
    Law Offices of James J. Desveaux, of Chicago (James J. Desveaux and Angela M. Kalamaras, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This negligence action is before this court on Ronald Courtney’s (plaintiff’s) petition for leave to appeal the trial court’s order granting a new trial following the judgment it entered for plaintiff from a jury’s $277,000 damage award, reduced to $199,040 to correspond to the jury’s 28% comparative negligence finding. Allied Filter Engineering, Inc. (defendant), pursuant to Supreme Court Rule 306(aX2) (107 Ill. 2d R. 306(aX2)), requests that this court reverse the trial court’s order denying its motions for directed verdict and for judgment notwithstanding the verdict. For the reasons set forth below, we reverse the trial court’s order granting a new trial and remand this case with directions to the trial court to reinstate the judgment in favor of plaintiff.

The record reveals that defendant, a manufacturer of diesel engine filters, has a shipping and receiving area on its premises at 811 Golf Lane in Bensenville, Illinois, for truck deliveries. This area includes two indoor truck bays, each of which is equipped with a dock-plate that forms a bridge between the dock and rear of the trailer when it is placed into an up position and, when down, forms a 90-de-gree angle with a sharp edge. Defendant followed the standardized procedure in the industry for unloading palletized freight, namely, the company receiving the material unloads the material. Defendant had full-time employees who operated forklift trucks to unload trailers, and it forbad outside drivers from operating its equipment.

Plaintiff, a truck driver for Motor Freight Express, testified to the following. On July 23, 1981, at approximately 10:40 a.m., he arrived at defendant’s shipping and receiving area to deliver palletized freight. At the direction of Jimmy Heath, defendant’s supervisor in the receiving area, plaintiff pulled into the west truck bay. His trailer was positioned against the bumpers on the dock, leaving a gap of approximately five inches between the trailer’s rear and the sharp, exposed edge of the lowered dockplate.

Heath then refused to unload the truck. He placed an empty skid near the edge of the dock and told plaintiff to stack the boxes on it. Heath did not raise the mechanical dockplate or make the forklift available to plaintiff. Plaintiff also did not have a “hand jack” or a “portable dockplate,” which Motor Freight truck drivers carried in their trailers when they knew in advance that a customer would not unload.

Upon Heath’s refusal, plaintiff telephoned Gerard Anastasia, his supervisor at Motor Freight Express, who told him to solicit defendant’s employees to unload the truck or, if unsuccessful, deliver the freight in some other way. Following Heath’s second refusal to unload and to raise the dockplate, plaintiff loosened the vertical and horizontal bands which stabilized the 27 cartons that stood six feet high and weighed approximately 40 pounds each.

As plaintiff carried one of the boxes toward the dock and the skid, some of the boxes fell and struck him in the mid-back. The boxes knocked him over, and his right knee landed in the space between the back of the truck and the dockplate. The front of plaintiff’s knee forcefully struck the sharp edge of the dockplate, causing him immediate pain and swelling.

Dr. Robert Kaminsky, a board-certified orthopedic surgeon, testi- . fied on plaintiff’s behalf as his primary treating physician. Kaminsky first examined plaintiff on July 27, 1981, upon a referral from plaintiff’s family physician. At that time, plaintiff related his accident at work and complained of pain in his knee. Plaintiff again complained of pain in his knee on a September 10 return visit. Unable to diagnose plaintiff’s condition from these examinations, Kaminsky recommended plaintiff undergo an arthroscopic procedure. From this procedure performed on September 24, 1981, Kaminsky diagnosed plaintiff’s condition as chondromalacia of the patella, a softening of the cartilage caused by a sudden increase in pressure between the back of the kneecap and the femur. The arthroscopic procedure, however, proved unsuccessful, and plaintiff’s kneecap was removed on April 20,1982.

Kaminsky testified that in his expert opinion the trauma of July 23, 1981, either caused the damage to plaintiff’s knee or aggravated a preexisting condition. On cross-examination, Kaminsky admitted that it is possible that chondromalacia could develop from mere wear and tear or a twisting of the knee and also stated that he could not determine from mere observation when or how the condition developed. He further testified that plaintiff suffers permanent disability which prevents him from returning to work as a truck driver.

At the time of the accident, plaintiff was 33 years of age and had been a truck driver for 13 years, earning approximately $33,000 in the preceding year. Plaintiff has a two-year high school education and has no other special skills, training or work experience. Plaintiff was unable to work from the date of the accident until February 1, 1983. Since then, he has set up his own limousine business, which has been unsuccessful to date. Plaintiff now drives a school bus at a salary $17,000 less than he made as a truck driver.

Before this case was submitted to the jury, the trial court entered a partial directed verdict against plaintiff on all of the allegations in his complaint except the claim that defendant was negligent in exposing the plaintiff to an unreasonably dangerous condition by failing to raise the dockplate. The court submitted to the jury this single theory of negligence, along with defendant’s affirmative defense that plaintiff was contributorily negligent in removing a band from a pallet of items which were not properly stacked, in failing to use a dockplate that was available, in unloading the load from his truck, and in failing to keep a proper lookout for his own safety.

In ruling on defendant’s post-trial motions following the jury’s award to plaintiff, the trial court stated that it believed that the verdict was against the manifest weight of the evidence, commenting that there was no breach of any duty owed to plaintiff and that plaintiff assumed any risk. The court also voiced concern over its failure to instruct the jury with regard to the directed verdict on the other negligence theories.

On appeal, we will first determine whether the jury’s finding was contrary to the manifest weight of the evidence so as to justify a new trial (Doubet v. Morgan (1984), 122 Ill. App. 3d 431, 461 N.E.2d 62), or, as defendant urges, whether the evidence viewed in a light most favorable to plaintiff so overwhelmingly favors defendant that a contrary verdict could never stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504). We will then address whether the trial court’s failure to specially instruct the jury as to the special directed verdict or whether other errors raised by defendant justify granting a new trial.

In reviewing whether the plaintiff sufficiently established the elements necessary to sustain his negligence claim, we begin with defendant’s contention that it did not breach any duty owed to plaintiff. It is clear that defendant owed plaintiff, a business invitee on his premises, a general duty to use reasonable and ordinary care in keeping the property reasonably safe. (Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill. 2d 469, 473, 173 N.E.2d 443, 445.) The Restatement (Second) of Torts, which has been incorporated into the common law of Illinois (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 353 N.E.2d 465; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538), more specifically defines the duty owed by possessors of land as to conditions on their land:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343 (1965).

Defendant initially urges that the lowered dockplate was not an unreasonably dangerous condition, and, as such, it could not have breached any duty by failing to protect plaintiff from the condition. Photographs introduced at trial, however, depict the sharp edge on the plate that extended out at a 90-degree angle when in a lowered position. The evidence also indicated that the dockplate was located in an area where defendant positions trucks for unloading. We find that this evidence sufficiently established an unreasonable risk of harm.

Defendant next argues that even assuming the lowered dock-plate was an unreasonably dangerous condition, it did not breach any duty owed to plaintiff because the lowered dockplate was an open and obvious condition. It asserts that the instant case is analogous to Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942, wherein the appellate court held that the defendant did not owe a duty to warn or protect the plaintiff from the condition because any risk confronted by the truck driver who was injured standing on a “ramp” with an incline behind a truck that rolled backwards was open and obvious.

Plaintiff, while he concedes that the condition of the dockplate was open and obvious, argues that defendant nonetheless owed him a duty because it had reason to expect that he would still suffer physical harm. For this proposition, plaintiff relies on the section 343 of the Restatement (Second) of Torts quoted above and its companion section, which addresses known or obvious dangers:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Emphasis added.) (Restatement (Second) of Torts §343A (1965).)

Plaintiff further cites comment / to the Reporter’s Notes to section 343A, which explains when a possessor may have reason to expect harm despite obvious dangers:

“Such reason to expect harm *** may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” Restatement (Second) of Torts §343A, comment /(1965).

In the case at bar, plaintiff introduced evidence that defendant directed plaintiff’s truck to the dock, leaving approximately a five-inch gap between the edge of the dockplate and the rear of the truck. Defendant’s employee suggested that plaintiff unload the truck by hand and placed a skid dockside for that purpose. Defendant was aware that plaintiff’s truck contained an unstable load. This evidence amply demonstrates that defendant should have been aware that plaintiff might be distracted or suffer harm when attempting to unload his truck notwithstanding the obvious risk. Thus, plaintiff adequately established the existence of a duty as described by sections 343 and 343A, and the evidence was sufficient for the jury to have found that defendant breached the duty of care owed to plaintiff.

Our finding is consistent with Illinois case law. Sepesy, mentioned above, is distinguishable from the instant case in that the plaintiff presented no evidence there showing that the defendant had reason to expect that the plaintiff would suffer harm notwithstanding the open, obvious risk. The court noted in Sepesy that the specific risk taken by the plaintiff was the act of standing between two trucks and that no evidence was presented showing any distraction or reason for the defendant to suspect that the defendant would be distracted. Sepesy, 97 Ill. App. 3d at 874, 423 N.E.2d at 947.

The case at bar is more analogous to the case cited by plaintiff, Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35. In Shaffer, the plaintiff, who had earlier cut a hole in the floor for remodeling work at the defendant’s home, fell into the uncovered hole when moving a truss. The court reasoned there that the evidence sufficiently established that the defendant breached a duty owed to the plaintiff because the defendant had reason to believe that the plaintiff might be distracted and forget the danger or fail to guard himself against it.

We next consider defendant’s contention that plaintiff did not prove that defendant’s actions actually and proximately caused his injury. The burden is on the plaintiff to show to a reasonable certainty that the defendant’s conduct was the actual cause of the injury. (Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 490 N.E.2d 995.) Defendant asserts that the shifting of the load was the sole cause of the injury and that plaintiff’s treating physician’s testimony did not establish otherwise. Defendant directs us to Kaminsky’s testimony that plaintiff’s type of injury could be caused by a twisting or wear and tear of the knee and that he could not determine the cause of the injury from merely observing the knee.

Defendant’s argument ignores the competent evidence presented here by plaintiff. Plaintiff testified that when the boxes knocked him over, his right knee landed in the space between the dockplate and the back of the truck and that his knee forcefully struck the sharp edge. Plaintiff’s treating physician stated that plaintiff’s type of injury may be caused by direct trauma that causes pressure on the kneecap so that its underside is forced against the femur, causing the cartilage to soften. He also unequivocally stated that in his opinion, the trauma in issue here either caused the right knee damage or aggravated a preexisting condition. This evidence demonstrates to a reasonable certainty that plaintiff’s contact with the dockplate caused his injury.

Defendant also argues that its actions did not proximately cause plaintiff’s injuries because plaintiff’s load’s shifting and falling, a subsequent independent occurrence, proximately caused his injury. Ordinarily, the question of proximate cause is one of fact for the jury, although it may be treated as a matter of law in undisputed fact situations in which a court has deemed an intervening event to be so unforeseeable that the first wrongdoer could not have reasonably anticipated a third party to act and cause harm to another. (Duneavage v. Allen (1986), 147 Ill. App. 3d 88, 96, 497 N.E.2d 433, 437.) It is further established that an intervening cause, one that combines with another negligent act to cause plaintiff’s injury, does not relieve a person from responsibility for a negligent act when the intervening cause is foreseeable. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 90, 508 N.E.2d 1201, 1211.

In the case at bar, it is not clearly unforeseeable that a trucker would attempt to manually unload a palletized freight, or that the boxes would tumble over, when defendant refused to assist the trucker and placed a skid near the dock so that the trucker could manually unload his delivery. Nonetheless, defendant argues that it could not have proximately caused the injury because it only created a condition that had come to rest in a position of apparent safety before a new force intervened. The principle that defendant posits has been discredited and remains only in fact situations where a new force intervenes after the forces set in operation by the defendant have come to rest in a position of apparent safety. (Duncavage, 147 Ill. App. 3d at 97, 497 N.E.2d at 438; Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 108, 440 N.E.2d 253, 258.) This principle is inapplicable to the instant case because the force put in operation by defendant, the unreasonably dangerous condition, was never at rest nor was plaintiff in a position of safety.

Accordingly, we hold that the trial court erred in finding the jury’s verdict to be against the manifest weight of the evidence.

We now turn to the question of whether the trial court’s failure to specially instruct the jury as to the partial directed verdict warrants its granting a new trial. Defendant contends that the lack of an instruction prejudiced him by allowing the jury to consider evidence as to nonissues, namely, defendant’s breach of duty in not unloading plaintiff’s trailer or providing assistance to plaintiff. Since the issue instructions clearly informed the jury as to the single claim of negligence and defendant was allowed to argue the question of the directed verdict to the jury, we find that defendant did not suffer prejudice from a lack of an instruction in this regard. In any event, any error would not justify a new trial because defendant did not submit an instruction to the court and thereby waived the issue. See Mackey v. Daddio (1985), 139 Ill. App. 3d 604, 487 N.E.2d 1167.

We next address whether the trial court committed any other errors that would justify granting a new trial. With regard to the trial court’s selection of jury instructions, defendant first asserts that the trial court denied defendant its right to have its theory of the case instructed to the jury by its refusal to submit non-Illinois Pattern Jury Instructions (non-IPI) Nos. 4 and 5 tendered by defendant. Non-IPI No. 4, reciting a Department of Transportation regulation that a person shall not drive a vehicle unless its cargo is properly secured, stated that the jury could consider this fact on the contributory negligence issue. As plaintiff points out, this regulation is irrelevant to the case at bar because the truck was not being operated at the time of the occurrence.

Non-IPI No. 5 provided: “It is the rule in Illinois that where a defendant’s negligence, if any, creates merely a passive condition that makes an injury possible, but is not the cause of the injury, the defendant cannot be held liable for the plaintiff’s injury.” The cases defendant cites for this principle do not mandate an instruction to this effect. We find that the Illinois Pattern Jury Instructions, Civil, Nos. 12.04, 15.01 (2d ed. 1971) (hereinafter IPI Civil 2d) submitted by the court on the issue of proximate cause sufficiently informed the jury of the existing law.

Defendant also asserts that the court erred in giving plaintiff’s IPI Civil 2d Nos. 16, 21, 27, and 31. Defendant argues that No. 16 was duplicative of No. 12, thereby overemphasizing the duty owed by defendant and suggesting that defendant had a heightened duty because premises were involved. No. 12 recites that “[i]t was the duty of defendant before and at the time of the occurrence to use ordinary care for the safety of the plaintiff; that means it was the duty of the defendant to be free from negligence.” (IPI Civil 2d No. A10.04 (Supp. 1981).) No. 16 states: “The occupant of property owed the plaintiff the duty to exercise ordinary care to keep the property reasonably safe for use by the plaintiff.” (IPI Civil 2d No. 120.06.) We reject defendant’s contention that these instructions suggest a heightened duty on defendant’s part, as the one merely recites an individual’s general duty and the other more specifically defines that duty as applied to possessors of land.

Defendant further argues that the evidence does not support submitting future damages issue instructions Nos. 21, 27, and 31, to the jury. (IPI Civil 2d Nos. 30.01, 84.04, A45.06 (1981 Supp.).) Impairment of earning capacity or loss of earnings is recoverable only when reasonably certain to occur in the future. (Christou v. Arlington Park—Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920.) Defendant, citing Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, 353 N.E.2d 273, argues for the first time on appeal that Dr. Kaminsky’s prognosis cannot support the test of reasonable certainty since it was formed over four years ago.

The instant case is distinguishable from Henricks. There, the doctor had treated the plaintiff for only a period of three weeks. In the instant case, Kaminsky, after treating plaintiff for two years and after three surgeries and extensive rehabilitation, concluded upon plaintiff’s release that his condition had reached a permanent state. He also reviewed the findings of Dr. Dwyer, a doctor who examined plaintiff in 1986 at defendant’s request and found that plaintiff’s condition had not materially changed from when he released plaintiff from his care in 1983.

Finally, defendant directs us to the trial court’s denial of its request that the court voir dire a juror who explained her late arrival to court by stating that her daughter had sustained injuries after being hit by a car the previous evening. We do not believe that the court’s failure to voir dire the juror in this regard justifies granting a new trial.

In summary, we hold that the verdict was not against the manifest weight of the evidence to justify the court’s granting a new trial, nor are the court’s failure to specially instruct the jury, its failure to voir dire a juror, and its selection of jury instructions grounds for a new trial. Accordingly, we reverse the trial court’s order granting a new trial; affirm its denial of defendant’s motions for a directed verdict and for judgment notwithstanding the verdict; and remand this case with directions to the trial court to reinstate the judgment in favor of plaintiff.

Affirmed in part; reversed and remanded with directions.

CAMPBELL and O’CONNOR, JJ., concur.

      Plaintiff does not raise the issue of the court’s order directing the verdict against plaintiff on his other negligence theories because any error was rendered harmless by the jury verdict. The court entered a directed verdict as to the following allegations in plaintiff’s second amended complaint: (1) defendant negligently refused to unload the cartons from the trailer; (2) defendant negligently exposed plaintiff to unreasonably dangerous conditions by allowing plaintiff to unload his truck without proper tools or assistance; (3) defendant negligently failed to provide plaintiff with a safe place to work or with tools and assistance to safely unload the trailer; (4) defendant negligently failed to provide a forklift operator and forklift truck to unload the single pallet; (5) defendant negligently failed to raise the dock plate before allowing plaintiff to unload his trailer.