author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FREEMAN, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—2352
    Opinion filed December 14,1992.
    Rehearing denied February 25,1993.

      Thomas Peters, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Carrie Weiner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Jerome Freeman was charged with possession with the intent to deliver 54 grams of heroin. A jury found him guilty of the charge, and defendant was sentenced to 28 years’ imprisonment. Defendant appeals his conviction. We affirm.

On March 26, 1989, at 12:30 a.m., Carolyn Freeman was stopped by Chicago police officers Fleming and Darling of the Gang South Unit for a minor traffic violation. The officers arrested Carolyn when they found heroin during a search of her vehicle. The officers called Carolyn by her first name prior to requesting any identification from her. The officers knew Carolyn’s name because they were part of a surveillance team which had been watching her home located at 16906 South Glenn Oak Drive in Country Club Hills for several weeks. The officers stated that the routine traffic stop of Carolyn was a coincidence.

Approximately 4 hours and 20 minutes after Carolyn’s arrest, a search warrant was executed at 16906 Glen Oaks Drive, Carolyn’s home. Fleming and Darling explained that on March 25, they received a tip from an unidentified drug user, turned informant, that drugs were being used and sold on the premises. Specifically, the informant allegedly told the officers that cocaine was being sold at that location by a black male who said his name was Jerome. The informant claimed to have snorted cocaine at Carolyn’s home on March 25. The informant further alleged that there were at least 10 grams of cocaine on the kitchen table.

On March 26, 1989, at 4:50 a.m., 14 police officers executed a search warrant which listed defendant as the person the police had authority to search. When the officers approached the front door of the home, they announced their presence. Fleming reportedly saw defendant, wearing only an undergarment, running toward the back of the house. The officers forced entry into the home. Defendant then ran into a bedroom on the first floor. Officers Fleming, Darling, Richardson and Balice pursued defendant. They found defendant in the process of getting under a bed. The officers handcuffed defendant and took him to the living room, where the other officers had gathered the remaining people who were in the home.

Officers Fleming, Darling and Richardson searched the bedroom where they had apprehended defendant. The officers found heroin, marijuana and cash in a blue file cabinet located in the closet of the bedroom which was identified at trial as Carolyn’s bedroom. According to the above officers, defendant’s identification and his Hazel Crest home address were found stacked on top of the narcotics. Additionally, Fleming testified that the closet contained men’s clothing and that defendant used the clothing in that closet to get dressed. Fleming, however, failed to inventory or photograph the clothing. Fleming also stated that he found personal letters addressed to defendant at the home, but again, failed to inventory or record the letters in his arrest report. Officer Fitzgibbons testified that no proof, such as utility bills or leases, was found which would have indicated that defendant resided at the home. Moreover, no keys to the house were found in defendant’s belongings.

Several pretrial motions were made by both the State and defendant. Among the motions was defendant’s motion for an evidentiary hearing to determine whether the search warrant should be quashed. The facts surrounding the search warrant follow. At approximately 1 a.m. on March 26, 1989, Fleming and Darling approached Fitzgibbons with a request for a search warrant. Fitzgibbons informed the watch commander of the request and the commander gave his consent. After receiving the above permission, the officers planned the execution of the search warrant. The plan called for the “manpower proceeding to the scene where [they were] going to meet, who was going to make entry, at what point, et cetera.” Then, the officers drafted the warrant. The officers maintained that an informant told them that narcotics were being sold at the home and that the informant had snorted cocaine at the residence on March 25. The officers received approval of the warrant from a judge and an assistant State’s Attorney.

Defendant argued that the officers fabricated the informant and his allegations after arresting defendant’s sister four horns prior to obtaining the warrant. Without an evidentiary hearing, the circuit court denied defendant’s motion to quash.

The State then filed a motion in limine to ban evidence concerning Carolyn’s arrest, arguing that such evidence would confuse the jury. Defendant argued against the motion, stating that his defense was that the narcotics were Carolyn’s. Defendant’s theory was supported by the facts that it was Carolyn’s house, allegedly her bedroom, allegedly her file cabinet in which the narcotics were found, and that Carolyn was arrested only four hours prior to the search for possession of the same type of narcotic found in her home. Furthermore, defendant argued that Carolyn’s arrest was admissible to attack the credibility of the officers arresting Carolyn who also were the same officers who arrested defendant. The circuit court agreed with the State’s argument and granted its motion.

On appeal, defendant first contends that he made a substantial preliminary showing that a false statement was included by an affiant in the search warrant affidavit. The State disputes this argument and further argues that even if a substantial preliminary showing was made, defendant failed to give an offer of proof as required by the law.

In Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, the United States Supreme Court held that under certain circumstances a defendant may be entitled to a hearing to challenge the veracity of sworn statements made by the police to obtain search warrants. “To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross examine.” (Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.) A defendant must make a substantial preliminary showing that a false statement was knowingly or intentionally included in the affidavit or with reckless disregard for the truth, and if the allegedly false statement is necessary for a finding of probable cause, a hearing is required. Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684; see also People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269.

Relying on People v. Verdone (1985), 107 Ill. 2d 25, 479 N.E.2d 925, and People v. Cruz (1982), 111 Ill. App. 3d 95, 443 N.E.2d 769, the State argues that defendant failed to make a sufficient offer of proof. The State claims that the only offer of proof that defendant supplied to the circuit court was his affidavit that on March 25, 1989, he was with unnamed family members and at no time met with or sold narcotics to the unidentified informant. The State argues that defendant’s request for a hearing fails because he never offered alibi testimony to prove he was not at Carolyn’s home when the informant alleges he was present or any evidence to prove where and with whom he was on March 25. In Ver done, the Illinois Supreme Court held that a defendant’s offer of proof which was based solely upon his denial of the contents of the search warrant was insufficient to constitute a substantial showing. (Verdone, 107 Ill. 2d at 928, 479 N.E.2d at 928.) Similarly, in Cruz, the appellate court found that a general denial that the defendant was not in contact with the informant on the date and time in question is insufficient to establish a substantial showing. (Cruz, 111 Ill. App. 3d at 99, 443 N.E.2d at 772, citing People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553.) In the case at bar, defendant did not establish a substantial showing; thus, the circuit court properly denied his motion to quash without giving him a Franks hearing.

Second, defendant argues that his constitutional rights were violated because he was not allowed to offer evidence pertaining to the arrest of Carolyn Freeman for possession of heroin four hours prior to his arrest. The circuit court barred any testimony pertaining to Carolyn’s arrest on the ground of irrelevancy. Defendant, however, was allowed to admit evidence that he was arrested in Carolyn’s home and that the narcotics were found in a bedroom which was allegedly Carolyn’s.

A trial court may reject evidence on the ground of irrelevancy if it has little probative value due to its remoteness, uncertainty or its possible unfair prejudicial nature. The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed on appeal absent a clear showing of abuse of that discretion. People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.

A discussion of Illinois case law on this subject is necessary in determining whether the circuit court clearly abused its discretion. In People v. Jackson (1976), 37 Ill. App. 3d 279, 345 N.E.2d 509, police officers executed a search warrant for the defendant at a specific location and arrested the defendant for possession of marijuana. At trial, the defendant attempted to admit into evidence that the lessee of the apartment which was searched was arrested during an automobile stop for possession of marijuana the same day on which the defendant was arrested. The circuit court barred the above evidence. Upon review, the appellate court found that “[a]ny connection between the two offenses is a matter of speculation.” (Jackson, 37 Ill. App. 3d at 284, 345 N.E.2d at 513.) The appellate court reasoned that since the defendant was allowed to present evidence that the lessee was the sole possessor of the apartment where the marijuana was found, the circuit court did not err in barring evidence of the lessee’s arrest. (Jackson, 37 Ill. App. 3d at 284.) Jackson is analogous to the instant case. Carolyn was also arrested prior to defendant, and defendant was arrested in her house for possession of the same narcotic for which she was arrested. The circuit court barred testimony regarding Carolyn’s arrest, but allowed evidence that Carolyn was the sole owner of the residence in the warrant and that the narcotics were found in a bedroom which was allegedly hers.

People v. Castro (1989), 190 Ill. App. 3d 227, 546 N.E.2d 662, is also similar to the case at bar. In Castro, the defendant attempted to admit evidence that his stepson, who was living with him at the time of his arrest, was on probation for possession of cocaine, thereby creating the inference that the cocaine for which he was arrested belonged to his stepson. The court held that such evidence was too speculative and, therefore, irrelevant, especially considering the fact that the stepson never admitted that the cocaine belonged to him.(Castro,190 Ill. App. 3d at 239, 546 N.E.2d at 669.) Likewise, Carolyn never admitted that the narcotics found in her home belonged to her. In fact, Carolyn denied knowing that the narcotics found during a routine traffic search were in the car she was driving, and further stated that the car did not belong to her.

Defendant, however, relies on a series of cases which deal with the admissibility of prior acts by defendant. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489; People v. Anderson (1982), 108 Ill. App. 3d 563, 439 N.E.2d 65.) These cases do not deal "with the issue presented in this appeal, the admissibility of prior acts of a third party.

Defendant offered further support of his position by arguing that his offer of proof of Carolyn’s guilt is sufficient to allow evidence of her arrest admitted at trial. Defendant, in fact, did not offer proof of Carolyn’s guilt. Defendant only offered the fact that Carolyn was arrested and an assumption that she was tried and convicted of possession of a controlled substance. There was no evidence offered of Carolyn’s guilt; thus, the proffered evidence was unreliable, unlike in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038. In Chambers, there was proof of the third party’s guilt, namely, the confession of the third party. In that circumstance, the evidence of guilt is reliable.

A review of the case law on this issue indicates that the circuit court did not abuse its discretion in barring evidence pertaining to Carolyn’s arrest. Accordingly, defendant was not denied his constitutional rights.

Third, defendant contends that his constitutional rights were violated when the State was allowed to admit into evidence that defendant’s name appeared on the search warrant. The circuit court allowed the State to elicit testimony that defendant’s name appeared on the search warrant for the limited purpose of establishing that the police had legal authority to conduct the search. After the officer testified that defendant’s name appeared on the warrant, the circuit court stated:

“[T]he information provided by the officer in answer to the last two questions as to the address and as to the named individual to be searched shall be allowed to be testified solely for the purpose of establishing that the police had a judicial authorization to conduct a search at those premises.
It is no evidence of guilt of this defendant of any offense charged in this case. You are to consider it only to establish the point that the police did have judicial process to conduct a search of the premises.”

The jury is presumed to follow instructions given to it by the court and to disregard testimony not admitted into evidence. (People v. Fields (1990), 135 Ill. 2d 18, 552 N.E.2d 791.) We find that any perceived error which may have resulted from the State eliciting testimony that defendant’s name appeared on the search warrant was cured by the circuit court’s instruction.

Defendant further argues that the above testimony regarding the warrant was hearsay and that he has the right to challenge the police conduct as fabrication. Defendant had the opportunity to make an offer of proof that the police’s conduct was fabrication when he requested a Franks hearing. We have already found that defendant failed to make an adequate offer of proof. If defendant had made a substantial showing that a false statement was included in the affidavit for the warrant, he would have had the opportunity to question the officers concerning Carolyn’s arrest.

Fourth, defendant argues that he was denied a fair trial because the circuit court refused to give the jury an instruction stating that mere presence where narcotics are found is not enough to convict. The State responds that where defendant repeatedly elicited testimony and argued that the home where the narcotics were found belonged to someone else, that the narcotics were found in a bedroom which was allegedly someone’s other than defendant’s, in a file cabinet allegedly belonging to someone else, and that defendant was not the only person in the home at the time the warrant was executed, it was unnecessary to give a non-Illinois Pattern Jury Instruction (IPI) to illustrate the significance of mere presence.

Supreme Court Rule 451(a) provides that an applicable IPI instruction should be given. (134 Ill. 2d R. 451(a).) Supreme Court Rule 451(a) further provides that an impartial non-IPI instruction may be given if the IPI instruction does not accurately state the law or does not cover a subject in which the jury should be instructed. (134 Ill. 2d R. 451(a).) It is within the discretion of the circuit court whether or not to give a non-IPI instruction. People v. Wade (1989), 185 Ill. App. 3d 898, 542 N.E.2d 58.

In the instant case, the jury was instructed that the State had the burden of proving that defendant had actual or constructive possession of the narcotics. The following instruction was given:

“Possession may be actual or constructive. A person has actual possession when he has immediate and exclusive control over a thing. A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing.
If two or more persons share the immediate and exclusive control or share the intention and the power to exercise control over a thing, then each person has possession.” Illinois Pattern Jury Instructions, Criminal, No. 4.16 (2d ed. 1981).

Defendant tendered an instruction that read “mere presence at the scene of the crime, in and of itself, is insufficient to establish the guilt of defendant.” The circuit court rejected the non-IPI instruction, stating that it believed that the “instructions adequately indicate to the jury that mere presence is not enough.” The instruction would not “help the jury at all in deciding the case.” The circuit court additionally commented that included in the elements of the offense of possession is the fact that defendant “knowingly possessed with an intent to deliver a substance”; thus, more than mere presence must be proved.

When the defendant persisted in arguing that the “mere presence” non-IPI instruction should be given, the circuit court stated:

“There is no way that the jury, if they read and followed the instructions, could assume a person merely being present or having knowledge of a crime would be guilty of that crime when the law requires that the person either has actual possession, which was not the case here, or had constructive possession, which requires an intent to exert control over the item involved.”

We find that the circuit court did not abuse its discretion by refusing to instruct the jury with defendant’s proffered non-IPI “mere presence” instruction.

Finally, defendant argues that the State failed to prove beyond a reasonable doubt that defendant possessed, with intent to deliver, the heroin found during the execution of the search warrant. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The relevant question on review of a challenged conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d 237, 478 N.E.2d 267, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

To prove defendant guilty of possession of a controlled substance, the State must prove that he knew of the presence of the substance and that the substance was in the immediate and exclusive control of defendant. (People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538.) Possession and knowledge of a controlled substance are questions of fact to be resolved by the jury. People v. Knight (1985), 133 Ill. App. 3d 248, 478 N.E.2d 1082.

Reviewing the evidence in the light most favorable to the State, we find that defendant was proven guilty beyond a reasonable doubt. There was testimony that the heroin was found in the room to where defendant fled when the police initiated execution of the warrant. Additionally, a police officer testified that defendant’s personal property was found with the narcotics in the file cabinet. Furthermore, the officer testified that the closet where the file cabinet was contained men’s clothing. Moreover, defendant dressed himself using some of the clothing in that closet. There is sufficient evidence to sustain the jury’s guilty verdict.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TULLY

license: Public Domain

text:
    STANISLAW RERACK, Plaintiff-Appellant, v. MARY KAY LALLY, as Special Adm’r of the Estate of Daniel J. O’Leary, Deceased, Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—0652
    Opinion filed December 23,1992.
    Rehearing denied March 10,1993.

      Gary B. Friedman, Ltd., of Chicago (Jay R Giusti, of counsel), for appellant.
    Sanchez & Daniels, of Chicago (John J. Skawski, Timothy V. Hoffman, and John D. Daniels, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This cause of action arises from a rear-end automobile collision that occurred on November 14, 1987, involving plaintiff, Stanislaw Rerack, and defendant’s decedent, Daniel J. O’Leary, on Diversey Avenue near Harlem Avenue in the City of Chicago. O’Leary, the initial defendant to this suit, died of causes unrelated to the accident during the pendency of this case. O’Leary’s death occurred prior to his deposition being taken. Subsequently, Mary Kay Lally, as special administrator of O’Leary’s estate, was substituted in as defendant after O’Leary’s death.

Plaintiff is a resident alien who cannot understand the English language. When plaintiff sat for the written portion of Illinois driver’s license examination, he took the Polish language version of the test. He testified, through an interpreter, that his car was in good condition, that the various functions including the brake lights worked properly. On the day of the collision, traffic was heavy and plaintiff’s vehicle had come to a normal slow stop. With his foot on the brake pedal and halted for approximately two minutes, his car was struck from the rear by the vehicle driven by decedent.

Later, according to plaintiff, a police officer came to the scene, but did not take any statement from him due to the fact that he could not speak English. The officer, Charles T. Lauletta, testified that he did not speak or understand Polish. Thus, as plaintiff asserts, there was no way Lauletta could have communicated with plaintiff and, therefore, Lauletta would have only spoken with decedent and/or any other witnesses to this event. Lauletta confirmed that he had spoken with decedent, but could not recall whether he had talked with plaintiff.

Defendant subsequently filed a motion for summary judgment pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) (section 2 — 1005) arguing that there was no genuine issue of material fact. On January 24, 1991, the motion for summary judgment was granted. On appeal, plaintiff argues that: (1) the trial court erred in holding that the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201) should be applied in ruling on a motion for summary judgment, where by its terms, it is to be applied “in the trial of any action”; (2) if the Dead Man’s Act is to be applied, plaintiff was not incompetent to testify regarding matters which did not occur in the presence of defendant’s decedent; and (3) the trial court erred in granting summary judgment as there remained a question of material fact whether defendant’s decedent was negligent. We affirm in part and reverse in part and remand.

We first examine plaintiff’s contention that the Dead Man’s Act, by its terms, provides only that it is to be applied at trial and, thus, because the instant litigation was not at the point of trial, the trial court mistakenly applied it in ruling on the summary judgment motion. We disagree.

In applying both section 2 — 1005 and the Dead Man’s Act to the case sub judice, we must construe both provisions liberally “in order that the true intent and meaning of the General Assembly may be fully carried out.” (Ill. Rev. Stat. 1987, ch. 1, par. 1002.) The Dead Man’s Act provides, in pertinent part:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation *** or to any event which took place in the presence of the deceased ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 8-201.

We cannot believe that the General Assembly intended, by using the language emphasized above, to exclude from a court’s consideration of a summary judgment motion the operation of the Dead Man’s Act. The purpose of the summary judgment procedure is to determine if there are any genuine issues of triable fact. (Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 538, 221 N.E.2d 633.) The policy underlying the procedure is to facilitate litigation; its benefits inure not only to the litigants in the saving of time and expense, but also to the community in avoiding the congestion of trial calendars and the expense of unnecessary trials. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497.) While a motion for summary judgment is not a modified trial procedure, it is an adjudication of a claim on the merits and is the procedural equivalent of a trial. (Poulos v. Reda (1987), 165 Ill. App. 3d 793, 801, 520 N.E.2d 816.) Thus, it strains logic to construe the Dead Man’s Act in a manner that forces litigants to proceed to trial when it would be evident from an application of the Dead Man’s Act, in the context of a summary judgment proceeding, that a litigant cannot prove his case. Therefore, we find that the trial court did not err in concluding that it could apply the Dead Man’s Act within the context of a summary judgment proceeding.

We next turn to plaintiff’s assertion that he was not incompetent to testify regarding matters which did not occur in the presence of defendant’s decedent. Plaintiff cites error in the trial court’s not allowing him to present testimony regarding the following: the overall mechanical condition of plaintiff’s automobile and, specifically, the functioning of its brake light; the weather conditions at the time of the accident; that plaintiff’s vehicle was stopped for two minutes; that plaintiff’s foot was on the brake pedal of his car continuously; that plaintiff had heard no sound prior to the accident’s impact; and that plaintiff observed damage to the rear of his vehicle the day after the occurrence. We agree.

The Dead Man’s Act addresses the situation in which a party sues a deceased person or defends a suit as the representative of a deceased person. It provides that an adverse party may not testify on his own behalf to any conversation with the deceased or to any event which took place in the presence of the deceased. The purpose of the Dead Man’s Act is to bar only that evidence which the decedent could have refuted. Brown v. Arco Petroleum Products Co. (1989), 195 Ill. App. 3d 563, 568, 552 N.E.2d 1003.

In the present case, the “event” at issue is the accident. Although the trial court properly barred plaintiff from testifying with regards to the details of the collision itself, we believe that its application of the Dead Man’s Act was overly broad. None of the plaintiff’s proffered testimony, listed above, can reasonably be said to have occurred during the “event.” Even assuming that any of the above testimony could be categorized as regarding something that was within the event, it is still not testimony regarding an occurrence in the “presence” of the decedent. Thus, absent evidence establishing that decedent would have observed the aforementioned, it was error for the trial court to have excluded such testimony.

Plaintiff’s final argument on appeal is that the trial court erred in granting summary judgment where a trier of fact could reasonably conclude from the facts and circumstances of the rear-end collision that defendant’s decedent had been negligent. We agree.

We note that “[wjhile use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the movant is clear and free from doubt.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) In determining whether a genuine issue of material fact exists, the trial court must construe the pleadings, depositions, admissions and affidavits on file strictly against the movant and liberally in favor of the opposing party. (Dietz v. Spalla (1989), 186 Ill. App. 3d 742, 745, 542 N.E.2d 855.) “If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable.” Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231, 450 N.E.2d 756.

The mere fact that a rear-end collision occurred is not enough to support a finding of negligence against a defendant. However, a litigant may rely upon circumstantial evidence where such evidence reasonably implies negligence from all the facts and circumstances shown to exist prior to and at the time of the collision. Pennington v. McLean (1959), 16 Ill. 2d 577, 582, 158 N.E.2d 624.

We cannot accept defendant’s contention that the holding of Fabschitz v. King (1973), 10 Ill. App. 3d 43, 293 N.E.2d 916, is controlling of this case. In Fabschitz, a defendant-motorist was barred under the Dead Man’s Act from reciting the various details of the accident at issue. The plaintiff in Fabschitz died and his estate attempted to premise liability on the defendant’s having rear-ended the plaintiff’s car, along with the testimony of an investigating police officer regarding damage location and the cars’ positions after the collision. The defendant’s motion for a directed verdict was denied. Subsequently, a verdict was returned for the plaintiff. On appeal, the appellate court reversed the trial court, citing that there was no evidence from which one could reasonably infer an excessive rate of speed, poor lookout, following too closely, or improper control of the defendant’s vehicle. Thus, the evidence did not demonstrate that the collision probably occurred as a result of the defendant’s negligence. Furthermore, there existed other plausible causes of the accident such as an improper lane change, a wet road, and leaves in the road that caused an obstruction. In the instant case, there were none of the weather or road conditions present that existed in Fabschitz. Moreover, unlike the situation in Fabschitz, decedent admitted, prior to his death, rear-ending plaintiff in his answer to plaintiff’s complaint. Therefore, the facts of this case are distinguishable from those of Fabschitz.

In light of the foregoing standards and considerations, we believe, after a careful review of the record in a light most favorable to plaintiff, that a jury could reasonably conclude that defendant’s decedent was negligent. All of the aforementioned testimony, taken in tandem with the admission of decedent that he rear-ended plaintiff’s automobile, supports this conclusion.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part and this cause is remanded for further proceedings consistent with this decision.

Affirmed in part and reversed in part and remanded.

GREIMAN, P.J., and CERDA, J., concur.


author: JUSTICE O’CONNOR

text:
      In re M.B. et al., Minors (Cecil Partee et al., Petitioners-Appellees; Marylou B., Respondent-Appellant; Jose B., Respondent-Appellee).
    First District (1st Division)
    No. 1—90—2161
    Opinion filed December 28,1992.

      Julius Lucius Echeles, Larry S. Kajfes, Ltd. (Larry S. Kajfes, of counsel), and Austin Christian Law Center (Gail Petrich, of counsel), all of Chicago, for appellant.
    Ryan, Miller & Trafelet, P.C., of Chicago (Catherine M. Ryan, of counsel), for appellee Jose B.

      Patrick T. Murphy, Public Guardian, of Chicago (Ellen Gorin and Kathleen G. Kennedy, of counsel), amicus curiae and for other appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On March 7, 1990, the Department of Children and Family Services (DCFS) filed petitions for adjudication of wardship, alleging that the minors, S.B., M.B., and J.B., were neglected in that their environment was “injurious” to their welfare. The petition concerning S.B. also contained allegations of sexual abuse, and the petition concerning J.B. contained additional allegations of physical abuse. All the petitions sought temporary custody of the children. On that same date, the juvenile division of the circuit court (juvenile court) conducted a probable cause hearing. At the conclusion of the hearing, the court found that no probable cause existed to warrant the minors’ placement in temporary custody, and the petitions were dismissed. The minors’ mother, Marylou B., now appeals.

We affirm.

At the time of the hearing, the minors’ family situation was chaotic. Their parents, Jose and Marylou B., named as respondents in the petitions, were in the midst of divorce proceedings, which were pending in the domestic relations division of the circuit court (domestic relations court). The evidence showed that, on January 1, 1990, Marylou fled Illinois, taking both J.B. and M.B. with her. S.B. was abandoned in Marylou’s Oak Park home. Although Marylou had a court date scheduled in the domestic relations court at that time, she failed to appear. Apparently in response to Marylou’s flight, the domestic relations court entered an order on January 3, 1990, which gave Jose custody of the children. In mid-January, Marylou “abandoned” J.B. at a psychiatric unit in Atlanta, Georgia. At the time of the hearing, Jose had physical custody of S.B. and J.B., who had returned to Illinois from Georgia on March 1, 1990. Marylou and M.B.’s whereabouts, however, were unknown. As a result, a warrant had been issued for Marylou’s arrest, and M.B. was the subject of a Federal Bureau of Investigation (FBI) search.

The juvenile court appointed a guardian ad litem for both S.B. and J.B. for the juvenile court proceedings. Attorneys representing DCFS, Jose, and the State’s Attorney’s office were also present at the hearing. Although no timely appearance was filed on Marylou’s behalf in this action, the attorney who was representing her in the divorce action attended the hearing.

Diane Phillips, a DCFS child welfare supervisor, testified that she was familiar with the minors through her supervision of the caseworker assigned to the case, Anna Mitchell. M.B., who was in the physical custody of Marylou at the time of the hearing, had a hearing problem which necessitated her enrollment in special education. Such special education is begun when the child reaches the age of three, but M.B., who was four, had yet to be “intake[n]” in the special education school system.

On March 6, 1990, Phillips received a telephone call from Dr. Antonio Blanco, a psychiatrist at the Brauner Psychiatric Institute in Atlanta, Georgia. According to Blanco, he had been treating J.B. at the institute since mid-January 1990. During this treatment, J.B. told Blanco that he wanted to kill his father because he was afraid that his father was going to abuse him both physically and sexually. J.B. also told Blanco about instances of physical and sexual abuse “perpetrated” by his father against all three children. Blanco told Phillips that J.B. was “at serious risk” of both emotional and physical harm and that Blanco was “afraid” to allow J.B. to return to Illinois in accordance with the domestic relations court order.

Phillips also spoke with Jerome Anderson, a mental health assistant at the institute. Anderson, J.B.’s “counselor,” told Phillips that J.B. had spoken of his father’s membership in a cult, whose members “make him do things.” J.B. also told him that he wanted to kill his father.

Phillips also recalled a “report of risk of sexual abuse” listing Jose as the offender in December 1987, but the matter never “came to court.” Phillips admitted that she has spoken to the minors herself, but that J.B. never told her about any instances of sexual abuse. Phillips also identified a “fax letter,” dated March 5, 1990, from Dr. Blanco, which made no mention of sexual abuse. However, noting J.B.’s allegations of physical abuse, Blanco wrote that “[w]e are concerned that the appropriate authorities in the Illinois area pursue this case in order to further protect the child’s welfare.” However, the letter failed to mention when the alleged abuse occurred. Phillips did not know J.B.’s whereabouts until March 2, 1990. Phillips also stated that the cult allegations were new allegations. Phillips was awaiting further “records” from Georgia, and she recommended to the court that Gary T. Morgan be appointed as the minors’ temporary custodian based on the reports of physical and sexual abuse.

Diane Mead, a clinical social worker at the New Mexico Clinical Facility, testified that she used to work at Sarasan in Illinois, a nonresidential treatment center for battered women. Mead was a therapist at the center since September 1987 and apparently counselled both Marylou and S.B., then 10 years old. Although Mead moved to New Mexico in July 1988, Marylou continued to telephone her as did S.B. The juvenile court sustained objections to Mead’s testimony relating to the events of 1987, stating that it was concerned with “current information.”

Mary Jo Gremp met Marylou through Gremp’s support group for “mothers without custody.” Marylou attended the group’s monthly meetings in November and December 1987, and Gremp spoke with Marylou several times between meetings. Gremp has never met Jose and has never seen the minors with their father. Gremp admitted that she was a friend of Marylou and that she, like Marylou, is a mother without custody.

Gremp knows the minors, and she stated that she had talked to J.B. privately approximately eight times. During these conversations, J.B. told her that his father “wanted him dead.” J.B. also told her that if he lied in court “on the domestic matter,” his father would get him a “Nintendo.” During another conversation, J.B. told her that “people that his dad knew” took him from school, brought him to a house, and “did things to him.” These “friends of his dad’s” made him do “vulgar things” such as drink urine. J.B. said that “there was a priest *** and his father and his girlfriend, Dawn, gave S.B. a wedding band and made her the bride of the devil.” J.B. and S.B. also were forced to sing a song called “Live like a suicide.” J.B. stated that he did not like his father and his father’s friends and expressed fear of all of them. Gremp stated that these events took place in the fall of 1987 during weekends, but sometimes on weekdays as well. Gremp, however, did not call police nor did she notify DCFS or the attorneys involved in the divorce action pending in the domestic relations court, although she was aware of the existence of that action.

The juvenile court allowed S.B. to be questioned, in camera, by her guardian ad litem. S.B. was 12 years old and lived with her father. S.B. wished to continue to live with her father and was not afraid of him. S.B. stated that her father never harmed her, and she had never seen her father harm J.B. S.B. did not recall telling Diane Mead that her father touched her when she was in bed at night. During the summer of 1989, S.B. spent a couple of months at Hephzibah Children’s Association (Hephzibah), a child welfare agency in Oak Park which works together with DCFS. She was allowed supervised visitation with her father and later progressed to unsupervised visits with him. When her mother was not present, these visitations went well. S.B. admitted that she had told Mead that “she used to be afraid” of her father, but that she no longer was afraid of him because of the treatment she received at Hephzibah. S.B. no longer writes to Mead. S.B. stated that her father never hurt her, but that she had seen him hurt her mother. When her parents lived together, they “screamed and hollered” at each other and fought over the children. When her father left the house, S.B. remained with her mother, who had “a lot” of anger toward her father. Her mother took S.B. to many places for therapy, including River Edge Hospital and the Madden Center. S.B. stated that her mother would not pick her up when “it was time to go home.”

The guardian ad litem also questioned J.B. in camera. At the time, J.B. was 14 years old and was living with his father, who had “picked him up” when he returned from Atlanta on March 1, 1990. J.B. stated that he was not allowed to speak with his father while he was at the Brauner Institute. J.B. was not afraid of his father. His father never hit him, nor did he make him do things he did not want to do. J.B. wanted to continue to reside with his father, where he lived with S.B., his half-brother, Jordan, and his father’s fiancee, Dawn. Neither his father nor Dawn frightens him. His father never hit him or S.B. and never touched him in places he did not like.

J.B. did not like Dr. Blanco “that much.” J.B. denied telling Blanco that his father had hit him or that he hated his father. J.B. liked Jerome Anderson “better than” Blanco, but J.B. also denied that he told Anderson that his father hit him. J.B. denied telling Anderson about a cult. J.B. did not know the meaning of the word “cult.” J.B. knew Mary Jo Gremp, but could not remember talking privately with her. J.B. recalled telling Gremp that Beth and John Barclay, friends of his mother, took him from school to their home for an after school activity that J.B. had “signed up for.” They never made J.B. do bad things. J.B. expressed anger toward his mother, who he claimed “abandoned me for some reason” at a hospital in Georgia.

J.B. stated that his father moved out of the family home on April 29, 1987. From that time until September 1989, J.B. did not see much of his father. In the fall of 1989, his father started visitations which, at first, were supervised. In October, the visitations were changed to unsupervised. J.B.’s weekend visits with his father and Dawn were “okay.” J.B. stated that his father had hit him “a long time ago,” but he did not hit him “hard” and he “does not do that anymore.”

Following the minors’ testimony, the State and the guardian rested, and the juvenile court denied Jose’s motion for a finding.

David Kirsch, the court-appointed attorney for the minors during the divorce action, testified that he has been their attorney since April 1988. Over the course of the years, Kirsch has spoken with the minors often. In May 1988, he asked S.B. if she wanted to visit her father. She said no because he used to hit her when he was drinking. Kirsch also asked her if her father had ever touched her in places she did not like, but she responded that he did not. After treatment at Hephzibah, visitation with her father commenced. S.B. has been living with her father exclusively since January 1990. Kirsch had spoken with her since January, and S.B. indicated that she was not afraid of living with her father and wanted to continue to do so. S.B. told him that her father no longer drinks, and Kirsch averred that he had seen no indication that Jose was drinking.

As for J.B., Kirsch asked him if he wanted to live with his mother when she was found. J.B. answered “not anymore.” J.B. told Kirsch he wanted to live with his father and asked Kirsch if “we could get M.B. back.” When Kirsch asked J.B. about physical abuse, J.B. stated that his father hit him once, prior to 1988, for “discipline.” J.B. told him that his father had not hit him since that time. During the time that Kirsch had been involved with the family, he never saw any indication of cult involvement. The week before the hearing, Kirsch received a telephone call from a social worker in Georgia who informed him that J.B. was at the Brauner Institute, where Marylou had “checked him in” in January. Marylou, however, had not been heard from since that time. Kirsch was also told that someone in the “Atlanta mother’s underground” had reported that Jose was involved in a religious cult and devil worship. Kirsch said this information came from a source “other than” J.B. Kirsch told the social worker that he had never heard of any allegations of sexual abuse prior to this. She then asked Kirsch if he thought J.B. would be in danger if he returned to his father, and Kirsch replied that he did not think that would be the case. Kirsch recommended that the court not take temporary custody away from Jose.

Following arguments, the juvenile court dismissed the petitions, finding that there was no probable cause and no urgent and immediate necessity for temporary placement. The court, in particular, noted J.B.’s testimony, which it characterized as “quite clear” and the fact that divorce and custody proceedings were ongoing in the domestic relations court.

On April 6, 1990, Marylou filed a motion for reconsideration, arguing that J.B.’s psychiatric records had become available. The court denied the motion on June 27, 1990.

Marylou argues that the juvenile court’s finding of no probable cause was against the manifest weight of the evidence. The public guardian, as amicus curiae on behalf of the minors, also asserts a similar argument.

Jose responds that Marylou has no standing to appeal the juvenile court’s order because she failed to appear at the hearing. We find this argument unpersuasive. The appearance filed by Marylou, although late, constituted her submission to the authority of the juvenile court and gave that court jurisdiction over her. (See Miller v. Moseley (1924), 311 Ill. 157, 142 N.E. 509; Gilchrist Transportation Co. v. Northern Grain Co. (1903), 107 Ill. App. 531, aff’d (1903), 204 Ill. 510, 68 N.E. 558. See also 3 Ill. L. & Prac. Appearances §5 (1953).) Moreover, section 1 — 5 of the Juvenile Court Act of 1987 states the “minor who is the subject of the proceeding and his parents, *** who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also *** the right to be represented by counsel.” (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 5.) By virtue of this statute, Marylou was a party to the proceeding. At the hearing, counsel for Jose objected to Marylou’s counsel’s presence, but the circuit judge replied that “she will have a say.” At that point, the judge asked all of the attorneys to report to chambers for a discussion which was held “off the record.” When the case was resumed, counsel for Jose asked that Marylou’s attorney, Gail Petrich, leave. The court indicated that it was “going to let all attorneys who are involved in the case remain.” From this record and in view of the statutory provision and case law cited above, we believe that Marylou has standing to bring this appeal.

The proceedings under review here stem from petitions seeking temporary custody filed by the DCFS pursuant to section 2 — 3 of the Juvenile Court Act of 1987 (Juvenile Act) (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3). The Juvenile Act mandates that, in such circumstances, a temporary custody hearing be held where “all witnesses present shall be examined before the court in relation to any matter connected with the allegations made in the petition.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 10.) If the court “finds that there is not probable cause to believe that the minor is abused, neglected or dependent it shall release the minor and dismiss the petition.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 10(1).) In all child custody proceedings under the Juvenile Act, the juvenile court’s primary concern is the best interests and welfare of the children involved. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.) To that end, the juvenile court is vested with wide discretion. (In re W.B. (1991), 213 Ill. App. 3d 274, 571 N.E.2d 1120; In re J.K.F. (1988), 174 Ill. App. 3d 732, 529 N.E.2d 92.) That court’s opportunity to observe the demeanor and conduct of the parties and witnesses must be given great weight, and, upon review, its determinations will not be disturbed unless they are against the manifest weight of the evidence. In re Stilley, 66 Ill. 2d at 520; In re J.K.F., 174 Ill. App. 3d at 734.

Under the Juvenile Act, a minor is neglected if his or her “environment is injurious” to his or her welfare. (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(b).) Generally, “neglect” is the failure to exercise the care that circumstances justly demand, and it encompasses willful as well as unintentional disregard of parental duty. {In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) Cases involving an adjudication of neglect and wardship are sui generis, and each case ultimately must be decided on the basis of its own particular facts. In re Stilley, 66 Ill. 2d at 520; In re Brooks, 63 Ill. App. 3d at 337.

Since each child was the subject of a separate petition, and since the purpose of the Juvenile Act is to secure the care and guidance for “each minor” (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 2), we will consider the findings as to M.B., S.B., and J.B. separately. We also note that, at the outset of the testimony, the State and DCFS stated that the petitions were based on “recent” outcries of abuse.

In reference to M.B., little evidence was adduced. Phillips testified that the child suffers from an unspecified hearing impairment and that, as a result, requires special education. As of the time of the hearing, however, M.B. was not enrolled in any such program. Phillips admitted that the child was with her mother, who had fled the State some three months before the hearing. Thus, any action taken by the juvenile court with regard to temporary placement would have been futile since M.B.’s whereabouts were unknown. Moreover, no evidence was presented which tended to prove that M.B.’s legal custodian, Jose, had subjected M.B. to an “injurious” environment. Rather, the evidence established that M.B. never resided with Jose, since the domestic court order which gave Jose custody was entered after M.B. was taken from Illinois by Marylou. The juvenile court’s dismissal of the petition as to M.B., therefore, was not against the manifest weight of the evidence.

As to the charges concerning S.B., the petition filed upon her behalf alleged that her environment was injurious to her in that she was sexually abused by her father. However, S.B. testified that her father never touched her in places that she did not like. Kirsch, the minors’ guardian ad litem for over two years, also testified that he had specifically asked S.B. whether her father had touched her sexually and she replied that he had not. Phillips recalled an earlier “report” of a “risk” of sexual abuse in which Jose was the alleged offender; however, she also admitted that that charge never was adjudicated. Thus, the only evidence of recent sexual abuse as to S.B. was Phillips’ testimony that Dr. Blanco told her that J.B. told him that his father had committed acts of sexual abuse against all three minors. However, if J.B.’s statement to Blanco was the basis of the sexual abuse charges contained in the petition concerning S.B., we find it curious that the DCFS failed to include similar charges in the petitions concerning J.B. and M.B. since J.B. allegedly accused his father of sexually abusing him and M.B. as well as S.B. In any event, J.B.’s alleged allegations concerning the cult also could be viewed as sexual in nature in that S.B. was the “bride of the devil.” However, J.B. denied making these statements and testified that he never saw his father harm S.B.

Marylou argues that J.B.’s previous statements to Dr. Blanco and to Anderson constituted sufficient evidence to establish probable cause. We disagree.

Section 2 — 18(4)(c) of the Juvenile Court Act provides that

“ [previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 18(4)(c).)

Accordingly, J.B.’s previous statements to Blanco and Anderson, who were not subject to cross-examination and which were not corroborated, cannot establish abuse or neglect. (In re Marcus E. (1989), 183 Ill. App. 3d 693, 539 N.E.2d 344.) Corroborating evidence has been held to be “evidence which by its nature makes it more probable that the child was actually abused, and the corroboration of a child’s claim of abuse requires more than the fact that two or more witnesses may testify that the child related the claims to them.” In re Marcus E., 183 Ill. App. 3d at 705.

Here, Phillips repeated what was told to her by Blanco and Anderson, both of whom were unavailable for cross-examination. Marylou directs attention to Mary Jo Gremp’s testimony, which she argues provides the requisite corroboration to Anderson’s statements. However, as we noted above, corroboration consists of more than testimony that the child related similar claims of abuse to the witness. After carefully reviewing Gremp’s entire testimony, we are of the opinion that it was not corroborative of Anderson’s statements for a number of reasons. Gremp was the only other witness to testify as to the cult activity. It was her testimony, in fact, which provided the graphic details of the alleged activity, since Phillips stated that Anderson did not question J.B. in detail regarding the nature of the cult’s activities. Gremp also stated that J.B. related the cult story to her in late 1987. However, Gremp failed to contact police, DCFS, or even Marylou’s divorce attorney at that time. That Gremp, admittedly a friend of Marylou and sympathetic to her plight as a mother fighting for custody, would stand idle for over three years in the face of such monstrous allegations certainly does not constitute “evidence which by its nature makes it more probable that the child was actually abused.” (In re Marcus E., 183 Ill. App. 3d at 705.) Furthermore, the time frame to which Gremp testified is at odds with both S.B.’s and J.B.’s testimony regarding their family situation at that time. J.B. testified that he saw little of his father after Jose moved out of the family home in 1987 and that he only began visitation with him in the fall of 1989. S.B. stated that when her father moved out of the family home, the children remained with their mother. S.B. began visitations with her father during the fall of 1989 with the intervention of Hephzibah. From the nature of the testimony, it appears that Jose had little, if any, contact with the children in the years prior to the fall of 1989.

The same analysis can be used to evaluate the petition concerning J.B., which based the charge of neglect on physical abuse. Again, much is made of J.B.’s statement to Dr. Blanco that his father had hit him. However, J.B. stated that his father hit him once prior to 1988, apparently for disciplinary reasons, and had not hit him again. Although the State and DCFS based the petitions on “recent” outcries of abuse, most notably the charges of cult involvement, their witnesses, with the exception of Phillips, all testified as to charges which were over three years old. Phillips, herself, stated that she did not know the nature of the cult charges as told to her by Anderson because he did not “push” J.B. in his questioning. Additionally, we note that no psychiatric testimony was presented to the juvenile court. Although there is mention in the record of Hephzibah’s involvement with the family, there was no evidence presented, either documentary or testimonial, concerning the children’s progress or lack thereof in relating to either parent or either parent’s progress in parenting the children, evidence which, we note, is commonly adduced in such cases. Phillips did state, however, that Hephzibah and DCFS apparently had agreed that Jose take custody of the children. In view of the nature of the evidence presented at the March 7 hearing, we cannot conclude that the juvenile court’s determinations as to the petitions concerning J.B. and S.B. were against the manifest weight of the evidence.

Marylou next argues that the juvenile court erred by failing to inquire as to the children’s perceptions concerning the truth.

The Juvenile Act states that “[tjhere shall be a rebuttable presumption that a minor is competent to testify in abuse or neglect proceedings.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 18(4)(d).) The Act leaves to the juvenile court the determination of how much weight shall be given to the minor’s testimony. (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 18(4Xd).) Moreover, this court has held that witnesses aged 14 and over are also presumed competent to testify. (In re E.S. (1986), 145 Ill. App. 3d 906, 495 N.E.2d 1334.) Age alone, however, is not determinative of competency to testify. The minor must be sufficiently mature to receive correct impressions from senses, be able to recollect these impressions, to comprehend questions, and to narrate answers intelligently. The minor must also be capable to appreciate the moral duty to tell the truth. People v. Ballinger (1967), 36 Ill. 2d 620, 225 N.E.2d 10 cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.

A review of J.B.’s testimony reveals that he was competent to testify. At the time of the hearing, J.B. was 14 years old. By virtue of his age, therefore, this court can presume competency. Moreover, nothing in the record indicates that the presumption was rebutted. J.B. gave clear, forthright answers to the questions put to him. He impressed both the trial judge and his inquisitors by his recollection of the exact date on which his parents split up. As to S.B., who was 12 years old at the time, her testimony also indicates that the Juvenile Act’s presumption was not rebutted. She was able to give her address, stated that she goes to school, and is picked up from school by either her father or her Hephzibah “worker.” S.B. had recollections of her family life when both her parents lived together, and she recalled her parents “screaming and hollering at each other,” which indicates that she was able to receive impressions. Based upon our review of the minors’ testimony, we rule that both children possessed the competency to testify.

Marylou and the public guardian argue that the juvenile court erroneously denied Marylou’s motion for reconsideration of the dismissal of the petitions because the motion was based on previously unavailable information. The information apparently consisted of the records that Phillips testified that she was waiting to receive from Georgia officials.

Pursuant to Supreme Court Rule 660(b) (134 Ill. 2d R. 660(b)), all juvenile proceedings not involving delinquency proceedings are governed by the rules applicable to civil cases. (In re B.H. (1991), 218 Ill. App. 3d 583, 579 N.E.2d 19.) Section 2-1203 of the Code of Civil Procedure provides that, in cases tried without a jury, any party may, within 30 days of the entry of judgment, file a motion for a rehearing or for any “other relief.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203.) Such motions are addressed to the circuit court’s discretion, and its decision regarding such a motion will not be reversed absent an abuse of that discretion. Harris v. Harris (1977), 45 Ill. App. 3d 820, 360 N.E.2d 113.

Although Marylou’s counsel argued the motion to the juvenile court, she made no mention of the newly received information from the Georgia officials, the main focus of the motion for reconsideration. Instead, counsel inexplicably reargued the evidence which had been adduced at the original hearing. Based on the motion filed and the arguments made to the juvenile court, it cannot be said that the court abused its discretion in denying the motion for reconsideration.

The judgment of the juvenile court, therefore, is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.

      Marylou is the only appellant in this action. The public guardian has filed a brief on behalf of the minors as amicus curiae. The Cook County State’s Attorney, an appellee in this court, has adopted the brief submitted by the amicus as its brief. The other appellee, Jose B., the minors’ father, has submitted his own brief to this court.

      Marylou’s attorney did not file an appearance in the juvenile court until March 14, 1990, one week after the court issued its order which dismissed the neglect petitions.


author: PRESIDING JUSTICE McCULLOUGH

text:
    INGALLS MEMORIAL HOSPITAL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Napoletano, Appellee).
    First District (Industrial Commission Division)
    No. 1—92—1239WC
    Opinion filed January 8,1993.

      Roddy, Power, Leahy, Guill, Zima & Gifford, Ltd., of Chicago (Alan D. Kalinoski, of counsel), for appellant.
    Gaines & Gaines, of Chicago (Lewis P. Gaines, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant Joseph A. Napoletano filed two applications for adjustment of claims for injuries occurring on February 3, 1984, and August 3, 1985, while employed by Ingalls Memorial Hospital. These two claims were consolidated and the arbitrator awarded claimant temporary total disability (TTD) benefits, medical expenses, and permanent partial disability (PPD) benefits to the extent of 22.5% of the man as a whole. The Industrial Commission (Commission) modified the arbitrator’s award by reducing the amount of the medical expenses awarded, finding that some of those expenses were attributable to an intervening automobile accident claimant had on April 27, 1989. The Commission also reduced the PPD benefits to 15% loss of use of the man as a whole. The circuit court confirmed the Commission’s decision and Ingalls now appeals. We affirm in part and reverse in part.

At the time of the hearing, claimant was single and 32 years of age and had been hired by Ingalls in March 1981 as a physical therapist assistant. Claimant has an associate’s degree in physical therapy and he assisted physical therapists by following the treatment plans they had prescribed for the various patients.

In 1970, claimant suffered a fracture to his right hip as a result of a unicameral bone cyst which deteriorated the hip bone. Claimant underwent surgery in 1971 on his left knee to correct the discrepancy in leg length as the result of the fracture to the hip in 1970.

The first injury occurred on Friday, February 3, 1984. Claimant was instructing a patient on weight training and had just finished 30 repetitions of arm curls with 75 pounds of weight. He was about to place the weights back onto the rack and he turned and extended his left arm. As he did this, claimant experienced pain in his left lower back. He testified it felt like the left side of his spine was “all pulled together” and he felt a strain up and down the left side of his spine.

Claimant immediately reported the incident to his supervisor, Laura Ruffner, who filled out an accident report. Claimant took Motrin for the pain but did not see a doctor. He worked the rest of the day and then returned to work on Monday, February 6. Claimant left work early that day because he was not feeling well and he did not return to work until February 20. Claimant received his regular salary during the time he was off. When he returned to work, claimant performed the same duties as prior to the injury but avoided any lifting. He never received treatment from a doctor for this injury but only took Motrin and attempted to treat himself.

The second injury occurred on August 3, 1985, while claimant was performing the same duties for Ingalls. On that date, claimant, along with three other people, was transferring a very large patient (300 pounds) from a tilt table to a cart. After the patient was on the cart, two of the transporters left. Claimant tried to put the side rail of the cart up, but was unable to do so because the patient was not far enough over on the cart. Claimant knelt upon the top of the cart and attempted, with the help of the other remaining transporter, to move the patient over by pulling on the draw sheet. Claimant felt a real sharp pain across the middle of his shoulder blades and neck.

Claimant reported the injury to the physical therapist on duty that day, Marsha Lilly, and an incident report was immediately filled out. Claimant experienced pain in his back for the rest of the day. Claimant returned to work following the weekend and reported the incident to his supervisor, Ruffner. She sent him to the employee health center where, one week later, he saw Dr. Hannig. Dr. Hannig prescribed Motrin, physical therapy and light-duty work.

Claimant began receiving physical therapy during working hours at Ingalls. Those treatments included hot packs, scapular mobilization, soft-tissue mobilization and vertebral mobilization, and lasted between 30 and 45 minutes per treatment. Claimant was treated six times before Ruffner told him he could no longer receive treatment during working hours. Claimant later testified he received 17 treatments during working hours. On November 24, 1985, claimant was fired by In-galls for poor work performance and for making a mistake with a patient that could have presented a hospital liability.

Two weeks prior to his being fired, claimant began physical therapy at Suburban Medical Center which lasted until January 1986. Claimant received similar treatment at Suburban as he had at Ingalls, but characterized it as “not as effective” because the physical therapist assistant who treated him did not know how to do soft tissue mobilization or vertebral mobilization. Claimant estimated he received over 20 treatments at Suburban.

Next, claimant had physical therapy at Chicagoland Orthopedic Rehabilitation Services in Palos Heights, Illinois. This was treatment similar to that which he received at Ingalls, which lasted approximately six months. Claimant estimated he received over 60 treatments from this facility.

After a four-month period of no physical therapy, claimant began seeing a free-lance physical therapist, Helen Owens-Burkhart. Claimant had treatment with her until October 1989.

Since October 1989, claimant had not seen a physical therapist for treatment but rather had attempted to treat himself. Claimant purchased a TENS unit, prescribed by Dr. Charles M. Slack, to help control the pain in his back. Claimant testified he takes two or three 600-milligram tablets of Motrin and four or six 500-milligram tablets of Tylenol per day to control his pain and still experiences pain in his shoulder blades and lower back.

After his termination at Ingalls, claimant worked at Michael Reese Hospital from January 1986 through August 1986. Claimant next worked at LaGrange Hospital from September 1986 until February 1988. After that, he went to work at an out-patient clinic in Mel-rose Park. He left there in May 1988 and went to work for West Town Visiting Nurses Association. He was employed there, part-time, for three months. He also worked part-time at RNC Rehabilitation Medicine clinics in July 1988. While working part-time at RNC, claimant also worked at Evergreen Physical Therapy. Upon leaving these two positions, claimant worked for a private contractor and at the time of the hearing, was employed by St. Joseph Hospital in Chicago. Claimant was employed as a physical therapy assistant at all of these places. His salary, since leaving Ingalls, was “within a couple of dollars” of what he earned at Ingalls.

On April 27, 1989, claimant was involved in an automobile accident in which his car was rear-ended while in motion. He was not hospitalized but missed one month of work. On November 25, 1986, claimant was examined by Dr. Dushyant Patel. This examination revealed an asymmetrical disc protrusion at L-5, S-l on the left.

Various medical bills were admitted into evidence. Counsel for In-galls stated he was not disputing the existence of these bills, but only Ingalls’ liability for them. The bills admitted into evidence include: (1) various prescriptions to different pharmacies, amount unknown; (2) Helen Owens-Burkhart, $4,960; (3) Worker Rehabilitation Service, $650; (4) Dr. Dennis Levinson, $145; (5) Chicagoland Orthopedic Rehabilitation Services, $628; (6) Dr. Henry Acuna, $135; (7) Michael Reese Hospital, $1,300; (8) Michael Reese Hospital, $350; (9) Advanced Medical Imaging Center (radiologist), $421; (10) Dr. Charles Slack, $65; (11) Rush Presbyterian Hospital, $627; and (12) TENS unit, $665. Also admitted into evidence were the various reports and records of claimant’s employment at Ingalls as well as the reports of the various physicians and physical therapists who have treated claimant.

On cross-examination, claimant denied he made up this claim because he was fired by Ingalls. He explained that, although he was a physical therapist assistant, he could not treat himself. Claimant was actively involved in weight-lifting between the ages of 17 and 23. In 1977, he strained his back but Ingalls was aware of this injury prior to its hiring him and this injury only bothered claimant for a few weeks. Claimant indicated that following his car accident in April 1989, he received treatment from Helen Owens-Burkhart for his injury from the car accident as well as the work-related injury. He admitted that he did not mention that he had been hurt while working at Ingalls on his application for employment at Michael Reese Hospital; however, he explained he falsified this information on the application because he needed to get the job. Claimant indicated that he received a discount on the treatments administered at places in which he worked.

On May 30, 1990, the arbitrator issued his memorandum of decision. As to the February 3, 1984, injury, claimant was awarded the sum of $219.57 per week for a period of l6h weeks, that being the period of temporary total incapacity. As to the August 3, 1985, injury, claimant was awarded $266 per week for a period of eight weeks, that being the period of temporary total incapacity. Claimant was further ordered to receive the sum of $239.28 per week for a period of 112.50 weeks because the injuries sustained caused 22.5% disability of the man as a whole. Finally, claimant was awarded $8,175.39 in medical expenses.

On June 18, 1991, the Commission affirmed the decision of the arbitrator but modified it in part. The Commission found that claimant was temporarily totally disabled for a period of eight weeks which period commenced from the date petitioner was terminated, November 24, 1985, through January 19, 1986, when he returned to other employment. The Commission applied the case of Ford Motor Co. v. Industrial Comm’n (1984), 126 Ill. App. 3d 739, 467 N.E.2d 1018, which found that neither the ability to do light work nor the nonreceipt of medical treatment precluded a finding of TTD during the layoff. Thus, the court affirmed the arbitrator’s award of TTD during the period of petitioner’s termination until he received new employment.

The Commission modified the arbitrator’s medical award finding that claimant was entitled to $6,755.52 for reasonable and necessary medical expenses. The Commission found the remaining medical expenses were attributable to the intervening automobile accident of April 27, 1989. In addition, the Commission found that some of the prescription bills were related to bills of claimant’s mother, and In-galls was not responsible for payment of those amounts.

Finally, the Commission noted a letter from Helen OwensBurkhart to Dr. Charles Slack, which indicated that prior to the automobile accident of April 27, 1989, claimant had reached a point where he continued to have mild thoracic stiffness as well as intermittent complaints of low cervical, mid-thoracic and lumbar sacral stiffness. Claimant was able to maintain himself pretty well with the regular self-mobilization instruction program. The Commission noted that claimant had not undergone any surgery for his accidental injuries nor did the medical evidence show that surgery was recommended. Based on that, as well as its own expertise, the Commission concluded it viewed claimant’s PPD differently than the arbitrator and thus modified the arbitrator’s award to reflect that claimant was entitled to PPD to the extent of 15% of man of the whole under section 8(d)(2) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(dX2)). On March 10, 1992, the circuit court of Cook County confirmed the Commission’s decision. Ingalls timely filed its notice of appeal.

Ingalls first contends the Commission erred in awarding claimant TTD benefits for a period of eight weeks, that time being the period between claimant’s termination from Ingalls on November 24, 1985, and January 19, 1986, when claimant obtained employment with Michael Reese Hospital. Ingalls states there is no evidence to show claimant was unable to perform his regular employment nor was he given any limitation concerning his ability to work.

Whether a claimant is entitled to compensation for TTD generally is a question of fact, and the reviewing court will only disturb the findings of the Commission if contrary to the manifest weight of the evidence. (Hayden v. Industrial Comm’n (1991), 214 Ill. App. 3d 749, 754, 574 N.E.2d 99, 102.) A claimant has the burden of proving all the elements of his case, including the extent and permanency of the injury, in order to recover benefits under the Act. (Yellow Freight System, Inc. v. Industrial Comm’n (1984), 124 Ill. App. 3d 730, 733, 464 N.E.2d 890, 892.) An employee is temporarily totally incapacitated from the time an injury incapacitates him for work until such time as he is as far recovered or restored as the permanent character of injury will permit. (Archer Daniels Midland Co. v. Industrial Comm’n (1990), 138 Ill. 2d 107, 118, 561 N.E.2d 623, 627.) In order to show TTD, claimant must show not only that he did not work but that he was unable to work. Gallentine v. Industrial Comm’n (1990), 201 Ill. App. 3d 880, 887, 559 N.E.2d 526, 531.

A TTD award is proper when he cannot perform any services except those for which no reasonably stable labor market exists. ZenitCo. v. Industrial Comm’n (1982), 91 Ill. 2d 278, 287.

Here, claimant failed to prove he was entitled to TTD benefits for the eight-week period between when he was fired by Ingalls and hired by Michael Reese. Claimant testified Dr. Hannig put him on light-duty work. However, Dr. Hannig’s records were not admitted into evidence. The record does show at claimant’s request he was discharged by Dr. Hannig. Claimant did not present any evidence to show that he was unable to work during this period.

In his application for work at Michael Reese Hospital, claimant answered no to the question on whether he had any physical condition or disability which would affect his ability to perform the job, and further stated he was still employed by respondent. Further, claimant did not want to immediately start work at Micháel Reese because at the same time, he was looking for a better job.

The termination of TTD does not affect claimant’s right to recover for permanency. The TTD termination date is merely the indicator that the injury has stabilized, the permanent character of the injury can be determined, and claimant’s award for permanency, if any, should be determined.

It is noted there was no award of TTD from August 3, 1985, the date of the second injury, to November 24, 1985, the date claimant was terminated from employment. Only after he was terminated was he awarded TTD. Nothing in the record indicates claimant’s health status changed November 24, 1985, when he was terminated. The record also does not show both that he was unable to work and did not work because of his August 3, 1985, injury. Gallentine, 201 Ill. App. 3d at 887, 559 N.E.2d at 531.

The evidence was insufficient to show that claimant was temporarily totally disabled during the time between his termination at In-galls and his employment by Michael Reese Hospital. The Commission’s decision granting claimant TTD benefits for that eight-week period was against the manifest weight of the evidence.

Next, Ingalls contends the claimant’s award of $6,755.52 for medical expenses was against the manifest weight of the evidence. Ingalls suggests the treatments following those given at Suburban Medical Center were not reasonable or necessary. Finally, Ingalls asserts the failure to itemize in the record the bills of the various providers establishes that the Commission’s finding is against the manifest weight of the evidence.

Under the Act, a respondent may only be ordered to pay for the treatment which was reasonably required to cure or relieve the petitioner of the effects of his injury. (Quality Wood Products Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 417, 423, 454 N.E.2d 668, 671.) The standard of reasonableness is that which is usual and customary for similar services in the community where the services were rendered. (General Tire & Rubber Co. v. Industrial Comm’n (1991), 221 Ill. App. 3d 641, 650, 582 N.E.2d 744, 750.) The Commission’s findings regarding the reasonableness of medical treatments will not be disturbed on review unless against the manifest weight of the evidence. United States Steel Corp. v. Industrial Comm’n (1985), 133 Ill. App. 3d 811, 818, 478 N.E.2d 1108, 1114.

Ingalls specifically challenges the $4,960 bill to Helen OwensBurkhart. It contends her bill is significantly less than that amount. However, at the hearing, Ingalls’ attorney stated he was not disputing the existence of these bills but only the extent of Ingalls’ liability for them. Thus, Ingalls has waived any argument regarding the amount of these medical bills. These bills were itemized in the record and we will accept the Commission’s finding as to the total amount of those bills.

As to the reasonableness of the bills, Ingalls failed to present any evidence to show these bills were not reasonable with respect to what other physical therapists charge in the Chicago area. (See General Tire, 221 Ill. App. 3d at 650-51, 582 N.E.2d at 750.) Moreover, Ingalls presented no evidence to show that these treatments were not necessary to cure or relieve the effects of claimant’s injury. Accordingly, the Commission’s finding that these medical expenses were reasonable and necessary was not against the manifest weight of the evidence.

Finally, Ingalls contends the Commission’s permanency award of 15% of the man as a whole pursuant to section 8(d)(2) of the Act is against the manifest weight of the evidence. Ingalls contends claimant failed to prove that his condition of ill-being, subsequent to the April 1989 automobile accident, was attributable to the August 3, 1985, work-related accident. Ingalls relies on the report of Dr. Elizabeth Kessler, who found no objective evidence to support a significant neurological injury prior to the automobile accident. Last, Ingalls suggests the Commission mistakenly referred to Helen Owens-Burkhart as “Dr. Burkhart” when discussing and relying upon a letter she wrote to Dr. Slack regarding claimant’s condition.

The determination of the extent or permanency of an employee’s disability is a question of fact for the Commission, and its decision will not be disturbed on appeal unless it is against the manifest weight of the evidence. (Amoco Oil Co. v. Industrial Comm’n (1991), 218 Ill. App. 3d 737, 748, 578 N.E.2d 1043, 1051.) A causal connection between work duties and a condition of ill-being may be established by a chain of events including claimant’s ability to perform job duties before the date of the accident and inability to perform the same duties following that date. (Peabody Coal Co. v. Industrial Comm’n (1991), 213 Ill. App. 3d 64, 65, 571 N.E.2d 1182, 1183.) It is the function of the Commission to resolve disputed questions of fact, including those of causal connection, to draw permissible inferences and to decide which of conflicting medical views is to be accepted. Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 387, 454 N.E.2d 655, 657.

Dr. Elizabeth Kessler examined claimant on June 12, 1986. She found no neurological contraindications to his continuing with his usual activities, including full employment. She believed his pain might be improved by a consultation and subsequent physical therapy with a physiatrist.

On the other hand, Helen Owens-Burkhart’s letter of September 5, 1989, to Dr. Charles Slack indicated that she found that, prior to the automobile accident, claimant had reached a point where he continued to have mid-thoracic stiffness as well as intermittent complaints of low cervical, mid-thoracic and lumbar sacral stiffness. She noted the automobile accident had aggravated his symptoms but that claimant was back to where he was prior to the accident. She believed he would probably always be bothered by this type of pain and would need to keep himself on a self-mobilizing instruction program.

Thus, there are two conflicting views as to the extent of claimant’s condition of ill-being. This was for the Commission to decide. The fact that the Commission mistakenly referred to Helen Owens-Burkhart as a doctor does not affect the reasoning and findings in her letter as to the extent of claimant’s injury. The evidence established that the August 3 injury caused claimant’s condition of ill-being at least prior to the April 27, 1989, automobile accident. Prior to that accident, claimant was on prescription medication, still in pain, and receiving physical therapy treatments. He was still under the care of various doctors. The Commission discounted some medical expenses attributable to the automobile accident. A reasonable inference, in light of the fact that the Commission reduced the percentage of loss of man as a whole, is that it also reduced by an equal amount the causal connection of the injury due to the intervening automobile accident and claimant’s current condition of ill-being. Thus, the Commission’s decision that claimant was permanently partially disabled to an extent of 15% loss of the man as a whole was not against the manifest weight of the evidence.

For the foregoing reasons, the circuit court’s order confirming the Commission’s decision is affirmed as to the PPD award and reversed as to the award of TTD benefits.

Affirmed in part; reversed in part.

RAKOWSKI, STOUDER, WOODWARD, and RARICK, JJ., concur.


author: JUSTICE WOODWARD

text:
    CHICAGO HOUSING AUTHORITY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Henry Swierenga, Appellee).
    First District (Industrial Commission Division)
    No. 1—91—3917WC
    Opinion filed January 15,1993.
    Roddy, Power, Leahy, Guill, Zima & Gifford, Ltd., of Chicago (John H. Guill, of counsel), for appellant.
    Koutsky, Boudreau, Lassen & Mason, of Chicago (Brian D. Lassen, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Henry Swierenga, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). Therein he alleged a head injury which arose out of and in the course of his employment with the employer, Chicago Housing Authority. After a hearing conducted on July 18, 1988, the arbitrator found that claimant had sustained a 45.5% loss of hearing in his right ear, a 15.1% loss of hearing in his left ear, a 15% loss of use of his right thumb and two weeks’ disfigurement to his forehead over his right eyebrow. On November 30, 1990, the Industrial Commission (Commission) affirmed and adopted the arbitrator’s decision. On November 22, 1991, the circuit court of Cook County confirmed the Commission’s decision. This timely appeal followed.

On appeal, the employer raises two issues, namely: (1) that the Commission erred in finding that claimant’s injury arose out of and in the course of his employment; and (2) the Commission erred in finding that claimant had established a causal connection between his injuries and his employment.

Claimant testified that on October 7, 1981, he was working as a carpenter for the employer at Altgeld Gardens, a public housing project. He had been employed as a carpenter by the employer since 1975. He was repairing windows and doors in various apartments. At approximately 12:50 p.m., claimant walked toward his vehicle, which was parked in a lot adjacent to Altgeld Gardens, in order to get more tools. Whereupon, “some young fellows behind the vehicle” struck claimant behind the head, causing him to lose consciousness. He regained consciousness in the Altgeld Gardens supervisor’s office. In the incident, claimant received cuts over the right eyebrow and at the base of his right thumb. Claimant was not robbed of any possessions.

On the same day, claimant was taken to St. Francis Hospital emergency room, where he received treatment. Over the next several weeks, he attended respondent’s company clinic, the Clearing Industrial Clinic, on four occasions. Claimant returned to work on October 26,1981.

Claimant testified that he began to experience hearing difficulties early in 1982. His family physician, Dr. Young, referred him to an eye, ear, nose and throat specialist, Dr. Pradeep Keni, in June 1982. Finding that claimant had a substantial hearing loss, Dr. Keni prescribed a hearing aid for his right ear. At respondent’s request, claimant was examined by Dr. Irwin Horowitz, an eye, ear, nose and throat specialist, on May 10, 1983. In a letter to respondent’s counsel, Dr. Horowitz stated that claimant had experienced a bilateral sensorineural hearing loss in the amount of 45.5% in his right ear and 15.1% in his left ear. Without an audiogram showing claimant’s hearing before the incident, Dr. Horowitz could not state if the subject trauma caused the hearing loss. He opined that several other factors could have contributed to claimant’s hearing loss, namely, his infantry service in World War II, his work with power tools as a carpenter and the effects of aging.

At his attorney’s request, claimant was examined by Dr. Hirshfield on March 8, 1984. Dr. Hirshfield found hearing loss in claimant’s right ear, impaired mobility of his right thumb and a scar above his right eyebrow. Dr. Hirshfield did not give an opinion as to the cause of claimant’s hearing loss.

Claimant stated that as of the arbitration hearing his “hearing is gone” and that he had never sought treatment for a hearing problem before the subject incident. Claimant also testified that since the subject injury he had experienced problems with dizziness, for which he was taking prescribed medication.

Respondent initially argues that the Commission’s decision that the subject injuries arose out of and in the course of his employment was against the manifest weight of the evidence. Respondent argues that claimant’s testimony is not adequate to demonstrate whether the alleged attack took place in an area which presented a greater risk of criminal assault than that to which the general public is exposed. Respondent relies on Greene v. Industrial Comm’n (1981), 87 Ill. 2d 1, and Associated Vendors, Inc. v. Industrial Comm’n (1970), 45 Ill. 2d 203, to support his argument. In response, claimant argues that the Commission’s decision regarding this issue is not undercut by Greene and Associated Vendors. We agree.

“Arising out of” employment, within the meaning of the relevant statute, refers to causal connection between employment and the injury. Causal connection is demonstrated if claimant establishes that the injury’s origin lies in some risk related to employment. (Brady v. Louis Ruffolo & Sons Construction Co. (1991), 143 Ill. 2d 542.) Resolving disputes in evidence and drawing reasonable inferences and conclusions therefrom are the Commission’s responsibility, and its findings will not be reversed on appeal unless they are against the manifest weight of the evidence. Riley v. Industrial Comm’n (1991), 212 Ill. App. 3d 62.

In Associated Vendors, the claimant and his wife owned all shares of the respondent corporation, which was engaged in the installation of vending machines. On January 16, 1966, claimant received a request for the installation of a cigarette machine at 6201 South Cicero Avenue in Chicago. Upon arriving at the address at 1:30 p.m., claimant was assaulted and robbed by unknown assailants. He received serious injuries which required extensive medical treatment. The Associ ated Vendors court, taking notice of a report on Chicago crime in 1968, noted that the subject industry had been plagued by robberies and beatings for numerous years. The court, finding that it was reasonable for the Commission to assume that the nature of claimant’s employment would expose him to the hazards of robbery or beating, held that his injuries arose out of his work.

In the appeal at bar, claimant was working as a carpenter for respondent. At approximately 12:50 p.m. on the date of the subject incident, claimant, while on his way to pick up some tools from his vehicle located in the project’s parking lot, was assaulted by unknown assailants. This testimony was unrebutted. As in Associated Vendors, the Commission considered all the facts, drew rational inferences and conclusions therefrom and determined that claimant’s employment substantially increased his exposure to the hazards of beating or robbery.

In Greene v. Industrial Comm’n (1981), 87 Ill. 2d 1, an unknown assailant stabbed and murdered James Greene, a service technician for Orkin Exterminating, Inc. At about 7:30 a.m. on March 3, 1978, Mr. Greene’s body was found in the Orkin parking lot lying near his service vehicle, which was prepared for service. The engine was running, and the lights were on. The truck’s interior had not been disturbed, and nothing appeared to be missing from Mr. Greene’s person. The Orkin plant was located in an area of Aurora which contained residential, commercial and light industrial property. The court noted that in the year prior to Mr. Greene’s murder, there had been some minor thefts in the Orkin parking lot. There was no record of attempted break-ins at the Orkin plant in the prior 10 years.

The Commission denied compensation to Mr. Greene’s widow, finding that his death had not arisen out of his employment. Our supreme court, in upholding the Commission’s decision, stated:

“Here the decedent’s death is susceptible to the inference that it resulted from a purely personal risk, from a risk common to the public at large, or from a risk incidental to the decedent’s employment.” 87 Ill. 2d at 5.

The Greene court noted that the Orkin plant was untouched, decedent’s personal belongings were intact and nothing was missing from the service vehicle. The court determined that the brutal murder was not necessary to effectuate a possible theft from the Orkin plant or Mr. Greene’s person and, thus, upheld the Commission’s finding that the injury did not arise of his employment.

Here, unlike Greene, the Commission found that claimant’s injury resulted from a risk incidental to claimant’s employment. In so doing, the Commission rejected the idea that claimant’s injury resulted from a purely personal risk or a risk common to the general public. The evidence before us supports its decision.

We find that the Commission’s decision as to whether claimant’s injury arose out of his employment is not against the manifest weight of the evidence.

Respondent’s other argument is that the Commission erred in finding that claimant’s condition of ill being is causally connected to his accident. Respondent downplays claimant’s unrebutted testimony that he had no hearing problems prior to the assault, after which he experienced substantial hearing loss. Instead, the employer points to Dr. Horowitz’s medical report, which indicated that several other factors could have contributed to the hearing loss suffered by claimant. Dr. Horowitz noted the possible effects of aging and the service in the infantry during World War II, and exposure to a “noise polluted” environment. Dr. Horowitz concluded that a causal connection between the trauma and hearing loss “can only be speculated upon.” Respondent asserts that there is no physician’s testimony supporting claimant’s contention.

It is well established that the causal connection between an accident and a subsequent condition of ill being can be established without a physician’s testimony. Union Starch & Refining Co. v. Industrial Comm’n (1967), 37 Ill. 2d 139.

In the appeal at bar, the claimant testified that prior to his work-related accident on October 7, 1981, he had no hearing problems and that he received no treatment for this condition. Subsequent to said injury, claimant experienced substantial problems regarding same. The record contains medical reports which substantiate claimant’s testimony. The reasonable inference from these unrebutted facts is that claimant established a causal relationship between the injury and his condition of ill being. Moreover, Dr. Horowitz’s ambiguous opinion as to causation is not dispositive of the issue. Accordingly, we find that the Commission’s decision regarding this issue is not against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, STOUDER and RARICK, JJ., concur.