author: PRESIDING JUSTICE SCARIANO

text:
      In re MARRIAGE OF KAREN W. LEISNER, Petitioner-Appellee, and ANTHONY B. LEISNER, Respondent-Appellant.
    First District (2nd Division)
    No. 1—89—2637
    Opinion filed September 17, 1991.

      Leslie L. Veon, of Rinella & Rinella, Ltd., of Chicago, for appellant.
    Kalcheim, Schatz & Berger, of Chicago (Michael J. Berger and Andrew D. Eichner, of counsel), for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Respondent, Anthony Leisner, appeals from the circuit court’s distribution of assets between him and petitioner, Karen Leisner, when it granted Karen’s petition to dissolve their marriage. He contends that the court erroneously found the following assets to be marital property: (1) monies he received pursuant to a “phantom stock agreement” with his employer; (2) the net proceeds from the sale of his and Karen’s former residence; and (3) $141,000 in contributions he made to his employer’s profit-sharing plan. In addition, Anthony contends that the court, in finding that he had dissipated assets, improperly failed to specify what assets were dissipated, that it wrongly failed to consider the tax consequences to him of its classification as marital property the proceeds from the phantom stock agreement, and that it awarded Karen an inequitable share of the marital estate. He seeks reversal of the judgment and a remand for a redistribution of assets.

Karen testified during a hearing on a motion in limine prior to trial that she and Anthony were married on January 5, 1985, and had one child, the custody of whom they agreed would lie with Karen. At the time of trial, on July 24, 1989, Karen was age 41 and Anthony was 46.

We first discuss the “phantom stock agreement,” the proceeds of which the trial court held were marital assets. Anthony’s employer, Quality Books, Inc., finding it “desirable to encourage and reward [Anthony] Leisner in a manner that will stimulate his active interest in the development and financial success of the Company and strengthen his desire to remain with the Company,” agreed on November 30, 1984 (November 30, 1984, agreement), that if Quality Books was not sold by February 29, 1988 (delivery date), Anthony was to receive a promissory note from it for an amount equal to the value of 20 shares of its common stock (hence the term “phantom stock agreement”), plus “a sum *** equal to the amount of cash which he would have received on account of [any cash dividends upon the common stock of the Company which would have been declared and paid prior to the delivery date] *** had he been the owner of *** [those 20 shares].” If Quality Books was sold “within a six (6) month period following *** the Delivery Date” (by August 29, 1988), Anthony was to receive a percentage of the sales price, from which the amount payable under the promissory note would be subtracted. The percentage was to be reduced if Anthony voluntarily terminated his employment with Quality Books before such a sale took place. Finally, the agreement stated that it could “not be modified or amended except in writing.”

Both Anthony and Tom Drewes, the majority shareholder in Quality Books, testified that a letter was executed “as a statement of good faith” on December 18, 1987 (the letter is dated December 17), regarding an “intent” to be “formalize[d] *** later” to extend the delivery date to February 29, 1992 (December 17, 1987, letter). On February 29, 1988, while negotiations were going on for the sale of the company, Quality Books listed on its balance sheet as a “Long-Term Liability: Note payable” the amount of $33,361, which Drewes testified was equal to the accrued value of “10 percent of [Quality Books’] operating earnings subsequent to 1984.” Anthony, according to Drewes, “would have that money if there was no sale.” A promissory note for that amount, however, was never issued to Anthony.

Drewes also testified that on July 20, 1988, he signed an amendment to the “agreement as of November 30, 1984,” which changed the delivery date from “the 29th day of February, 1988” to “the 28th day of February, 1991.” The amendment also ensured that the number of shares the value of which was to be reflected in the promissory note was equal to 10% of Quality Books’ common stock (July 20, 1988, amendment). Drewes admitted, however, that Robert Levin, his attorney, wrote to Gregory Brown, Anthony’s attorney, in an August 3, 1988, letter concerning “the proposed Amendment to the 1984 Agreement,” which he “believe[d] was signed by Tom and Roberta Drewes [the sole shareholders of Quality Books], both individually and on behalf of the company, but not by Tony.” The letter further stated:

“On *** August 1, 1988, I received a call from Tony Leisner indicating that, due to circumstances beyond all of our control, he had no intention of signing any of these amendments and intended to live solely by the original Agreement dated November 30, 1984. *** I wish to eliminate all chances of misunderstanding in the future and advise you formally that, since none of these proposed amendments have been fully agreed to by all of the parties, we deem all of these purported amendments to be null and void and of no force and effect. The original agreement, however, continues to be operative pursuant to its terms.”

Another document, dated August 29, 1988 (August 29, 1988, document), but which Brown testified “was executed on or after September 9, 1988” modified the “agreement as of November 30, 1984,” by: (1) changing the delivery date from “ ‘the 29th day of February, 1988’ ” to “ ‘the 28th day of February, 1991’ (2) cancelling “the note from the Company payable to Leisner in the amount of $33,361 as of February 29, 1988[,] *** as a result of this change”; (3) adding a sentence stating that the number of shares the value of which was to be reflected in the promissory note was to be equal to “ten percent (10%) of the equity value of the Company”; and (4) changing the date by which Quality Books was to be sold in order for Anthony to share in the sales price to August 31, 1991. Quality Books was sold on September 13, 1988; Anthony testified that he received $383,900 in 1988 and “[approximately $59,000” in 1989 as a result of the “phantom stock agreement.” Pursuant to the August 29, 1988, document, Anthony was to receive additional monies based upon Quality Books’ profits during fiscal years 1989, 1990 and 1991.

On November 17, 1988, Brown wrote to Leisner, summarizing the “continuity of documentation evidencing your ‘phantom stock’ agreement with Quality Books, Inc.” The letter stated that the December 17, 1987, letter extended the original delivery date to February 29, 1992, that “a more formal amendment to the 1984 agreement was executed on July 20, 1988,” which extended the delivery date to February 28, 1991, and that the August 29, 1988, document made “several other technical changes *** in the agreement.” Brown testified at trial, however, that he did not see the December 17, 1987, letter until November 3, 1988, and that he did not see Anthony sign the July 20, 1988, amendment.

Drewes testified that he and Anthony shared a similar office for 21 years, but that they had “[v]ery infrequently” discussed issues concerning his two divorces prior to his marriage to Karen, as well as his marriage to Karen. Anthony, however, testified that he and Drewes “have both chosen not to” take a car allowance from Quality Books of $500 a month to which Anthony was entitled; Anthony stated that he hoped, by refusing the allowance, which would have been classified as marital property, to increase the profitability of the company. Anthony then answered “Correct” to the question: “In other words, you have decided, knowingly and intentionally, to reduce your income which would be marital with the hope that a Court would find this agreement to be non-marital so you could receive it solely by yourself?” In addition, he testified that he and Drewes had discussed this deferral of the car allowance and that Drewes was “aware of your reasons why you intended to defer your car allowance.”

The trial judge found the testimony of Drewes and Anthony concerning the December 17, 1987, letter and July 20, 1988, amendment to lack credibility; accordingly, he found

“that the December 17, 1987 letter *** was not prepared on December 17, 1987 and that the *** July 20, 1988 [amendment] was and is, in fact, a nullity and that the agreement dated as of August 29, 1988 was not executed until some time in September, 1988, subsequent to the expiration of ANTHONY’S rights under the agreement dated as of November 30, 1984 and, therefore, the monies he has received and will receive as a result of the agreement dated as of August 29,1988 are marital property.”

Anthony first contends that the trial court erred in finding that neither the December 17, 1987, letter nor the July 20, 1988, amendment effectively extended the date by which Quality Books must have been sold in order for Anthony to share in the proceeds of its sale. He argues that the court was mistaken in finding that his and Drewes’ testimony lacked credibility, and that, therefore, the two documents should have been found to have extended the date by which Quality Books was to have been sold. Accordingly, he reasons, his premaritally created right to share in the proceeds of the company’s sale was preserved, did not “expir[e]” on August 29, 1988, and therefore was not created during the marriage pursuant to the August 29, 1988, document. Karen responds that the trial court’s findings were not against the manifest weight of the evidence.

“In nonjury cases, witness credibility is to be determined by the trial court. [Citation.] A reviewing court will not substitute its judgment as to credibility unless against the manifest weight of the evidence.” (Givens v. Givens (1989), 192 Ill. App. 3d 97, 102; see also In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 100.) In the instant case, there was sufficient evidence to support the trial judge’s determination. Whether Anthony’s premarital right to a share of the proceeds from Quality Books’ sale expired on August 29, 1988, depended upon whether prior to that date the deadline was extended. Although both Anthony and Drewes testified that they had executed the December 17, 1987, letter and the July 20, 1988, amendment prior to August 29, 1988, there was some evidence to cast doubt on their testimony.

The court specifically found that

“the testimony of Tom Drewes, who testified on behalf of ANTHONY, was impeached and contradicted by ANTHONY with regard to whether the two of them had conversations concerning ANTHONY’S desire to avoid having certain monies considered as part of the marital estate. Tom Drewes said they did not; ANTHONY said they did.”

Anthony argues that Drewes’ testimony was not impeached. Although the court found that Drewes had testified that “they did not” converse about “ANTHONY’S desire to avoid having certain monies considered as part of the marital estate,” the record discloses that Drewes answered, “Very infrequently” when questioned at trial about whether such conversations had ever occurred. Nevertheless, even if “impeached” is not the proper term to describe the effect of Anthony’s testimony on Drewes’, Anthony’s decision, with Drewes’ knowledge, to forego his car allowance in order to reduce the value of the marital estate, in the hope that the proceeds of the phantom stock agreement would be classed as nonmarital, gave the court reason to believe that Anthony and Drewes could have discussed this concern of Anthony’s more than “[v]ery infrequently.”

In addition, other evidence calls the execution date of the two documents into doubt. The August 29, 1988, document, for example, failed to take their existence into account, amending, as it did, the November 30, 1984, agreement as if no subsequent documents had affected that agreement. In fact, the August 29, 1988, document cancelled the “note from the Company payable to Leisner in the amount of $33,361 as of February 29, 1988, *** as a result of this change [in the delivery date]” — a note which would not have existed if the delivery date had been previously changed. In addition, Robert Levin’s letter of August 3, 1988, stating that no proposed amendments had been fully executed and that the November 30, 1984, agreement was still fully in place, as well as Gregory Brown’s testimony that despite writing a November 17, 1988, letter which stated that the December 17, 1987, letter and July 20, 1988, amendment had been effective, he never saw the former until November 3, 1988, and never saw the latter executed by Anthony also supports the trial judge’s finding.

Next, Anthony avers that even if neither the December 17, 1987, letter nor the July 20, 1988, amendment effectively extended the date by which Quality Books must have been sold in order for him to share in its sale proceeds, the trial court erred in finding that his right to share in the proceeds expired on August 29, 1988, only to be recreated “some time in September, 1988[,]” by the August 29, 1988, document. He avers that he and Quality Books waived the November 30, 1984, agreement’s requirement that the date could be changed only in writing and that they agreed prior to August 29, 1988, to extend that date. Accordingly, he asserts, the August 29, 1988, document was not a new agreement, but was merely a modification of the premarital November 30, 1984, agreement; therefore, his right to sale proceeds was not created during the marriage. As with the previous issue, Karen responds that the trial court’s finding was not against the manifest weight of the evidence.

Here also, the evidence supports the circuit court’s finding. If Anthony’s argument is correct, Quality Books would have been required to abide by the terms of the November 30, 1984, agreement if it had been sold between August 29, 1988, and the date on which the August 29, 1988, document was fully executed. But the evidence he cites does not compel such a conclusion. Rather, the record shows only that the parties were negotiating changes to the November 30, 1984, agreement, changes which they were taking pains to put into writing. This does not compel the conclusion that they had orally agreed to changes in the delivery date. In fact, the dating of the August 29, 1988, document on the very date the November 30, 1984, agreement was to expire, in light of our discussion above concerning efforts by Anthony and Drewes to maintain proceeds as nonmarital property, supports the conclusion that the parties had not orally agreed to change the delivery date; if they had, there would have been no reason not to put the actual date of execution on the document. Accordingly, we hold the court’s finding that the proceeds of the phantom stock agreement were marital property to be supported by the evidence.

We next turn to the issue of the trial court’s disposition of the proceeds from the sale of the Leisners’ former residence. Anthony testified that he met Karen “after Valentine’s Day of [19]83.” In April 1983, he purchased a house at 898 Elm Street, in Winnetka (Elm Street residence), and moved into the house with his son Bill and with Karen in May or June 1983. He told the court that he purchased the house so that Bill, who was “severely dyslexic,” could be enrolled “into a better school system.” Karen did not contribute to the down payment on the house; she did, however, contribute $750 a month “towards the payment of household expenses”; Anthony paid the balance of such expenses, which were equal to about $2,000 a month. He also paid for improvements to the house with his separate property, a bank account at the First National Bank of Lake Forest. On May 22, 1984, Anthony executed a holographic “Final Will” which stated in pertinent part:

“If I am still living with Karen Weeder at the time of my demise then Karen is to have my interest in the house [at 898 Elm] in recognition of her participation and financial contribution to its upkeep. Otherwise it too is to be divided between my children.”

Anthony testified that although Karen helped paint and decorate the Elm Street residence, he performed “[t]he bulk of the painting and remodeling.” He did about “90 percent of the labor” required to “finishQ the entire lower level ***[,] add[] three rooms, *** re[do] the bathroom upstairs, *** insulateQ the entire house ***[,] repairQ some holes in the exterior wall *** and *** put in a pantry.” The Leisners moved from the Elm Street residence in November 1985; it was initially rented, and then sold in July 1987.

Karen testified that she met Anthony in January 1983 and that they then began dating each other exclusively. In early April 1983, Anthony told her

“that he had been looking for a house for himself and his son Bill but that the houses that he had been looking at were too small for all of us, and that he realized that we had been only dating a short time, but you know, would I live him [sic]. If I wanted to live with him, then he would look for a house that was large enough for all of us.”

Karen replied that she “was ready to make a commitment.” She and Anthony found the house later in the month. When discussing whether to buy the house, Karen told Anthony that she liked the house because “the raw, unfinished space downstairs made it possible for us to expand as a family.” Finally, in May 1983, before they moved into the house, Karen told Anthony

“that I thought we ought to have a time table because there we were moving in together, and it was a financial commitment to do that. And he said that it wasn’t really a question of commitment, but it was going to be — He had just been through two divorces, and it had been very hard on his son, and he felt that his son needed time to get used to a new stepmother, and so I agreed.”

Karen testified that if Anthony had said “no, he would not get married, I would not have moved in.” She and Anthony discussed marriage subsequent to their moving into the house; she “thought that certainly sometime that fall, that we would become engaged or we would have some kind of more formal plans or some time table as to when we would get married, but that was a very chaotic year.” She further stated that Anthony “did not” ever tell her that he was not going to marry her. They “became engaged in late August or early September of 1984.”

Anthony contends that the trial court’s finding that the house was purchased in contemplation of marriage, thus causing it to be classified as marital property, was against the manifest weight of the evidence. He points to his reasons for buying the house, the short time he and Karen knew each other before its purchase, the use of his money for the down payment and improvements, the paucity of any evidence that, prior to buying the house, he promised to marry her, his holographic will’s implication that he contemplated only living with Karen and the substantial amount of time between the date they moved into the house and that of their engagement. Karen responds that the trial court’s determination was supported by the evidence, noting that Anthony borrowed the funds for the down payment from his profit-sharing plan with Quality Books (discussed below), and that when in 1987 he declared this amount as income rather than as a loan, she helped pay taxes on it. Further, she notes her contributions to the upkeep of the house and the conversations between her and Anthony, prior to moving in, concerning an eventual marriage. Finally, she maintains that the holographic will cited by Anthony actually helps prove her case that she and Anthony contemplated marriage when the house was purchased.

“For purposes of this [Illinois Marriage and Dissolution of Marriage] Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’: *** (6) property acquired before the marriage ***.” (Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)).) The residence here in question was acquired before the marriage; however, a home purchased prior to but in contemplation of marriage is treated as a marital asset. In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 177-79; In re Marriage of Ohrt (1987), 154 Ill. App. 3d 738, 742; In re Marriage of Reeser (1981), 97 Ill. App. 3d 838, 840; In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 99.

A review of cases in which a home acquired prior to marriage was nevertheless found to have been purchased in contemplation of marriage leads us to conclude that the trial court’s disposition of the Elm Street residence was against the manifest weight of the evidence. In Matters, the couple married in March of the same year in which they purchased the home in question (Matters, 133 Ill. App. 3d at 170-73); they were living together at the time of the purchase and had discussed acquiring a marital home; they both accompanied the real estate agent to view the property for the first time; they both signed the offer to purchase the property, which was purchased in the husband’s name; and funds from both parties contributed both to the down payment and to payments on the mortgage. 133 Ill. App. 3d at 177-78.

In Ohrt, the husband purchased the home in his name two months before the marriage, and only marital funds were used to finance the down payment and the mortgage on the residence; moreover, the husband, who had appealed the finding that the home was marital, had admitted at trial that it was purchased with the idea that it would be the marital residence. (Ohrt, 154 Ill. App. 3d at 741-42.) In Stallings, the home in question was purchased less than two months before the marriage and title to it was taken by both parties as tenants in common. Further, all equity in the property, with the exception of the down payment, resulted from the use of marital funds. Stallings, 75 Ill. App. 3d at 99.

In the instant case, we fail to see how the evidence could have shown that the Elm Street residence was purchased in contemplation of marriage. Even if the trial judge did not accord any credibility to Anthony’s testimony, given his findings relating to the phantom stock agreement, the remaining facts adduced at trial lead us to the conclusion that Karen “failed to sustain her burden of establishing that this property was purchased in contemplation of the parties’ future marriage.” (In re Marriage of Reeser (1981), 97 Ill. App. 3d 838, 840.) More than 15 months elapsed between the purchase of the residence and the Leisners’ engagement; another four months elapsed until the marriage. Moreover, Anthony’s statement testified to by Karen that he wanted some time to pass before they set a timetable for marriage hardly shows that the house was purchased “in contemplation” of marriage, but rather, only that marriage was a possibility, as it would in almost any situation where two unmarried persons agreed to reside together. At most, the evidence shows that at the time the residence was purchased, Karen planned to eventually marry; it fails to show that Anthony had similar plans. The holographic will upon which Karen relies implies only that Anthony contemplated living with Karen for some additional time, not that marriage was contemplated. Finally, unlike the facts in Ohrt and Matters, in which the down payment was made with funds belonging to both parties or by loans for which both parties were responsible, the down payment in the case at bar was paid for with a loan taken from Anthony’s profit-sharing plan with his employer (discussed below). Although Karen and he jointly paid taxes on that loan when they decided in 1987 to treat it as income rather than to repay it, its treatment as joint income at that late date is not probative of the intent of the parties to marry at the time the residence was purchased.

Finally, although some mortgage payments were made with marital funds, “nonmarital property is not transmuted into marital property merely as the result of the use of marital funds to reduce the indebtedness on the property.” (Reeser, 97 Ill. App. 3d at 840.) To the extent that Karen should be reimbursed, as she averred at oral argument, for contributions made to reduce the mortgage and to improve the residence, such issues we leave to be determined on remand. (See In re Marriage of Drennan (1981), 93 Ill. App. 3d 903, 907-08.) Accordingly, we reverse the trial court’s finding that the Elm Street residence was marital property.

Next, we discuss the disputed proceeds from Anthony’s profit-sharing plan with Quality Books. Quality Books had a retirement plan in which Anthony participated. On March 1, 1984, he had a vested interest of $67,721 in a profit-sharing plan and a vested interest of $32,309 in a pension plan, the proceeds of which were merged during the ensuing year into the profit-sharing plan. On February 28, 1985, he had a vested interest of $118,664 in the now-consolidated profit-sharing plan; $10,464 of the increase during the preceding year was due to Quality Books’ contributions, and $8,170 was due to the year’s earnings on the prior balance. On February 28, 1986, Anthony had a vested interest of $166,137 in the plan; $8,222 had been contributed by Quality Books during the preceding year and $39,351 had been earned on the prior balance. On February 28, 1987, Anthony had a vested interest of $210,281 in the plan; $15,826 had been contributed by Quality Books during the preceding year and $28,318 had been earned on the prior balance. On February 29, 1988, Anthony had a vested interest of $208,281 in the plan; $14,417 had been contributed by Quality Books during the preceding year, $10,509 had been earned on the prior balance and $26,400 had been distributed to Anthony. On February 28, 1989, Anthony had a vested interest of $231,090 in the plan; $5,915 had been contributed by Quality Books during the preceding year and $16,368 had been earned on the prior balance. The trial court found that $141,000 of the amount in this plan was a marital asset, as “representing contributions [Anthony] made to the plan during his marriage.” Anthony contends that this finding was against the manifest weight of the evidence, as the trial court had sufficient data from which it should have apportioned the amount earned on the plan during his marriage between that earned on contributions made before the marriage and that earned on contributions made subsequent to the marriage. Karen responds that Anthony failed to present clear and convincing evidence of what portions of the profit-sharing plan should be maintained as nonmarital property, and that, therefore, the court did not err in including as marital property interest earned on nonmarital contributions.

Pursuant to section 503(a)(6) of the Act, the pension and the profit-sharing plan at the time of Anthony’s marriage were his nonmarital properties; nor did the merger of the pension plan into the profit-sharing plan during fiscal year 1985 change either plan’s status. (See In re Marriage of DiAngelo (1987), 159 Ill. App. 3d 293, 296.) The increase during the marriage in the value of the now-consolidated profit-sharing plan, regardless of its source, was also Anthony’s nonmarital property, subject, according to section 503(a)(7) of the Act, “to the right of reimbursement.” (See DiAngelo, 159 Ill. App. 3d at 296.) That right of reimbursement provides:

“Commingled marital and non-marital property shall be treated in the following manner ***: *** (2) When one estate of property makes a contribution to another estate of property ***, the contributing estate shall be reimbursed from the estate receiving the contribution ***; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence ***.” Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2).

DiAngelo, 159 Ill. App. 3d at 296-97.

In DiAngelo, the trial court found all of a profit-sharing account which existed before the marriage to be nonmarital property, but its finding was reversed on the ground that some of the increase in the value of that account during the marriage was the result of the contribution of marital assets. (159 Ill. App. 3d at 297.) In the instant case, the trial court not only properly reimbursed the marital estate for the contributions it made to the profit-sharing plan and for the earnings on those contributions, but also gave the marital estate the increase in the value of the plan which resulted from earnings on what Anthony had contributed prior to marriage, which was not “subject to the right of reimbursement.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(7).) The evidence at trial allowed the trial court to apportion the annual earnings between those monies contributed prior to and subsequent to the marriage; accordingly, its finding that all increase in the value of the plan subsequent to the marriage was marital property was decidedly contrary to the evidence.

Next, Anthony claims that the trial court’s finding that $402,900 received pursuant to the phantom stock agreement was a marital asset was clearly erroneous because the court failed to consider Anthony’s testimony that he had paid approximately $106,500 in taxes on that amount and that he still owed approximately $20,000 in taxes on what he had received. Additionally, he avers that the trial court abused its discretion when, in finding that he “ha[d] dissipated assets,” it failed to specifically find what assets were dissipated and what value they had. Finally, he alleges that the distribution of the marital estate was inequitable because the trial court failed to consider the short length of the marriage and the contribution of each party to the acquisition of the marital property.

Section 503(d) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) states that the court

“shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property ***; *** (3) the duration of the marriage; *** and (11) the tax consequences of the property division upon the respective economic circumstances of the parties.”

We first note that Anthony cites no authority for his proposition that a trial court, when valuing an asset, is required to deduct from that value the amount of taxes which were paid on it; rather, it is required by section 503(d) to consider “the tax consequences of the property division” (emphasis added). Second, because we have reversed some of the findings of the trial court with regard to its classification of assets, we do not believe that any purpose would be served by reviewing the propriety of the court’s overall division of property or whether the record supports the extent to which Anthony’s alleged dissipation of assets may have affected that division. As in In re Marriage of Thacker (1989), 185 Ill. App. 3d 465, 470, in which the appellant “raise[d] arguments pertaining to the trial court’s apportionment of marital debt and to the order requiring him to pay a portion of [his spouse’s] attorney fees[,] *** [o]ur reversal as to the property distribution necessarily will require the trial court to reexamine [those issues] in light of the adjusted financial resources of the parties.”

For the foregoing reasons, we affirm in part and reverse in part the judgment of the circuit court, and remand for further proceedings not inconsistent with the views expressed in this opinion.

Affirmed in part, reversed in part and remanded.

HARTMAN and DiVITO,JJ., concur.

       Although Judge DiVito did not participate in the oral argument had in this case, he has read the briefs, audited the tape made at oral argument, and has otherwise participated in the decision-making process.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    MAURICE COLLINS, A Minor, by his Mother and Next Friend, Margaret Collins, Plaintiff-Appellant, v. ROSELAND COMMUNITY HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—90—0782
    Opinion filed September 17, 1991.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring, William J. Jovan, and Leslie J. Rosen, of counsel), for appellant.
    Winston & Strawn, of Chicago (Neil E. Holmen, Timothy J. Rooney, and Danae K. Prousis, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Maurice Collins brought suit against defendants S.S. Pongched, M.D., Bernard Cantorna, M.D., Edmund Ringus, M.D., Roseland Community Hospital (Roseland), Lawrence Lilien, M.D., and County of Cook (Cook County) for injuries allegedly sustained due to the several defendants’ negligence during his birth. A jury returned a verdict of $3.5 million against Dr. Cantorna and Dr. Ringus, and found the remaining defendants not liable. Plaintiff appeals the jury’s verdict in favor of Roseland, Dr. Lilien, and Cook County (jointly defendants), contending that (1) the circuit court erred in allowing certain of Dr. Lilien’s testimony; (2) a defense expert’s testimony should not have been admitted; (3) the verdict in favor of Dr. Lilien, Cook County, and Roseland was inconsistent with the verdict against Dr. Cantorna; (4) the verdict in favor of Dr. Lilien, Cook County, and Roseland was against the manifest weight of the evidence; (5) certain medical expenses of plaintiff were erroneously barred; and (6) the damage award was palpably inadequate and reflected jury passion and prejudice.

At approximately 9:30 p.m. on July 8, 1977, when Margaret Collins was admitted to Roseland, she was in the early stages of labor; her bag of water was intact; and her cervix was dilated two centimeters. At approximately 11 p.m., the nurses at Roseland routinely connected her to an external fetal monitor, which charts the infant’s heartbeat and the uterine contractions of the mother. At 2:20 a.m. the next day, the fetal monitor was disconnected.

In 1977, the hospital standard of care was to monitor fetal heart beats every 30 minutes in the first stage of labor either manually by fetoscope or electronically. Collins’ medical chart contained normal fetal heart tone readings at 2:20 a.m. and 5:50 a.m. The practice at Roseland was not to chart every heart tone taken unless there was an abnormality.

At 6:05 a.m. on July 9, 1977, Collins gave birth to plaintiff. The delivery, performed by Dr. Pongched, the obstetrician on staff at Roseland, was a normal, vaginal delivery; however, at birth, plaintiff’s head and face were covered with meconium.

After plaintiff’s head emerged, Dr. Pongched wiped plaintiff’s face, nose, and mouth with gauze; he then used a ball syringe to suck mucous from plaintiff’s nose and mouth; lastly, he used a DeLee suction catheter to go deeper inside plaintiff’s throat to remove as much of the meconium amniotic fluid as possible. After plaintiff fully emerged from the uterus, Dr. Pongched used a laryngoscope to see deeper inside his throat and used an endotracheal tube to go beyond his vocal cords. He continued using the DeLee suction catheter to empty plaintiff’s stomach contents. The procedures performed by Dr. Pongched were necessary to prevent the meconium from entering plaintiff’s lungs, which otherwise could obstruct air and become caustic if inhaled.

After the delivery, Dr. Pongched found plaintiff to be in satisfactory condition; however, he asked Mary Doles, the nurse assisting the delivery, to contact a pediatrician because plaintiff might have aspirated some meconium. As a routine procedure, Doles entered plaintiff’s Apgar scores of 3 at one minute and 6 at five minutes. At both one minute and five minutes, plaintiff received a score of 1 for color, which means that the infant’s body is pink but his extremities are blue, a condition known as acrocyanosis.

At 6:20 a.m., when plaintiff was admitted to the nursery, he was in an isolette with oxygen running at 48%, in stable condition; however, Charlene Dugan, the nurse in charge of the nursery at Roseland, noted that plaintiff was “cyanotic,” his cry was weak, and he appeared lethargic. At 7 a.m., Dugan called Dr. Cantorna, a pediatrician on staff at Roseland. Thereafter, at 8 a.m., Dugan charted plaintiff’s vital signs; his weight was 7 pounds 6 ounces, his temperature was 97.6 degrees, and his respirations were 64.

At 9 a.m., Dr. Cantorna examined plaintiff in the nursery and concluded that he was in a somewhat depressed condition; his heart rate was normal, his respirations were slightly high, and he had slight cyanosis. Dr. Cantorna ordered a chest X ray, the result of which was communicated to him over the phone by Dugan at 10:15 a.m. The X-ray report prepared by Dr. Ringus, a radiologist, recorded: “The heart is of normal size. There are patchy infiltrates in the right lower lobe. A bronchogram is also seen in the right lower lobe. There is also a thickening of bronchovascular markings in the left lobe. The findings are consistent with either neonatal atelectasis or aspiration pneumonia.” Dr. Ringus failed to detect and diagnose a pneumothorax, or rupture in plaintiff’s lungs, which causes air to escape and may collapse the lungs. A pneumothorax was later identified in the X ray.

In addition to reading the X-ray report to him, Dugan told Dr. Cantorna that plaintiff was on 50% oxygen and was having some respiratory difficulty, but that his condition basically had not changed. Dr. Cantorna gave no further orders to the nurses nor did he examine plaintiff again. Dugan wrote in plaintiff’s chart that he was “having respiratory difficulty. Oxygen turned up to 50 percent concentration.” At 10:30 a.m., plaintiff’s chart reflected that his color appeared “cyanotic” and he was “gasping and having grunting respirations.” At 11:10 a.m., Dugan noted that plaintiff’s pulse was 168, his respirations were 100, and he was having slight retractions, meaning that his chest was heaving slightly.

At 11:45 a.m., Dugan called Dr. Cantorna and advised him that plaintiff’s respirations had increased; Dr. Cantorna then ordered plaintiff’s transfer to Cook County Hospital (County) because Rose-land did not have the equipment required for intensive care. At 11:50 a.m., Dugan called County, reporting that plaintiff was cyanotic, grunting, and lethargic, and had a weak cry. Dugan’s last note on plaintiff, at 1:40 p.m., stated that plaintiff was in “apparently poor condition” and that he was cyanotic and lethargic.

At 1:10 p.m., County’s transport team, headed by Dr. Lilien, arrived at Roseland. Dr. Lilien examined plaintiff there to see if he was centrally pink; he also checked plaintiff’s temperature and examined his lungs and heart. Dr. Lilien also viewed plaintiff’s chest X ray taken earlier that morning and noticed that it showed a pneumothorax; he did not order an additional X ray, but rather relied on plaintiff’s color, which was centrally pink. Although Dr. Lilien diagnosed a pneumothorax from plaintiff’s X ray, no additional treatment was required while his color remained centrally pink. Dr. Lilien placed him in a transport isolette, showed him to his mother, and explained his condition to her. At 1:40 p.m., County’s transport team left Roseland with plaintiff.

At 2:20 p.m., plaintiff arrived at County’s Neonatal Intensive Care Unit. Upon his arrival, plaintiff was receiving 60% oxygen, was experiencing moderate respiratory distress, and had a small pneumothorax. Soon thereafter, plaintiff’s condition worsened; his pneumothorax increased, his color became worse, turning centrally blue, and his left chest started to bulge with a tension pneumothorax. As treatment, Dr. Lilien “needled” plaintiff’s chest to drain the air from the left side in order to relieve the tension pneumothorax. After plaintiff’s condition did not improve, Dr. Lilien used an Ambubag to force air into plaintiff’s nose and mouth and to expand his lungs; he intubated, or passed a tube into, plaintiff’s windpipe; he inserted a chest tube; and he placed a nasogastric tube in plaintiff’s nose and stomach. Plaintiff also was placed on a ventilator; however, he still appeared blue and he developed pulmonary hypertension. By 11 p.m., plaintiff had suffered seizures and had become bluer. By 3 a.m. on July 10,1977, plaintiff’s oxygen level had stabilized.

As a result of his post-birth medical problems, plaintiff was diagnosed as having developmental delay secondary to birth anoxia, or inadequate oxygen supply. He suffers from severe physical and mental handicaps; at age 11, he was first learning to read and he could move about only by scooting on his hands and knees.

On July 31, 1979, plaintiff first filed his complaint against the several defendant doctors and hospitals. At trial, he called several expert witnesses who testified that defendants deviated from the medical standard of care. Dr. Robert Brouilette, plaintiff’s neonatology expert, testified that Dr. Lilien deviated from the standard of care in transporting plaintiff to County without first taking an X ray or other pretransfer steps to determine the extent of plaintiff’s pneumothorax. Nurse Constance Dennis and Robert Matview, M.D., testified for plaintiff that Roseland’s nurses deviated from their standard of care in not monitoring Collins prior to plaintiff’s birth and in failing to monitor plaintiff’s condition. Defendants offered countervailing expert testimony.

On February 8, 1989, the jury returned a verdict of $3.5 million against Dr. Cantorna, the pediatrician at Roseland, and Dr. Ringus, the radiologist at Roseland. The jury found on behalf of Roseland; Cook County; Dr. Pongched, the obstetrician at Roseland; and Dr. Li-lien, the head of the transport team from County.

On June 2, 1989, the circuit court approved a post-trial settlement between plaintiff and Dr. Cantorna, Dr. Ringus, and Dr. Pongched in the amount of $2.2 million. On July 20, 1989, the verdict and judgment against Dr. Cantorna and Dr. Ringus was dismissed with prejudice.

Plaintiff appeals only from the verdict in favor of Dr. Lilien, Rose-land, and Cook County.

I

Plaintiff initially contends that the circuit court erred in admitting portions of Dr. Lilien’s testimony, specifically, his routine habit and practice and his care of plaintiff in violation of an in limine order. Moreover, plaintiff asserts, throughout Dr. Lilien’s testimony as an adverse witness and on direct examination in his case in chief, he never testified from memory or from refreshed recollection.

In response, Dr. Lilien contends that he properly testified as to his routine and habit and, further, that such evidence was offered into evidence by plaintiff himself during his examination of Dr. Lilien as an adverse witness and was not in violation of the in limine order. Dr. Lilien additionally maintains that he did indeed testify from memory and from refreshed recollection.

Plaintiff points to numerous instances in the record which, he alleges, indicate that Dr. Lilien’s memory was not refreshed. Dr. Li-lien’s answer to the question of whether he had “any independent recollection of” plaintiff’s treatment was “I know what I did for [plaintiff], but I can’t independently recollect what happened 12 years ago.” Again, after being asked as an adverse witness whether “the chart does not, again, refresh your independent recollection,” Dr. Li-lien responded, “That’s correct.” While on direct examination in his case in chief, Dr. Lilien was asked whether he had an opinion as to what he did for plaintiff based upon a review of his records; Dr. Li-lien’s response was “I know what I did.” After being asked, “[D]o the records refresh your recollection as to what you did for [plaintiff],” Dr. Lilien responded that “It tells me what I did. I could tell you what I did based on the records.” Dr. Lilien’s response was not accepted by plaintiff’s counsel, who continued to object on the basis that Dr. Lilien’s memory was not refreshed. When asked by the court whether the records refreshed his recollection, Dr. Lilien responded that “I don’t understand all this legal stuff. I could tell you that I know what I did.” Finally, after being asked again whether a review of the records refreshed his recollection, Dr. Lilien answered, “I could tell you what I did. If that’s a recollection then I guess it does.” After these several attempts to elicit the language that his “recollection was refreshed,” the court accepted Dr. Lilien’s testimony.

Plaintiff maintains that the above instances prove that Dr. Li-lien’s recollection was not refreshed. He argues that Dr. Lilien “dodged the question” and the court became “confused.” It is apparent that both the attorneys and the court had some difficulty getting Dr. Lilien to say the precise words; however, the gist of Dr. Lilien’s circuitous responses was that he could tell what he had done for plaintiff after looking at the records. Clearly, the court, in its discretion (see People v. Ryan (1984), 129 Ill. App. 3d 915, 917, 473 N.E.2d 461), properly held that his recollection was refreshed.

Plaintiff also contends that Dr. Lilien’s testimony as to his habit and routine was improperly admitted; however, testimony concerning his routine and customary practice was first elicited by plaintiff while Dr. Lilien was an adverse witness. Evidence of routine or habit is admissible to prove that the conduct of the person was in conformity with habit or routine practice. (Wasleff v. Dever (1990), 194 Ill. App. 3d 147, 154-55, 550 N.E.2d 1132; Webb v. Angell (1987), 155 Ill. App. 3d 848, 859, 508 N.E.2d 508.) “[H]abit testimony is relevant and the only limitations imposed on its admission have been on the basis of necessity.” (Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill. 2d 471, 475-76, 505 N.E.2d 331.) Plaintiff himself initially introduced the evidence of which he complains and, thus, cannot now allege error. Millette v. Radosta (1980), 84 Ill. App. 3d 5, 23, 404 N.E.2d 823; see Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 949, 408 N.E.2d 970.

In addition to the previously discussed alleged errors in the admission of Dr. Lilien’s testimony, plaintiff contends that Dr. Lilien violated the court’s in limine order prohibiting him from testifying that since he had shown plaintiff to his mother, plaintiff must have been pink, because his practice was not to show centrally blue infants to their mothers. Although plaintiff urges this court to find prejudicial error, he has not offered any instances which would show that Dr. Li-lien violated the order.

Plaintiff points to several portions of the record, none of which show that Dr. Lilien violated the in limine order. All those portions do show is that while being examined as an adverse witness, Dr. Li-lien testified that he made sure an infant was warm and pink before transfer and he would check an infant’s tongue to see if it was centrally pink.

In order to be entitled to a new trial based on errors in the admission of evidence, the party alleging the errors must demonstrate that the circuit court abused its discretion and the evidence resulted in prejudice. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 414, 476 N.E.2d 1232.) Here, plaintiff has failed to point to any evidence which was introduced erroneously or which prejudiced his trial; he cannot complain of errors he himself committed, invited, or induced. In re Estate of Bania (1984), 130 Ill. App. 3d 36, 39, 473 N.E.2d 489.

II

Plaintiff next urges that the circuit court erred in allowing the testimony of Dr. Carl Hunt, Dr. Lilien’s expert witness, because it was improperly based upon his own personal habit and routine and how he would have acted in similar circumstances. Plaintiff further argues that Dr. Hunt’s testimony was improperly based upon Dr. Li-lien’s testimony. Plaintiff’s assertion, however, is a mischaracterization of the record.

When asked about the significance of Roseland’s records, Dr. Hunt explained that they helped him get a mental image of plaintiff’s status during his treatment. Dr. Hunt explained further that, “If the baby were in some kind of acute distress requiring some kind of acute emergency treatment, I as the neonatologist or any neonatologist would not take the extra time to go in and talk with the mother, show the baby to the mother and do those kind of steps.” (Emphasis added.) Although Dr. Hunt did refer to what he, as a neonatologist, would have done, he specifically stated what “any neonatologist” would have done; however, in his brief, plaintiff omits the italicized portion of Dr. Hunt’s testimony and plaintiff’s attempt to portray Dr. Hunt’s testimony as improper fails. Nothing in the record shows that Dr. Hunt relied on anything but the hospital records. Further, plaintiff’s assertion that Dr. Hunt relied on Dr. Lilien’s testimony is not borne out by the record.

“[GJreat liberality is allowed the expert in determining the basis of his opinions ***. Whether an opinion should be accepted is not for the trial judge. That is for the finder of fact.” (Melecosky v. McCarthy Brothers Co. (1986), 115 Ill. 2d 209, 216, 503 N.E.2d 355, citing Mannino v. International Manufacturing Co. (6th Cir. 1981), 650 F.2d 846, 853.) Expert opinions based upon the records of other doctors and hospitals are proper. (Wilson v. Clark (1981), 84 Ill. 2d 186, 194, 417 N.E.2d 1322.) The admission of evidence rests within the sound discretion of the circuit court and will not be reversed absent an abuse of that discretion (Swaw v. Klompien (1988), 168 Ill. App. 3d 705, 715, 522 N.E.2d 1267). We find that the circuit court did not err in admitting Dr. Hunt’s testimony.

Ill

Plaintiff next asserts that defendants’ verdict was inconsistent with the verdict against Dr. Cantorna. Specifically, plaintiff maintains, in returning a verdict against Dr. Cantorna, the jury had to determine that plaintiff’s condition at Roseland was not stable; similarly, in reaching a verdict in favor of defendants, the jury must have determined that plaintiff’s condition was stable while he was at Roseland. Thus, plaintiff asserts, the verdicts are inconsistent.

Defendants maintain that different theories of liability were advanced against each of the separate defendants and different standards of care were applied to each defendant. Thus, while the jury found Dr. Cantorna negligent, it did not find that Dr. Lilien, Rose-land, or Cook County had violated their respective standards of care. Further, defendants argue that because the jury found one defendant liable while finding the others not liable does not mean that the jury’s verdict was inconsistent. Rather, defendants contend, the jury simply found that plaintiff had not met his burden of proof against Dr. Lilien, Roseland, and Cook County.

Where verdicts which are legally inconsistent are returned in the same action, they must be set aside and a new trial granted. (Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311, 316, 472 N.E.2d 411; Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 1046, 495 N.E.2d 141; Kimmel v. Hefner (1962), 36 Ill. App. 2d 137, 183 N.E.2d 13.) Unlike the cases cited by plaintiff, we find that the verdicts in the instant case are not inconsistent. The evidence adduced at trial here established that plaintiff was cared for by a number of different health professionals during his treatment at Roseland and at County, requiring differing degrees of care and subject to differing standards of care. After hearing the testimony of numerous witnesses and experts at trial, the jury chose to find one of the defendant doctors, Dr. Cantorna, liable for plaintiff’s injuries. As plaintiff himself argues, the jury’s verdict against Dr. Cantorna “could only have been for his failing to return to the nursery and treat [plaintiff] or to have him transferred.” Simply because the jury found Dr. Cantorna liable does not mean that all other doctors and nurses who treated plaintiff were also liable.

Nor does a finding against Dr. Cantorna mean that plaintiff’s condition while at Roseland’s nursery was not stable. Both Nurse Dugan and Dr. Lilien testified that plaintiff’s condition while at Roseland was stable and that he was centrally pink. Further, plaintiff’s expert witness, Dr. Brouilette, admitted that even if plaintiff had been stable and centrally pink in Roseland’s nursery (a fact upon which defendants rely), Dr. Cantorna should have transferred plaintiff to a tertiary care center where blood gas tests could have been taken and where plaintiff could have been monitored by a neonatology team skilled at handling respiratory problems. The evidence presented at trial showed that plaintiff was centrally pink while at Roseland and when he arrived at County. Testimony established that if plaintiff was centrally blue, he needed more treatment than was given; however, if plaintiff was centrally pink, he needed no additional treatment than was given by Dr. Lilien, Roseland, and County.

The jury, after weighing the large volume of evidence presented from witnesses and experts, found that Dr. Cantorna’s negligence proximately caused plaintiff’s injuries. The jury, supported by the evidence at trial, further found that Dr. Lilien, Roseland, and Cook County were not liable. Both findings are consistent with the evidence at trial; consequently, we find that the verdicts are not inconsistent.

IV

Plaintiff next asserts that the jury’s verdict was against the manifest weight of the evidence. Specifically, plaintiff maintains that the evidence adduced at trial established that Dr. Lilien was negligent in failing to order additional X rays after diagnosing a pneumothorax and that Roseland’s nurses were negligent in failing to properly treat plaintiff’s respiratory problems. Plaintiff thus argues that the verdict in favor of Dr. Lilien, Roseland, and Cook County was unwarranted by the evidence presented at trial.

A jury verdict is contrary to the manifest weight of the evidence only if wholly unwarranted by the evidence; a verdict should not be set aside, however, merely because the jury could have drawn different inferences and conclusions from conflicting testimony. (Poulakis v. Taylor Rental Center, Inc. (1991), 209 Ill. App. 3d 378, 384, 568 N.E.2d 196; Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 996, 520 N.E.2d 881.) A verdict is deemed to be against the manifest weight of the evidence when “an opposite conclusion is clearly apparent or when the finding of the jury appears arbitrary and unsubstantiated by the evidence.” United States Department of Housing & Urban Development v. Anderson (1988), 178 Ill. App. 3d 752, 754, 533 N.E.2d 919.

In the instant case, there was evidence at trial which could have supported both plaintiff’s and defendants’ positions. Both parties presented the testimony of qualified expert witnesses. Here, as in most malpractice cases, where the parties offer conflicting medical testimony regarding the applicable standard of care, the jury is uniquely qualified to resolve the conflicts. (See Piano v. Davison (1987), 157 Ill. App. 3d 649, 666, 510 N.E.2d 1066.) We will not substitute our judgment for that of the jury where, as here, no clear indication exists that the jury’s verdict was arbitrary or unsubstantiated by the evidence. The jury’s verdict, supported by the testimony of witnesses and experts at trial, was not against the manifest weight of the evidence.

Because of our disposition of the issues we have addressed, we need not address the last two issues raised by plaintiff, both of which relate to alleged errors concerning damages.

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

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.

      Meconium is the infant’s stool while in the womb. Its presence at birth may indicate that the infant suffered some type of distress prior to delivery.

      Apgar scores measure an infant's respiration, color, heart rate, muscle tone, and reflexes. Each of these five categories is scored either 0, 1, or 2, 0 being the worst and 2 being the best. The total scores of each of the five categories are then added to reflect the total Apgar score, 10 being the best score.

      There are two types of cyanosis; the first is central cyanosis, meaning the infant’s entire body is blue, and the second is acrocyanosis, meaning only the extremities are blue. Dugan testified that she used the term “cyanotic” to denote acrocyanosis, which requires no extraordinary treatment and is not a serious condition.

      A tension pneumothorax is an accumulation of air between the lungs and the chest wall of such volume that the pressure inside the heart increases. This pressure causes the lung on the one side to collapse; moves the heart to the other side; and, if great enough, interferes with the function of the other lung.


author: PRESIDING JUSTICE LORENZ

text:
    HUGH J. HANLON, JR., Adm’r of the Estate of Hugh J. Hanlon III, Deceased, Plaintiff-Appellee, v. AIRCO INDUSTRIAL GASES et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—2037
    Opinion filed September 20, 1991.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Algimantas P. Kezelis, Michael J. Ross, and Russell P. Veldenz, of counsel), for appellants.
    Michael J. McArdle, Chartered, of Chicago (Michael J. McArdle, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

After Hugh J. Hanlon III was killed in a construction accident, plaintiff, the administrator of his estate, filed suit for wrongful death based on a theory of strict products liability. Following a jury trial, a verdict was returned in favor of plaintiff in the amount of $300,000. Defendants appeal and contend that: (1) the trial court erred when it entered a directed verdict in favor of plaintiff on defendants’ affirmative defense of assumption of the risk; (2) the trial court abused its discretion making several evidentiary rulings over the defendants’ objections; and (3) the trial court abused its discretion by submitting three jury instructions over the defendants’ objections.

We reverse and remand for a new trial with directions.

Relevant to our disposition are the following facts as disclosed by the record. On August 23, 1978, Hugh J. Hanlon III (Hanlon) was killed in a construction accident in downtown Joliet, Illinois. He was killed when a pressurized gas tank exploded while he and a co-worker were attempting to spray some newly laid cement with a curing compound intended to prevent the cement from cracking.

The P.T. Ferro Construction Company (Ferro), Hanlon’s employer, devised a setup consisting of two tanks with connecting apparatus to spray the curing compound. One tank contained 2,200 pounds of compressed nitrogen gas. A regulator with two gauges was connected to the discharge valve of the nitrogen tank. One gauge indicated the amount of nitrogen gas contained in the tank, and the other gauge indicated the amount of nitrogen gas being released from the tank. The pressure from the nitrogen tank could be adjusted by turning a T-handle located between the gauges. When turned completely on, a maximum of 200 pounds per square inch of pressure could be released through the regulator.

A four-foot rubber hose connected the nitrogen tank regulator to another, smaller tank which contained the curing compound. The four-foot rubber hose entered the compound tank at the top through a plug. Another 15-foot hose with a spray nozzle was attached to the bottom of the compound tank. The setup, therefore, allowed the nitrogen gas to enter the compound tank and propel the curing compound into the 15-foot hose and onto the cement. The entire setup had been placed on a movable cart.

Both tanks contained built-in devices which were intended to prevent the pressure from exceeding certain levels. Ferro maintained the nitrogen tank device at 18 pounds per square inch, substantially lower than the regulator’s 200-pound-per-square-inch maximum capacity. The nitrogen tank device, however, was not intended to protect against an excess of pressure after the nitrogen entered another holding tank, which in this case was the compound tank. There was no testimony concerning the setting on the compound tank device. Also, the exact capacity of the galvanized steel compound tank itself was not known either before or after the explosion because it was not a “coded vessel.” It was agreed at trial, however, that its capacity was, in light of the explosion, incompatible for the nitrogen tank.

The setup had been used at the site for the two weeks prior to the explosion. On the day of the explosion, Mike Riddle, a Ferro employee, and Edward Butler, a cement mason, prepared the setup for spraying.

In the past, Ferro had used a single tank with a manual air pump to spray the curing compound. In this instance, both Riddle and Butler testified that they believed the nitrogen tank contained oxygen instead of nitrogen. Both stated that no labels, markings, or warnings appeared on the nitrogen tank. An engineer for defendant Aireo Industrial Gases (Aireo), however, testified that the nitrogen tank at one time had a label indicating its contents but the label wore off over time.

Both Riddle and Butler knew that the T-handle controlled the amount of pressure released from the nitrogen tank and that Ferro had a rule that the T-handle was not to be turned to allow more than 15 pounds per square inch of pressure out of the tank. The rule was intended for the workers’ safety.

Shortly before lunch, Butler unwound the 15-foot hose from around the cart and attempted to spray the curing compound. The setup did not work. Butler and Riddle decided to troubleshoot the problem. Riddle first turned the T-handle to shut off the pressure in the nitrogen tank. He admitted that he did so to maintain safety. Butler then unscrewed the nozzle from the 15-foot hose to check for any obstruction. Butler tried to spray again but the problem persisted.

Hanlon, who had recently been promoted to labor foreman for Ferro, arrived to help with the problem. He told Riddle to go to lunch. He then gave Butler some vice grips to loosen the plug on the top of the compound tank in order to “bleed” the existing pressure from the compound tank. Butler first checked to see that the T-handle on the nitrogen tank regulator was in the off position. Then, as the pressure in the compound tank escaped, the plug “popped” to the ground. Butler picked up the compound tank and shook it to loosen any obstruction. He then reconnected the regulator to the plug, turned the T-handle and heard the nitrogen gas go into the compound tank. He was still unable to spray the curing compound. He turned to tell Hanlon of this and saw Hanlon reaching for the T-handle. Butler gave inconsistent testimony whether Hanlon was actually turning the T-handle. Butler warned Hanlon, “Don’t touch that. It’s supposed to be set.”

Butler turned and bent down to grab the nozzle end of the 15-foot hose, which was on the ground. At that point the compound tank exploded. Butler remembered hearing yelling and he fell to the ground. Hanlon, who had been standing next to the compound tank, was killed in the explosion. Butler was injured and taken to the hospital. The compound tank, which shot like a rocket into the air, was found on the roof of a nearby, two-story building. The investigation after the explosion revealed that the T-handle on the nitrogen tank had been turned completely on.

Defendant Aireo manufactured the nitrogen tank and the regulator. Defendant Kenwald Welding & Supply Company, Inc. (Kenwald), was Airco’s distributor for the Joliet area. Kenwald had a machine which converted liquid nitrogen into gas. This machine was used to fill and refill Airco’s nitrogen tanks according to the needs of Airco’s clients.

Hanlon’s second-amended complaint alleged, in part, that the nitrogen tank was unreasonably dangerous for its intended use because it failed to bear the appropriate warnings which should have (1) identified the contents of the tank and (2) warned users that the tank contained high pressure gas and that it should not be connected to a low pressure tank.

At trial, Robert J. Stanis, a consulting engineer, testified that gas under high pressure is inherently dangerous because it can expand suddenly and catastrophically if it is inappropriately let go from its container. He testified further that because the hazard cannot be designed out of the product, the only alternative is to affix to the product a statement of the hazard to enable the user to take precautionary measures. In this case there was no dispute that the nitrogen tank contained no warning that it should not be connected to a low pressure tank.

Edward Holmes, another consulting engineer, testified for the defendants that the nitrogen tank presented an open and obvious danger; that the shape of a pressurized gas tank is unique and everybody recognizes that such tanks contain high pressure gas; that the presence of the regulator on the nitrogen tank made it obvious that the tank contained high pressure gas; and. that the gauges actually indicated the amount of pressure in the tank and the amount of pressure being released from the tank. In his opinion, the nitrogen tank’s failure to contain warnings did not make it unreasonably dangerous as long as the user knew what was in the tank and how to use it.

During trial, the trial court made several evidentiary rulings over the defendants’ objections. The court admitted into evidence three photographs of the construction site after the explosion. The bodies of Hanlon and Butler were visible in each photograph. Hanlon’s income tax returns for the years prior to his death were also admitted into evidence for the purpose of establishing lost future income as an element of damages. The trial court also permitted a line of questioning by plaintiff’s counsel directed at Riddle and Butler concerning whether they knew that the setup was dangerous on the day of the explosion. Finally, the court allowed the testimony of various witnesses concerning certain industry recommendations for the labeling of pressurized gas. These recommendations were contained in a text published in 1981, three years after the date of the explosion.

At the conclusion of the evidence, the attorneys argued the issue of defendants’ affirmative defense of assumption of the risk. The trial court entered a directed verdict in favor of plaintiff on the defense.

The defendants objected to three jury instructions given by the trial court. The first instruction listed lost future income as an element of damages. Defendants objected to this instruction on the ground that there was no evidence with which to measure plaintiff’s future income.

The second and third instructions objected to by defendants essentially addressed the defendants’ failure to warn. One of these instructions stated:

“The plaintiff claims that Hugh Hanlon, III, was fatally injured while using the [nitrogen tank] and that there existed in the [nitrogen tank] at the time it left the control of the defendants a condition which made the [nitrogen tank] unreasonably dangerous in one or more of the following respects in that it:
1. Failed to have an identifying label: NITROGEN;
2. Failed to bear the signal word: CAUTION;
3. Failed to bear a warning: HIGH PRESSURE;
4. Failed to bear a precautionary statement: USE ONLY WITH EQUIPMENT COMPATIBLE WITH THIS PRODUCT.
The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.
AIRCO denies that the [nitrogen tank] was ever in its control;
KENWALD denies that any of the claimed conditions existed in the [nitrogen tank] at the time the [nitrogen tank] left its control;
Both defendants deny that any claimed condition of the [nitrogen tank] was unreasonably dangerous; and both defendants deny that any claimed condition of the [nitrogen tank] was a proximate cause of plaintiff’s injuries.”

The other instruction stated:

“On the day of August 23, 1978, the Compressed Gas Association, in its Compressed Gas Association pamphlet C-7, dated 1976, had recommended the following standard:
All nitrogen cylinders should contain the following warning: NITROGEN, NON-FLAMMABLE, HIGH PRESSURE,
USE ONLY WITH EQUIPMENT COMPATIBLE WITH THIS PRODUCT.
If you ladies and gentlemen decide that the defendants Aireo Industrial Gases and Kenwald, Inc. failed to comply with this recommendation, you may consider that fact with all the other facts and circumstances in evidence in determining whether or not the lack of such warning rendered the nitrogen gas cylinder unreasonably dangerous on the date of death of plaintiff’s decedent.”

Defendants objected to these instructions, in part, on the ground that they were non-Illinois Pattern Jury Instructions (IPI).

At the conclusion of the trial, the jury returned a verdict in favor of plaintiff in the amount of $300,000. The trial court entered judgment on the verdict and denied the defendants’ post-trial motions. This timely appeal followed.

Opinion

ASSUMPTION OF THE RISK ISSUE

In the context of a wrongful death case based on strict products liability, the affirmative defense of assumption of the risk requires proof of a deliberate decision by the decedent to encounter a known risk, or a willingness on the part of the decedent to take a chance. (Clark v. Crane Carrier Co. (1979), 69 Ill. App. 3d 514, 387 N.E.2d 871.) The courts apply a subjective standard rather than a reasonable person standard to determine whether the decedent was aware of the known risk. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 513 N.E.2d 958.) However, a showing of the decedent’s awareness is not limited to direct evidence but may also include circumstantial factors like the decedent’s age, experience and knowledge; whether a decedent was aware of the known risk is to be deduced from the totality of the evidence. (Campbell v. Nordco Products (7th Cir. 1980), 629 F.2d 1258.) In light of this, a determination of whether a decedent assumed the risk is ordinarily a question for the jury. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Finally, the affirmative defense of assumption of the risk no longer completely bars recovery; instead, the misconduct will be compared in the apportionment of damages. Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.

Although the burden of proof for this affirmative defense is on the defendant, we must view the evidence relevant to the trial court’s directed verdict in the light most favorable to the defendants. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Defendants argue that the following evidence, viewed in the light most favorable to them, shows that Hanlon made a deliberate decision to encounter a known risk or was willing to take a chance. There was no dispute that the setup was not functioning the day of the explosion. Instead of returning the setup for repairs, Hanlon and his coworkers attempted to troubleshoot the problem. The workers were careful to turn off the nitrogen pressure each time they disassembled the setup in order to maintain safety. Thus, the workers knew that by troubleshooting the problem there was a risk of injury.

Ferro had a rule that the T-handle should not be turned to allow more than 15 pounds per square inch of pressure out of the tank. All Ferro employees were aware of this rule. However, Butler’s testimony, when viewed in the light most favorable to the defendants, shows that Hanlon was touching the T-handle right before the explosion. After the explosion, the T-handle was found turned completely on. Although Hanlon’s brief argues that there was no indication that violating the rule would cause a severe explosion, evidence of a violation indicates, at least, that Hanlon was willing to take a chance.

Furthermore, a consulting engineer retained by defendant Kenwald testified that it was his opinion the nitrogen tank presented an open and obvious danger. The engineer testified that the shape of a gas tank is unique and everybody recognizes that such tanks contain high pressure gas; that the presence of the regulator on the nitrogen tank made it obvious that the tank contained high pressure gas; and that the gauges actually indicated the amount of pressure in the tank and the amount of pressure being released from the tank.

Finally, everyone who had knowledge of Hanlon and his work testified that he was a careful, conscientious, experienced cement worker. In fact, Hanlon had been recently promoted to foreman. The setup itself had been used at the particular site for at least two weeks prior to the explosion.

In light of the totality of this evidence, when viewed in the light most favorable to the defendants, we hold that the record sufficiently raised the question whether Hanlon made a deliberate decision to encounter a known risk or had a willingness to take a chance. We are also reminded again that a determination of whether a decedent assumed the risk is ordinarily a question for the jury. Therefore, the trial court erred by entering a directed verdict on the defendants’ affirmative defense of assumption of the risk. At the new trial, defendants are to be allowed to present this affirmative defense and the jury should be instructed accordingly.

Before leaving this issue, it is necessary to distinguish one case upon which the trial judge apparently relied upon in entering the directed verdict. In King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 513 N.E.2d 958, the injured plaintiff was using a meat-mixing machine at the defendant company when he saw a coworker put his hand on the power switch across the room. With the mistaken belief that the co-worker had turned the machine’s power off, the plaintiff put his hand into the machine and lost four fingers. The machine itself had no visual indicator showing whether the power was on or off. The trial judge disallowed the defendant’s assumption of the risk defense stating that there was no evidence presented to prove that the plaintiff deliberately decided to encounter a known risk. The appellate court affirmed. Here, although the nitrogen tank had no warnings or labels, it did have a regulator with gauges indicating the amount of pressure being released from the tank. Also, although Hanlon was at all times aware of Ferro’s rule, there is evidence that Hanlon violated this rule. Finally, there was evidence that the danger of explosion was open and obvious. We find that these facts distinguish this case from the King case relied upon by the trial judge.

EVIDENTIARY RULINGS ISSUE

The determination whether evidence is admissible rests in the discretion of the trial court, and the exercise of such discretion will not be disturbed on review unless it has been clearly abused. Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 496 N.E.2d 1024.

The trial court admitted into evidence over the defendants’ objections certain photographs of the construction site after the explosion. The bodies of Hanlon and Butler were visible in the photographs. The defendants argue that these pictures should not have been admitted into evidence because the gruesome and inflammatory nature of the pictures outweighed their probative value.

In Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228, the Illinois Supreme Court held that if photographs of a decedent in a wrongful death case have sufficient probative value, they should be admitted in spite of their gruesome or inflammatory nature. There, the court affirmed the trial court’s admission of morgue photographs of the decedent taken after a traffic accident. The court also emphasized that a decision on the admission of photographs rests within the broad discretion of the trial court.

Here, the photographs had some probative value because they helped the jury understand the scene at the construction site and the force of the explosion. Accordingly, we hold that the trial court did not abuse its discretion by admitting into evidence the photographs in question.

The trial court also admitted into evidence Hanlon’s income tax returns for the years prior to his death. Defendants argue that the past income tax returns were not relevant toward establishing lost future income. Defendants add that there was no evidence presented on the wages of an average cement mason and any measure of future income would be purely speculative.

A jury may consider what a decedent earned or might reasonably be expected to earn in the future in measuring future income. (Harris v. Day (1983), 115 Ill. App. 3d 762, 451 N.E.2d 262.) In Harris, a minimal wage rate for an injured high school graduate with two years of college was used to measure future income despite the defendant’s argument that the rates were speculative. In our case, the income tax returns were, even less speculative because they represented what Hanlon actually earned. Accordingly, we hold that the trial court did not abuse its discretion by admitting into evidence Hanlon’s past income tax returns.

Defendants objected to a line of questioning directed to Riddle and Butler concerning whether they knew that the setup was dangerous on the day of the explosion. Defendants reason that “by asking the witnesses if they thought the system was dangerous, plaintiff asked the witnesses to testify [as experts] to whether or not the product in question had an unreasonably dangerous defect.” This seems to be a rather specious objection. The questioning concerning whether these workers had knowledge of a danger (thereby suggesting whether Hanlon had such knowledge) applies to the issue of the defendants’ assumption of the risk defense. Therefore, for the reason that the questioning was relevant to defendants’ affirmative defense, we hold that the trial court did not abuse its discretion by allowing the testimony.

The trial court also allowed the introduction of testimony concerning certain industry recommendations contained in a text published in 1981. Defendants rely on Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 368 N.E.2d 1299, and argue that where a plaintiff seeks to introduce testimony of industry standards published years after the time of the injury, but there is no showing that the industry standards were in effect at the time of the injury, introduction of the testimony is error. Here, defendants argue that the 1981 industry recommendations were not relevant “in time” because the explosion occurred in 1978. However, plaintiff’s expert witness testified that the recommendations reflected “the basic knowledge” in 1978. Therefore, as the trial court indicated, the defendants’ proper recourse was through impeachment testimony on cross-examination. Accordingly, we hold that the introduction of the testimony concerning the 1981 industry recommendations was not an abuse of discretion.

JURY INSTRUCTIONS ISSUE

It is within the trial court’s discretion to determine which instructions shall be given, and the exercise of such discretion will not be disturbed on review unless it has been clearly abused. Hollembaek v. Dominick’s Finer Foods, Inc. (1985), 137 Ill. App. 3d 773, 484 N.E.2d 1237.

Defendants objected to the submission of a jury instruction listing future income as an element of damages. For the same reasons that we held that the admission of Hanlon’s past income tax returns into evidence was not error, we hold that the submission of this jury instruction was not an abuse of discretion.

Defendants also objected to the submission of two non-IPI jury instructions essentially addressing the defendants’ duty to warn. The parties agree that Illinois Pattern Jury Instructions, Civil, No. 400.07 (Supp. 1977), states that no instructions on “duty to warn” be given, but that Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213, nonetheless approved of a duty to warn instruction where the law was stated with substantial accuracy and without misleading the jury. The instruction in Renfro told the jury, “[t]he law does not say what warnings are reasonably necessary or how long they should be communicated. That is for you to decide.” (Renfro, 155 Ill. App. 3d at 165, 507 N.E.2d at 1233.) In other words, the instruction advised the jury of its discretion on the issue of warnings.

In the case at bar, defendants argue that the first non-IPI instruction argued and highlighted the plaintiff’s theory of the case. Furthermore, the second non-IPI instruction failed to state that the industry recommendations were voluntary and that the jurors were free to decide that the proposed warnings were unreasonable.

However, we find that the first non-IPI instruction merely presented the “plaintiff’s claims” and clearly stated that “both defendants deny” those claims. The second non-IPI instruction expressly stated that the Compressed Gas Association only “recommended” the proposed warnings and that the jurors “may” consider as part of their deliberations the defendants’ failure to comply with the proposed warnings. In light of these facts, we hold that the non-IPI instructions as given stated the law with substantial accuracy and did not mislead the jury. Therefore, the trial court did not abuse its discretion by submitting the non-IPI instructions over the defendants’ objections.

In summary, we remand this case for a new trial, thereby allowing defendants to argue to the jury their affirmative defense of assumption of the risk.

Reversed and remanded for a new trial with directions.

MURRAY and McNULTY, JJ., concur.


text:
    R.R. DONNELLEY AND SONS COMPANY, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    First District (5th Division)
    No. 1—89—3421
    Opinion filed September 20, 1991.

      Vedder, Price, Kaufman & Kammholz, of Chicago (Michael G. Cleveland and Kim A. Leffert, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Patricia A. Motto, of Brubaker & Motto, of Chicago, for respondent Joyce Love.
   PRESIDING JUSTICE LORENZ

delivered the opinion of court:

R.R. Donnelley & Sons Company (Donnelley) appeals from an order of the Illinois Human Rights Commission (Commission) finding that it discriminated against its employee, Joyce Love, on the basis of race when it failed to promote her. The Commission awarded Love the promotion she sought, lost wages, attorney fees, and injunctive relief. We consider (1) whether the Commission’s finding that Donnelley discriminated against Love on the basis of race was against the manifest weight of the evidence when the person who made the decision testified he did not know her race; and (2) whether awarding Love the promotion she sought and back pay was an abuse of discretion. For the following reasons, we affirm.

The Department of Human Rights filed a complaint on Love’s behalf under section 2 — 102(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 2 — 102(A)) alleging Donnelley discriminated against Love on the basis of race when it failed to promote her. After a hearing, an administrative law judge made the following findings of fact which, essentially, are not in dispute.

Love, who is black, began working in a secretary I position for Donnelley in 1975 and was promoted to a secretary II position in 1980. In that position, she received a superior performance evaluation, the second-highest level, which made her eligible for promotion to a secretary III position.

In January of 1984, a secretary III position became available under Richard Sawdey, Donnelley’s corporate secretary. Sawdey is white. He testified that the appearance of the person who filled the position was an important factor.

To fill the position, Caro Parsons, Donnelley’s personnel coordinator, prepared a list of eligible candidates who received outstanding or superior ratings. Parsons is white. Love was one of the 17 candidates on the list.

In a meeting with Sawdey, Parsons summarized for Sawdey each candidate’s performance and any impression she had about the candidates. Parsons knew Love but Sawdey did not. Based on Parson’s information, Sawdey selected five candidates to the exclusion of Love for interviews; three were white and two were black. The secretary III position was filled with a white candidate, an employee since 1979 who also received a superior evaluation. Neither Parsons nor Sawdey could remember why Love was not chosen for an interview, and they both denied discussing the race of the candidates during their meeting. Sawdey testified he did not know Love’s race.

Love would have earned an additional $1,950 to the date of the hearing if she had been promoted to the secretary III position.

The administrative law judge found that Donnelley discriminated against Love on the basis of race when it failed to promote her violating section 2 — 102(A) (Ill. Rev. Stat. 1989, ch. 68, par. 2 — 102(A)). The judge also found that based on the objective factors of typing skills and seniority, Love was more qualified than the person who was promoted to the position. Therefore, the judge recommended to the Commission that it award Love the promotion, $1,950 in back pay, and attorney fees.

Donnelley filed exceptions to the recommendation with the Commission arguing that Love did not prove in her prima facie case that Sawdey knew she was black. Donnelley also argued that promoting Love to a secretary III position and awarding back pay was an improper remedy because she was only denied an interview for the position.

The Commission rejected Donnelley’s argument that Love was required to prove knowledge of race in her prima facie case and, instead, found that Donnelley could assert lack of knowledge to rebut the prima facie case. However, the Commission found Donnelley did not present such proof and, therefore, did not offer a legitimate nondiscriminatory reason for failing to promote Love. The Commission, adopting the recommendation, awarded Love a promotion to a secretary III position, back pay, and attorney fees.

Donnelley now appeals directly to this court under Supreme Court Rule 335 (134 Ill. 2d R. 335).

Opinion

Review of the Commission’s decision is limited to determining whether it was against the manifest weight of the evidence. (Lin Hsi Hsu v. Human Rights Comm’n (1989), 180 Ill. App. 3d 949, 536 N.E.2d 732.) The reviewing court cannot reweigh the evidence or reassess the credibility of the witnesses, and if the record contains evidence to support the Commission’s decision, it must be affirmed. (Shah v. Human Rights Comm’n (1989), 192 Ill. App. 3d 263, 548 N.E.2d 695.) The Commission’s decision can only be reversed if it is palpably erroneous or the opposite conclusion is clearly evident. Shah, 192 Ill. App. 3d 263, 548 N.E.2d 695.

In a case of employment discrimination based on race, the complainant has the initial burden to prove a prima facie case that (a) she belongs to a racial minority, (b) she applied for and was qualified for an available position, (c) she was rejected, and (d) the employer subsequently filled the position with a white employee. (Patterson v. McLean Credit Union (1989), 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363; McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) The prima facie case is not the equivalent of an ultimate finding of fact that the employer discriminated against complainant on the basis of race but it raises an inference of racial discrimination. Furnco Construction Corp. v. Waters (1978), 438 U.S. 567, 57 L. Ed. 2d 957, 98 S. Ct. 2943.

To rebut the prima facie case, the employer must articulate a legitimate nondiscriminatory reason for rejecting the complainant. (McDonnell, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) The complainant then has the opportunity to prove that the employer’s articulated reason was a pretext for unlawful discrimination. McDonnell, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.

On appeal, the parties have framed the issue as whether knowledge of race was a factor of a complainant’s prima facie case when it was not specifically included in McDonnell. Donnelley argues that Love did not prove a prima facie case because she did not prove that Sawdey, who made the decision not to promote her, knew she was black. On the other hand, the Commission and Love respond that lack of knowledge of race can rebut a prima facie case and is crucial to prove intentional discrimination but it is not a factor of the prima facie case. Despite the parties’ arguments, in this case it is academic, as Donnelley recognizes, and not determinative of the issue on appeal. In either case, the question remains whether such knowledge or lack of knowledge was proven. The ultimate issue is whether the Commission’s finding that Donnelley discriminated against Love on the basis of race was against the manifest weight of the evidence when Sawdey testified he did not know Love’s race.

Donnelley relies primarily on Robinson v. Adams (9th Cir. 1987), 830 F.2d 128, where the complainant, a black man, submitted written applications to apply for positions with a potential employer. He was rejected. The persons who screened the applications filed affidavits that they were unaware of complainant’s race when they rejected him and, on that basis, the employer was granted summary judgment. On appeal, the court noted that the elements for a prima facie case from McDonnell were not meant to be a rigid test and stated that

“[a]n employer cannot intentionally discriminate against a job applicant based on race unless the employer knows the applicant’s race. ***
*** The McDonnell Douglas test defines one method of proving a prima facie case of discrimination — proof from which a trier of fact can reasonably infer intentional discrimination. [Citation.] But the McDonnell Douglas elements would not rationally create this inference if, as here, a plaintiff offers proof that he is Black, but there is no showing by direct or indirect evidence that the decision-maker knew this fact.” (Robinson, 830 F.2d at 129.)

As a result, the court affirmed summary judgment in the employer’s favor.

Similarly in Gayle v. Illinois Human Rights Comm’n (1991), 218 Ill. App. 3d 109, this court considered the effect of an employer’s lack of knowledge on a claim of discrimination based on religion or national origin. Gayle wore his hair in “dreadlocks,” complying with his belief in the Rastafarian religion. A potential employer rejected him because of his appearance. Gayle filed a charge with the Department of Human Rights which was dismissed for lack of substantial evidence. The Commission affirmed. On appeal, this court also affirmed the dismissal, in part, because Gayle did not present evidence that the employer, or any of its employees involved in the hiring process, knew or should have known that Gayle’s appearance was required by his religion.

The Commission and Love rely on Hsu (180 Ill. App. 3d 949, 536 N.E.2d 732), where the Commission found that the owners of a house for rent discriminated against the complainants on the basis of race. On appeal, the court noted that one of the factors of a prima facie case for housing discrimination was that the owners were aware of the complaints’ race. Although the complainants did not present direct evidence that the owners knew their race, the court found it was proper for the Commission to infer knowledge when the owners’ tenant, who knew the complainants’ race, had the opportunity to inform the owners and the owners treated the complainants differently than other applicants who were not black.

The present case is distinguishable from Robinson and Gayle because, here, there is indirect evidence that Sawdey, who made the decision not to promote Love, knew she was black. It is undisputed that Parsons knew Love was black. Parsons summarized her impressions of the candidates on the list for Sawdey, who made his decision based on that information. Although Sawdey testified they did not discuss the race of the candidates, he could not remember why Love was not chosen for an interview. A white person was promoted to the position. As in Hsu, the facts in this case permitted an inference, as the Commission found, that Sawdey knew Love’s race and discriminated against her as a result. Therefore, the Commission’s decision was not against the manifest weight of the evidence.

Donnelley also argues on appeal that awarding Love a promotion to a secretary III position and back pay was improper because she was only denied an interview for that position.

When an employer has discriminated against an employee on the basis of race, the remedy should place the employee, as near as possible, in the situation she would have been in had the discrimination not occurred. (Albemarle Paper Co. v. Moody (1975), 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362.) The Commission is entitled to award a complainant a promotion and back pay when it finds that an employer has discriminated on the basis of race. (Ill. Rev. Stat. 1989, ch. 68, par. 8A — 104(C).) The Commission’s award will not be disturbed on appeal absent an abuse of discretion. Loyola University v. Human Rights Comm’n (1986), 149 Ill. App. 3d 8, 500 N.E.2d 639.

Although Donnelley argues Love only alleged it failed to interview her, she also alleged she was as qualified for the position as the person promoted and requested a promotion in her prayer for relief. Donnelley’s proposed remedy of awarding Love an interview for a secretary III position would be ineffective to correct the discrimination. As the administrative law judge found, it would be difficult for Donnelley to review Love’s qualifications impartially. The judge also found, based on objective factors, that Love was more qualified than the person who was promoted, and on that basis, the Commission awarded Love the promotion she sought. As a result, the award of a promotion and back pay was not an abuse of discretion.

Affirmed.

MURRAY and GORDON, JJ., concur.