author: JUSTICE DUNN

text:
    PETER T. VALIULIS, Plaintiff, v. MILO SCHEFFELS, JR., et al., Defendants (Steven Falls, Plaintiff-Appellee; The City of Rockford et al., Defendants and Counterdefendants-Appellees; Peter T. Valiulis, Defendant and Counterplaintiff-Appellant).
    Second District
    No. 2—89—0085
    Opinion filed December 4, 1989.
    Rehearing denied January 17, 1990.

      Richard K. Hunsaker and Douglas Pomatto, both of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellant.
    Jerome Mirza & Associates, Ltd., of Chicago, and Lawrence J. Ferolie & Associates, Inc., of Rockford (Jerome Mirza, of counsel), for appellee Steven Falls.
    Ronald N. Schultz, of City of Rockford Legal Department, of Rockford (Daniel J. McGrail, of counsel), for appellees City of Rockford and Milo Scheffels, Jr.
   JUSTICE DUNN

delivered the opinion of the court:

The litigation in the case at bar arose from a collision between an automobile driven by Peter Valiulis and a Rockford police car driven by Officer Milo Scheffels, Jr., on June 30, 1983. Steven Falls, a passenger in the Valiulis car, filed suit against Valiulis, Scheffels, and the City of Rockford (City). Valiulis filed suit against Scheffels and the City. The two cases were consolidated for a trial. The trial court entered a directed verdict in favor of Scheffels and the City in both cases, and the jury entered an award in favor of Falls and against Valiulis, in the amount of $2 million. Valiulis now appeals and raises the following issues: (1) whether certain testimony given by Dr. William Hovsepian, a clinical psychologist and neuropsychologist, was beyond the realm of his expertise; (2) whether Falls presented sufficient evidence for the jury to conclude that he suffered from multiple sclerosis at the time of the accident, and the resultant trauma caused the onset of the symptoms of the disease; (3) whether the trial court erred by allowing certain testimony from an economist concerning the average lifetime income of college graduates; and (4) whether the trial court erred by entering a directed verdict in favor of Scheffels and the City. We affirm.

Officer Scheffels testified that at the time of the accident he was on duty as a patrol officer for the Rockford police department. At about midnight on the day in question he was inside the Rockford Public Safety Building near the front desk when he received a silent alarm call from the West End Tap on the 1500 block of West State Street. Scheffels had previously responded to other silent alarms from the West End Tap in situations where fights, shootings, and armed robberies had taken place there. Scheffels did not know at the time he received the call what the nature of the trouble was; he only knew that someone at the bar had requested police assistance.

Scheffels went to his squad car and proceeded to drive to the tavern, which was 11 or 12 blocks away. He activated the red lights on his squad car and the automatic siren. Scheffels testified that it had been raining that evening and the roads were wet. He believed it was still raining at the time he left in his squad car and that he put on his windshield wipers. Scheffels turned from Rockton Street onto West State Street. At that point, he turned off his siren in order to communicate by radio with an officer in another squad car that was responding to the same call. The other officer wanted to know Scheffels’ location so they could arrive at the same time, in order to assure that neither would get into a difficult situation on his own. Arriving at the same time would also make it easier for the officers to block all exits and prevent a possible escape if a crime was in progress. Scheffels stopped talking to the other officer when he was about a block from the scene of the accident. He did not immediately reactivate his siren at this time because he was only five or six blocks from the West End Tap and did not wish to alert any potential perpetrators of crime inside that the police were approaching.

Scheffels was traveling westbound on West State Street. He saw a car that had been parked on the 1000 block of West State Street start to pull out in front of him. Scheffels testified that he was in the vicinity of a bridge across Kent Creek when this occurred, and the car, a Volkswagen Rabbit, was about 100 feet away when he first noticed it was pulling out. Scheffels applied his brakes and was not sure whether or not they locked. He swerved to the left into the eastbound lane in an effort to avoid colliding with the Rabbit. The Rabbit continued to pull out, however, and was apparently attempting to make a U-turn. The two cars collided in the eastbound lane of traffic. The front of the squad car hit the driver’s side of the Rabbit. Scheffels stated that he attempted to reactivate his siren just before the impact.

According to Scheffels, he encountered no traffic on West State Street that night other than the Rabbit. Scheffels estimated that his maximum speed while traveling down West State Street was 40 to 45 miles per hour. He believed he was going about 30 to 35 miles per hour just before impact. Scheffels stated that from the point he turned onto West State Street, he had a clear view to the point of the collision.

Neither Valiulis, the driver of the Rabbit, nor Falls, the passenger, had any memory of the accident. A married couple, Mark and Tammy Burke, did witness the collision, however. They were both standing on a sidewalk about two or three blocks east of where the accident took place. Mark Burke testified that the squad car passed right by them. The car’s emergency lights were flashing, but neither of the Burkes heard a siren. Mark was not sure how fast the car was going, although he believed it was going over 30 miles per hour. Tammy was also not sure how fast it was going, although she stated it was going faster than the speed limit. She heard the sound of the engine accelerating as the squad car passed them.

Tammy admitted that on October 19, 1983, she signed a written statement in which she said the squad car may have been going as fast as 50 to 55 miles per hour. Mark acknowledged that during his deposition on January 15, 1985, he admitted signing a written statement in which he said the squad car was going at least 60 miles per hour. Mark testified further at trial that he saw no other cars moving down West State Street, and he saw the squad car move to the left as the Rabbit pulled out. Mark also thought the squad car was accelerating until the Rabbit pulled out. He testified further that it was a straight stretch down the street from the point where the squad car passed them to the point of the accident.

Marjorie Falls, Steven’s mother, testified that he was in excellent health before the accident and that he was considered an excellent athlete in several sports. Steven suffered a fractured clavicle, a ruptured spleen, and a concussion in the collision. According to Marjorie, Steven was incoherent the first time she saw him after the accident and did not know who he was. Steven remained in the hospital from June 30 until July 8 or 9 and then stayed with his parents until the end of July.

Marjorie testified that in July 1983, Steven complained that the fingers on his left hand were tingling. His chest was also bothering him. Steven went to see Dr. Henry Anderson, the family physician, in October 1983, and Dr. Anderson advised him to see a neurologist if the problems persisted. Steven saw Dr. Sturnum, a neurologist, in November.

Around Thanksgiving time in 1983, Marjorie noticed that Steven had trouble getting up from a sitting position at the dinner table. In order to get up, he would spread his hands out on the table and push himself up until he was standing on tiptoes. At this point, his legs would quiver for a little while, and then he would be all right.

Although Steven was an accomplished skier, after he went skiing in January 1984, he told Marjorie that he had difficulty maintaining his balance. Steven graduated from Rock Valley College, a two-year college, during the summer of 1984. He began attending Illinois State University in the fall of 1984 and completed one semester there. When Steven returned home from school for Christmas that year, Marjorie noticed that his balance was very poor while he was walking. Marjorie took him to see Dr. Terry Roth in January 1985 because of his continuing problems.

Steven returned to Illinois State for his second semester, but was forced to withdraw and return home in March 1985 because of his difficulties with balance and coordination. Marjorie testified that he was no longer able to ride a bicycle. In April 1985, he was diagnosed as having multiple sclerosis (MS). Since that time, Steven received treatment at the University of Chicago hospital.

Marjorie testified that Steven was currently able to walk short distances using crutches, but had to use a wheelchair most of the time. His arms and hands were very weak, and his hand coordination was poor. Steven tired very easily, and his speech was often slurred. During his initial hospitalization for MS, Steven temporarily lost his vision in one eye. When he became tired, he would sometimes suffer from double vision.

Marjorie also testified that in September 1983, her husband was diagnosed as having cancer of the colon, a terminal illness. She stated that this had caused a considerable amount of stress for the entire family, including Steven.

Some friends and acquaintances of Steven testified about some of the difficulties he was having after the accident. Ben Mosbach had known Steven for 24 years, since Steven was three years old. He often saw Steven at a swimming pool in Rockford. He testified that Steven appeared to be in excellent physical condition prior to the accident. Around November or December 1983, he noticed that Steven was no longer keeping his fingers together while swimming. He also noticed that Steven was no longer doing his flip-turns properly. Thomas Gobel, a friend of Steven’s, noticed around Thanksgiving time in 1983 that Steven was having trouble with his hands while playing the guitar and that his rhythm and timing were off.

Dana Franklin dated Steven between 1979 and 1985. In July 1983, he was unable to tie his shoes, and the next month, he was no longer able to tie a tie. During the latter part of 1983 and early 1984, she noticed he was sometimes falling down stairs and running into things. Steven tended to hold onto objects in order to maintain his balance. His speech was somewhat slurred. These problems became more noticeable as time went on.

Dr. William Hovsepian testified on behalf of Steven. Dr. Hovsepian was a practicing clinical psychologist and neuropsychologist with a Ph.D. in clinical psychology from Loyola University. He completed his residency in these two areas at Michael Reese Hospital in 1980 and currently worked at Glendale Heights Hospital.

Dr. Hovsepian stated that clinical psychology is the diagnosis and treatment of various psychiatric disorders. Neuropsychology concerns itself with the differential diagnoses of neurological disorders in terms of their behavorial manifestations. Hovsepian stated that he was often called in for consultation when a psychologist or neurologist had a question as to whether symptoms were psychological, neurological or a combination. He was also called in when such symptoms were puzzling and there was a question as to the diagnosis. Hovsepian had evaluated approximately 150 patients who had multiple sclerosis. Hovsepian assisted in making the diagnosis of multiple sclerosis by administering certain tests to the patients. He testified that about 70% to 80% of the time, a patient with multiple sclerosis is initially misdiagnosed as suffering from some other problem.

Over the objection of Valiulis’ attorney, Hovsepian gave certain general testimony concerning multiple sclerosis. He stated that the cause of the disease is unknown, although there were theories that it might be caused by a deficiency in the autoimmune system or might be caused by a virus. The term sclerosis was derived from the word sclera, which means patchiness. The term sclerosis refers to the fact that the nerve cells in the brain which are known as neurons are eaten away by the disease, leaving a patch or plaque. The disease causes a deterioration of brain cells and interrupts the transmission of impulses that make people think, move, talk, and so forth.

According to Dr. Hovsepian, multiple sclerosis can affect many different areas of the brain at once, and there is no way to predict which areas will be affected at any given time. He testified that sometimes the initial symptom is numbness in the arms or face. The disease is unpredictable; any combination of symptoms can present themselves at various times. Multiple sclerosis tends to cause patients to deteriorate over long periods of time until they die. Frequently, the deterioration is so complete that the patient is completely immobilized. This will cause a patient to reach a point where his or her lungs fill up with his or her own body fluids, resulting in death by strangulation.

Dr. Hovsepian first saw Steven when he came to Glendale Heights Hospital in December 1985 for a neuropsychological evaluation. Dr. Irving Sherman, a neuropsychologist at the University of Chicago hospital, had sent Steven to see Hovsepian. Hovsepian obtained a medical history from Steven and administered a series of tests known as the Luria Nebraska neuropsychological inventory, one of the two leading inventories for neuropsychological assessment. The inventory tests and assesses a number of functions, including the senses, memory, motor coordination, speech, language, and reading. Dr. Hovsepian concluded from the results of the inventory that Steven was suffering from injuries to the brain resulting from the automobile accident and from multiple sclerosis.

Over the objection of Valiulis’ attorney, Steven’s attorney asked if Dr. Hovsepian believed there was a causal relationship between the trauma suffered by Steven in the collision. Hovsepian responded in the affirmative, stating that he believed the accident put the gears in motion for the multiple sclerosis symptoms to appear. The disease itself was not caused by the accident, according to Hovsepian, who testified that he believed Steven had a predisposition for it, and the trauma from the accident caused the multiple sclerosis symptoms to appear. He reached this conclusion because of Steven’s clean medical history prior to the accident, the severe head trauma he suffered in the collision, and the onset of the MS symptoms shortly thereafter.

Dr. Hovsepian testified that he had seen at least 14 women with MS who, in his opinion, had the first symptoms of the disease triggered by the trauma suffered during their pregnancies. In another instance, Dr. Hovsepian believed that MS symptoms in a patient were triggered by head trauma suffered when the patient was hit by a car. That patient was in a coma for 28 days after his accident. Steven was never in a coma, although he did suffer a memory deficit and was unable to remember any events that occurred several days before and after the collision.

Since Dr. Hovsepian was not a physician, he was unable to base his opinion of the cause of the onset of Steven’s MS symptoms upon a reasonable degree of medical certainty. He testified instead that his opinion was based upon his training and experience as a clinical psychologist and a neuropsychologist. In formulating his opinion, Hovsepian relied upon the medical history given to him by Steven and Marjorie Falls, as well as medical records provided to him by Dr. Sherman, including records of Steven’s stay at SwedishAmerican Hospital following the accident.

Dr. Irving Sherman testified that he had been a board-certified neurologist since 1942 and was currently working at the University of Chicago hospital. He saw about 45 new patients per year who suffered from multiple sclerosis. Steven first saw Dr. Sherman on October 11, 1985. Steven told Dr. Sherman that he had been hospitalized after an automobile injury on June 30, 1985, and described the injuries he had suffered. Steven stated that when he left the hospital in July, his walk was unsteady and he experienced numbness in his left hand. About a month later, the numbness was persistent and he was having trouble using the hand. Steven reported to Dr. Sherman that he subsequently had problems with coordination and with his right hand. Steven went away to school in 1984, but had to leave because he was unsteady on his feet and could no longer ride his bicycle to classes. In January 1985, Steven’s walk was very unsteady, and he had to reach for walls when he was walking. Steven was diagnosed as having MS in April 1985.

Dr. Sherman stated that MS often manifests itself through numbness in the hands or other areas of the body. In his opinion, the numbness in Steven’s left hand that appeared shortly after the accident was an early manifestation of multiple sclerosis. Steven’s doctors had originally felt that the numbness was caused by an injury to the brachial plexus, the nerve center that supplies the arms, in the collision. Dr. Sherman testified, however, that he did not believe Steven had suffered a brachial plexus injury because there was nothing in the records he reviewed which indicated he had any motor disability, which usually occurs if there is a brachial plexus injury. Dr. Sherman felt that Steven had suffered a serious injury to his brain as a result of the accident. He also felt that the quivering in Steven’s legs when he stood up at the dinner table may have been a symptom of MS.

In Dr. Sherman’s opinion, there was a causal relationship between the trauma Steven suffered in the automobile accident and the onset of his MS symptoms. Dr. Sherman believed this was the case because of the close proximity in time between the accident and the onset of his neurological disability; and because Steven’s history showed no MS symptoms prior to the collision.

According to Dr. Sherman, most of the literature on the subject suggested there was a relationship between trauma and the onset of MS symptoms in select cases. Dr. Sherman testified that he would be reluctant to attribute the onset of MS symptoms to trauma if the symptoms first manifested themselves over a year after the traumatic event. If the symptoms occurred within a month or even three to six months of the traumatic event, it was likely there was a causal relationship. Dr. Sherman stated that it was unusual for trauma to trigger MS symptoms. He had seen two cases other than Steven’s in which he believed this had occurred.

Professor Charles Linke, an economist at the University of Illinois at Urbana-Champaign, testified on Steven’s behalf. Linke testified over the objection of Valiulis’ attorney that the present value of future earnings for the average male Illinois worker with Steven’s age characteristics and a college education would be between $1,831,702 and $2,183,395.

Steven Falls testified that he noticed numbness and a tingling sensation in his left arm right after the accident. Steven graduated from Rock Valley College, a two-year college, in 1984, after attending part time since 1979. He received an associate of arts degree. He began attending Illinois State in the fall of 1984, and intended to complete his course of study for a business degree by the summer of 1986. Steven completed one semester at Illinois State but was forced to leave school during the middle of his second semester because of the MS symptoms.

At the time of trial, Steven was not working. His last job was a position as a house man at the Clock Tower Inn during the summer of 1984. Steven testified that he swam every day and usually felt very weak after he finished swimming.

Dr. Henry Anderson, one of Steven’s treating physicians, testified on behalf of Valiulis. Dr. Anderson was the Falls’ family physician. The first time he saw Steven after the accident was in the emergency room on June 30, 1983. Dr. Anderson did not note any damage to Steven’s arms or legs at that time. Dr. Anderson also saw Steven on July 20, 1983, and August 4, 1983. Dr. Anderson’s notes from these visits did not show any complaints by Steven of numbness or tingling in his left arm. Dr. Sturnum, a neurologist, saw Steven on November 25, 1983, and sent Dr. Anderson a letter that same day. The letter stated that Steven had complained of numbness and tingling in his left hand and problems fingering the strings of his guitar with that hand. Dr. Anderson stated that the letter indicated that Steven had reported to Dr. Sturnum that these symptoms had existed since the time of the collision. Dr. Sturnum diagnosed Steven as suffering from a brachial plexus injury.

Dr. Terry Roth, a neurologist who practices in Rockford, testified that he sees about six patients per year who have MS. Dr. Roth first saw Steven on January 11, 1985. Dr. Roth noted an increase in the reflex in Steven’s left upper arm as opposed to the time Sturnum saw him. Dr. Roth felt this was consistent with a plexus injury.

Dr. Roth saw Steven again on April 15, 1985, and noted increasing numbness in his right hand and increasing difficulty with walking. He felt these symptoms were much more dramatic than they were in January. Dr. Roth felt Steven was suffering from the residual effects of a plexus injury.

Dr. Roth did not feel that trauma from the automobile accident caused the onset of Steven’s MS symptoms, nor did he feel there was a causal relationship between trauma and MS. Dr. Roth admitted that during his deposition he stated he was sure he had seen a case where he believed there was a connection between trauma and MS.

Dr. Barry Arnason testified that he was a practicing neurologist at the University of Chicago hospital and chairman of the neurology department at the university medical school. Dr. Arnason had been practicing medicine for over 30 years and had been board-certified in neurology since 1971.

Dr. Arnason mentioned a study in a Swiss medical journal in which it was discovered that 20% of the people who were found to have MS during their autopsies had no medical history of MS during their lifetimes. Dr. Arnason stated it was possible these people had subtle MS symptoms during their lifetimes, but they were apparently unaware that they had the disease. In Dr. Arnason’s opinion, there was no causal relationship between trauma and multiple sclerosis.

According to Dr. Arnason, he saw Steven between 20 and 30 times, starting on October 30, 1985. Dr. Arnason felt it was probable that the numbness on Steven’s left side was the initial clinical manifestation of MS and that the disease first declared itself in Steven in 1983. In Dr. Arnason’s opinion, Steven could no longer work.

After the close of the evidence, the trial court granted a directed verdict in favor of Scheffels and the City of Rockford on the remaining counts of the Falls and Valiulis complaints, which alleged wilful and wanton conduct on the part of these defendants. The jury then returned a verdict in favor of Falls and against Valiulis in the amount of $2 million. Of this amount, $1,800,000 was for economic loss and $200,000 for noneconomic loss. The instant appeal then ensued.

Valiulis’ first contention on appeal is that the trial court erred by permitting Steven’s attorney to elicit from Dr. Hovsepian testimony concerning the onset and progression of MS and testimony concerning his opinion that the trauma Steven suffered in the collision caused the onset of the MS symptoms shortly thereafter. Valiulis contends that the above testimony was medical testimony and Hovsepian should not have been allowed to give it since he was not a licensed physician. We disagree.

The general rule is that the trial judge has broad discretion in determining whether a witness is qualified to testify as an expert. (Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 728.) In order to lay a proper foundation for expert testimony, a party must show that the expert has specialized knowledge or experience in the area about which the expert expresses his or her opinion. (Robinson, 114 Ill. App. 3d at 728.) The expert’s knowledge may be based upon practical experience as well as scientific or academic training. 114 Ill. App. 3d at 728.

In support of his position, Valiulis cites People v. Felton (1975), 26 Ill. App. 3d 395, in which the court ruled that it was proper for the trial court to refuse to allow a psychologist to give an opinion concerning defendant’s sanity because this was a medical matter. (Felton, 26 Ill. App. 3d at 400.) We note that Felton is no longer good law, however. A qualified clinical psychologist may now testify regarding his opinion about defendant’s fitness to stand trial, sanity, or mental illness. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—2—5; People v. Free (1983), 94 Ill. 2d 378, 412.) We do not find Felton to be persuasive authority in support of Valiulis’ position.

In several cases, Illinois courts have held that it was not error for trial courts to permit testimony concerning medical matters by individuals who were not licensed physicians. (See Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 291-93 (proper for expert in radiation treatment to testify as to standard of care for X ray treatment by a hospital); Nicholas v. City of Alton (1982), 107 Ill. App. 3d 404, 407 (witness with Ph.D. in toxicology and pharmacology qualified to render expert opinion on causal connection between decedent’s tear gas exposure and death); Kinsey v. Kolber (1982), 103 Ill. App. 3d 933, 953 (clinical psychologist qualified to testify that individual suffered brain damage in automobile accident); Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 293 (same holding as Kinsey).) These holdings indicate that the fact Dr. Hovsepian was not a licensed physician would not bar him from giving expert testimony concerning multiple sclerosis if he was otherwise qualified to do so.

The trial court did not abuse its discretion in determining Dr. Hovsepian was qualified to testify about multiple sclerosis and about his opinion concerning the causal connection between the trauma Steven suffered in the accident and the onset of his MS symptoms. In addition to his qualifications as a clinical psychologist and a neuropsychologist, Dr. Hovsepian had seen approximately 150 patients with MS and had been called upon in many instances by neurologists and psychologists to assist in the diagnosis of patients who turned out to have MS. In light of his professional credentials and his experience with MS patients, we believe Dr. Hovsepian was clearly qualified to give the expert testimony in question. Indeed, it would be somewhat anomalous to conclude that Dr. Hovsepian would not be qualified to testify about multiple sclerosis when the neurologists and psychologists who sought out his expertise and assistance in diagnosing the disease would most likely be qualified to do so. We therefore reject Valiulis’ initial contention.

Valiulis next contends that Steven was not entitled to recover because he failed to present sufficient evidence to show that he had multiple sclerosis at the time of the accident and the trauma from the accident caused an aggravation of his preexisting condition. We disagree. Dr. Hovsepian testified that, in his opinion, trauma from the accident caused the onset of Steven’s MS symptoms. Dr. Hovsepian also testified that Steven must have had a predisposition for MS or had a latent form of the disease in his body at the time of the accident.

Steven also presented evidence that MS can exist in a person without having its symptoms declare themselves for a period of time or, in some cases, during the person’s entire lifetime. Dr. Amason, testifying on behalf of Valiulis, agreed this was the case and cited a Swiss study showing that 20% of the people found to have MS after autopsies were not aware during their lifetime that they suffered from the disease. The jury could have reasonably concluded from the above evidence that Steven had MS at the time of the collision and that the trauma triggered the appearance of MS symptoms shortly thereafter.

Furthermore, Steven’s attorney asked Dr. Sherman if he had “an opinion based on a reasonable degree of medical certainty as to whether the trauma that [Steven] received in the automobile collision of June 30, 1983, triggered, precipitated, aggravated or set off” the symptoms of MS so that the disease was converted from a silent disease to one that had overt symptomology. Dr. Sherman responded in the affirmative. When Steven’s attorney asked what that opinion was, Dr. Sherman responded as follows:

“First of all, I don’t think anybody could have made a diagnosis of multiple sclerosis in this man before, so there is no way anybody could say he had multiple sclerosis. In my judgment, the proximity of the onset of his neurological disability to the time of his injury and the appearance of what in retrospect was, obviously, neurologic dysfunction makes me feel there is a causal relationship between the injury he suffered and the development of multiple sclerosis. The question of whether the injury itself is the cause I think is a moot question because I think without the injury this would not have occurred. I say that because there is a good body of thought and the etiology among multiple sclerosis cases in which it is clear that trauma will initiate the appearance of clinical symptomology either for the first time or certainly in terms of aggravating a case of multiple sclerosis which was present.”

Valiulis attaches great significance to the fact that Dr. Sherman later testified that he did not know whether Steven had MS or a predisposition for the disease prior to the accident. In other Illinois cases where awards to parties claiming that trauma from accidents caused their MS symptoms to manifest themselves have been affirmed, the courts have stated that in situations where knowledge of a disease is limited, as is the case with MS, medical evidence concerning causation may not be unqualified and unequivocal. (See Dixon v. Industrial Comm’n (1975), 60 Ill. 2d 126, 131; Robinson v. Chicago Transit Authority (1979), 69 Ill. App. 3d 1003, 1009.) In a negligence actionf-the plaintiff must show that the defendant breached a duty owed to plaintiff, and by so doing, proximately caused plaintiff’s injuries. Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405, 407.

Valiulis does not contest that there was ample evidence he breached a duty owed to Steven. With regard to the question of whether Valiulis’ negligence caused the onset of Steven’s MS symptoms, Dr. Sherman testified that in his opinion, to a reasonable degree of medical certainty, there was a causal connection between the accident and the development of MS in Steven and, without the accident, the MS would not have occurred. This testimony was sufficient evidence that the negligence of Valiulis was the proximate cause of Steven’s MS.

Valiulis next contends that the testimony of Professor Linke, the economist who testified on Steven’s behalf, as to future economic loss, was impermissibly speculative. In Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, the court held that testimony from the same witness concerning decedent’s future earning capacity based upon the earnings of the average male Illinois worker of decedent’s age, education level, and life expectancy was properly admitted into evidence. (Singh, 165 Ill. App. 3d at 930.) In the case at bar, Linke gave similar testimony based in part upon the assumption that Steven would have finished college were it not for the accident.

Valiulis cites Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, in support of his contention that Linke should not have been permitted to base his testimony upon the assumption that Steven would have completed college were it not for the collision. In Christou, the plaintiff was unemployed at the time of his accident but was in training for a position as a bartender. Plaintiff testified that before the accident he had hoped to own a restaurant some day. Over defendant’s objection, the trial court allowed plaintiff to introduce testimony from a restaurant owner that the average restaurant showed a profit of $500 to $700 per week. The court held it improper to admit the restaurant owner’s testimony, stating that testimony as to lost earnings which is speculative or remote is improper and that recovery is limited to such loss as is reasonably certain to occur. Christou, 104 Ill. App. 3d at 260.

The case at bar is clearly distinguishable from Christou. Completing college was not a distant ambition of Steven’s; he had already finished the equivalent of 2V2 years of college. The jury could have reasonably concluded from the testimony of Steven and his mother that Steven would have completed college in 1986 had he not been stricken with multiple sclerosis. Professor Linke’s testimony was properly admitted into evidence.

The final assertion raised by Valiulis is that the trial court erred by entering a directed verdict with regard to his allegations of wilful and wanton misconduct against Scheffels and the City of Rockford. Valiulis argues that the evidence presented concerning the squad car’s speed and the failure of Scheffels to activate his siren was sufficient to present a question for the jury. We disagree.

In a jury trial, a directed verdict is appropriate only if the evidence when viewed in an aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) In an action for wilful and wanton misconduct, plaintiff must show that defendant intentionally caused his or her injury or exhibited a reckless disregard for the safety of others. (Bosen v. City of Collins-ville (1987), 166 Ill. App. 3d 848, 850.) In a case involving an automobile accident, the latter would include demonstrating that defendant had notice that would alert a reasonable person that a substantial danger was involved but failed to take reasonable precautions under the circumstances. Hering v. Hilton (1958), 12 Ill. 2d 559, 564; Kirshenbaum v. City of Chicago (1976), 43 Ill. App. 3d 529, 533.

It is clear from the evidence that Officer Scheffels, who swerved in an attempt to avoid the collision, did not intentionally cause the injuries to Valiulis or Falls. There was also no evidence that he exhibited a reckless disregard for the safety of others. The only evidence concerning the speed of the squad car is the testimony of Scheffels that he was going a maximum of 40 to 45 miles per hour, testimony from Tammy Burke that it was going over the speed limit and accelerating, and testimony from Mark Burke that it was going over 30 miles per hour. The prior, inconsistent statements from the Burkes indicating that the squad car may have been going as fast as 65 miles per hour were not admissible as substantive evidence. Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4,12.

Although the streets were wet at the time, the fact that Officer Scheffels may have been traveling as fast as 45 miles per hour would not constitute wilful and wanton conduct in light of the fact that there was no other traffic, there is no evidence Scheffels ever lost control of the car, and the necessity for prompt arrival at a potential trouble site. Although the Kirshenbaum case indicates that a police officer’s failure to activate a siren can constitute wilful and wanton conduct (Kirshenbaum, 43 Ill. App. 3d at 533-34), the facts of that case are distinguishable since the sun was directly behind a police car engaged in pursuit of another vehicle, potentially blinding other drivers (43 Ill. App. 3d at 533-34). In the case at bar, the evidence was undisputed that Valiulis would have had a clear view down West State Street for several blocks in the direction from which the squad car was approaching.

From the evidence presented, the first knowledge Officer Scheffels had that a substantial danger existed was when he saw the Rabbit begin to pull out. By applying his brakes and swerving to the left, Scheffels took reasonable precautions to avoid the impending collision. We agree with the trial court’s conclusion that, as a matter of law, Officer Scheffels was not guilty of wilful and wanton conduct. The directed verdict was therefore proper.

Finally, we take note that each of the appellees has moved for the dismissal of this appeal, alleging that the statement of facts in the appellant’s initial brief did not fulfill the requirements of Supreme Court Rule 341(e)(6) (113 Ill. 2d R. 341(e)(6)). We agree that the appellant’s statement of facts was not adequate in some respects but do not feel the drastic sanction of dismissal of the appeal is warranted. We have therefore resolved the issues raised on appeal by Valiulis.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    GEORGE DANGELES et al., Plaintiffs-Appellants, v. WILLIAM MUHLENFELD et al., Defendants-Appellees.
    Second District
    No. 2—89—0186
    Opinion filed December 1, 1989.
    Rehearing denied January 16, 1990.

      Linda A. Bryceland, of David Á. Novoselsky & Associates, of Chicago (David A. Novoselsky, of counsel), for appellants.
    James K. Horstman, Manya A. Pastalan, and Lloyd E. Williams, Jr., all of Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, George Dangeles and First American Mortgage Company (First American), filed a six-count complaint in the circuit court of Du Page County against defendants William Muhlenfeld, Nancy Gaskin, Lisa Carpenter, and Centennial Mortgage Company (Centennial) alleging misconduct by the individual defendants in the establishment and operation of Centennial, a business competing with First American, and seeking recovery under various theories. Plaintiffs appeal the dismissal of counts asserting claims for breach of fiduciary duty and tortious interference with prospective economic advantage, and the entry of summary judgment in favor of defendants on their count for breach of contract and on portions of their count for tortious interference with contractual relations.

Plaintiffs filed their six-count first amended complaint on November 26, 1986. The pertinent allegations are as follows. Plaintiffs alleged that First American was in the business of mortgage brokering and lending and that from its formation until the middle part of 1985, Muhlenfeld and Dangeles each owned 50% of its stock. During that period of time, Muhlenfeld was president and chief operating officer of First American in charge of its day-to-day operations. In April 1985, Muhlenfeld and Dangeles executed a written agreement for the sale of Muhlenfeld’s stock to Dangeles. The agreement contained the following covenant:

“In the event MUHLENFELD leaves the employ of [First American], he agrees that he will not employ any of the employees away from [First American].”

In July 1985, Muhlenfeld resigned from his position with First American and thereafter established and operated Centennial.

Count I of the first amended complaint alleged that Muhlenfeld violated the covenant above by hiring First American employees Nancy Gaskin and Lisa Carpenter. Count II sought rescission of the sale of Muhlenfeld’s stock, alleging that in connection with the sale Muhlenfeld misrepresented the value of First American’s assets and made other misrepresentations. In count III, plaintiffs advanced a claim for breach of fiduciary duty. Count IV advanced a claim for tortious interference with contractual relationships. Plaintiffs alleged that First American had contractual relationships with Horizon Federal Savings and Loan Association (Horizon) and Citicorp Savings and Loan (Citicorp), which funded loans originated by First American. Plaintiffs further alleged that First American had contractual relationships with numerous salespeople. Plaintiffs alleged that defendants falsely advised Citicorp, Horizon, and the salespeople that First American was without proper business management and was in financial difficulties, and as a result, First American “lost the services” of certain lending institutions and “lost the benefit of the employment of certain employees.” Count V asserted a claim for tortious interference with prospective economic advantage based on the same communications alleged in count IV. Count VI, like count II, sought rescission of the sale of stock, based on misrepresentations as to the value of First American assets.

On January 9, 1987, defendants filed a motion to dismiss the first amended complaint pursuant to section 2—615 (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) for failure to state a cause of action. By order dated March 5, 1987, the circuit court dismissed counts III, V, and VI, granting plaintiffs leave to amend these counts. Plaintiffs elected not to file amendments, and defendants filed answers to the remaining counts. Subsequently, defendants moved for summary judgment on the remaining counts.

On August 3, 1988, the circuit court granted defendants’ summary judgment motion with respect to count I and to count IV, except for First American’s alleged business relationships with Horizon and two employees. The court denied the motion with respect to count II.

Thereafter, plaintiffs moved for voluntary dismissal of count II and the remainder of count IV. The circuit court granted this motion and in an order dated January 27, 1989, set forth the previous dismissal order of March 5, 1987, the summary judgment order of August 3, 1988, and found no just reason to delay enforcement or appeal of those orders.

Plaintiffs initially contend that the circuit court erred in dismissing count III of its first amended complaint which advanced a claim based on breach of fiduciary duty. Plaintiffs contend that count III properly stated a cause of action as pleaded. Defendants respond that the allegations pertaining to breach of fiduciary duty are all defective. With respect to certain alleged wrongful conduct, defendants contend that there is no allegation that the acts occurred during the duration of Muhlenfeld’s fiduciary duty to First American to support a cause of action. Defendants also contend that other allegations were not pleaded with sufficient specificity to survive a motion to dismiss.

We agree with defendants that none of the allegations in question were, as pleaded, sufficient to support a cause of action. Accordingly, we conclude the trial court properly dismissed count III.

On review of the dismissal of a complaint for failure to state a cause of action, the reviewing court must determine the legal sufficiency of the complaint. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 516, 513 N.E.2d 387.) While pleadings are to be liberally construed, that does not lessen the obligation of the plaintiff to set out facts necessary for recovery under the theory asserted in the complaint. (Kirk, 117 Ill. 2d at 516, 513 N.E.2d at 391.) A pleader is required to set out the ultimate facts that support his cause of action. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 509, 520 N.E.2d 37.) A complaint is insufficient if it states mere conclusions, whether of law or fact. (Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 160, 478 N.E.2d 1039.) Pleadings which state mere conclusions and characterize acts rather than set forth facts are insufficient to state a cause of action. People ex rel. Roseman v. Trachtman (1985), 139 Ill. App. 3d 5, 9, 487 N.E.2d 77.

We first consider plaintiffs’ allegations in count III that Muhlenfeld breached a fiduciary duty owed to First American in that he:

“(a) operated a competing business, namely, CENTENNIAL MORTGAGE COMPANY;
(b) solicited customers of FIRST AMERICAN MORTGAGE COMPANY to do business with CENTENNIAL MORTGAGE COMPANY;
(c) solicited valued employees of FIRST AMERICAN MORTGAGE COMPANY to terminate their employment with FIRST AMERICAN MORTGAGE COMPANY and to work for him at CENTENNIAL MORTGAGE COMPANY;
(d) informed lending institutions with whom plaintiff funded loans originated by the plaintiff that the plaintiff was without proper business management and expertise and was in financial difficulty;
(e) informed plaintiffs’ sales force that the plaintiff was without proper business management and expertise and was in financial difficulty.”

Defendants contend that these allegations cannot sustain a cause of action because it is not alleged that any of this conduct occurred during a time when Muhlenfeld owed First American a fiduciary duty, that is, prior to Muhlenfeld’s resignation as an officer of First American. We agree.

Despite plaintiffs’ assertion, unsupported by citation of authority, that as a former officer Muhlenfeld owed First American a continuing duty, it is clear that after his resignation, Muhlenfeld owed First American no fiduciary duty. (See Voss Engineering, Inc. v. Voss Industries, Inc. (1985), 134 Ill. App. 3d 632, 638, 481 N.E.2d 63.) We are aware, as plaintiff points out, that resignation of an officer will not sever liability for transactions completed after termination of the party’s association with the corporation if the transactions began during the existence of the relationship or were founded on information acquired during the relationship. (Comedy Cottage, Inc. v. Berk (1986), 145 Ill. App. 3d 355, 360, 495 N.E.2d 1006.) This principle is not implicated by plaintiffs’ allegations. It is not alleged that Muhlenfeld solicited customers or employees for Centennial, or engaged in any demonstrable business activity prior to resigning from First American, and, hence, no breach of fiduciary duty appears in the allegations. (See TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001, 1005-06, 380 N.E.2d 963; see also Radiac Abrasives, Inc. v. Diamond Technology, Inc. (1988), 177 Ill. App. 3d 628, 633, 532 N.E.2d 428.) Nor is it alleged that the communications with financial institutions and First American’s sales force occurred while Muhlenfeld owed First American a fiduciary duty.

These allegations are not saved by the principle prohibiting transactions based on information acquired during a former officer’s association with a corporation. That principle cannot be read so expansively as to encompass the allegations here. It has been stated that in our economy based on free competition “ ‘[o]ne who works for another cannot be compelled to erase from his mind all of the general skills, knowledge, acquaintances and the over-all experience which he acquired during the course of his employment.’ ” (Siebert, 63 Ill. App. 3d at 1005, 380 N.E.2d at 966, quoting Revcor, Inc. v. Fame, Inc. (1967), 85 Ill. App. 2d 350, 357, 228 N.E.2d 742, 746.) The instant allegations implicate only this type of general information. We are aware of Smith-Shrader Co. v. Smith (1985), 136 Ill. App. 3d 571, 483 N.E.2d 283, which broadly imposes liability for solicitation of employees because the defendant acquired knowledge of the employees’ ability and training during his relationship with their employer. However, we decline to adopt this expansive reading of the principle prohibiting use of information acquired during a fiduciary relationship and adhere to the view expressed in other cases that solicitation of a business’ employees by a former officer is not actionable. See Radiac Abrasives, 177 Ill. App. 3d at 633, 532 N.E.2d at 431.

With respect to the allegations of communications with financial institutions and First American’s sales force, we note that our decision might be different were it alleged that confidential information was communicated. However, this is not the case, and, indeed, in other counts, plaintiff alleges that the information communicated was false.

The remaining allegations of breach of fiduciary duty appear to pertain to the period of Muhlenfeld’s employment with First American. They are that Muhlenfeld:

“(f) misappropriated funds and other personal property belonging to the plaintiff for his personal use;
(g) approved loans to borrowers knowing that the borrowers were incapable of repaying the loan, and without obtaining collateral adequate to secure the loans;
(h) engaged in other conduct detrimental to plaintiff’s business.”

The allegation of misappropriation is conclusory and unsupported by specific allegations of fact and is therefore improper. (See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 427-28, 430 N.E.2d 976.) The allegation of improper approval of loans does not, as pleaded, implicate considerations of fiduciary duty, as mere negligence rather than disloyalty may be involved.

Finally, the general allegation that Muhlenfeld “engaged in other conduct detrimental to plaintiff’s business” is insufficient to plead a cause of action.

As count III does not contain well-pleaded facts establishing a breach of fiduciary duty, the circuit court committed no error in dismissing this count with leave to amend.

Plaintiff First American next contends that the circuit court erred in dismissing count V of its first amended complaint against defendants Muhlenfeld, Gaskin, Carpenter, and Centennial which advanced a claim for tortious interference with prospective economic advantage. In count V, plaintiff alleged that First American maintained business relationships with certain financial institutions, Horizon and Citicorp, which funded loans originated by First American, and that First American maintained contractual relations with certain salespeople. Plaintiff further alleged that defendants, knowing of these relations, interfered with the relationships by falsely advising the financial institutions and sales force that First American was mismanaged and experiencing financial difficulties. Plaintiff alleged that it lost the services of the financial institutions and lost certain employees who terminated their relationship with plaintiff.

Although the circuit court dismissed this count, the common law record provided us does not disclose the basis for the dismissal. However, plaintiff states in its appellate brief that this count was dismissed because the complaint lacked sufficient specificity. Defendants’ motion to dismiss set forth several bases for dismissal, namely, that the count failed to allege plaintiff had a reasonable expectation of entering into further business relationships with the financial institutions, failed to allege plaintiff lost the business relationship with the financial institutions, failed to identify the sales persons involved, and failed to allege plaintiff had a reasonable expectancy of continuing business relationships with these unidentified sales persons. These same arguments are made in defendants’ appellate brief. Plaintiff maintains that all the elements of the tort are well pleaded, citing Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 480 N.E.2d 1176.

The elements of the tort of interference with prospective economic advantage are: (1) the existence of a valid business relationship or plaintiff’s reasonable expectancy of entering into a valid business relationship; (2) defendant’s knowledge of this relationship or expectancy; (3) intentional interference by defendant inducing termination of the relationship or preventing the expectancy from ripening into a valid business relationship; and (4) damage to plaintiff as a result of the interference. Delcon Group, Inc. v. Northern Trust Corp. (1989), 187 Ill. App. 3d 635, 651, 543 N.E.2d 595; Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 607, 480 N.E.2d 1176.

Here, plaintiff alleged an existing business relationship with the named financial institutions and with their sales persons. This was sufficient to allege the existence of a valid business relationship (Galinski, 134 Ill. App. 3d at 607, 480 N.E.2d at 1182), whereas an allegation of reasopable expectancy of entering into a valid business relationship is applicable where there has been no business relationship, a situation not present here. We are also satisfied that, contrary to defendants’ contentions, the allegations in count V are sufficiently specific and adequately plead a cause of action for interference with prospective economic advantage. The dismissal of count V was error, and we reverse and remand for further proceedings on this count.

Plaintiffs next contend that the circuit court erred in granting defendant William Muhlenfeld’s motion for summary judgment on count I of plaintiffs’ first amended complaint. In count I, plaintiffs alleged that Muhlenfeld violated a covenant in the agreement for the sale of his interest in First American to George Dangeles. The pertinent covenant provided:

“In the event MUHLENFELD leaves the employ of FAM, he agrees that he will not employ any of the employees of FAM away from FAM.”

Plaintiffs alleged that Muhlenfeld violated this covenant by offering positions to two of First American’s employees, Nancy Gaskin and Lisa Carpenter, who subsequently terminated their employment with First American.

The circuit court held that the covenant was only violated if Muhlenfeld actively recruited employees of First American. After examining the materials supporting and opposing the motion, the court concluded that Gaskin and Carpenter arranged employment with Muhlenfeld only after leaving First American. Finding no genuine issue as to a material fact, the court entered summary judgment in favor of defendant Muhlenfeld.

Muhlenfeld’s deposition testimony indicates that he hired Nancy Gaskin after she told him she had been fired from First American. This testimony was uncontroverted by any direct evidence. With respect to Lisa Carpenter, George Dangeles stated in his deposition that he had no direct knowledge of the transactions leading to her accepting employment with Muhlenfeld. Dangeles merely stated that because Carpenter was employed by Muhlenfeld, Muhlenfeld “employed her away.”

A motion for summary judgment should only be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) While a party against whom a motion for summary judgment has been filed need not prove his case at that preliminary stage, he is required to present some factual basis that would arguably entitle him to a judgment in his favor. Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 866, 529 N.E.2d 40.

On this record, plaintiffs have presented no evidence contrary to defendant’s deposition evidence to show that Muhlenfeld approached or recruited Lisa Carpenter while she was still employed by First American. With respect to Nancy Gaskin, the uncontradicted deposition testimony establishes that she did not discuss employment with Muhlenfeld until after she left employment with First American.

Plaintiffs contend, however, that the deposition testimony of Irene Baluk and Joyce Leach, bookkeepers at First American, indicates that both Lisa Carpenter and Nancy Gaskin told them they had a job at Centennial before they left. Examination of those depositions does not support this assertion. In any event, this evidence is hearsay as to the defendant Muhlenfeld, the only defendant in count I. Evidence, such as this, which is inadmissible at trial is not admissible in support of or in opposition to a motion for summary judgment. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 8, 475 N.E.2d 549.) Nor can it be inferred from the fact that these employees started with Centennial shortly after leaving First American and the other deposition evidence that Muhlenfeld enticed the employees away. The court below correctly found that no genuine issue of material fact existed.

Plaintiffs additionally argue that the circuit court erred in construing the covenant only to prohibit Muhlenfeld from recruiting First American’s employees. Plaintiffs contend that properly construed, the covenant prohibits Muhlenfeld from hiring anyone who was an employee of First American when the agreement was executed. This position is untenable. The phrase “employ away” clearly requires that Muhlenfeld take the employee from a current position with First American. If Muhlenfeld were to recruit an individual no longer employed by First American, he could not be said to employ that employee “away.” The circuit court correctly entered summary judgment for defendant Muhlenfeld on count I of the complaint.

Plaintiffs’ last contention is that the circuit court erred in entering partial summary judgment in favor of defendants Muhlenfeld, Gaskin, Carpenter, and Centennial on count IV of its first amended complaint, alleging tortious interference with contractual relationships, as it pertains to the contractual relationship with Citicorp. The circuit court found there were no disputed issues of fact and granted defendants’ motion for summary judgment.

The elements of tortious interference with a contractual relationship are: (1) a valid and enforceable contract between the plaintiff and a third party; (2) the defendant’s awareness of the contractual relationship; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the third party caused by the defendant’s wrongful conduct; and (5) damages resulting from the breach. Delcon Group, Inc. v. Northern Trust Corp. (1989), 187 Ill. App. 3d 635, 650, 543 N.E.2d 595.

With their motion for summary judgment, defendants submitted the affidavits of employees of Citicorp which stated, inter alia, that Citicorp had not terminated its relationship with First American. These affidavits negate the existence of any breach of a contract by Citicorp. Plaintiff contends that other deposition evidence contradicts the affidavits and thus a genuine issue as to a material question of fact exists precluding summary judgment.

We have examined the depositions referred to by plaintiffs and conclude that there is no direct evidence which contradicts the affidavits. In fact, Dangeles, in his deposition, states that he was not sure whether Citicorp or another lending institution actually terminated the relationship. While Dangeles also filed a putative affidavit which states that Citicorp cut off business twice with First American, we will not consider this document, which actually contradicts his deposition testimony, as it is not signed, sworn to, or dated, and fails as an affidavit. (Kohls v. Maryland Casualty Co. (1986), 144 Ill. App. 3d 642, 645, 494 N.E.2d 1174.) Based on this record, the affidavits are uncontradicted, and the circuit court properly granted defendants summary judgment with respect to the claim of interference with a contractual relationship with Citicorp alleged in count IV of the amended complaint.

The judgment of the circuit court is affirmed as to counts I, III, and IV and reversed as to the dismissal of count V. The cause is remanded for farther proceedings on count V.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, P.J., and McLAREN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELL FENNER, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HORTON, a/k/a Melvin Horton, Defendant-Appellant.
    Second District
    Nos. 2—88—0454, 2—88—0698 cons.
    Opinion filed December 20, 1989.
    Rehearing denied January 12, 1990.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendants, Cornell Fenner and William Horton, were each charged in the circuit court of Du Page County by separate informations with the offenses of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19—1(a)) and theft (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(a)(1)) arising out of the same occurrence. Following a bench trial, Fenner was found guilty of two counts of burglary and was sentenced to a 12-year term of imprisonment on one count. Horton, following a stipulated bench trial, was found guilty of both burglary counts and was sentenced to two 14-year terms of imprisonment to run concurrently with each other and concurrently with separate convictions in Du Page County and Cook County. Upon motion of defendants, this court consolidated their appeals.

The two issues raised on appeal are: (1) whether the trial court erred at a pretrial suppression hearing in precluding defendants from inquiring of the police officers as to their subjective intent in stopping defendants’ vehicle; and (2) whether Horton must be granted a new sentencing hearing if his convictions in a separate case on appeal are reversed.

The following relevant facts were adduced at the joint hearing on defendants’ motion to quash arrest and to suppress evidence. On August 8, 1987, a Saturday, at approximately 6 a.m., defendants and a third man, Charles Nunnery, entered the Origa Corporation located at 928 North Oak Lawn in Elmhurst, Illinois. Nunnery inquired about employment with Robert Haenisch, an employee of Origa, who was working overtime. After Haenisch told the three to return on Monday to the personnel department, the trio departed the premises. Shortly thereafter, Haenisch observed a car with the same three men drive from behind the Origa building to a location behind a Xerox building adjacent to Origa in the industrial complex. Two of the men exited the vehicle and walked over to several semitrailers parked near the Borg-Warner building on the other side of the Xerox building. The two appeared to be looking around the semitrailers. The third man moved the vehicle to the side of the Xerox building and waited. Haenisch apparently was unable to observe any further activity on the part of the two individuals near the semitrailers. Haenisch knew that both Xerox and Borg-Warner were closed on Saturdays.

At 6:21 a.m., Haenisch telephoned the Elmhurst police department and told the dispatcher that three black males had driven behind the Xerox building and that two had gotten out of the car and were looking around the semitrailers. Haenisch described the car as an older model Chevrolet or Oldsmobile, light colored, beige or tan, with rust spots.

Officer John Hybl of the Elmhurst police department received a radio dispatch at 6:21 a.m. that a suspicious, older, gold car was parked in the lot behind the Xerox building at 935 Oak Lawn in Elmhurst with two black male occupants. He was familiar with the area and had patrolled by there earlier that morning. He knew the dispatcher received the information from a person at 928 Oak Lawn. Approximately two to three minutes after receiving the dispatch, as he was responding to the location, Hybl observed an old gold-colored Chevrolet with two black males in the front seat stopped facing north at a stop sign at the intersection of Oak Lawn and Grand Avenue. Oak Lawn is a dead end street only a block long, and the stop sign is at the north end. The Xerox building is at the south end of the block. He saw no other vehicles on the street. As Hybl turned his squad car onto Oak Lawn from Grand Avenue, he slowed down in order to read the license plate number on the gold Chevrolet. He then proceeded down Oak Lawn and pulled into a parking lot. As he did so, the Chevrolet turned right and proceeded east on Grand Avenue. Hybl dispatched the direction of travel of the Chevrolet, the color of the vehicle, and the license plate number. He did not dispatch a request to stop the vehicle.

Officer Rick Sidell of the Elmhurst police department heard the original radio dispatch, the dispatch by Hybl, and a dispatch by Officer Nicholas, who reported the gold Chevrolet as going eastbound on Grand Avenue at a high rate of speed. Sidell observed the gold Chevrolet traveling in his opposite direction. Sidell made a U-turn and followed the Chevrolet at a distance of one car length, where he observed that the license plates were expired. He then activated his overhead lights and effected a traffic stop. According to Sidell, he stopped the vehicle because its license plates were expired. The vehicle was not speeding at that time. During the examination of Officer Sidell, the defendants, following an objection by the State, were prevented from asking Sidell his subjective intent for stopping the vehicle. The trial court ruled that the officer’s subjective intent was immaterial.

Upon stopping the vehicle, it was discovered that the vehicle contained numerous boxes of booster cables and spark plug wires. Further investigation at the Borg-Warner building revealed that booster cables and spark plug wires were missing from the semitrailers and that the missing property was the same type as that found in defendants’ vehicle. All three defendants were then arrested for burglary at the scene of the traffic stop.

Defendants contend on appeal that the trial court erred in prohibiting them from asking Officer Sidell any questions regarding his intent in stopping their vehicle. In this regard, defendants first argue that they should have been allowed to ask Sidell questions regarding his intent in order to establish whether Sidell’s stopping of defendants’ vehicle for a traffic violation was a pretext for investigative purposes unrelated to the traffic violation. They ask that' we remand for a new suppression hearing.

We first note that defendants only challenge the constitutionality of Sidell’s original stop of their vehicle and do not present any issue as to whether there was probable cause to subsequently arrest the defendants.

We begin our analysis by emphasizing that in Illinois, consistent with the principles set forth in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, a police officer may stop a person for investigative purposes when the officer reasonably infers from the circumstances that the person is committing, is about to commit, or has committed an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107—14; People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252.) These same principles apply to the investigatory stop of a vehicle. See People v. Crest (1989), 188 Ill. App. 3d 768, 772, 544 N.E.2d 825.

The necessary inquiry in any Terry stop analysis is whether the police officer’s conduct was reasonable under the circumstances known to the officer at the time he initiated the stop. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; Long, 99 Ill. 2d at 227-28, 457 N.E.2d at 1255.) In making that assessment, the facts are judged against an objective standard. (Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) For a valid investigatory stop, the information relied upon does not have to meet the tests required for an arrest or search warrant. (Adams v. Williams (1972), 407 U.S. 143, 147, 32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923.) An officer’s inferences, to be considered reasonable, must be based on more substantial facts than would support a mere hunch. For the officer to justify a temporary detention, he or she must point to specific, articulable facts which, when taken together with natural inferences, make the intrusion reasonable. (People v. Smithers (1980), 83 Ill. 2d 430, 435-36, 415 N.E.2d 327.) Facts and circumstances, which if viewed separately might constitute innocent behavior, may provide reasonable suspicion justifying an investigative stop when considered in their entirety. United States v. Sokolow (1989), 490 U.S. 1, 9-10, 104 L. Ed. 2d 1, 11-12, 109 S. Ct. 1581, 1586-87.

In the present case, we necessarily consider all of the facts and circumstances known to Officer Sidell prior to stopping defendants’ vehicle, and any reasonable inferences drawn therefrom, in determining the reasonableness of the stop. Where, as here, officers are acting in concert in investigating a crime or possible crime, probable cause to arrest, or reasonable suspicion to stop as is the case here, can be established from all the information collectively received by the officers even if not known to the officer initiating the stop. People v. Fox (1987), 155 Ill. App. 3d 256, 263-64, 508 N.E.2d 475; see also Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 70, 528 N.E.2d 411.

Officer Sidell had heard the original dispatch of a suspicious, gold Chevrolet with two black male occupants parked in the lot behind the Xerox building in Elmhurst. He was further advised by radio that a gold-colored Chevrolet with two black male occupants in the front seat was traveling east on Grand Avenue at a high rate of speed. This direction was away from the location of the Xerox building. This information may have suggested flight. He also knew, based on Hybl’s dispatch, that a gold-colored Chevrolet with two male black occupants had entered Grand Avenue from Oak Lawn a few minutes after the original dispatch. Additionally, Officer Hybl had observed this vehicle as it was leaving the one-block street where the original suspicious vehicle was reported. Further, the suspicious vehicle with two occupants was reported to be in the parking lot behind the Xerox building in an industrial complex at 6:21 a.m. on a Saturday morning, a time when Xerox might not normally be open for business and in an area not normally used by the public, facts which might cause the officers to infer a crime to be in progress. In addition, the citizen-witness, Robert Haenisch, testified that he told the dispatcher that the two black men had gotten out of the vehicle and were looking around semitrailers.

When viewed in their entirety, it would not be unreasonable for police officers collectively to conclude, based on these facts, circumstances, and natural inferences to be drawn therefrom, that an offense had been committed and that the occupants of the Chevrolet were involved. Thus, there existed a reasonable, articulable suspicion justifying the stop of the Chevrolet for investigative purposes. The trial court’s decision on this issue was not manifestly erroneous. See People v. Galvin (1989), 127 Ill. 2d 153,162-63, 535 N.E.2d 837.

Defendants maintain, however, that Sidell’s subjective intent was relevant to show that he stopped them pretextually, and, therefore, they should have been allowed to inquire as to his intent at the suppression hearing. Such an argument is misplaced where, as here, the officer had a constitutional basis for stopping defendants’ vehicle. The fact that Sidell testified that he stopped the vehicle based on the traffic violation, a basis which might arguably generate the issue of pretext under other circumstances, does not by itself inject the issue of pretext into the inquiry of whether there was a reasonable basis for the stop under the fourth amendment. To impose the issue of pretext under the circumstances here would be to unnecessarily obfuscate the question of whether the officer had a constitutional basis for the stop simply because there also existed some separate basis for a stop, such as a traffic violation, which the officer chose to act upon. The question of whether the officer acted pretextually in stopping the vehicle for a traffic violation is simply not an issue where he was otherwise justified in stopping the vehicle pursuant to principles enunciated in Terry v. Ohio and codified in section 107—14 of the criminal code.

Our analysis in this respect is consistent with several recent cases which have held that the issue of pretext is not implicated where an officer otherwise has probable cause to arrest a person. (People v. Hattery (1989), 183 Ill. App. 3d 785, 813-19, 539 N.E.2d 368; People v. Anderson (1988), 169 Ill. App. 3d 289, 294-98, 523 N.E.2d 1034.) Furthermore, our supreme court, citing Scott v. United States (1978), 436 U.S. 128, 135-38, 56 L. Ed. 2d 168, 176-78, 98 S. Ct. 1717, 1722-23, has stated that the proper approach for evaluating compliance with the fourth amendment is to objectively assess the officer’s actions in light of the facts and circumstances before him at the time without regard to his underlying intent or motivation. People v. Hoskins (1984), 101 Ill. 2d 209, 213-14, 461 N.E.2d 941; see also Anderson, 169 Ill. App. 3d at 297, 523 N.E.2d at 1040.

We are careful to note, however, that we are not deciding the issue of whether the pretext doctrine has vitality, generally, but rather, are more narrowly holding that where, as here, an officer has a reasonable suspicion justifying a temporary detention under the fourth amendment, the fact that he is also aware of a traffic violation which would provide a separate basis to stop does not raise the issue of pretext. Consequently, under the facts of this case, it was not error for the trial court to preclude inquiry into Officer Sidell’s underlying intent or motivation for stopping defendants’ vehicle.

Defendants also argue that they should have been allowed to question Officer Sidell and other officers as to their motives so as to attack the credibility of their testimony about what information was available to them at the time of their actions. The State responds that such a basis was not presented to the trial court and is thus waived. We agree that this reason was not presented below. The only basis offered at the hearing for this line of questioning by defendants was for the purpose of learning the subjective intent of Sidell to determine if the improper registration reason for the stop given by Sidell was a pretext for the stop. Thus, this contention is waived.

We next address defendant Horton’s contention that this court should vacate his sentences and remand for a new sentencing hearing in the event either of his convictions for armed robbery and aggravated battery in another Du Page County case are reversed in a separate appeal, No. 2—88—0672, currently pending in this court. He argues that these other convictions were before the trial court at the time of the sentencing hearing in this case and that they “must have had an impact on the sentencing court here.”

The State responds that this issue is not ripe for review as the other appeal is still pending. Horton replies that this court should simultaneously decide these two appeals.

We agree with the State that the issue defendant Horton attempts to raise is not ripe for adjudication at the present time. (See People v. Ziltz (1983), 98 Ill. 2d 38, 42, 455 N.E.2d 70.) Also, we will not consolidate or adjust the scheduling of our cases on appeal where, as here, the two appeals arise out of distinct and separate occurrences and present different issues for our review.

The judgments of the circuit court of Du Page County are affirmed.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SCHULD, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—0039
    Opinion filed September 28, 1989.
    Rehearing denied January 12, 1990.

      Michael J. Pelletier and Deborah Liebow, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Paula M. Carstensen, Special Assistant State’s Attorney, and Kenneth T. McCurry and Toi Denise Houston, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant and Wayne Damron were convicted of residential burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19—3.) Defendant was sentenced to five years’ imprisonment. Damron was sentenced to four years’ imprisonment and his appeal (No. 86—3275) was dismissed for want of prosecution on March 31, 1988. On appeal, defendant contends (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court erred in excluding him from treatment under the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1985, ch. 111½, par. 6301 et seq.).

Barbara Gelardi testified that on Monday, April 21, 1986, she lived at 2512 West 59th Street in an apartment above a tavern. She explained that there were five doors to the building and pointed them out on photographic exhibits admitted into evidence. About 6:45 p.m. she went to dinner and all the doors were locked. When she arrived home about 8:40 p.m., glass from the back door of the apartment was broken, the door was open and the police were present. Boxes of papers belonging to her daughter, who was moving, were upstairs and the papers were scattered. Dogs that were left in the tavern area were upstairs. The door between the apartment and the tavern on the first floor was open. A police officer had a paper bag containing $106 which was missing from the tavern register. She identified defendant and Damron as customers of the tavern for two months.

Chicago police officer Fred Brownfield testified that about 7:45 p.m. he went to the building in question with Officer Shelton. He went to the front door of the building, heard noises and found defendant, who was carrying a paper bag, coming out of the door leading to the apartment. The bag contained $106 in bills and coins. The officer arrested defendant and found a screwdriver when he searched defendant. During cross-examination, he was questioned concerning grand jury testimony in which he had stated that he saw defendant coming from the front door of the tavern. The witness reiterated his trial testimony that he had seen defendant coming from the apartment door which was connected to the tavern.

Chicago police officer Melvin Shelton testified that Officer Brownfield went to the front of the building, and Shelton went into the upstairs apartment from the rear entrance. There he found the doors open and windows broken. He also found Damron huddled in the pantry in a crouched position, handcuffed him and led him downstairs. At that point, there were two doors. One led to the tavern and the other to the street. Both were wide open. He then saw defendant in custody but did not see a brown paper bag.

Wayne Damron testified that since February 1986 he had lived near the tavern and, on the day in question, he and defendant were standing and drinking in an empty lot behind the tavern. About 7:30 p.m. Larry Kalafut offered to sell him a radio which did not have a rear panel or batteries. When defendant paid Kalafut $10, Kalafut said that he could get the rear panel and batteries, and Damron followed Kalafut up the back stairs of the tavern building to an apartment where Damron believed that Kalafut lived. Kalafut told Damron to wait in the kitchen and went to the front, but did not return. Minutes later police officers arrived and arrested him.

James Cruz was a friend of defendant, and he testified that he saw Officer Brownfield arrest defendant, who was standing in front of the vacant lot near the tavern between 7:30 and 7:45 p.m.

Defendant contends that he was not proved guilty beyond a reasonable doubt and his conviction was based solely on the inconsistent and conflicting testimony of the Chicago police officers. For example, defendant emphasizes that Officer Brownfield’s trial testimony conflicted with his grand jury testimony and also points out that Cruz said that defendant was standing in a vacant lot next to the tavern when he was arrested. Defendant next points to Officer Shelton’s testimony that he did not see a brown paper bag, although Officer Brownfield testified that he seized the bag from defendant. These and other claimed inconsistencies in the State’s testimony present matters of credibility for the trial court to resolve. In making its finding, the trial court specifically mentioned that it found the three State witnesses worthy of belief, but did not find Damron or Cruz believable witnesses. The court concluded that it was satisfied that both men entered the building together through the upstairs residence anticipating attempts to steal from all parts of the building.

In a bench trial, once a defendant has been found guilty of the crime charged, all of the evidence should be considered in the light most favorable to the prosecution. (People v. Bedony (1988), 173 Ill. App. 3d 613, 618, 527 N.E.2d 916.) Witnesses’ credibility and the weight to be given their testimony are determinations exclusively within the province of the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.) The crime of burglary requires that its elements often be proved by circumstantial evidence. (People v. Suane (1987), 164 Ill. App. 3d 997, 1005, 518 N.E.2d 458.) The trial court here found that defendant and Damron were acting in concert when they entered the building, and this conclusion is justified by the evidence. The testimony of the two police officers placed both men inside the building at the same time. Defendant was in the possession of proceeds taken from the tavern portion of the premises and was apprehended as he left. The evidence was sufficient to find either that defendant had been in the residential portion of the premises or that he was acting in concert with Damron, who had been there. We find no reasonable doubt of defendant’s guilt of residential burglary.

Defendant next contends that the trial court improperly excluded him from treatment under the Alcoholism and Substance Abuse Act. Defendant indicated immediately after the court’s finding that he had a “problem with alcohol” and asked to be evaluated by TASC (substance abuse program). A TASC representative subsequently informed the court that defendant was an alcoholic who demonstrated likelihood for rehabilitation, but TASC was under the impression that an alcoholic only qualified for treatment if he qualified for a regular probation sentence. When the court asked the basis for this position, the representative stated that he was told this was the TASC position. The court then said it understood that the TASC position was that the statute that permits TASC treatment applies only to drug addiction as opposed to alcohol abuse, and defendant would not in any event be eligible for treatment because his conviction precluded probation. When defendant suggested a reevaluation for TASC treatment, the TASC representative said that there was some abuse of marijuana in defendant’s history, but he would not venture to say that there was an addiction. In aggravation, it was stated that defendant was convicted and imprisoned for burglary in 1977. He violated his parole in 1979 and was convicted of burglary in Texas in 1981. The court said that it had seriously considered whatever would need to be done to get defendant into a treatment program for his alcoholism, but concluded that it was inappropriate given his background and the offense.

Section 4.1 of the Act (Ill. Rev. Stat. 1985, ch. 111½, par. 6304.1) provides:

“ ‘Addict’ means any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.”

Clearly this definition excludes alcohol. Nevertheless, defendant argues that the trial court had reason to believe that he was an addict. The foregoing statutory definition, which plainly excludes “alcohol” from its context, clearly does not include one such as defendant, who was described in the presentence report as an alcoholic and who stated that he never used drugs of any kind. Apparently, defendant nevertheless told the TASC representative of his use of marijuana. The court may have had reason to believe defendant was addicted to alcohol, but the court did not have reason to believe that defendant met the statutory definition of “addict” set forth above.

Defendant further complains he was excluded because, according to the TASC representative and the trial court, he was ineligible. Probation may not be imposed for the offense of residential burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(2)(G).) The trial court here appears only to have agreed that the position of TASC—to exclude persons ineligible for probation—was based on the statutory prohibition of probation for the offense of residential burglary. As defendant points out, section 21 of the Act does not specifically exclude such a person from eligibility for treatment; section 21(g), however, excludes a person convicted of residential burglary who has a record of one or more felony convictions, such as defendant. (Ill. Rev. Stat. 1985, ch. 111½, par. 6321.) The court stated that alcohol played a part in the commission of this offense by defendant and that the court had seriously considered doing whatever was needed to get defendant into a program for his alcoholism, but the court concluded that such course of action would be inappropriate. The trial court’s decision to grant treatment rather than a sentence is a matter of discretion and will not be disturbed absent a showing that the circuit court’s determination is clearly erroneous. (People v. Suane, 164 Ill. App. 3d at 1008-09.) Even if we were to consider defendant to be eligible, we conclude that the record demonstrates that the trial court considered the appropriate factors and that its decision that treatment was inappropriate was not clearly erroneous.

Finally, defendant contends that interpretation of the Act to exclude defendant, an alcoholic, from treatment as an addict violates the equal protection clauses of the United States and Illinois Constitutions. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Defendant notes that the Act does deal with alcoholism as an illness, which, according to section 2 of the Act (Ill. Rev. Stat. 1985, ch. 111½, par. 6302), is a matter of grave concern and requires a comprehensive and coordinated strategy. Defendant acknowledges that the State has allowed only drug addicts to elect treatment as an alternative to prosecution or incarceration, but asserts no rational basis exists for making such a distinction. The State argues that the legislation has a rational purpose based on an awareness that an addict’s crimes are frequently motivated by his addiction, drug addicts often steal to support their habits, and treating addiction may directly eliminate crime. By contrast, the State says that a defendant’s alcoholism is not usually directly related to his commission of a crime and consequently treatment would not directly result in lessening crime. Moreover, possession of drugs is illegal but possession of alcohol generally is not.

We note that no constitutional issue was ever raised in the trial court. Failure to object at trial or specify an alleged constitutional error in a post-trial motion constitutes a waiver. (People v. Thomas (1988), 172 Ill. App. 3d 172, 178, 526 N.E.2d 467.) Nevertheless, we may consider the constitutional claim under the plain error rule. People v. Perine (1980), 82 Ill. App. 3d 610, 615, 402 N.E.2d 847; 107 Ill. 2d R. 615(a).

Neither the Federal nor State Constitution prevents the State from treating different classes in different ways. (People v. Eckhardt (1989), 127 Ill. 2d 146, 151, 535 N.E.2d 847.) Moreover, the State has broad discretion in the exercise of its police power for the health and safety of its citizens. A statute enjoys a presumption of constitutionality, and a legislative classification will be upheld against an equal protection challenge if any set of facts can reasonably be conceived which will sustain the classification. (127 Ill. 2d at 152.) Courts have recognized in evaluating similar legislation that the legislature was acting (1) to curb what appeared to be a springboard or incentive resulting in the commission of criminal offenses and (2) to rehabilitate defendants where possible. (People v. Smith (1974), 23 Ill. App. 3d 387, 389, 319 N.E.2d 238.) In People v. Perine (82 Ill. App. 3d 610, 402 N.E.2d 847) in upholding a provision excluding from treatment persons who possessed 30 grams or more of heroin, the court found no denial of equal protection since the legislature could have presumed such persons were traffickers in drugs and less likely to benefit from the rehabilitative aspects of the drug treatment program. (82 Ill. App. 3d at 616.) A classification need not include all persons in need of assistance. (Meeker v. Tulis (1985), 134 Ill. App. 3d 1093, 1097, 481 N.E.2d 810.) In dealing with a social problem, the legislature is not required to solve the entire problem at once, but may proceed in a step-by-step manner. (People v. Gurell (1983), 98 Ill. 2d 194, 205, 456 N.E.2d 18.) In this regard we note that the statute in question was repealed and replaced on July 1, 1988, by the Illinois Alcoholism and Other Drug Dependency Act, which defines “addiction” to include an illness characterized by preoccupation with alcohol. Ill. Rev. Stat. 1987, ch. 111½, par. 6351-3.

The Act is clear that the legislature recognized alcoholism to be a serious social problem along with drug addiction. In treating the two conditions differently for purposes of criminal prosecution and treatment, we cannot say that the distinction made by the legislature did not have a rational basis. The legislature has wide discretion to classify offenses and prescribe penalties for the defined offenses. (People v. Neither (1988), 166 Ill. App. 3d 896, 520 N.E.2d 1247.) Thus, the court in Neither upheld the constitutionality of the Act although not all drug addicts were eligible for alternative treatment. A statutory reform should not be held invalid because it does not go far enough in eliminating a particular evil. (People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1117, 443 N.E.2d 673.) Clearly, the resources available for treatment of both groups of offenders are limited. The exclusion of alcoholics who are not also addicts within the definition of the Act is one of several ways in which the legislature has attempted to direct the available resources. On this record, we cannot say that the legislature’s decision not to make alcoholics eligible for treatment under the Act is irrational. Rather, we consider that the decision is supported by the legitimate interest of the State in the prosecution and treatment of offenders.

Therefore, the judgment of the circuit court is affirmed.

Judgment affirmed.

JOHNSON and McMORROW, JJ., concur.