author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ESTRADA, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—1529
    Opinion filed February 11, 1993.
    Daniel T. Coyne and Geary W. Kull, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Barbara L. Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

In a bench trial, defendant David Estrada (Estrada) was found guilty of first-degree murder on a theory of accountability and was sentenced to 20 years’ imprisonment. He appeals his conviction principally on the following theories: (1) that the trial court misconstrued the law of accountability, (2) that Estrada was not found guilty beyond a reasonable doubt, and (3) that the trial court improperly considered the statement of a codefendant whose trial had been severed from Estrada’s trial. We note that Estrada has been free on bond pending this appeal.

The facts are as follows.

In February 1991 codefendants Gerardo Degollado (Degollado), Juan Portillo (Portillo) and Estrada came before the trial court on charges of murder in the first degree in conjunction with the shooting death of Jesus Sanchez on the evening of November 17, 1989. Each of the defendants waived his right to a jury trial and was tried by the judge in simultaneous but severed trials.

At trial Mario Martinez Alvarado (Martinez), who spoke only Spanish, testified through an interpreter. According to his testimony, on November 17, 1989, he lived in the vicinity of Karlov and 24th Place in the City of Chicago. At about 7 p.m. he met “Flacko,!’ a friend whom he had known for about three months. They planned to go to a party that was to be held near 25th and Trumbull. “Flacko” was identified in court as Degollado.

Sometime later that evening, as Martinez and Degollado were on the street near 26th and Trumbull, they saw “Dagger,” whom Martinez had met only once before. Dagger was driving a blue Buick, four-door car. Martinez and Degollado got into the car and began to ride around the neighborhood. Dagger was identified in court as Portillo.

Portillo drove the car, Degollado sat in the front passenger-side seat and Martinez sat in the back, behind the driver. After about V-k to 2 hours of driving around, they met “Tiny,” who was identified as Estrada. Estrada spoke with Portillo and then got into Portillo’s vehicle and began to ride around with them. At some point a black vehicle pulled up alongside the Buick and the occupants of that car had a conversation with Estrada.

According to Martinez, as they rode around the area Portillo pulled out a gun. Martinez did not see where the gun had been or how Portillo had obtained the gun. Portillo aimed the gun at a person who was standing near a bus stop on 26th Street, but did not fire the gun at this time.

Martinez further testified that about five minutes later, Portillo pulled up in front of a building at Karlov and 24th Place, where a Hispanic male was standing. Portillo and Estrada began to shout at the person “something about gangs.” Portillo then reached across Degollado, aimed the gun out the passenger-side window, and fired the gun twice. The Hispanic male bent over and ran. Estrada exited the car carrying a tire iron and proceeded to smash a window of the house where the Hispanic person had been standing. Estrada then got back into the car and they drove away.

Martinez stated that after the incident he and Degollado both asked to be taken home immediately. Portillo then drove him to his home.

Chicago police officer Frank Castro testified that a short time later, around midnight on the evening of November 17, 1989, he arrived at a residence located in the 4100 block of West 24th Place in Chicago in response to a radio broadcast indicating that a man had been shot. When he arrived at the scene paramedics were already present and removing Jesus Sanchez, the victim of gunshot wounds, from the premises. Castro secured the front of the residence where the shooting allegedly occurred and spoke with several witnesses at the scene. About 20 minutes later he left the area to go to the hospital.

Another Chicago police officer, J. Veraveic, testified that at about 2:15 a.m. on November 18, 1989, he was in the area of 2200 South Ridgeway when he was flagged down by a man. Based upon a conversation with this man, Veraveic called for backup and then took off after a person who could be seen running from the area. Chicago police officer Ramos appeared on the scene in response to the call. Veraveic caught the man who was running and arrested him. This man was later identified as Estrada.

Officer Ramos testified that he received a radio broadcast indicating that there was an aggravated assault with a gun in progress at 2200 South Ridgeway. He immediately arrived at the scene and spoke with a man, Ronald Jenkins, identified as the complainant. He saw Officer Veraveic apprehend Estrada and he (Ramos) recovered a .22 semi-automatic pistol approximately 75 feet from where Estrada was arrested. Ramos made an in-court identification of the gun that was recovered and testified that the gun had not contained any bullets when it was recovered.

The next evidence adduced at trial concerned statements given by the defendants. Portillo and Degollado had each given signed written statements to the police which were admitted into evidence. However, these statements were only to be considered in regard to their own cases since the trials were severed. Detective Robert Browne of the Chicago police testified regarding the oral statements made by Estrada. Browne stated that he had interviewed Estrada at about 4:30 p.m. on November 18, 1989, while in the presence of Detective Vucko. At that time Estrada gave a statement in which he indicated that on the evening of November 17, 1989, he had been driving around with his cousin “Kado,” Danny Cantu and Manuel Banda. He saw Jesus Perez and Thomas Tinius in Perez’s car. Perez had been in an accident and his bumper was entangled with another vehicle. Estrada took a jack out of Perez’s car and freed Perez’s bumper.

Portillo also pulled up to the scene in his car and Estrada got into the back passenger seat of Portillo’s car. Cantu and Banda got into Perez’s car. Degollado and a Spanish-speaking male (Martinez) were already in Portillo’s car. Estrada stated that he knew that Degollado had a .22 semi-automatic gun.

As Estrada drove around in Portillo’s car, he saw Perez again. Perez pulled his car up next to Portillo’s car and they had a conversation. Both cars then drove to 24th and Karlov, where they saw two Hispanic males standing. Degollado reached out the window and “represented,” i.e., made gang symbols for the Latin Kings. The two individuals on the street represented as Two-Sixers. Estrada then began to exit Portillo’s car with the tire iron. As he exited the car he heard two shots. Estrada chased after one of the individuals, who ran up the stairs and into the vestibule. Estrada gave up the chase and broke a first-floor window of the building where the one individual entered. Estrada got back in Portillo’s car and they drove off.

Detective Browne further testified that when questioning Estrada on the following day, in the presence of Assistant State’s Attorney Ryan, Estrada admitted that the gun that had been recovered at the time of his arrest was one he had taken from Portillo’s car and the same one that had been used in the shooting at 24th and Karlov. However, Estrada stated that he had been unaware that anyone had actually been shot on the evening of November 17. Estrada also indicated that the gun had been hidden in Portillo’s car inside the glove-box, behind the clock, and that Degollado had passed the gun to Portillo.

It was stipulated that Fournier, a crime lab technician, had run ballistics tests on the gun recovered from Estrada. He would testify that the tests, although not conclusive, indicated that the markings from the gun compared favorably with the markings' on the bullet that was recovered from the victim, Jesus Sanchez.

Next it was stipulated that Dr. Kalelkar, a forensic pathologist, if called would testify that an autopsy was performed on Jesus Sanchez, a 16-year-old male. The autopsy revealed that Sanchez had died of a single gunshot wound to the upper abdomen which perforated the diaphragm, the right lower liver, the abdominal aorta and the left renal vein.

At the close of the State’s evidence, each of the defendants moved for a directed verdict. The court granted the motion only as to Degollado. The court found that even if Degollado had passed the gun to Portillo, this had taken place several minutes before they reached the corner of 24th and Karlov. Degollado’s only overt act at the time of the shooting was “signing” or “representing” with gang symbols. Thus the court found no nexus between Degollado’s action of passing the gun and the shooting.

The trial court denied the motions for directed verdict as to Portillo and Estrada. After his motion for directed verdict was denied, Portillo rested without presenting any further evidence. The trial court then found Portillo guilty of murder in the first degree. Estrada, however, proceeded to present further evidence.

Defendant Estrada first presented evidence by way of stipulation. It was stipulated that Fournier, the crime lab technician, if called would testify that the .22 semi-automatic gun that was recovered at the time of Estrada’s arrest was a “Jennings J” weapon and that between 10,000 and 100,000 of these weapons were “on the street.” Next it was stipulated that Chicago police officer Galegos, if called, would testify that he spoke with Martinez in Spanish and that Martinez had indicated that the shots were fired as Estrada was getting out of Portillo’s vehicle.

The defense then presented Marion Zamudio (Zamudio) as a witness. Zamudio testified that he had been with Sanchez on the corner of 24th and Karlov on the night of November 17, 1989. Around midnight a four-door Buick drove up and a black car stopped behind the Buick. The front:seat passenger in the Buick said, “Almighty Latin Kings.” Sanchez responded, saying “Fuck you and Two Six.” Zamudio later explained that Sanchez was a member of the Two-Sixers gang and that the Two-Sixers were rivals with the Latin Kings and the UPP or Underground Party People, which were affiliated gangs.

After Sanchez responded as a Two-Sixer, two shots came from the front of the Buick. Zamudio stated that he asked Sanchez if he was okay and Sanchez said that he was. They both ducked and ran. Zamudio ran north on Karlov and Sanchez ran west on 24th. Zamudio stated that while he ran he looked back and saw someone pointing something at him. Also, as he ran he heard glass breaking and another shot. Later, in a police lineup, Zamudio identified Tinius as the man who had pointed something at him after the shooting in front of 24th and Karlov.

Detective Browne was recalled to testify. He admitted that Tinius had been taken into custody in regard to the Sanchez shooting, that Tinius had been in a black Lincoln on the night of the shooting and that a gunshot residue test had been performed on Tinius.

Lab technician Berk was then called to testify regarding the residue test. These tests, however, were inconclusive and did not establish that Tinius had fired a gun.

The defense rested and the State then called Detective Browne once again for rebuttal. Detective Browne was questioned regarding his interview with Zamudio. Browne testified that Zamudio told him that when the Buick pulled up to the corner the passenger in the Buick had represented down towards the Two-Sixers and that Zamudio had responded in kind. The rear-seat passenger (Estrada) then told them to “go get fucked” and began to exit the vehicle. Zamudio and Sanchez then took a step backwards. Just then two shots were fired.

After Detective Browne testified, the State rested. The trial court heard argument and then, in a lengthy narrative, found that “defendant must be guilty by accountability for the shooting of Mr. Sanchez.” However, at the close of the court’s statements, the trial judge stated, “I" think all of these facts impel but one conclusion. And that’s the defendant on the theory of accountability is guilty of attempt murder.”

The case was passed but shortly thereafter the case was recalled. The prosecutor then informed the court that it appeared that a reference had been made to attempted murder. The trial court responded with the following dialogue:

“THE COURT: Flow. And also found guilty on first degree murder on accountability. If I said attempt murder, I misspoke.

MR. ZELAZO [Prosecutor]: I don’t know which it was and just so it’s reflected in the record.

MR. COYNE [Defense Attorney]: You clearly said it. You clearly said it.

THE COURT: Bring him back out. He is not charged with attempt murder. How could I mean that. So let’s bring him back out.

THE COURT: Okay. Mr. Estrada, there is [sic] been some confusion. And I might have misspoken even. During the course of my remarks, it appears that your counsel and maybe the state’s attorney, and I know my clerk thought I said I had found you guilty by accountability of attempt murder. If I said that it was in error.

You are not charged with attempt murder. You’re charged only with first degree murder. And the actual correct statement that I intended and thought I had made was that I found you guilty by accountability of first degree murder. And that will be the finding of this Court, just so there is nothing unclear. And Mr. Estrada seems to understand that also. Thank You.”

Nevertheless, on March 13, 1991, defendant brought a motion in arrest of judgment, contending that the court’s finding that defendant was guilty of attempted murder, although a misstatement by the court, was a final judgment rendered in open court which could not be changed. Furthermore, defense counsel argued that this judgment operated to acquit Estrada of the greater offense of murder and, because the finding was legally inconsistent, jeopardy attached and the verdict actually operated to discharge the defendant of all charges.

The trial court denied the motion for arrest of judgment and the motion for new trial that was tendered immediately thereafter. Estrada was later sentenced to the minimum term of 20 years’ imprisonment. He now brings this timely appeal.

On appeal, Estrada contends (1) that the trial court improperly applied a “concerted action” test in finding him accountable for first degree murder, (2) that there was insufficient evidence for the trial court to have found him guilty of first degree murder, (3) that the trial court improperly relied upon evidence taken from a codefendant’s statement which should not have been considered because the trials were severed, (4) that, even if properly considered, the codefendant’s statement established that the act of shooting was done recklessly, establishing the mental state for involuntary manslaughter, (5) that because the trial court found Estrada guilty of attempted murder and signed a mittimus to that effect on February 8, 1991, and because the court failed to vacate that order, the trial court was powerless to substitute a finding of murder for the finding of attempted murder on March 13, 1991, at the sentencing hearing wherein defendant moved to arrest judgment, and (6) that Estrada’s conviction is inconsistent with Degollado’s acquittal and, therefore, must be reversed.

Despite the numerous issues raised by Estrada, we believe that the dispositive question is whether Estrada, under the facts of this case, may be held legally accountable for murder or whether the trial court improperly applied a “concerted action” theory. Because we find no evidence of a common design or plan, we reverse Estrada’s conviction.

Illinois criminal law states that a person is accountable for the crime of another if:

“Either before or during the commission of an offense and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2.)

In this case the trial court found Estrada accountable for the crime on a theory of a common design. The statute does not mention the term “common design,” but certain case law does. For example, in People v. Coleman (1991), 222 Ill. App. 3d 614, 584 N.E.2d 330, the court discussed the association between “common design” and criminal accountability. The Coleman court found that a defendant could be shown to possess the criminal intent of a principal, and thus be held accountable, through proof that they shared a community of purpose or “common design.” The court went on to hold that common design need not be expressly stated, but rather, may be deduced from the circumstances surrounding the incident, which might include defendant’s presence at the commission of the crime without disapproving or opposing it.

The Hlinois Supreme Court has also followed the “common plan or purpose” concept in determining accountability. However, this has only been done where the evidence discloses, at least by inference, that in addition to being present at the scene of the crime, the accountable party had some advance knowledge of the criminal plan or scheme. (People v. Furby (1990), 138 Ill. 2d 434, 563 N.E.2d 421.) Otherwise, it is well established that mere presence at the scene of a crime is not sufficient to sustain a conviction on an accountability theory. See People v. Furby, 138 Ill. 2d 434, 563 N.E.2d 421; People v. Ceasar (1992), 231 Ill. App. 3d 54, 596 N.E.2d 89 (even though defendant and codefendant both ran after the commission of a theft, defendant’s mere presence at the scene of the theft was insufficient to hold defendant responsible for the theft on a theory of accountability. One justice dissented, apparently because defendant fled with the culprit).

In the present case there is no direct evidence tying Estrada to a common plan or design to shoot Sanchez. The evidence shows that Estrada, who left the car brandishing a tire iron, had already exited the car when Portillo fired a gun at Sanchez. Although Estrada’s acts indicate that he intended to intimidate Sanchez, there is no evidence that he was aware that Portillo intended to shoot at Sanchez. In fact, it is less likely that Estrada would leave the car to pursue Sanchez if he knew that Portillo intended to fire at Sanchez. Furthermore, any inference that Estrada was part of a common design or plan is negated by the fact that Degollado, who was also present in Portillo’s car prior to the shooting, was found not to be accountable by the trial judge.

For these reasons, we believe that we are required to follow the case law which states that mere presence at the commission of an offense without any affirmative act of assisting, abetting or encouraging the act is not sufficient to make a party accountable for the commission of an offense. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) In accordance with this case law, we must reverse Estrada’s conviction and sentence. The evidence fails to provide, beyond a reasonable doubt, any basis to hold Estrada accountable for Sanchez’s death.

Reversed.

GORDON, P.J., and COUSINS, J., concur.

      ‘Although reference is made to these statements being placed into the trial record, they were not read into the record during trial and the record on appeal does not contain copies of these written statements. Therefore, this court is unaware of the exact information that these statements contain.

      The proper spelling of this person’s name was never established. There appear to be several spellings used including “Tinknius,” “Tiknius” and “Tinius.” For the sake of consistency, this court will use the “Tinius” spelling in reference to this individual, regardless of the various spellings that may be used in the transcript.

      We recall here that codefendant Degollado was granted a directed verdict at the close of the State’s case and that codefendant Portillo, who was the shooter according to the evidence presented at trial, was convicted of murder. Portillo’s appeal (No. 1— 91 — 1526), although filed prior to Estrada’s appeal, still pends before another division of this court.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    PONTIAC LODGE No. 294, A.F. AND A.M., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fourth District
    No. 4—92—0608
    Opinion filed March 30, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General (argued), of Chicago, of counsel), for appellant.
    Curtis W. Myers (argued), of Myers Law Firm, of Pontiac, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On February 14, 1984, the Livingston County Board of Review sent to defendant Illinois Department of Revenue (Department) a “Certification of Exemption Request” indicating it had approved the request of plaintiff Pontiac Lodge No. 294, A.F. & A.M. (Pontiac Lodge), in application for a property tax exemption for the property owned by Pontiac Lodge and used as its lodge hall. On August 3, 1984, the Department denied the exemption. On February 27, 1985, the Department reaffirmed its denial. Pontiac Lodge then requested and received a hearing before an administrative law judge (ALJ) who recommended denial of the request. On March 18, 1986, the final administrative decision denying the exemption was made. Pontiac Lodge took administrative review to the circuit court of Livingston County. On June 25, 1992, the circuit court reversed the administrative decision and ordered the exemption be issued.

The Department has appealed contending (1) the circuit court lacked jurisdiction in administrative review; (2) the circuit court’s decision was contrary to the law; and (3) the circuit court abused its discretion when it dismissed the complaint and then vacated that dismissal. We hold that the circuit court had jurisdiction and did not abuse its discretion in vacating its previous dismissal of the complaint. However, we agree with the Department that the decision of the circuit court declaring the property exempt was contrary to the law. Accordingly, we reverse.

Section 138 of the Revenue Act of 1939 (Revenue Act) provides that the “Administrative Review Law *** shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Department hereunder.” (Ill. Rev. Stat. 1991, ch. 120, par. 619.) Section 3 — 107(a) of the Administrative Review Law provides that “in any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 110, par. 3 — 107(a).

The decision from which administrative review was taken was a recommended decision of an ALJ signed by the ALJ with an approval by the Director of the Department endorsed thereon. The apparent argument of the Department is that its Director and not the Department was the “agency” from which judicial review is sought and was required to be made a party. Failure to name all necessary parties to a complaint for judicial review of an administrative decision deprives the circuit court of jurisdiction to proceed. (Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266.) However, section 137 of the Act (Ill. Rev. Stat. 1991, ch. 120, par. 618) makes clear that the agency reviewing property exemption decisions by county boards of review is the Department. Section 138 of the Act under which this judicial review was brought speaks in terms of review of decisions of the Department.

Section 4 of the Civil Administrative Code of Illinois, which provides that a department director “execute the powers and discharge the duties vested by law in his respective department” (Ill. Rev. Stat. 1991, ch. 127, par. 4), merely gives the director the power to act as agent of the agency. Here, the Director was acting in this capacity in approving the recommendations of the ALJ.

The Department relies upon the decision in Lockett, where a police superintendent who had filed disciplinary charges against an officer with a police board was not made a party to a proceeding for judicial review of the board ruling. The supreme court held that the circuit court lacked jurisdiction because the police superintendent, who became a party by filing the charges and appearing in support of them, was not a party to the judicial review. Here, the Director was never a party to the proceedings before the Department. Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 564 N.E.2d 261, also cited by the Department, concerns the necessity of making those who have been parties to administrative proceedings parties to the judicial review.

Having decided that the circuit court had jurisdiction, we now also determine that it was acting within its discretion when it vacated its prior order of dismissal. The circumstances surrounding this dispute began with the filing in the circuit court, by the Department, of a motion for Pontiac Lodge to specify the errors by the Department upon which it was relying. This motion was filed on May 16, 1986, 25 days after the complaint was filed. Approximately two years later, the Department had the motion set for a hearing on April 20, 1988. The docket indicated no one appeared for Pontiac Lodge on that date, and the motion was allowed with Pontiac Lodge ordered to file a specification of errors within 14 days under penalty of dismissal of suit upon its failure to do so. A docket entry of May 31, 1988, indicated Pontiac Lodge was given an extension until June 14, 1988.

The circuit court docket further showed an entry of June 14, 1988, purporting to dismiss the administrative review. However, the entry was scratched out, and a handwritten entry indicated the order of dismissal was vacated because Pontiac Lodge had made a sufficient filing on June 14, 1988. The record indicated both sides had been dilatory before the circuit court. Even when the pleading involved is a criminal complaint, the circuit court has reasonable discretion in determining whether to reinstate such a complaint after it has been dismissed for want of prosecution. (People v. Brown (1968), 39 Ill. 2d 307, 311, 235 N.E.2d 562, 565.) That discretion was not breached here.

We now turn to the merits of the decision on appeal. Section 6 of article IX of the Illinois Constitution of 1970 provides:

“The General Assembly by law may exempt from taxation only the property of the State, units of local government and school districts and property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes.” (Ill. Const. 1970, art. IX, §6.)

Section 19.7 of the Revenue Act defines property eligible for charitable tax-exempt status as follows:

“All property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States, *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit.” Ill. Rev. Stat. 1991, ch. 120, par. 500.7.

Pursuant to section 19.7 of the Revenue Act the taxpayer must establish, in order to qualify for a charitable property tax exemption, that the property is owned by a charitable organization and is exclusively used for charitable purposes. (Resurrection Lutheran Church v. Department of Revenue (1991), 212 Ill. App. 3d 964, 970, 571 N.E.2d 989, 993.) “[T]he term ‘exclusively used’ means the primary purpose for which property is used and not any secondary or incidental purpose.” Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149,157, 233 N.E.2d 537, 542.

The undisputed evidence showed that Pontiac Lodge is a not-for-profit Masonic organization, and it is part of the Masonic Grand Lodge of the State of Illinois. Masonic organizations teach principles of “brotherly love, relief, truth, temperance, fortitude, prudence, and justice.” In addition, Pontiac Lodge supports various charities. The Pontiac Lodge property was purchased in 1931 by the Masonic Temple Association, a not-for-profit holding organization, and title to the property was later transferred to Pontiac Lodge.

The Pontiac Lodge property consists of a two-floor building with a basement where Pontiac Lodge and other subordinate Masonic organizations hold their meetings. An annual charitable function is held at the Pontiac Lodge property, and in addition, the building stores crutches, wheelchairs, and walkers, which are loaned free of charge to any member of the community in need. The Pontiac Lodge property was being used by only Masonic organizations because other charitable or religious organizations had allegedly been destructive in the past.

Masonic organizations subordinate to Pontiac Lodge also use the Pontiac Lodge building, including the Eastern Star No. 310, White Shrine No. 29, Royal Arch Masons, Pontiac Commandery No. 85 and a chapter of the order of DeMolay. The subordinate Masonic organizations make contributions to Pontiac Lodge for the use of the building.

The basic function of the Pontiac Lodge property is to provide a place for the Masonic organizations to hold meetings, which are fraternal and social in nature. Various charitable programs are derived from the meetings, including preparing Christmas baskets for the poor, and an annual miniclinic for the Shrine hospital organization. In addition, the Pontiac Lodge provides monetary help to needy people in the community through the use of a “Master’s fund,” which relieves some of the burden from the local government to provide public aid. Occasionally, the local government would ask the Pontiac Lodge to assist a needy person in the community. Handicap equipment purchased from the “Master’s fund” is stored at the Pontiac Lodge property and is loaned to people in the community.

Pontiac Lodge’s income for the fiscal year 1983-84 was $10,264 and its expenses were $13,067. Its statement indicates that 38% of the funds came from investments, 15% of the funds came from donations for the use of the Pontiac Lodge building, and 1% of the funds came from contributions. Pontiac Lodge’s charitable donations amounted to 12% of its expenses. That percentage of charitable donations includes both the mandatory charity assessment by the Grand Lodge in the form of a per capita tax, and local charitable donations.

A per capita tax is assessed to each member of Pontiac Lodge by the State organization or national organization to which it belongs, here the Masonic Grand Lodge of the State of Illinois, as part of the member’s dues. The per capita tax is paid to the State organization and is then divided between a general fund and a charity fund. The State organization supports various charities, including a general assistance fund, scholarship funds, the Masonic Service Association (which provides a hospital visitation program to all the veterans’ hospitals and provides supplies to those patients), the Illinois Masonic children’s home and Illinois Masonic shelter home and nursing home facility. The Pontiac Lodge building is also used by subordinate Masonic organizations which support charities and pay a per capita tax to the State Masonic organization.

The ALJ whose recommendation was adopted by the Department explained his findings as follows:

“I find that [Pontiac Lodge] was organized to promote the general fraternal welfare of the members of [Pontiac Lodge] and the related Masonic organizations, which used the building, and to provide and maintain a suitable place for them to hold regular lodge meetings and for other social purposes. I further find that [Pontiac Lodge’s] Articles of Incorporation indicate it was organized primarily for fraternal and social purposes, and only incidentally, for charitable purposes. In addition, I find that with the exception of the one day mini-clinic, no charitable activity was conducted on the property here in issue, by Pontiac Lodge or the other Masonic organizations using the building, during the calendar year.
In conclusion, I find as a matter of fact, that [Pontiac Lodge] was not primarily a charitable organization, and did not use the parcel here in issue for primarily charitable purposes during 1983.”

The circuit court viewed the matter in a different light, stating:

“Interwoven in every aspect of the goals for the Masons are concern for fellow man and charitable work with no limitations regarding race, color, creed, or membership of the organization.
8. The Administrative Law Judge apparently looked at the financial strength of the local Masonic Chapter — its ‘financial muscle,’ and because very limited fund raising activities were conducted by the Pontiac Masonic Temple, in its building that therefore somehow the building should not be exempt for real estate tax purposes. Yet the testimony in this case overwhelmingly establishes that while there are certain fraternal and religious aspects of Masonry, that the clear focus of all efforts is to contribute dues and other funds generated locally to both local organizations and to a large number of Masonic charitable organizations. No solicitation is made of the general public for funds to support its charitable activities, and all such funds come from membership and private donations. Even a cursory review of the Pontiac Mason budget, shows that it is a ‘bare-bones’ budget with earmarked charitable donations of $427.00 made in 1983. What the Administrative Law Judge chose to disregard from the testimony, is the fact that the annual ‘per capita to Grand Lodge’ of $1,115.00 is also used for charitable purposes in large measure.” (Emphasis in original.)

The circuit court concludes as follows:

“The test in Illinois is not whether a building owned by a not-for-profit corporation is physically the site of charitable fund raising activities, but whether the ability to meet in that facility, by its membership, which ultimately results in a significant contribution to a wide variety of charitable activities, is the criteria to determine whether the building qualifies for a real estate tax exemption. The testimony before the Administrative Law Judge in this case, clearly establishes that charity is not a ‘incidental purpose’ of the Pontiac Masonic Temple, but rather a primary focus. The limited monies generated by its membership for charitable purposes are significant in light of its modest budget, which clearly does not indicate that expenditures for fraternal activities predominate over charitable goals.”

In considering the decisions of the Department and the circuit court, we must remember that, as in all administrative review, deference is given to facts found by the agency. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 110.) We give no deference to the determination of the circuit court when it sits in administrative review. Moreover, “[t]he burden of proving the right to exemption is upon the party seeking it, and in determining whether property is included within the scope of an exemption, all facts are to be construed and all debatable questions resolved in favor of taxation.” Methodist Old Peoples Home, 39 Ill. 2d at 155, 233 N.E.2d at 540.

The position of Pontiac Lodge and the circuit court that Masonic activity is necessarily charitable in nature finds support in Most Worshipful Grand Lodge of Ancient Free & Accepted Masons v. Board of Review (1917), 281 Ill. 480, 117 N.E. 1016. There, in upholding the exempt status of a Masonic lodge property, the court stated . “[i]t has been quite uniformly held by the courts that the primary objects of a Masonic lodge being benevolence and charity, such a lodge is a charitable institution.” (Grand Lodge, 281 Ill. at 483, 117 N.E. at 1017.) Similar reasoning was applied in People ex rel. Wagner v. Freeport Masonic Temple, Inc. (1931), 347 Ill. 180, 179 N.E. 672.

The theory of the inherent charitability of Masonry was rejected by the supreme court in People ex rel. Nelson v. Rockford Masonic Temple Building Association (1932), 348 Ill. 567, 181 N.E. 428, and People ex rel. Thompson v. Dixon Masonic Building Association (1932), 348 Ill. 593, 181 N.E. 434. In both cases, the buildings were owned by building associations with the buildings used by Masonic organizations. In Rockford, the supreme court reversed a judgment declaring the property exempt. In Dixon, the lower court had held it had no jurisdiction to determine exemption, and the supreme court elected to make that determination for itself and denied exemption. In Rockford, the court pointed out that the organizations using the building concentrated on all aspects of Masonry and that the charitable aspects were not dominate. In Dixon, the court made similar observations and pointed out that the building was sometimes used for service clubs, a chamber of commerce, and a bar association.

Most favorable to Pontiac Lodge among post mid-1930’s cases is Cook County Masonic Temple Association v. Department of Revenue (1982), 104 Ill. App. 3d 658, 432 N.E.2d 1240. There, the Department had denied exemption to all Masonic Temple organizations in Cook County. Acting through their unincorporated association, they took administrative review to the circuit court, which reversed and granted exemption. The appellate court affirmed. The charter of each of the temples stated its primary purpose was “to promote and conduct charitable, educational, and religious activities” (Cook County, 104 Ill. App. 3d at 659, 432 N.E.2d at 1241). Raising money for charity was shown to be the most important business that took place at each meeting. The Cook County opinion indicated that between 90% and 95% of all funds raised were raised at meetings and social events and no outside solicitation was done. Dues were $15 to $20 per year and $1 of that sum was applied to Masonic charities.

In Cook County, the parties agreed that the organizations were sufficiently charitable and that the issue was whether use of the property met that standard. Organizations for profit were not allowed to use the buildings, but some civil and religious groups did use the facilities. Each property was used as a center to collect donated blood. The court summed up its determinations by stating “that the evidence in this record supports the circuit court’s finding that the temples were used primarily for charitable purposes.” (Emphasis added.) (Cook County, 104 Ill. App. 3d at 662, 432 N.E.2d at 1244.) This would indicate that the appellate court was giving significance to the circuit court’s view of the facts rather than that of the Department to which deference should have been given.

Evidence was presented here that in addition to the holding of various Masonic group meetings, the building was used to furnish equipment for the handicapped, hold a Shrine clinic for children and collect blood donations. Pontiac Lodge maintained that 95% of the money it spent for charity was raised from meetings held within the building. No evidence was presented as to the source of any of this money, except for dues, less than one-fourth of which were used for charitable purposes. The contributions made did go for a wide variety of very desirable charitable activities. However, no evidence in any detail was presented that matters of charity dominated the meetings as was stated to be the case in Cook County. The Department could have properly concluded that the dominant aspect of the meetings was character building through application of all aspects of Masonry.

Unlike in Dixon, the evidence here showed that the building did not have game rooms for playing games and billiards, but the Department did determine that Pontiac Lodge had neither a purpose nor a use which was predominantly charitable. We need consider only the question of use. We conclude that Pontiac Lodge, which had the burden of showing a predominantly charitable use of the property, failed to produce sufficient evidence in that regard to make the Department’s finding wrong as a matter of law. Accordingly, we reverse the decision of the circuit court and affirm the decision of the Department denying exemption of the property.

Circuit court reversed; decision of Department reinstated.

STEIGMANN, P.J., and KNECHT, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    LAWRENCE BAIER, Plaintiff-Appellee and Cross-Appellant, v. BOSTITCH, a Division of Textron, Inc., Defendant-Appellant and Cross-Appellee (Park Construction Company, Third-Party Defendant).
    First District (4th Division)
    No. 1—92—1267
    Opinion filed February 11, 1993.

      Hardesty, Wolf & Walkowicz, of Chicago (Ralph C. Hardesty and Victoria A. Walkowicz, of counsel), for appellant.
    Richard J. Ramello, of Storino, Ramello & Durkin, of Rosemont, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Lawrence Baier, filed a product liability action to recover damages for an injury to his knee allegedly caused by a defectively designed pneumatic nailer manufactured by the defendant Bostitch, a division of Textron, Inc. (Bostitch). The jury returned a verdict in favor of the plaintiff and against Bostitch in the amount of $314,200, which was reduced by 40% attributable to the plaintiff’s fault. The trial court entered a judgment for $188,500 plus costs for a total of $190,165.82.

On appeal, the defendant contends that the trial court erred in denying its motion for judgment notwithstanding the verdict. Alternatively, the defendant contends that the jury verdict was against the manifest weight of the evidence. The defendant further contends that the verdict was excessive, that the court erred in admitting evidence of other accidents and that the court erred in denying the defendant’s motion for summary judgment on the issue of punitive damages. Finally, the defendant contends that the jury was improperly instructed and that the court abused its discretion in awarding witness and mileage fees.

The tool which is the subject of this lawsuit is the N16 pneumatic nailer, a power tool which uses air pressure to drive nails out of a magazine into the object to be nailed. According to the testimony presented at trial, the nailer was available with either a contact trip mechanism (N16CT) or a sequential trip mechanism (N16). The. difference between these two models is significant to the issues raised on appeal. In order to fire a contact trip nailer, the operator must depress the contact trip on the nose of the tool and press the trigger. When those two functions are performed, the tool will fire a nail. With a contact trip nailer, it does not matter in which order the two functions are performed. With a sequential trip nailer, the operator must first depress the nose, then pull the trigger. The plaintiff was using a contact trip nailer (N16CT) at the time he was injured.

The plaintiff testified that on November 15, 1983, he was 23 years old and had been working for Park Construction Company for approximately six months. He was also pursuing a degree in finance at that time. The plaintiff testified that his employer, Peter D’Angelo, instructed him on the proper use of power tools. For each power tool, he was shown the tool’s safety devices and was taught how to operate the tool and how to turn it on and off. The plaintiff recalled that D’Angelo told him that if any problems occurred with the pneumatic nailer, he was to unplug it from its power source before attempting corrective measures. D’Angelo instructed the plaintiff to take his finger off the trigger whenever he was not in the act of nailing.

At approximately 10:30 a.m. on the day of the accident, the plaintiff was using the nailer to place nails in plywood at 8- to 10-inch intervals. He had been using the nailer for that purpose since 8 o’clock that morning. As the plaintiff was moving along with the nailer, the air hose attached to the nailer became stuck and would not slide along. The plaintiff testified that when he “tried to stand up and free it *** [t]he gun brushed my right pant leg and shot a nail into my knee.” No one other than the plaintiff witnessed the accident. The plaintiff did not know whether he had depressed the finger trigger at the time of the accident and was not certain whether the nose trigger was depressed when it brushed against his knee. The plaintiff testified that he had no reason to believe that there was either a drop or surge in air pressure at the time of the accident. He thought that it was necessary to hit the nailer “flat on the surface” in order to fire a nail.

The plaintiff was taken by ambulance to the hospital emergency room where a 2/2-inch nail was removed from his right knee. The plaintiff testified that this was a very painful procedure. Because the nail had been coated with adhesive, arthroscopic surgery was performed to clean out the adhesive and to debride the cartilage inside the knee. Following surgery, the knee was swollen and the plaintiff suffered scars around his kneecap. The jury was allowed to view the scarring.

In April 1984, a second arthroscopic surgery was performed to debride cartilage in the plaintiff’s knee. He was required to walk on crutches for about four weeks following each surgery.

The plaintiff testified that he feels pain under his kneecap and that kneeling or doing household chores causes this pain. The plaintiff stated that he has good days and bad days, but that the knee causes pain every day.

The deposition testimony of Dr. Michael Gitelis, the plaintiff’s treating physician, was read to the jury. According to Dr. Gitelis, the injury to the knee was permanent and would cause pain in the future. The plaintiff suffers disability in the sense that his activities are limited because of the pain caused by the injury. Gitelis testified that the plaintiff was injured in the intercondylar notch, which is the groove on which the kneecap slides. Gitelis stated that the plaintiff was experiencing grinding in the patellar femoral groove and that the cartilage in the knee was damaged. Testing detected weakness in the injured knee.

Gitelis further stated that the plaintiff was able to walk normally and suffered no nerve or vascular damage. The plaintiff was released from Gitelis’ care in March of 1985 and did not return until May of 1991, when he was evaluated for purposes of the trial.

The plaintiff presented hospital and doctor bills totaling $10,400 and calculated his lost earnings to be $31,200.

Gary Hutter, an engineer, testified as an expert witness for the plaintiff. According to Hutter, the design of the contact trip pneumatic nailer rendered it unreasonably dangerous when used in its intended manner. According to Hutter, the design of the trigger mechanism allowed the tool to actuate with very minimal amounts of force being exerted on the nose, thereby creating a “hairlike” trigger. Hutter stated that it became a habit with workers to keep the trigger depressed while moving the nailer along. While the nailer is depressed, a nail could be discharged accidentally simply by bumping the nose of the tool. Hutter explained that the sequential trip nailer presented a safer design because it was necessary for the operator to first depress the nose, then pull the trigger. Hutter testified that with the sequential trip nailer “you don’t get in the habit, first of all, of walking around with the trigger pulled, and if you did for some reason walk around with the trigger pulled and you accidentally bumped into that *** [the tool would] not discharge a nail.”

Hutter further testified that the contact trip nailer did not comply with the safety standards promulgated by the Industrial Stapling and Nailing Technical Association (ISANTA), of which the defendant was a member. Section 3.3.3 of the ISANTA guidelines states that the contact trip shall prevent the tool from discharging under its own weight. Hutter testified that the nailer in question would discharge under its own weight over the expected range of operating pressures. Hutter stated that air compressors cycle on and off, and that the nailer would become more likely to accidentally actuate when the air pressure supplied to the tool decreased as pressure in the compressor tank bled down.

Hutter testified that in his opinion there were ways to make the contact trip nailer safer. A stiffer spring could have been incorporated into the contact trip mechanism, requiring the operator to use more force to actuate the tool. Also, a pneumatic timer could have been installed to prevent the inadvertent discharge of nails after a certain number of seconds had passed. Hutter further stated that if the width of the nailer were increased or the weight of the nailer decreased, it would be less likely to discharge a nail when the contact trip was slightly depressed. Hutter testified that all of these safety measures were feasible based on a reasonable degree of engineering certainty. Hutter also stated that in his opinion a warning label should have been placed on the tool cautioning the operator to read the manual first and further warning the operator not to walk around with the trigger depressed.

The plaintiff presented the evidence deposition of Peter A. Readyhough, the defendant’s supervisor of industrial product design during the project engineering and manufacturing stage of the contact trip nailer. In an internal company document, Readyhough stated that one of the disadvantages of the contact trip design was that the “[operator's usual habit of using and carrying tools with the trigger held actuated produces the possibility of driving a fastener into an object struck by mistake.”

The plaintiff also called Robert D. Olmstead, the defendant’s director of product engineering, as a witness. Olmstead testified concerning the defendant’s patent application for the sequential trip nailer. In the application, the defendant recognized that the most common instance of inadvertent actuation occurs when an operator holding the tool in his hand with the trigger depressed accidentally engages the contact trip with an object other than the intended workpiece.

The record shows that following the development of the sequential trip nailer, the defendant discontinued sales of the contact trip model. However, the contact trip nailer was reintroduced into the marketplace in response to demand for a faster tool allowing increased productivity. The record further shows, through the defendant’s answers to interrogatories, that the defendant was aware of injuries that had occurred to persons using the contact trip nailer.

Prior to trial, the defendant made an unsuccessful motion in limine to preclude the testimony of an individual who had been injured while working with a contact trip nailer manufactured by the defendant. The jury was therefore allowed to hear the testimony of Douglas Williams, who was injured when a co-worker accidentally hit Williams in the head with a nailer, causing a nail to discharge into his brain. The jury was allowed to hear, over the defendant’s objection, alleged admissions made by the defendant in answers to interrogatories filed in a case litigated in Alabama. Like the situation with Douglas Williams, the Alabama case involved another person shooting a nail into the injured person’s body.

Peter D’Angelo, the plaintiff’s employer, testified that he showed the plaintiff how to use the contact trip nailer and specifically instructed him to unplug the tool from its power source. if there were any problems.

On behalf of the defendant, engineer Robert Olmstead testified that none of the design changes advanced by the plaintiff’s expert witness were feasible or practical. Olmstead testified that warnings concerning the dangers associated with the contact trip nailer are included in the owner’s manual packaged with the tool. According to Olmstead, the. contact trip nailer was produced in response to customer demand and is used for “bump firing,” a procedure in which the operator depresses the trigger and bumps the nose of the tool along the work piece, driving nails in close proximity to one another. At the time of trial, the defendant sold nine contact trip nailers for every one sequential trip model. Olmstead testified concerning the design and testing of the contact trip nailer.

Irving F. Hazard, a consulting engineer, testified that in his opinion the contact trip nailer was not unreasonably dangerous in manufacture, design, or warnings.

The jury awarded the plaintiff $140,000 for disability and disfigurement, $143,000 for pain and suffering, $10,400 for medical expenses and $20,800 for lost earnings for a total of $314,200. This was reduced by 40% attributable to the plaintiffs fault for a total award to the plaintiff of $188,520 plus costs.

The facts concerning the jury instructions and the witness fees will be set forth later in connection with our discussion of those issues.

The defendant first contends that the trial court erred in denying the defendant’s motion for a judgment notwithstanding the verdict. Alternatively, the defendant contends that the jury’s verdict in favor of the plaintiff was against the manifest weight of the evidence.

A judgment notwithstanding the verdict should be entered only when all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) A motion for a judgment notwithstanding the verdict presents a question of law and will be granted only if there is a total failure or lack of evidence to prove any essential element of the plaintiff’s case. Merlo v. Public Service Co. (1942), 381 Ill. 300, 311, 45 N.E.2d 665.

A plaintiff seeking recovery on the basis of strict liability in tort is required to plead and prove that his injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed when the product left the manufacturer’s control. (Broussard v. Houdaille Industries, Inc. (1989), 183 Ill. App. 3d 739, 743, 539 N.E.2d 360.) Proof of an unreasonably dangerous design may be shown by the availability and feasibility of alternate designs at the time of the product’s manufacture, or by proof that the design used did not conform with the design standards of the industry, design guidelines provided by an authoritative voluntary association, or design criteria set by legislation or government regulation. Anderson v. Hyster Company (1979), 74 Ill. 2d 364, 368, 385 N.E.2d 690.

The defendant argues that the gist of the defendant’s theory at trial was that the contact trip nailer was defectively designed because it could be subject to “inadvertent actuation.” The defendant maintains that the evidence did not support this theory because it demonstrated that the nailer could only be activated when the operator depressed both the finger trigger and the contact trip. According to the defendant, because the nailer performed as expected in light of its nature and intended function, it was not shown to be unreasonably dangerous. The defendant further maintains that there was no evidence to support the plaintiff’s theory that a drop in air pressure would make the nose trigger act like a “hair trigger.” Also, the defendant argues that the failure to include warnings on the tool did not make it unreasonably dangerous where such warnings were contained in the owner’s manual and where the plaintiff had actual knowledge of the dangers associated with the contact trip nailer.

In our view, the plaintiff presented sufficient evidence, summarized at length above, to avoid the defendant’s motion for judgment notwithstanding the verdict. Although a manufacturer does not have a duty to design a product that is totally incapable of causing injury, it must design the product so that the user is not subject to an unreasonable risk of harm. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368.) The plaintiff presented evidence that the contact trip mechanism activated with very slight pressure and that safer designs were feasible. Evidence was also presented that the tool did not comply with ISANTA guidelines which provided that the contact trip should prevent the tool from operating under its own weight. Furthermore, the plaintiff presented evidence that the defendant knew of an operator’s tendency to carry the tool with the trigger depressed, but did not place a warning label on the tool. Viewed in its aspect most favorable to the plaintiff, we cannot conclude that the evidence so overwhelmingly favored the defendant that no contrary verdict could stand.

Alternatively, the defendant contends that the jury’s verdict was contrary to the manifest weight of the evidence. A verdict will be found to be against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based on any of the evidence. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969.) A new trial will not be granted merely because the evidence is conflicting. Villa, 202 Ill. App. 3d 1082, 560 N.E.2d 969.

In the case at bar, the jury was presented with lengthy and conflicting testimony by several expert witnesses. The defendant’s argument is essentially that the jury made a mistake in accepting the testimony of the plaintiff’s witnesses and rejecting that of the defendant’s witnesses. As stated above, this is not a sufficient basis upon which to overturn a jury’s verdict.

The defendant next contends that the jury’s award was excessive and that this court should order a remittitur. Specifically, the defendant maintains that the award of $140,000 for disability and disfigurement and the award of $143,000 for pain and suffering were based on insufficient evidence.

Damages are for the jury to determine. (Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 1076, 436 N.E.2d 623.) A jury’s verdict will not be determined to be excessive unless it is shown that the verdict resulted from passion or prejudice, or where the amount is so large as to shock the judicial conscience. American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 488, 511 N.E.2d 1206.

In the case at bar, the plaintiff testified concerning the pain and suffering caused by the injury and by the two surgeries necessary to repair the damage to his knee. The jury was given the opportunity to examine the scars on the plaintiff’s knee. Dr. Gitelis, the plaintiff’s treating physician, testified that the plaintiff suffered disability in the sense that his activities were limited because of pain and that the condition was permanent. The plaintiff stated that he suffered pain under his kneecap every day. We believe that this testimony provided a reasonable basis for the jury’s award and accordingly find no basis upon which to order a remittitur.

The defendant next contends that the trial court erred in allowing the plaintiff to introduce evidence of other accidents involving the contact trip nailer. The evidence in question consisted of the testimony of Douglas Williams and the alleged admissions made by the defendant in its answers to interrogatories filed in an Alabama lawsuit.

Evidence of prior occurrences may be admissible to establish the dangerousness of a product for purposes of strict liability. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 114, 499 N.E.2d 1373.) To be admissible, prior accidents must be substantially similar to the accident in question; however, they need not be identical. (Ballweg, 114 Ill. 2d 107, 499 N.E.2d 1373.) The determination of similarity between occurrences must be made by the trial court within the exercise of its sound discretion. Bass v. Cincinnati, Inc. (1989), 180 Ill. App. 3d 1076, 1081, 536 N.E.2d 831.

The defendant argues that the other accidents were not substantially similar to the one at bar because they did not involve situations where a person inflicted the injury upon himself while using the nailer. Rather, in both of the other incidents, a co-worker of the injured party was handling the nailer when it accidentally discharged. We do not believe that this distinction precludes a finding that the prior accidents were substantially similar to the one before us. The evidence showed that in each of the prior accidents, as in the instant one, the nailer was held with the finger trigger depressed and fired a nail when it accidentally came into contact with a person’s body. Under these circumstances, we cannot conclude that the trial court erred in ruling that evidence of the prior accidents was admissible.

The defendant next claims that the trial court erred in denying its motion for summary judgment on punitive damages prior to the start of trial. The defendant asserts the effect of denying the motion was to allow the plaintiff to introduce evidence of bad conduct, prior accidents, and the net worth of the defendant. According to the defendant, although the jury did not award punitive damages, the fact that it was allowed to hear evidence relating to the issue of punitive damages affected the award of compensatory damages.

The general purposes of punitive damages are to punish wrongdoers and to deter them and others from engaging in similar conduct. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353.) In a product liability case, the goal of awarding punitive damages is to deter manufacturers from placing dangerously defective products into the stream of commerce by making it unprofitable to an unpredictable degree. (Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 1113, 427 N.E.2d 608.) The court in Moore considered the following factors in evaluating commercial misconduct and the propriety of granting an award of punitive damages:

“ ‘The first [characteristic] is the manufacturer’s lack of concern for the public safety, a spirit of utter indifference to whether the product might cause unnecessary injuries. The second characteristic is the flagrancy of this indifference as reflected by the extent of the manufacturer’s awareness of the danger and its excessiveness, the over-all magnitude of the danger to the public, the ease of reducing the risk, and the motives and other circumstances attending the manufacturer’s failure to reduce the risk.’ ” (Moore, 100 Ill. App. 3d at 1114, 427 N.E.2d at 617, quoting Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1366 (1976).)

The Moore court concluded that punitive damages are proper where the defendant’s conduct reflects a flagrant indifference to the public’s safety. Moore, 100 El. App. 3d at 1115, 427 N.E.2d at 617.

Summary judgment is proper only when an issue is determinable solely as a question of law. (Sidwell v. Sidwell (1975), 28 Ill. App. 3d 580, 583, 328 N.E.2d 595.) It is therefore a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a dispute over a material question of fact may exist. (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 87, 243 N.E.2d 40.) Summary judgment is appropriate only where the pleadings, depositions, affidavits and admissions on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Continental Mobile Telephone Co. v. Chicago S M S A Limited Partnership (1992), 225 Ill. App. 3d 317, 322, 587 N.E.2d 1169.

In arguing that the court erred in denying summary judgment in its favor on the punitive damages issue, the defendant focuses on the evidence presented at trial and asserts that the plaintiff failed to present evidence to support its allegations that the defendant acted with reckless disregard of its duty to design a product that was reasonably safe. The record, however, reveals that the depositions and admissions on file prior to trial do contain evidence supporting the plaintiff’s allegations. The patent application for the sequential trip nailer addressed the dangers of inadvertent actuation associated with the contact trip nailer. Deposition testimony by Peter Readyhough established that the defendant had knowledge of the operator’s “habit” of carrying the tool with the finger trigger depressed. The defendant’s answers to interrogatories showed that the defendant had knowledge of substantially similar prior accidents suffered by workers who used the contact trip nailer. In our view, there were sufficient questions of fact to support the trial court’s decision to allow the jury to consider the issue of punitive damages.

The defendant next contends that the trial court erred in giving certain instructions requested by the plaintiff and excluding others requested by the defendant. The defendant maintains that the jury should not have been instructed on OSHA regulations, on disfigurement as an element of damages, and on whether the defendant’s due care constituted a defense. The defendant further maintains that the court erred in refusing to give non-Illinois Pattern Jury Instructions on the feasibility of alternate designs and the manufacturer’s duty regarding the safety of its product.

Generally, the standard for determining the adequacy of jury instructions is whether the instructions were sufficiently clear to avoid misleading the jury, while fairly and correctly stating the law. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1087-88, 560 N.E.2d 969.) A new trial will not be granted unless it is shown that faulty instructions clearly misled the jury and resulted in prejudice to the appellant. Villa, 202 Ill. App. 3d 1082, 560 N.E.2d 969.

The first instruction objected to by the defendant is Illinois Pattern Jury Instruction, Civil, No. 60.01 (2d ed. 1971) as modified (IPI Civil 2d No. 60.01). The instruction stated:

“There was in force in the United States at the time of the occurrence in question a certain administrative regulation which provided that:
‘All pneumatically driven nailers, staplers, and other similar equipment provided with automatic fastener feed, which operate at more than 100 p.s.i. pressure at the tool shall have a safety device on the muzzle to prevent the tool from ejecting fasteners, unless the muzzle is in contact with the work surface. ’
If you decide that a party violated the regulation on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent or the product unreasonably dangerous before and at the time of the occurrence.”

The defendant contends that the trial court erred in giving the instruction because OSHA regulations apply only to employers and not manufacturers. The defendant maintains that the jury may have considered lack of compliance with this standard separately from the other evidence concerning the dangerousness of the product. The trial court overruled the defendant’s objection to the instruction, stating that OSHA sets an industry safety standard which can be used to determine whether or not the product is unreasonably dangerous.

Even if we were to accept the defendant’s argument that the instruction in question should not have been given, we do not believe that a new trial is warranted. The jury was fully instructed as to both parties’ theories of the case. It heard lengthy and detailed testimony concerning the design and manufacture of the contact trip nailer. Under the circumstances presented here, we do not believe that this single instruction could have resulted in prejudice to the defendant.

The defendant next asserts that the trial court erred in including the element of disfigurement, along with disability, as an item of damages. No authority is cited to support this argument. The defendant merely states that the plaintiff suffered only minor scarring and that the evidence was therefore insufficient to support a claim for disfigurement. The plaintiff responds that the jury, which observed the plaintiff’s knee, was entitled to determine the proper amount of damages warranted by the scarring. We agree and decline to reverse on this basis.

The defendant’s next contention is that the trial court erred in giving IPI Civil 3d No. 400.10, which states that “[i]f you decide that the plaintiff has proved all the propositions of his case, then it is not a defense that the condition of the product could not have been discovered by the defendant or that care was used in the manufacture of the product.” (IPI Civil 3d No. 400.10 (1992).) The defendant argues that the record “is totally devoid of any evidence or argument on these topics” and that the “prejudicial effect is obvious.” The plaintiff responds that Robert Olmstead, the defendant’s engineer, testified as to the defendant’s extensive testing processes and as to the developments and new materials in manufacturing processes. The plaintiff argues that the effect of that testimony was to impress upon the jury that if there was a defect in the product, it could not have been discovered. We agree that the testimony in question was sufficient to support the trial court’s decision to give the instruction.

The defendant next contends that the trial court erred in refusing to give two non-IPI instructions. The first instruction stated as follows:

‘FEASIBILITY OF ALTERNATIVE DESIGN
There is no duty upon the manufacturer of the pneumatic nailer to manufacture the product with a different design, if the different design is not feasible. Feasibility includes not only elements of economy, effectiveness and practicality, but ’ also technological possibilities under the state of the manufacturing art at the time the product was produced.”

The second instruction stated:

“MANUFACTURER AS INSURER OF SAFETY OF USERS OF PRODUCT
The defendant, Bostitch, division of Textron, Inc., was not, at the time it manufactured and sold the subject pneumatic nailer, an insurer of the safety of the users thereof, nor was it the duty of the defendant *** to manufacture pneumatic nailers that were accident proof. It was the duty of [the defendant] to manufacture a product that was not unreasonably dangerous.”

The trial court has considerable discretion in determining the form in which a jury instruction should be given. (Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 872, 466 N.E.2d 1038.) Illinois Pattern Jury Instructions were devised to induce the use of instructions which are impartially prepared and free of argumentative language. (Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 45, 502 N.E.2d 480.) Nonpattern instructions should not be used if pattern instructions correctly and adequately state the law. Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 310, 562 N.E.2d 282.

In the case at bar, the trial court stated that the pattern jury instructions were sufficient to instruct the jury on all aspects of the case, including the issues the jury was to address and the burden placed upon the defendant to produce a reasonably safe product. The trial court determined that it would be inappropriate to burden the jury with additional written instructions. We believe that the court acted within its discretion in making that determination.

The defendant’s final contention is that the trial court exceeded the discretionary and statutory limits governing witness and mileage fees. Although it appears from the parties’ arguments that a hearing was held concerning fees, the defendant has neglected to include record cites to the hearing and its argument constitutes little more than a bare assertion that the trial court erred in determining the appropriate amount of fees. We have repeatedly stated the proposition that it is the duty of the appellant to provide an adequate basis for its contentions on appeal. (Piper v. Moran’s Enterprises (1984), 121 Ill. App. 3d 644, 649, 459 N.E.2d 1382.) We do not believe that it is appropriate for this court to search the record in an attempt to find support for the defendant’s contention that the trial court abused its discretion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.

      Park Construction Company was brought into this lawsuit as a third-party defendant. The jury found no liability on the part of Park Construction Company and it is not a party to this appeal.