text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY HOUSTON, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 88—2637
    Opinion filed December 3, 1992.

      Randolph Stone, Public Defender, of Chicago (Denise Avant, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Ketki M. Shroff, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant, Johnny Houston, was convicted of criminal sexual assault, home invasion, and armed robbery against the person and property of Patricia and was sentenced to 60 years. On appeal, the defendant contends: (1) the court erred in denying his motion to quash his arrest and suppress the lineup identification on the basis that the police did not have probable cause to arrest him; (2) the testimony of a State witness regarding the lineup identification should have been suppressed because the police failed to preserve the photograph of that lineup; (3) that he was denied a fair trial because the court incorrectly admitted evidence of similar offenses committed against other women; (4) the State made improper comments during its opening statement and closing argument; (5) the court committed reversible error in refusing to give the defendant’s proposed jury instruction on identification; (6) that he was denied a fair trial and was unfairly prejudiced because a State witness testified that she viewed “mug shots”; (7) that the cumulative impact of the trial errors deprived him of a fair trial; (8) that he was deprived of a fair sentencing hearing because the judge made a prejudicial comment to a defense witness; and (9) his sentence was excessive.

Prior to trial, the defendant made a motion to quash arrest and suppress the lineup identification testimony. At the hearing, the defendant testified that on August 29, 1987, he was living with his mother, Annie Carr. Officer Keenan went to their home to speak with the defendant. Since he was not at home, Keenan left a phone number for the defendant to call when he returned. Later that afternoon, the defendant returned Keenan’s call but was unable to reach him. About 30 minutes later, the police knocked at his door, identified themselves as the police, told the defendant they had a warrant, and asked to speak with him. The defendant let them in, asked to see their warrant and the police told him that the papers were at the station. The defendant testified that he refused to go to the station and one of the officers told him “you’ll go one way or another.” The defendant was arrested and placed in a lineup with four other pen. Four women, Patricia, Gayle, Paula, and Joan, viewed the lineup separately and identified the defendant as the man who had committed offenses against them.

Officer Keenan from the Chicago police department testified that on August 19, 1987, he was investigating a series of rapes in the DePaul area. A photograph of the defendant had been tentatively identified by one of the victims. On August 29, 1987, he went over to the defendant’s home to speak with him, and when he was not at home, he left a message with his mother directing the defendant to telephone him at the police station.

Detective Hagen testified that on August 25, 1987, he conducted a photo array lineup and Gayle tentatively identified the defendant’s photo as that of her offender.

Detective Kurth testified that he conducted a lineup on July 30, . 1987. Paula, Joan, and Pat could not identify anyone in the lineup. There were five individuals in the lineup and the defendant was not one of them.

Detective Annerino testified that on August 29, 1987, he went to the defendant’s home with several other officers. The officers informed the defendant of the photo identification and the allegations against him. They asked the defendant to accompany them to police headquarters to assist them in their investigation. The defendant was handcuffed and taken to the station. The police did not have an arrest warrant.

Ms. Carr, the defendant’s mother, testified that on August 29, 1987, the defendant answered the door and the police came in and asked him to go to the police station to participate in a lineup. One of the officers slapped a walking stick on his own palm and leg. Carr became fearful and asked the defendant to go with the officers. On cross-examination, Carr testified that when the officers were in her home, no one got violent, the officers did not strike anyone, and the defendant was never handcuffed.

Patricia testified that on May 31, 1987, she had been a victim of aggravated criminal sexual assault. She was unable to identify anyone at the June 30, 1987, or August 25, 1987, lineups. At the lineup on August 29, 1987, she was the first of four women to view a lineup and identified the defendant as her attacker. She did not discuss the lineup with any of the other women.

Gayle testified that on June 15, 1987, she was a victim of home invasion. She viewed a lineup on July 30, 1987, and another on August 25, 1987, and was not able to identify anyone. On August 25, 1987, she viewed several photographs and identified the photograph of the defendant. On August 29, 1987, she was the second person to view a lineup and identified the defendant.

Paula testified that she was a victim of home invasion and attempted murder on June 15, 1987. At that time, she was living with Gayle. She viewed lineups on July 30, 1987, August 25, 1987, and August 29, 1987. At the August 29 lineup, she identified the defendant.

Joan testified that on August 22, 1987, she was a victim of home invasion and aggravated criminal sexual assault. She was the last person to view the August 29, 1987, lineup. She identified the defendant as her attacker.

We first address the defendant’s contention that the court erred in denying his motion to quash his warrantless arrest and suppress the lineup identification. The defendant first argues that on August 29, 1987, the officers did not have probable cause to arrest him.

Probable cause exists when the police possess enough evidence to lead a reasonable man to believe that a crime has been committed and that the defendant committed it. (People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845.) The totality of the circumstances known to the police officers must be considered. (People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475.) A reviewing court must not disturb the trial court’s finding on probable cause unless it is manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

Applying these principles, we conclude that the police had sufficient information to arrest the defendant. Between May 31 and August 22, 1987, three separate crimes involving home invasion and sexual assaults had been committed in the DePaul area. Four victims of these offenses had viewed various lineups in which the defendant was not a participant, and failed to identify the perpetrator. On August 25, 1987, one of the victims identified the defendant from a photo lineup. Considering the circumstances surrounding the crimes and the victim’s identification of the defendant, we believe that at the time the officers arrested the defendant, probable cause existed to believe that a crime was committed and that the defendant committed the crime. Therefore, the trial court’s finding of probable cause was not manifestly erroneous.

The defendant further argues that even if probable cause existed, the warrantless entry into his home without exigent circumstances or his consent made the arrest and subsequent lineup invalid. The defendant points to his testimony that he did not voluntarily accompany the officers to the police station. He bases his claim of error on Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, which held that the fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. The defendant argues that the lineup identification was obtained as the product of such a warrantless entry and should be barred under the exclusionary rule.

We do not address whether the defendant consented to accompany the officers to the station in light of New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640. The Court held that where the police had probable cause to arrest a suspect, the exclusionary rule did not bar the State’s use of a statement made by the defendant outside of his home, even though the statement was taken after an arrest which was made in violation of Payton. While Harris refers only to “statements,” the rule has been applied to other evidence obtained outside the home. (People v. Alexander (1991), 212 Ill. App. 3d 1091, 571 N.E.2d 1075.) As we have already stated that probable cause existed to arrest the defendant, we find that the court did not err in admitting evidence of the lineup identification even though the defendant was arrested without a warrant.

We also address the defendant’s contention that since photographs of the lineup could not be developed because of inadvertent mechanical failure, testimony of the lineup identification should have been suppressed. The defendant argues that his efforts to show that the lineup was impermissibly suggestive were significantly inhibited by the absence of a photograph. The defendant specifically points to the fact that there is nothing in the record about the participants’ complexions, hair styles, the extent of facial hair, or marks and scars.

We find the defendant’s argument to be without merit. There is no due process violation in failing to photograph a lineup. (People v. Kinzie (1975), 31 Ill. App. 3d 832, 334 N.E.2d 872.) Moreover, the physical differences in participants do not make a lineup suggestive. (People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199.) All of the victims testified as to the composition of the lineup and the defendant cross-examined each of them. There is nothing in the record to indicate that the photographs would have assisted the defendant in proving that the lineup was impermissibly suggestive. The court properly allowed the testimony of the witnesses as to their identification of the defendant in the August 29,1987, lineup in the absence of a photograph.

At trial, Patricia testified that on May 31, 1987, she was asleep in her DePaul-area apartment when she was awakened in the middle of the night by a hand on her mouth. A man told her not to scream because he had a knife and he would kill her. He asked her if she had any money and she told him that she only had $18. The man asked her where she kept the money. Patricia testified that at the time, it was getting light outside and the man’s face was only 18 inches away from her. Patricia identified the defendant as the man in her apartment.

When she told the defendant that the money was in her purse in the living room, the defendant told her to get out of bed, not to look at him, and that he would follow her into the living room. The purse was in the kitchen and the defendant told her to give him the cash and go back into the bedroom. When she got to the bedroom, Patricia got back into bed, pulled the covers over her, and turned away from him and faced the wall. The defendant was standing next to the bed and unzipped his pants. He put his penis into her mouth. He asked her if she lived with anyone and she told him that she lived with a male person who would be returning shortly. The defendant told her to take her shirt off and tie it around her eyes. She removed her shirt and tied it around her eyes and the defendant led her into the living room. The defendant told her to lie on the floor of the living room and placed his penis in her vagina. The defendant got up and told her not to move or do anything for 20 minutes. He told her not to call the police because he lived in the neighborhood and he would know if she called them. After the defendant left, Patricia realized that the telephone in her kitchen had been unplugged. She plugged the telephone back into the kitchen wall and telephoned the woman across the street whom she had visited the night before and told her that she had just been raped. The woman came over and they walked to Grant Hospital. Patricia also noticed that a knife from her kitchen was next to where she had been lying on the floor in the living room.

Patricia testified that she viewed two lineups, one on July 30 and one on August 25, and did not identify anyone. At the August 29 lineup, she immediately identified the defendant as her attacker. She was the first person to view this lineup and did not discuss anything about the lineup with the other women who were also present that day.

Gayle testified that she was the victim of home invasion on June 15, 1987. At the time of the attack, she lived in the DePaul area and shared an apartment with Paula. She was asleep in her bedroom when she was awakened by heavy footsteps on the stairs which led to her bedroom. It was 4 a.m. She yelled out her roommate’s name and a man ran towards her. He put his hand over her mouth and held a knife to her face. Gayle identified the defendant as the man who entered her apartment. The defendant told her not to scream or he would kill her. He told her he just wanted her money. The defendant wanted to know if anyone else was home. When Gayle told him that her roommate was in the other bedroom, the defendant asked for a nylon to put over his face. Defendant took Gayle into Paula’s room and asked for her money. He threatened to kill them if they looked at him. The defendant told them both to take their clothes off. He told Paula to tie her shirt over her eyes. Gayle told the defendant that her purse was in her bedroom and the defendant took Paula and Gayle to retrieve the purse. The defendant took $20 from Gayle’s purse. They then went downstairs to retrieve Paula’s purse. Paula ran to the door, unlocked it, and started screaming for help. The defendant grabbed Paula, told her he was going to kill her, threw her on the floor and stabbed her. When Gayle started screaming, the defendant ran out the door. As they went to call the police, they realized that the phone was unplugged. They also realized that the defendant had entered the apartment by removing burglar bars from the window. Gayle identified the defendant from a photo array on August 25 and identified the defendant in a lineup on August 29.

Paula testified that she lived with Gayle on June 15, 1987, when she was awakened at about 4 a.m. by a man with Gayle in her bedroom. She identified the defendant as the man who attacked her that morning. Her description of the events was essentially the same as Gayle’s. Paula was hospitalized for eight days. She identified the defendant in a lineup on August 29, 1987.

Joan testified that she lived in the DePaul area. On August 22, 1987, in the early morning hours, she was awakened by a man lying on top of her. The man put his hand over her mouth, told her he had a knife and if she screamed, he would kill her. She identified the defendant as that man. The defendant asked her if she had any money and she told him that she had some in her purse. The defendant told her that if she looked at him he would kill her. The defendant found her purse and took the money. He then took all of the pillows off the bed and made Joan lie flat on her stomach with her hands on the wall. The defendant asked her how old she was and when she told him that she was 54, he asked her how she would like it if he shoved it up her back end. The defendant then told her that he was “just going to jag off” on her. The defendant could not maintain an erection. He led her into the living room and told her to lie flat on the floor because he was getting ready to leave. The defendant fumbled with the telephone, which was later found unplugged with the cord missing. He told her not to call the police. The defendant left through the same window which he had entered and from which he had removed the bars. On August 29, 1987, Joan viewed a lineup in which she identified the defendant as her attacker. Each person in the lineup was asked to repeat the phrase, “You that old, I have to kill you.” Joan identified the defendant by his appearance and through voice identification.

Detective Kurth testified that he conducted a lineup on August 29, 1987. There were five men in the lineup and Kurth gave a description of each of them.

Detective Hagen testified for the defense that he conducted a lineup on August 25, 1987. He showed a group of photographs to Paula and Gayle. Gayle selected the defendant’s picture and Paula made no identification.

Annie Carr, the defendant’s mother, testified that in August 1987, the defendant had a beard and his hair was short. From May 1987 until August 1987, the defendant never shaved off his beard or wore a different hair style.

On appeal, the defendant contends that he was denied a fair trial by the admission of extensive evidence of the other crimes committed against Gayle, Paula, and Joan. The defendant claims that the evidence was not so distinctive as to earmark them as the work of one person and, in any event, the prejudicial effect of the evidence outweighs its probative use.

Modus operandi means literally “method of working” and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same doer. (C. McCormick, Evidence §190, at 448-49 (2d ed. 1972); People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667.) The crimes must be so nearly identical in method “as to earmark them as the handiwork of the accused.” (C. McCormick, Evidence §190, at 449 (2d ed. 1972).) The relevance of the evidence arises from the fact that because the offenses share peculiar and distinctive common features, a logical inference is created that if the defendant was guilty of the other offenses, he may be guilty of the one charged. People v. Anderson (1982), 108 Ill. App. 3d 563, 439 N.E.2d 65.

In People v. Tate (1981), 87 Ill. 2d 134, 142-43, 429 N.E.2d 470, 475, our supreme court stated:

“Although the similarities need not be unique only to the two offenses being compared, there must be present some distinctive features that are not common to most offenses of that type in order to demonstrate modus operandi.”

In People v. Taylor (1984), 101 Ill. 2d 508, 521, 463 N.E.2d 705, 712, our supreme court held that it was not error to admit evidence of the other crimes at issue because each crime occurred in the early evening hours, within a one-block area, within a four-day period of time. In each case the defendant was carrying what appeared to the witnesses to be the same gun, and the defendant was identified as the perpetrator in each incident.

There was clearly no distinctive feature to any of the court’s cited similarities. However, the court stated that there were “a number of substantial similarities” between the three incidents and this was sufficient to qualify under the modus operandi exception. Taylor, 101 Ill. 2d at 521, 463 N.E.2d at 712.

In People v. Phillips (1989), 127 Ill. 2d 499, 522, 538 N.E.2d 500, 509, the court affirmed the admission of the other crimes under the modus operandi exception based upon the trial court’s finding of 10 distinct areas of similarities between the crimes. The court stated that upon review of the record, “similarities were sufficient” to warrant the admission of the evidence.

Other cases have followed this trend and have held that to qualify as modus operandi, the similarities between the crimes should outweigh the dissimilarities, and “what is important is the similitude of the defendant’s overall conduct in each instance.” People v. Bullock (1987), 154 Ill. App. 3d 266, 271, 507 N.E.2d 44, 47; People v. Watson (1981), 98 Ill. App. 3d 296, 424 N.E.2d 329.

In the instant case, we find that there is no one distinctive feature to the crimes at issue as to constitute the handiwork of one man. However, in keeping with the current interpretation of the modus operandi exception, we believe that the crimes committed against Gayle, Paula and Joan were substantially similar to that committed against Patricia. All of the crimes occurred in the DePaul area of Chicago, within a short distance of each other. All of the crimes occurred within a three-month period of time. Each occurred in the early morning hours, between 4 a.m. and 5 a.m. In each case, the victim was awakened by the perpetrator either in her bedroom or, in the case of Gayle, approaching her bedroom. In each case, the perpetrator threatened the victim with a knife. In each case, the perpetrator asked the victim for her money before performing any sexual act. After defendant obtained each victim’s money, she was either sexually assaulted or told to disrobe. In each case, the perpetrator unplugged the telephone in the victim’s apartment. The defendant was identified in each case as the perpetrator.

We believe that based upon the number of substantial similarities between the crimes to the other women and the crime against Patricia, the evidence was relevant to the identification of the perpetrator in the instant case. Accordingly, we conclude that the evidence of the other crimes was properly admitted.

Nor do we agree with the defendant’s assertion that the prejudicial effect of the evidence outweighed its probative value. As stated, we find the evidence probative of the defendant’s identity. Any prejudicial effect was limited when the jury was specifically instructed that the other crimes evidence was received solely on the issue of “defendant’s identification and design.”

The defendant next contends that the prosecutor made five separate remarks during opening and closing arguments which denied him a fair trial. We only address one of the allegedly improper prosecutorial comments since the others were not objected to at trial or raised in his written motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The defendant did object to the statement made by the prosecutor during the opening statement in which the prosecutor quoted Paula as having said “I realized it was the nightmare I’ve always dreaded.” The defendant’s objection was overruled. The defendant argues that the prosecutor’s characterization of the incident as a “nightmare” served only to arouse the fears and sympathy of the jury and, thus, denied him a fair trial.

We believe that the prosecutor’s statement was properly based on the victim’s testimony. Moreover, we cannot say that the use of the word “nightmare” either in the prosecutor’s opening statement or in Paula’s testimony was a material factor in the defendant’s conviction, denying him a fair trial. People v. Linscott (1991), 142 Ill. 2d 22, 566 N.E.2d 1355.

The defendant next argues that in light of his defense of mistaken identification, the court committed reversible error in refusing his proposed non-IPI jury instruction on identification. The jury was given IPI Criminal 2d No. 1.02 (2d ed. 1981), which reads as follows:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his age, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.”

The defendant’s proposed instruction modified IPI Criminal 2d No. 1.02 and read as follows:

“ ‘You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any of [sic] witness, you may take into account his ability and his opportunity to observe, his memory,’ *** ‘his degree of attention at the time of the offense, the accuracy of the witnesses [sic] earlier descriptions of the offender, his manner while testifying, any interest, bias, or prejudice he may have and the reasonableness of his testimony considered in the light of all the evidence in the case.’ ”

Essentially, the defendant’s proposed instruction added two factors that the jury could consider: the degree of the witness’ attention at the time of the offense, and the accuracy of the witness’ earlier description. The defendant now argues that the absence of these two factors from the jury instruction was reversible error.

This argument has been rejected by Illinois courts, and instead, IPI Criminal 2d Nos. 1.02 and 2.03 on credibility and burden of proof, respectively, have been held sufficient to instruct the jury as to the defense of mistaken identity. (People v. Fox (1971), 48 Ill. 2d 239, 269 N.E.2d 720.) In the instant case, the jury was given both IPI Criminal 2d Nos. 1.02 and 2.03. Furthermore, the defendant was allowed to thoroughly cross-examine the witnesses regarding their attention at the time of the offense and the accuracy of their earlier descriptions of their attackers. The defendant also vehemently argued both issues in his closing argument. Thus, we find this argument to be without merit.

Next, the defendant contends that Gayle’s reference to the photograph she viewed of the defendant as a “mug shot” apprised the jury of his prior criminal convictions, thus denying him a fair trial. Further, since the judge sustained the defendant’s objection to her characterization of the photograph, the judge did nothing to alleviate the prejudice to the defendant. The defendant relies on People v. Graham (1989), 179 Ill. App. 3d 496, 534 N.E.2d 1382, in support of his argument. However, we note that in Graham there were “repeated and improper references to mug shots and mug books” along with other improper testimony which, in light of the entire record, sufficiently prejudiced the defendant to warrant a reversal of his conviction. (179 Ill. App. 3d at 509, 534 N.E.2d at 1391.) We do not believe the instant case is comparable. Gayle’s single reference to the photograph as a “mug shot,” in light of the entire record, cannot be said to have sufficiently prejudiced the defendant to have denied him a fair trial.

The defendant argues that the cumulative impact of the numerous errors substantially prejudiced the defendant and denied him a fair trial. Since we have found no merit to any of the defendant’s allegations of trial error, this argument must also fail.

Finally, the defendant raises two issues with regards to his sentencing: that his sentence was excessive and that the judge’s inappropriate remark to the defendant’s mitigating witness deprived him of a fair sentencing hearing.

At the sentencing hearing, Linda Storner testified that she had been the defendant’s employer at a cleaning service from May until August 1987. Storner testified that the defendant did general cleaning and had keys to the buildings in which he cleaned. She stated that he was punctual, thorough, did heavy work, and supervised a mostly female crew. Additionally, she sometimes sent her 20-year-old daughter to drive him to and from work. On cross-examination, Storner testified that she was aware of the fact that the defendant had previously been convicted of theft, home invasion, and armed robbery and had been imprisoned.

At the end of her testimony, the judge stated, “All I have got to say to you is I hope you have got a lot of liability insurance. I am serious.”

We do not believe that the judge’s remark to the witness indicates that the defendant did not receive a fair sentencing hearing. From our review of the record, it is apparent that the judge considered her testimony, the nature of the crime committed, and the fact that the defendant was a repeat offender.

With regards to the judge’s imposition of the 60-year sentence, the defendant argues that the sentence was excessive in light of his age, the fact that he was a high school graduate and has a 13-year-old son, was employed, and has no drug or alcohol problems. Additionally, the defendant contends that the sexual assault against Patricia was traumatic, but he “did not torture, brutalize, or attempt to kill her.” The defendant concedes that the extended 60-year term was within the sentencing range for the crimes charged since in 1983, he pleaded guilty to home invasion, armed robbery, armed violence, and theft.

Absent an abuse of discretion, the sentence of the trial court may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) This great deference results from the fact that all factors to be considered in sentencing are better known to the trial court, which is in a superior position to evaluate the information afforded this court on a cold record. (People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882.) The trial court considered the nature of the offense, defendant’s previous convictions for the same offenses, and heard the defendant’s testimony at the sentencing hearing and that of his mitigation witness. We do not believe the court abused its discretion and find no basis for disturbing the sentence on appeal.

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

Affirmed.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    ELECTRO-MOTIVE DIVISION, GENERAL MOTORS CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles Johnson, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 91—3639WC
    Opinion filed December 11, 1992.

      Nyhan, Pfister, Bambrick & Kinzie, P.C., of Chicago (Julia A. Donnelly and Harry E. Kinzie III, of counsel), for appellant.
    lee. Gaines & Gaines, of Chicago (Lewis P. Gaines, of counsel), for appel-
   JUSTICE STOUDER

delivered the opinion of the court:

The appellee, Charles Johnson (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) contending he sustained injuries to his left knee and leg in the course of his employment with the appellant, the Electro-Motive Division of the General Motors Corporation (the employer). The arbitrator found the claimant was totally and permanently disabled and awarded benefits. The Industrial Commission (Commission) affirmed. The circuit court reversed and remanded, finding the claimant had failed to carry his burden of proving he was totally and permanently disabled.

Pursuant to the order of the circuit court, the Commission reviewed the entire record and found the claimant was temporarily totally disabled for a period of 171/? weeks. In addition, the Commission compensated the claimant for the permanent loss of 662/s% of the use of his right leg and 30% of the use of his left leg. On review, the circuit court again reversed and remanded, ordering the Commission to reinstate its original decision. On remand, the Commission reinstated the original decision. Subsequently, the circuit court confirmed and the employer now appeals.

The claimant worked as a welder for the employer from 1974 until September of 1981. He testified that around 11:30 p.m. on November 21, 1979, he was working on the assembly of a locomotive. As he ascended the steps of the locomotive he struck his left knee. He immediately experienced pain and some swelling in the knee. (The application for adjustment of claim and the request for hearing lists November 20, 1979, as the date of the accident. The arbitrator found November 20,1979, was the date of the accident.)

The claimant testified he came down from the locomotive and told his foreman, John Wehr, of the incident. He then went to the company nurse and told her of the incident. The records of the company’s medical clinic indicate the claimant was seen on November 20, 1979, concerning a preexisting condition in the right knee. There is no mention of an incident involving the left knee in the November 20, 1979, entry, nor is there a record of a visit to the clinic on November 21, 1979. The clinic’s records indicate the claimant was seen on November 27, 1979; however, no mention was made of a problem with the left knee or of an incident involving the left knee.

On November 30, 1979, the claimant went to the clinic with a complaint concerning the left knee. The records state the claimant claimed he bumped the knee on a “car” a few days before. He received an infrared treatment and an Ace wrap. He continued to receive treatment for the left knee during December of 1979 and January of 1980. The clinic’s records of February 6, 1980, show the claimant complained of pain in both knees. The claimant continued to receive treatment through the spring of 1980.

In May of 1980, the claimant was sent to Dr. Richard Blecha. The claimant described the November incident to Blecha. The claimant told Blecha that at the time of the incident he experienced pain and swelling; however, he felt it was relatively minor. The problem seemed to clear up within a week or two. The claimant told Blecha that since the incident he had been experiencing intermittent pain and swelling in the left knee. Blecha diagnosed a possible torn medial meniscus. Anti-inflammatory medication was prescribed.

Blecha examined the claimant twice in June of 1980. On July 21, 1980, Blecha performed an arthrotomy with a medial meniscectomy on the left knee. Subsequently, the claimant received therapy and returned to work on September 6, 1980. An examination on September 24, 1980, again showed complaints of pain in both knees. The claimant continued to have problems with his knees. The claimant has not worked since he left his employment with the employer on September 11,1981.

The record shows the claimant had a long history of problems with his right knee arising out of a high school football injury in 1955. Surgery was performed on the right knee in 1969. The claimant had an arthroscopy on the right knee in September of 1979, and did not return to work until November 19, 1979. He testified the injury to his left knee occurred two days later.

The record also shows the claimant was injured in an auto collision on March 28, 1979. Medical records state the claimant received injuries to both knees in the collision. In answering interrogatories on December 27, 1979, the claimant denied sustaining any personal injuries since the auto collision in March. This was five weeks after the alleged incident at work.

When asked about what he noticed when walking, the claimant testified that the swollen left knee forced him to put pressure on the right knee which caused it to swell. According to the claimant, this caused the problem with his right knee to reappear.

At arbitration, the claimant offered the deposition testimony of Dr. Irwin T. Barnett. Barnett examined the claimant on June 6, 1981. Barnett opined the claimant’s condition was permanent and that there was a causal connection between the claimant’s injury on November 21, 1979, and the condition of ill-being in both knees. Barnett opined that the claimant favored his left leg by shifting his weight to the right leg. Given the degenerative condition of the right knee, this added stress and strain aggravated or increased the “discomfort” in the right knee.

The employer offered the written opinion of Dr. E. Thomas Marquardt. Marquardt examined the claimant on February 14, 1983. He found a minor impairment of the left leg. He found the claimant’s major problem was the right knee. Marquardt was of the opinion the claimant was unemployable as a result of the condition of the right knee. He opined that if it were not for the condition of the right knee, the claimant could return to full work activity. The parties stipulated that if Marquardt testified he would opine the condition of claimant’s right knee was not related to the November 20, 1979, incident.

The arbitrator found the claimant had sustained accidental injuries on November 20, 1979, arising out of and in the course of his employment. The arbitrator found there was a causal connection between the condition of ill-being in the right knee and the injury of November 20, 1979. The arbitrator determined this condition was caused by the claimant favoring his left leg. The arbitrator held the claimant’s injuries rendered him totally and permanently disabled, and awarded him $238.40 per week for life under section 8(f) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)).

■ The employer appealed to the Commission, which took some additional evidence. On July 9, 1986, the Commission affirmed with one member dissenting. The Commission observed the claimant had swollen knees and walked with a limp on the right. The Commission found the arbitrator’s findings were supported by the record.

On review, the circuit court held the findings of an accidental injury and a causal connection were not against the manifest weight of the evidence. However, the circuit court held that the finding that the claimant was totally and permanently disabled was against the manifest weight of the evidence. The circuit court opined the claimant failed to satisfy his burden of showing the unavailability of work for a person in his circumstances. The circuit court reversed the decision of the Commission and remanded with instructions to enter an award in conformity with its order and memorandum.

On remand, the Commission awarded the claimant temporary total disability for a period of Ylxh weeks. The Commission compensated the claimant for the permanent loss of 662/s% of the use of his right leg and 30% of the use of his left leg.

On July 18, 1990, the circuit court again reversed and remanded the decision of the Commission. The court ordered the Commission to reinstate the Commission’s original decision. The circuit court found it had erred in its earlier decision by imposing a greater burden on the claimant then the law required. The court found the medical evidence established that the claimant was permanently and totally disabled. However, the court stated the Commission’s decision on remand “should provide and explicitly state that its determination of permanent total disability took into consideration the claimant’s employment potential with reference to his age, training, education and experience.”

On remand, the Commission reinstated the original award. The Commission noted there was no evidence in the record of employment or vocational rehabilitation potential. The circuit court confirmed and the employer now brings the instant appeal.

On appeal, the employer contends the finding of an accidental injury on November 20, 1979, was against the manifest weight of the evidence. The employer cites the interrogatories of December 27, 1979, wherein the claimant denied sustaining any injuries since an auto collision in March of 1979. The employer also points to the clinic’s medical records which do not show any report of an injury to the left knee until November 30,1979.

Whether the claimant’s injuries were a result of a work-related accident arising out of and in the course of his employment is a factual determination within the province of the Commission. (General Motors Corp., Central Foundry Division v. Industrial Comm’n (1989), 179 Ill. App. 3d 683, 534 N.E.2d 922.) It is for the Commission to draw reasonable inferences and conclusions from the competent evidence. (General Electric Co. v. Industrial Comm’n (1984), 129 Ill. App. 3d 352, 472 N.E.2d 486.) The Commission’s determination that an accident arose out of and in the course of employment will not be overturned unless it is against the manifest weight of the evidence. Elliot v. Industrial Comm’n (1987), 153 Ill. App. 3d 238, 505 N.E.2d 1062.

In the instant case, the claimant testified to striking his left knee while climbing stairs on a locomotive at work. He reported the incident to his foreman, John Wehr, within 10 to 15 minutes after the injury. Wehr was not called to rebut the claimant’s testimony. The records of the company’s clinic dated November 30, 1979, show the claimant reported injuring his left knee a few days earlier. Hospital and other medical records reflect the claimant’s continuing claim to an incident at work in November of 1979. On the other hand, the interrogatories signed in an unrelated action five weeks after the alleged incident deny any personal injury between March of 1979 and December of 1979.

The evidence regarding an accidental injury on November 20, 1979, was to some extent conflicting and less than clear. However, there was sufficient evidence to support the Commission’s finding of an accidental injury on that date, and therefore the Commission’s decision on this issue is not against the manifest weight of the evidence.

The employer also contends the finding of a causal connection between the claimant’s injury and his condition of ill-being is based solely on the speculation of Dr. Barnett. The employer argues that Barnett’s opinion has no factual support in the record.

It is the responsibility of the Commission to determine whether a causal relationship existed between the claimant’s injuries and the claimed industrial accident. (Steiner v. Industrial Comm’n (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) Whether a claimant’s disability is attributable to a degenerative condition or, because of an accident, to an aggravation or acceleration of a preexisting condition is a question of fact to be decided by the Commission. (Board of Education v. Industrial Comm’n (1983), 96 Ill. 2d 239, 449 N.E.2d 839.) If an injury is a contributing factor, compensation will be allowed even if natural degenerative changes or other factors contribute to the claimant’s disability. (Azzarelli Construction Co. v. Industrial Comm’n (1981), 84 Ill. 2d 262, 418 N.E.2d 722.) It is the Commission’s function to resolve disputed questions of fact and evidentiary conflicts, and the Commission’s findings must be upheld unless contrary to the manifest weight of the evidence. Spector Freight System, Inc. v. Industrial Comm’n (1983), 93 Ill. 2d 507, 445 N.E.2d 280.

In the instant case, the claimant testified, “By walking on the left knee, swollen, it forced me to pressure the right knee, which caused it to swell more, because it was weaker than the left knee, and it created a problem on the right leg again.” Three months after this testimony, Dr. Barnett opined in his deposition that in favoring his left leg and shifting his weight to his right leg, the claimant aggravated the degenerative condition of the right knee. The medical experts agreed the condition of the right knee rendered the claimant totally disabled. They disagreed on the causal connection between the injury to the left knee and the condition of the right knee.

It was within the province of the Commission to resolve the conflicting medical evidence related to the issue of causal connection. The Commission accepted the opinion of Dr. Barnett and that decision is not contrary to the manifest weight of the evidence.

The employer contends the claimant failed to produce evidence sufficient to support a finding of total and permanent disability. The employer argues medical evidence alone is not sufficient and that the claimant must present evidence such as age, training, education and work experience.

If the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment for a person in his circumstances. (Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 419 N.E.2d 1159.) Once the claimant presents medical evidence of his total disability, the burden shifts to the employer to present evidence that some kind of work is regularly and continuously available to such person. See Ceco Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 278, 447 N.E.2d 842; Rowe Construction Co. v. Industrial Comm’n (1984), 128 Ill. App. 3d 365, 470 N.E.2d 1196.

The medical experts agreed the condition of the claimant’s right knee rendered him totally and permanently disabled. The Commission found a causal connection between the claimant’s injury and his condition of ill-being. Thus the claimant presented medical evidence of his total and permanent disability and the burden shifted to the employer to show the claimant’s employability. In the cases relied on by the employer, none of the medical experts opined the claimant was totally and permanently disabled. In those cases, the claimant was required to present additional evidence to show that no reasonably stable labor market existed for a person in his or her circumstances. The instant case is not such an “odd-lot” situation.

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

Affirmed.

McCullough, p.j., and RAKOWSKI, WOODWARD, and H. LEWIS, JJ., concur.


author: JUSTICE MURRAY

text:
    BETTY SMITH, Plaintiff-Appellee, v. CAROL SMITH et al., Defendants-Appellants.
    First District (5th Division)
    No. 1 — 91—3447
    Opinion filed December 18, 1992.
    Carol Smith, of American National Mortgage Corporation, of Chicago, for appellants.
    No brief filed for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant American National Mortgage Corporation (ANMC) brings this appeal from an order of the circuit court dated September 17, 1991. Because we find that the order is not final, we dismiss the appeal for lack of jurisdiction.

The record reveals the following.

On March 22, 1985, Betty Smith (Smith) entered into an agreement with American National & International Financial Services, Inc. (ANIFS). Pursuant to this agreement Smith was to transfer 2,680 shares of stock she held to ANIFS and the stock was to be used toward the purchase of real estate. According to an accompanying document, the stock was valued at $35,054.40 and Smith was to invest 65% of the stock’s value or $22,785.36.

This agreement was voided on July 6, 1985, at which time Smith entered into an alternative agreement with ANMC. Pursuant to the new agreement, Smith was to transfer the same 2,680 shares of stock to ANMC to be held as collateral “for the purpose of funding and servicing mortgages, trust deeds and lending situations.” The investment commitment was for two years and Smith was to receive 16% simple interest on her investment from ANMC.

We note that the documents pertaining to this agreement reveal a discrepancy. The “Mortgage Investment Participation Agreement” indicates that the amount of $23,743.20 was being invested with ANMC and that ANMC was to pay 16% interest on this amount. An addendum attached to the agreement, however, appears to indicate that the assessed value of the stock was $23,743.20 and that 65% of that figure was to be considered the investment.

On September 21, 1985, a third agreement was entered into, which purported to amend and replace the July 7, 1985, agreement. The only apparent change between this agreement and the July agreement was the amount of the investment. This agreement indicated that $23,700.20 was being invested. However, this agreement contained the same internal inconsistency as the July agreement, i.e., although the stock was valued at $23,700.20 and only 65% of the stock’s value was to be considered the investment, the agreement indicated that 16% interest was to be paid on the $23,700.20 figure.

On September 4, 1985, Smith also entered into another agreement with ANMC to invest an additional $1,000 in cash.

On April 19, 1990, Smith filed a breach of contract action against the four defendants named in the caption above. Attached to the complaint were copies of the above-mentioned agreements. Smith alleged in the complaint that the defendants refused to return her investment plus certain profits, interest and capital gains. Smith’s complaint sought the return of her investment and dividends plus attorney fees and court costs.

Smith obtained a default judgment against defendants, jointly and severally, on July 31, 1990. On October 4, 1990, the court awarded specified amounts to plaintiff and against ANMC for damages, court costs and attorney fees for a total judgment of $7,137.41. The complaint was withdrawn without prejudice as to the remaining defendants.

Subsequently, in an order dated December 11, 1990, the default judgment was vacated against ANMC and ANMC was granted leave to file an appearance. At the same time all other defendants were found to be nonsuited by the order dated October 4,1990.

On January 11, 1991, ANMC filed its answer to the complaint and an affirmative defense. Then, on July 11, 1991, ANMC filed a motion to amend its pleadings to include a counterclaim against Smith. Leave was granted for the filing of the counterclaim on July 15, 1991. In the counterclaim ANMC alleged that it not only had paid all of the interest, dividends and capital gains that were contractually due to Smith, but that it had, in fact, overpaid Smith.

Trial was held on July 16 and 17, 1991. Post-trial memorandums were submitted and on September 17, 1991, the trial court signed an order that had been prepared by Smith. This order states as follows:

“IT IS ORDERED:
(1.) There is due and owing to the Plaintiff, payable immediately, $5,427.07.
(2.) Defendant shall pay court costs.”

On October 16, 1991, ANMC filed a notice of appeal from this September 17, 1991, order. Notice of this filing was apparently not served upon Betty Smith, but rather upon Franklin Jones, her attorney throughout the proceedings. Smith has not responded to the appeal, no brief having been filed with this court on her behalf.

Opinion

ANMC cites to no order, nor does there appear to be any such order in the record, which reduces the above finding in favor of plaintiff Smith to a final judgment against ANMC. It is well established law that a jury verdict or finding by a trial judge alone is not a judgment and that a reviewing court has no jurisdiction to consider an appeal from a nonexistent judgment. (Heavey v. Ehret (1988), 166 Ill. App. 3d 347, 349, 519 N.E.2d 996.) Even where the finding in favor of one party provides for a sum as damages and costs, the finding is not final and appealable unless such finding was entered as a judgment against the opposing party. Wilke Metal Products, Inc. v. David Architectural Metals, Inc. (1965), 55 Ill. App. 2d 34, 36, 204 N.E.2d 35.

In this case the order appealed from is merely a finding in plaintiff’s favor. If it has been reduced to a judgment in favor of plaintiff and against ANMC, such an order is not known to this court. Our own review of the record does not indicate that any such order exists, although the record is incomplete since it does not contain transcripts of the second day of trial or any subsequent hearings at which the trial court made its findings in favor of plaintiff.

We hasten to note, however, that even if these transcripts were in the record they would not necessarily be sufficient to avoid dismissal since “a docket entry or a mere reference or recital in an abstract, transcript, certificate of evidence, or bill of exceptions” is not sufficient to constitute a judgment of record. See Heavey v. Ehret, 166 Ill. App. 3d at 350.

We further note that the September 17 order from which ANMC appeals merely states that an amount is due plaintiff. It does not even indicate from whom this amount is due, nor does it address the counterclaim which was brought before the trial court by ANMC.

For the above reasons, we dismiss the appeal.

Dismissed.

McNULTY, P.J., and GORDON, J., concur.

       Smith’s complaint alleges that Carol Smith and Charles Christian are agents of both ANMC and ANIFS. The record indicates that Carol Smith is the president and sole shareholder of the corporate entity known as ANMC. ANIFS is apparently related to or affiliated with ANMC. Nothing in the record indicates Charles Christian’s connection to these corporations.


author: JUSTICE McCORMICK

text:
    JAMES E. BEARDEN, Indiv. and as Adm’r of the Estate of Deborah L. Bearden, Deceased, Plaintiffs-Appellees, v. WILLIAM M. HAMBY et al., Defendants (Michael J. Hennig, Contemnor-Appellant).
    First District (2nd Division)
    No. 1 — 91—2752
    Opinion filed December 22, 1992.

      Winston & Strawn, of Chicago (Neil E. Holmen and Michael P. Reynolds, of counsel), for appellant.
    Sachnoff & Weaver, Ltd., of Chicago (David Schachman, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, James E. Bearden, individually and as administrator of the estate of Deborah L. Bearden, deceased, brought a medical malpractice claim against defendant Dr. William M. Hamby, W.M. Hamby M.D., Ltd., his professional corporation, along with other defendants. The court ordered defendants Dr. Hamby and his professional corporation to produce income tax returns pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)). However, on the advice of their attorney, Michael J. Hennig, these defendants refused to produce the income tax returns. The court found Hennig to be in contempt of court and fined him $25. Hennig appeals from the contempt order, contending that the income tax returns are irrelevant and inadmissible into evidence. As more fully explained below, we find Hennig’s argument to be persuasive, and we reverse the trial court’s finding of contempt.

On August 14, 1983, Deborah L. Bearden was admitted into Central Community Hospital (the hospital), where Dr. Hamby and others provided her with medical care and treatment. On August 22, 1983, Deborah underwent surgery. She was released from the hospital on September 3, 1983. Thereafter, Dr. Hamby treated her on an outpatient basis. On September 18, 1983, Deborah was readmitted to the hospital. Dr. Hamby continued to treat her until her death on October 27,1983.

On July 11, 1985, plaintiff filed a complaint alleging that Dr. Hamby (1) failed to diagnose and properly treat Deborah’s acute life-threatening heart condition; (2) failed to consult with a qualified cardiologist regarding Deborah’s condition; and (3) failed to transfer Deborah to a major university hospital which could provide more intensive and suitable monitoring and treatment.

During discovery, plaintiff learned that Dr. Hamby’s professional corporation had a contractual arrangement with the hospital. Under the provisions of the contract, the hospital paid Dr. Hamby to manage its intensive care and intermediate care unit. The hospital also paid Dr. Hamby 25% of the hospital’s charges for reading and interpreting EKGs and other cardiology tests.

Dr. Ronald Feingold, one of plaintiff’s expert witnesses, testified at his deposition that Dr. Hamby deviated from the standard of care in that he did not transfer Deborah to a major university hospital. He also testified that Dr. Hamby’s percentage contract with the hospital created an improper financial incentive to keep patients in the hospital when it was not medically appropriate. Although he was critical of Dr. Hamby’s contract with the hospital, Dr. Feingold stated that the contractual arrangement did not cause Deborah’s death.

Dr. Hamby testified at his deposition that Deborah was not transferred because (1) he had been advised by physicians at other hospitals that transferring her would not change the course of treatment; and (2) Deborah and her family wanted him to continue treating her since the course of treatment would not change.

In August of 1991, this case was assigned to trial. Plaintiff served a Supreme Court Rule 237(b) notice on Dr. Hamby and his professional corporation requesting that they produce, at the start of trial, income tax returns for the tax years 1980 through 1984. These defendants filed a motion in limine to bar any evidence relating to their financial relationship with the hospital. They also filed objections to the Rule 237(b) request.

The trial court heard arguments from plaintiff and these defendants on the Rule 237(b) request and on the motion in limine. The trial court denied the motion in limine and ordered the production of the income tax returns pursuant to Supreme Court Rule 237(b). The trial court indicated that an appropriate limiting instruction would be given to avoid prejudicing the jury.

The parties concede that the court has jurisdiction to hear this appeal. The laws supporting this position are abundant. An order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order. This type of order is an appropriate method for testing pretrial orders. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 172, 429 N.E.2d 483.) Although occurring within the context of another proceeding, and thus having the appearance of being interlocutory, a contempt order imposing sanctions is an original special proceeding. It is collateral to and independent of the case in which the contempt arises. (Silverstein, 87 Ill. 2d at 172, citing Hill v. Thomas B. Jeffery Co. (1920), 292 Ill. 490, 127 N.E. 124; Lester v. Berkowitz (1888), 125 Ill. 307, 17 N.E. 706.) The trial court held Hennig in contempt for advising his clients not to comply with the order requiring production of income tax returns. The propriety of that order is clearly before this court.

Plaintiff contends that the income tax returns are discoverable because the scope of discovery is wide, and they are entitled to discover all matters which might lead to evidence admissible at trial. The trial court ordered the production of the income tax returns pursuant to Rule 237(b). That rule is not a general discovery rule, but is “designed to compel parties to produce documents or tangible things at trial.” (Emphasis in original.) (Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1067, 502 N.E.2d 315.) However, the trial court’s order to produce the income tax returns is proper only if the tax returns are probative of the issues in the case.

Hennig initially argues that evidence of an economic incentive in a medical malpractice case is irrelevant and, therefore, inadmissible into evidence. Relevancy is determined by reference to the issues. Generally, something is relevant if it tends to prove or disprove something in issue. (Bauter v. Reding (1979), 68 Ill. App. 3d 171, 175, 385 N.E.2d 886.) To establish liability in a medical malpractice claim, a plaintiff must prove (1) the standard of care in the medical community by which the physician’s treatment is measured; (2) that the physician deviated from this standard of care; and (3) that a resulting injury was proximately caused by the deviation from that standard of care. Northern Trust Co. v. Upjohn Co. (1991), 213 Ill. App. 3d 390, 406, 572 N.E.2d 1030; Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42, 489 N.E.2d 867.

Plaintiff claims that the income tax returns are necessary to establish Dr. Hamby’s motive for deviating from the standard of care. In the present case plaintiff’s burden is to prove that (1) the standard of care in the medical community required that Deborah be transferred to a major university hospital; (2) Dr. Hamby deviated from this standard of care by not transferring Deborah to such a hospital; and (3) Deborah’s death or injuries were proximately caused by Dr. Ham-by’s failure to transfer Deborah to a major university hospital. We are not required to probe into defendants’ motive in a medical malpractice claim. Motive is not an element of this cause of action. The question is, did Dr. Hamby deviate from the standard of care? The reason or motive, if any exists, is of no consequence. If the purpose of the income tax returns is to show that these defendants’ economic interest was the motive for not transferring Deborah to a major university hospital, the income tax returns have no probative value to the issues in the medical malpractice cause of action.

Although we are not aware of any Illinois cases addressing the issue of motive in medical malpractice claims, we find support for this court’s conclusion in Ellis v. Springfield Women’s Clinic, P.C. (1984), 67 Or. App. 359, 678 P.2d 268. The Oregon Appellate Court reversed judgment for defendants in an action for medical malpractice because the trial court improperly instructed the jury to consider whether defendants had acted in good faith. The court held that the consideration of motivation had no place in ordinary negligence actions. (Ellis, 67 Or. App. at 362-63, 678 P.2d at 270.) Similarly, here the income tax returns could pertain only to Dr. Hamby’s motives, and therefore, they are irrelevant to plaintiff’s case and inadmissible at trial.

In the prayer for relief, defendants ask that this court reverse the order denying defendants’ motion in limine. However, this court does not have jurisdiction to review that order because it is not final and appealable, and it does not fall under one of the statutory exceptions to the general rule that preliminary orders are not appealable. Silverstein, 87 Ill. 2d at 171.

The trial court erred in ordering Dr. Hamby to produce the income tax returns for trial. Since the trial court improperly entered the order which formed the basis for the finding of contempt, the contempt judgment is reversed.

Reversed.

HARTMAN, P.J., and DiVITO, J., concur.


author: JUSTICE TULLY PRESIDING JUSTICE GREIMAN,

text:
    DENNIS EAGAN, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 90—0597
    Opinion filed December 23, 1992.
    Rehearing denied February 5, 1993.

      GREIMAN, P.J., dissenting.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Todd A. Smith, and David A. Novoselsky, of counsel), for appellant.
    James D. Montgomery & Associates, Ltd., of Chicago (James D. Montgomery, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This appeal is concerned with the legal propriety of plaintiff’s complaint. Plaintiff, in this instance, wishes to hold defendant, Chicago Transit Authority (CTA), liable for its failure to protect plaintiff from the criminal activities of an unknown third party, while both were passengers on a CTA elevated train. Plaintiff interceded in a situation in which an unknown culprit was attempting to pick the pocket of another passenger. As a result, plaintiff was stabbed by the third-party pickpocket. Plaintiff appeals from the dismissal of his complaint in negligence against the CTA.

Plaintiff filed a complaint against the CTA, alleging negligence, in that the CTA: (a) failed to monitor in any way whatsoever the train and its platform so as to become aware of pickpocketing and assaults; (b) failed to respond in any way when the pickpocketing was observed by other passengers; and (c) failed to alert the Chicago police department that one of its patrons was being pickpocketed by a razor-wielding assailant. The trial court dismissed the complaint pursuant to section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) of the Illinois Code of Civil Procedure, indicating that the CTA was immune from liability for a third-party assault, pursuant to section 27 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1987, ch. 1112/3, par. 327) (section 27). The trial court also cited Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1, as a foundational basis for the dismissal.

At issue in this case is the interpretation of section 27, which reads:

“In the policing of its properties the Board may provide for the appointment and maintenance, from time to time, of such police force as it may find necessary and practicable to aid and supplement the police forces of any municipality in the protection of its property and the protection of the persons and property of its passengers and employees, or otherwise in furtherance of the purposes for which said Authority was organized. The members of such police force shall have and exercise like police powers to those conferred upon the police of cities. Neither the Authority [the CTA], the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third- persons or for the failure to apprehend criminals.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 1112/3, par. 327.

The emphasized language was added to section 27 in 1985 by Public Act 84 — 939. (Pub. Act 84 — 939, eff. Sept. 24, 1985.) Plaintiff contends that section 27 was not intended to provide a “blanket” immunity to the CTA which, as a common carrier, owes a common law duty of utmost care in providing safe transportation for its passengers. (Garrett v. Grant School District No. 124 (1985), 139 Ill. App. 3d 569, 487 N.E.2d 699.) Rather, plaintiff argues that section 27 only immunizes the CTA from any liability for failure to provide police or security protection for its passengers. Moreover, this limited immunity in section 27 does not abrogate defendant’s common law duty of care to the plaintiff-passenger in this case. For example, in Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 470 N.E.2d 1163, the CTA was found liable for an assault or other injury to one of its passengers, where it had reason to anticipate the misconduct, but failed to exercise the degree of care and vigilance practical under the circumstances to prevent the injury. However, Gordon was decided prior to the 1985 amendment to section 27, which added the immunity language regarding third-party criminals. Defendant contends that the amendment to section 27 effectively abolished any prior common law duty of public common carriers, such as the CTA, for failure to protect passengers from third-party criminal acts. Therefore, according to defendant, the holding in Gordon is no longer viable.

A statute in derogation of the common law must be narrowly construed. (Possekel v. O’Donnell (1977), 51 Ill. App. 3d 313, 366 N.E.2d 589.) It would appear, in the instant case, that the circuit court read into the statute involved here language and details far broader than the narrow confines of the actual language drafted by the legislature. According to plaintiff, the trial court mistakenly permitted the CTA to utilize section 27 as a general, all-encompassing statute, immunizing the CTA from liability for each and every injury suffered by any of its passengers. Plaintiff indicates that this statute should only apply to duties that the CTA has in relationship to providing security or police officers. In support thereof, plaintiff cites the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.) (the Act or Tort Immunity Act), which provides immunity to other governmental bodies for failing to provide police protection. Section 4 — 102 of the Act reads:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes [and] failure to *** apprehend criminals.” Ill. Rev. Stat. 1987, ch. 85, par. 4-102.

The language of section 4 — 102 is almost identical to section 27, which applies specifically to the CTA. Plaintiff argues that there is no legislative judgment or intent evident in section 27, whereby the CTA should be granted greater immunity than other governmental entities. Under section 4 — 102, a defendant municipality may nevertheless be held liable for third-party criminal acts under what has come to be known as the “special duty” exception to governmental immunity. (See Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147.) The CTA was originally excluded from the Tort Immunity Act because of the “special relationship” between carriers and their passengers and the higher standard of care imposed upon common carriers. (See Bilyk, 125 Ill. 2d at 241, 531 N.E.2d at 5.) At issue in this case is whether or not the “special duty” exception to immunity under section 4 — 102 can be analogized with the common law duty of common carriers to protect their passengers from the criminal acts of third parties — a duty which results from the “special relationship” between a carrier and its passengers.

Plaintiff’s complaint relates to the failure of the CTA to respond in any way to the pickpocketing situation, which was observed by other passengers on the train, or to monitor the train or its platform. Allegedly, even the conductor of the train failed to notify the Chicago police department that a crime was being committed. This is a situation in which the CTA employees, including the various trained personnel employed by the CTA at the station, apparently failed in their duties. The CTA owes a duty of utmost care towards its passengers, to prevent injuries to passengers which reasonably could have been foreseen and, thus, avoided. (Gordon, 128 Ill. App. 3d 493, 470 N.E.2d 1163.) Common carriers have been found to have breached this duty where a passenger was assaulted by another passenger (McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 371 N.E.2d 625); where a passenger was shot by another passenger (Martin v. Chicago Transit Authority (1984), 128 Ill. App. 3d 837, 471 N.E.2d 544); and where a passenger was injured by exhaust fumes (Hanson v. Chicago Transit Authority (1977), 56 Ill. App. 3d 17, 371 N.E.2d 884). Moreover, plaintiff’s complaint alleged that prior “numerous attacks, as well as pickpocketing, had been committed upon its [the CTA] trains and platforms and generally upon its facilities against its customers. Such criminal acts include, but are not limited to, shootings, stabbings, robberies, assaults, rapes and batteries.”

Defendant indicates that plaintiff’s arguments are in error and must be rejected by this court. Defendant posits that section 27 was amended to show the legislature’s intent to overturn the holding in Gordon, which held that the CTA could be liable for injuries incurred by a passenger as the result of the criminal activities of third parties. Defendant further states that the trial court correctly applied section 27 as well as the Illinois Supreme Court’s decision in Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1. Defendant feels that no other reasonable interpretation of the events of the amendment to section 27 could be afforded and, therefore, the CTA would be immune by virtue of this revision of section 27 by the Illinois legislature.

According to plaintiff, the Bilyk decision did not resolve any issues relating to the extent of the underlying grant of immunity or the legislative intent of section 27. In Bilyk, the supreme court determined the constitutionality of section 27 and found that a classification as between public and private common carriers was not a classification in violation of the equal protection and special legislation clauses. (Davis v. Chicago Transit Authority (1990), 136 Ill. 2d 296, 555 N.E.2d 343.) Bilyk does not stand for the proposition that section 27 grants a blanket immunity to the CTA for injuries incurred by its passengers. Moreover, Bilyk does not address the issue presented in this case, that is, whether there exists a “special duty” exception to the immunity clause of section 27, similar to the exception carved out by the courts to section 4 — 102 of the Tort Immunity Act. Specifically, the court stated:

“We need not consider whether or not the common law duty of common carriers to protect passengers from criminal acts of third parties must be identified with and treated the same as the ‘special duty’ exception to the immunity conferred on municipal entities in section 4 — 102 for failure to protect individuals from crime.” Bilyk, 125 Ill. 2d at 242-43, 531 N.E.2d at 6.

We agree that the statute should be interpreted in reference to the narrow situation involving the duty of the CTA to provide security or police forces. The plain meaning of the statute is that a common carrier is immune from liability “for failure to provide a security or police force or, if a security or police force is provided *** [for] failure to prevent the commission of crimes by fellow passengers.” (Ill. Rev. Stat. 1987, ch. 1112/3, par. 327.) This is not the situation in the case sub judice. Here, plaintiff alleges injury by a third-party criminal in the absence of a security or police force. It is the feeling of this court that the CTA should not be granted immunity in this case. This is not contrary to the decisions of Bilyk and Gordon. Gordon stands for the proposition that the highest degree of care must be furnished by the CTA to its passengers. If you view a narrow interpretation of section 27 as correct, the holding in Gordon was not overruled by the amendment to section 27 and Gordon is still the law at this time. Moreover, plaintiff correctly states that Bilyk deals with a constitutional issue and is not applicable to the present case.

Unlike Bilyk, this case concerns the common law duty of common carriers to provide safe passage for their passengers and the so-called “special duty” exception to the governmental immunity granted to municipalities. (See, e.g., Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 517 N.E.2d 656; Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515; Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960.) The courts have carved out this exception to governmental immunity, where the status of the aggrieved party has been elevated “to something more than a member of the general public.” (Trepachko v. Village of Westhaven (1989), 184 Ill. App. 3d 241, 540 N.E.2d 342.) Under the “special duty” exception to governmental immunity, four requirements must be met in order to sustain a cause of action: (1) defendant must be aware of the particular danger or risk; (2) defendant must undertake specific acts or omissions with respect to the danger; (3) these acts or omissions must be affirmative or willful in nature; and (4) the injury must occur while the defendant has direct and immediate control of the plaintiff. Rush v. City of Chicago (1987), 163 Ill. App. 3d 725, 517 N.E.2d 17.

Because we find that a similar “special duty” exception is available to litigants under section 27, we now consider whether plaintiff’s complaint meets the minimum requirements of a special duty. Plaintiff has alleged that the CTA was aware that numerous attacks, as well as pickpocketing, had been committed upon its trains; that the CTA failed to monitor the train in any way and failed to respond to the pickpocketing which was observed by other passengers; and, finally, that the CTA failed to alert the Chicago police department that a passenger was being assaulted by a “razor-wielding assailant.” Thus, plaintiff’s complaint clearly meets requirements (1) and (2) above, since it alleges that defendant was both aware of the danger and failed to respond to it. Requirement (3) that the acts be “affirmative or willful” is also sufficiently satisfied by the above allegations. Although the acts were allegedly “negligent,” one can reasonably infer from the allegation that the CTA failed to respond to the incident, that the CTA employees knew or should have known about the assault on plaintiff, and any failure to act, if proven, would constitute an affirmative omission. Finally, it can be reasonably inferred from the face of the complaint that plaintiff, as a passenger on defendant’s train, was under the “direct and immediate control” of defendant. We, therefore, conclude that plaintiff’s complaint sufficiently alleges facts which, if proven, could impose liability upon defendant pursuant to the “special duty” exception to governmental tort immunity.

In conclusion, section 27 cannot be construed as giving special treatment to the CTA, immunizing it from all liability in those situations which would advance an attitude of very little concern for passenger safety. If the CTA is concerned about the possibility of additional lawsuits, then additional vigilance on the part of the CTA is necessary.

For all of the foregoing reasons, this case is remanded to the circuit court of Cook County with directions to vacate the order dismissing this cause of action, with further instructions to allow this case to proceed on its merits or any such other relief that the court may deem just and proper.

Reversed and remanded.

RIZZI, J., concurs.

PRESIDING JUSTICE GREIMAN,

dissenting:

The majority has construed the statute so narrowly that it is difficult to imagine why anyone sought its enactment. The majority states:

“The plain meaning of the statute is that a common carrier is immune from liability ‘for failure to provide a security or police force or, if a security or police force is provided *** [for] failure to prevent the commission of crimes by fellow passengers.’ (Emphasis added.) [Citation.]” 240 Ill. App. 3d at 789.

That might shed some light on the matter if those were the exact words and punctuation of the statute. Unfortunately, the majority has added the word “for” in the last line, connected it with the provision dealing with immunity for failure to provide a police force and eliminated a comma.

However, if we examine the full text of the statute, we find that “failure to prevent the commission of crimes by fellow passengers or other third persons” is an independent clause in a series of several independent clauses. This is somewhat obscured due to the missing comma.

In the paragraphs that then follow, the majority concludes that the statute does not afford the CTA immunity because “plaintiff alleges injury by a third party criminal in the absence of a security or police force.” (Emphasis in original.) (240 Ill. App. 3d at 789.) The majority apparently believes the immunity is operative only when the crime is committed in the presence of the security police. This court considered this issue in Cooper v. Chicago Transit Authority (1991), 224 Ill. App. 3d 321, 586 N.E.2d 575, where plaintiff entered a bus and was beaten for five minutes and then stabbed by a group of youths. We concluded that the plaintiff’s cause of action was within the scope of immunity provided by the statute.

I agree that Bilyk stands only for the proposition that creating different standards of liability between public and private transportation carriers does not violate equal protection clauses of the State or Federal constitutions. However, section 27, except in the area of third-party criminal actions, does not seek to diminish the high degree of care required to be furnished by a transportation carrier.

Also, the legislature did not intend to provide the CTA immunity in those situations where it is guilty of conscious indifference in its conduct towards a passenger just as local governments remain liable for their willful and wanton conduct.

The majority suggests that the “special duty” exception to immunity granted to municipalities applies here and obviates the provisions of section 27.

While I believe that such an exception is appropriate in certain limited cases, the exception cannot be broadened to emasculate the impact of section 27. Moreover, the plaintiff must show that his status as one to whom the special duty is due is more than merely a member of the general public.

If we recognize the “special duty” exception, then the four requisites imposed upon claimants against public bodies must be satisfied. Those elements are that (i) the defendant must be uniquely aware of the particular danger or risk to which plaintiff is exposed, (ii) there must be allegations of specific acts or omissions on the part of the defendant, (iii) the specific acts or omissions must be either affirmative or willful in nature and (iv) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654; Doe v. Calumet City (1992), 240 Ill. App. 3d 911.

There does not appear to be any allegation that the CTA or its agents had any awareness of the particular danger to which plaintiff was exposed. Plaintiff alleges in his complaint that the CTA was aware “that numerous attacks, as well as pickpocketing, had been committed upon its trains and platforms.” Such “awareness” addresses crime generally and does not meet the requirement that the CTA be aware of the “specific” act. To hold otherwise would impute specific knowledge of criminal acts to all municipalities since the mayors and managers of our cities are certainly aware of the crime statistics in our urban areas.

The plaintiffs complaint provides acts or omissions which might satisfy the second requirement of Burdinie; however, I question whether they are of such a character as to comply with the third prong of the test: that the acts complained of are affirmative or willful in nature.

Application of the fourth prong of the test requires a more thorough analysis. The requirement that the public employee exercise direct and immediate control of the plaintiff is founded in the sound public policy that mandates the individual’s status be elevated beyond that of a member of the general public before the “special duty” exception can impose liability upon the public body. Doe v. Calumet City (1992), 240 Ill. App. 3d 911.

A “special duty” was determined where the municipality’s agent imposed “direct and immediate control” when plaintiff was in police custody to identify a suspect (Gardner v. Chicago Ridge (1966), 71 Ill. App. 2d 373, 291 N.E.2d 147) or where an officer manning a roadblock, and knowing that a car was speeding toward them, ordered plaintiff to stop and pull to the roadside (Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423) or where firefighters directed plaintiff assist them in closing an elevator door (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 523 N.E.2d 22). On the other hand, no such “special duty” was found in Doe v. Calumet City (1992), 240 Ill. App. 3d 911 (police arrived at the victim’s apartment and failed to force immediate entry); Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960 (police failed to respond to 911 call for 24 minutes during time which injury to plaintiff took place); Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214 (African-American beaten by four youths, en route to employment office located in Cicero); Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654 (plaintiff directed by swimming instructor to jump into pool).

Generally, the “special duty” exception has been narrowly construed. In Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183, the court dismissed plaintiff’s complaint against the City of Chicago alleging he had been beaten by six young men on a CTA platform — where a city police officer, patrolling the station, directed plaintiff to go to the northbound subway platform because he believed the rowdies had gone to the southbound platform.

Plaintiff here came within the exception only if the “special duty” extends to every CTA patron — every person on CTA facilities. Such an interpretation would effectively repeal section 27.

       “Neither the Authority [the CTA], the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 327.

         Cooper was reversed on other grounds, the cause of action having accrued prior to the 1985 enactment of section 27, which is without retroactive effect. (Cooper, 224 Ill. App. 3d at 325. See also Hopkinson v. Chicago Transit Authority (1991), 211 Ill. App. 3d 825, 570 N.E.2d 716.) Although this cause of action also accrued before the enactment of section 27, its facts might meet the criteria of a “special duty”: opaque panels shielding a deserted end of a platform at a station which was the site of numerous criminal assaults. Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 568 N.E.2d 18.

       Even before section 27 was enacted, the uniqueness of the danger was not always clear. (See Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997, 376 N.E.2d 680 (past robberies at a particular station imposed a duty of vigilance on CTA to plaintiff who was robbed at 3 a.m.); Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497 (defendant liable where station was located near a “hobo jungle”).) Even Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 470 N.E.2d 1163, might provide that unique danger to avoid the effect of section 27 since the plaintiff was attacked in an enclosed engineer’s compartment which was left unlocked during late night hours when train cars were often deserted.

       Although generally a question of fact for the jury, courts have determined that there must be a period of time after appreciation of the danger within which the CTA employee has an opportunity to act to avert injury to the plaintiff. McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 371 N.E.2d 625; Watson v. Chicago Transit Authority (1972), 52 Ill. 2d 503, 288 N.E.2d 476; Letsos v. Chicago Transit Authority (1970), 47 Ill. 2d 437, 265 N.E.2d 650.