author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BOONE et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—85—1915, 1—85—2094, 1—85—2148 through 1—85—2150 cons.
    Opinion filed December 30, 1988.
    Rehearing denied March 14, 1989.

      William P. Murphy and Thomas Peters, both of Chicago, for appellant Albert Tillman.
    Paul P. Biebel, Jr., Public Defender, of Chicago (Kathleen M. Pantle, Assistant Public Defender, of counsel), for appellants Donald Boone and Alice Nelson.
    Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry, Kim A. Novi, and Robert McNamara, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendants Donald Boone, Alice Nelson, and Albert Tillman were charged by indictment with soliciting for a juvenile prostitute (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 15(1)), indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(a)(3)), pandering (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 16), and juvenile pimping (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 19.1(a)). Defendant Boone was tried before a jury and found guilty of all charges. Defendants Alice Nelson and Albert Tillman, tried simultaneously with Boone in a bench trial, were also found guilty of all of the charges. All three defendants appeal their convictions.

The issues on appeal are (1) whether the defendants were proved guilty beyond a reasonable doubt, (2) whether defendants Boone and Nelson were denied a fair trial because of the trial judge’s questioning of the witnesses during their testimony, (3) whether defendant Boone was denied a fair trial by reason of certain remarks made by the State in closing argument, (4) whether the trial court erred in considering certain information offered in aggravation at Boone’s sentencing hearing, and (5) whether the trial court abused its discretion by denying defendants’ motions for a mistrial.

The State’s case consists mainly of the testimony of the four complaining witnesses, who told of a “sex club” run by the defendants wherein young girls, who were wards of the Illinois Department of Children and Family Services (DCFS), were given drugs in exchange for engaging in prostitution, pornography, and other sexual acts. Since the defendants contend that the alleged victims, who admitted to being drug users, gave confused, contradictory testimony that did not merit belief, and inasmuch as defendants charge they were not proved guilty beyond a reasonable doubt, we shall review the testimony of the witnesses in detail.

Donna Clark, the State’s first witness, testified that in October of 1982 she was 13 years old, a ward of the State, and living in Touhy House, which is a part of the Mary Bartelme House Placement Center in the City of Chicago. In November of 1982, in the neighborhood of Jarvis and Greenview in Chicago, Clark met a woman named Denise, whom she identified in court as defendant Alice Nelson. Defendant Nelson asked Clark if she wanted to get “high,” and when Clark assented, they went to Nelson’s apartment, where they smoked marijuana.

Clark testified that she returned to Nelson’s apartment in December of 1982 where she met Donald Boone and Albert Tillman. During the month of December when Clark was at Nelson’s apartment with another girl, Debbie Ferreri, she was told by A1 to go to bed with Nelson. When she refused, Al threw her up against a wall. Ferreri was given drugs, but Clark was not.

In January of 1983, Clark was given pills called “T’s” and “Blues” which made her “really high.” As a result, she went to bed with defendant Nelson and the two engaged in oral sex. Between January and early May of 1983, Clark saw Nelson on many occasions and had sex with her approximately 15 times. After being threatened by defendant Tillman, Clark had sex with a man she did not know and for which act she received drugs.

Clark also testified that she had sexual intercourse with Tillman several times, and that during February and March of 1983, he arranged for Clark to have sex in various places with different individuals. She gave the money she was paid to Nelson or Tillman and received drugs in return.

Clark testified she met defendant Boone at Nelson’s apartment in January of 1983 where she had oral sex with him and received drugs. Several times in the following months Clark again had sexual relations with Boone. In February of 1983, Clark was sent by Boone to a motel where she engaged in sexual intercourse with two men and one woman. Clark kept $75 of the $115 she received and gave the rest to Nelson.

Clark was photographed undressed and partially undressed by Tillman or Boone; she also witnessed movies being taken of other girls from DCFS homes in the apartment.

On February 8, 1984, while Clark was hospitalized in Des Plaines, where she was being treated for alcohol and drug abuse, she identified defendants Tillman and Boone from a group of photos of men and defendant Nelson from a group of photos of women.

On cross-examination, Clark testified that she began taking drugs when she was 10 or 11 and that she worked as a prostitute for a man named Bill and a man named Chafi. In June 1982, she overdosed on LSD.

The second witness for the State, Norma Jones, testified that she was 13 in May of 1982 and was living at Jarvis House, also a part of the State’s Mary Bartelme system. In May or June of 1982, Jones and a housemate, Debbie Ferreri, went to a 7-11 store at Greenview and Jarvis to play video games. Here they met another girl, Angel, and the three of them went to Nelson’s apartment. At the apartment, Jones saw defendants Nelson and Boone. All three girls were given marijuana, and Nelson gave Jones a can of beer. Boone then pulled out cocaine and put it on the table at which time the defendants told the girls to “snoot it up” their noses.

On her third or fourth visit to Nelson’s apartment, and several times thereafter, Jones witnessed a meeting of a club called “The Ladies” at which she saw about 15 girls, including Donna Clark and Elizabeth Zemola, and at which the girls discussed how well they were doing. During the meeting she asked Nelson how she could get drugs; Jones was told she would have to have sex with a man named James. She went into the bedroom where she saw James and Boone. Jones was given drugs after Boone took pictures of her having sex with James.

In September of 1982, Jones had sex with Boone, and James took pictures, in exchange for which she was given drugs by defendant Nelson. She also testified that Boone took photographs of her and Elizabeth Zemola, who were both nude at the time. Jones went to Nelson’s apartment at different times for approximately a year and had intercourse with defendant Boone or James about 25 times. She got drugs two or three times a week.

Jones stated that she never saw defendant Tillman at Nelson’s apartment. In November of 1983, she was at the “L” station with Ro-manda Neeley and Debbie Ferreri where they met defendant Nelson, who showed them nude photos of Jones.

The State’s third witness was Elizabeth Zemola, who testified that in July of 1982 she was 13 years old and lived at Mary Bartelme Chase House. She stated that she first went to Nelson’s apartment in July of 1982 with Elisha Bonner, where she met defendants Nelson, Tillman, and Boone. Nelson gave her cocaine and marijuana. Zemola testified that she went to Nelson’s apartment about 8 to 10 times in July and got “high.” In August of 1982, Zemola was told by Nelson that she would have to have sex with men in order to get any more drugs.

She had sex with a man in Nelson’s apartment in September of 1982 for which she received drugs. Nelson and Tillman were present in the apartment at the time. Several months later, Zemola witnessed Boone taking nude photos of Norma Jones. When Zemola refused to pose as Boone wanted her, he slapped her around and hit her with a bottle. She then agreed to the pictures. She further testified to having sex with Boone in the apartment.

In March of 1983, Zemola had a conversation with Boone and Tillman at which time Tillman told Zemola she would have to work as a prostitute. Zemola gave the money she earned to Tillman and Boone, and she was given money or drugs. She testified that Boone and Tillman established a quota for her of $200 to $300 a week and that these quotas were discussed at the meetings held at Nelson’s apartment. She knew other girls who attended the meetings at the apartment, and she identified Donna Clark, Romanda Neeley, Norma Jones, and a girl named Angel. Also present at the meetings were Nelson, Tillman and sometimes Boone.

Romanda Neeley, the State’s fourth witness, testified that she was 14 in May of 1982 and lived at Jarvis House. She met defendant Nelson in front of an apartment house at Greenview and Fargo while she was with another girl named Theresa. Nelson told Neeley to come up to her apartment if Neeley ever wanted to get “high.” When Neeley went to the apartment a few weeks later, she saw defendants Nelson, Tillman, and Boone and some other girls there. She used drugs there that day.

On Neeley’s fourth or fifth visit to the apartment, defendants Tillman and Boone told her that she would have to have sex "with other men and get involved with pictures and movies if she wanted to get “high.” Neeley told defendant Nelson that she did not want to get involved, and, after a conversation with Boone and Tillman, Nelson told Neeley that she would have to “mess around” with Nelson. A couple of days later, Neeley returned to the apartment and had oral sex with Nelson for which she was given drugs and alcohol. For the next year, Neeley continued to have sex with Nelson, and she was given drugs after sex. Neeley also testified that she attended the meetings of the Ladies Club at the apartment. She recognized Donna Clark, Elizabeth Zemola, Norma Jones, Angel Kramer, and Debbie Ferreri. Nelson was always at the meetings; Tillman was there most of the time; Boone was there off and on.

In November of 1983, Mary Ann West, who worked as a social work director and unit director for Mary Bartelme Homes from 1971 to 1984, became aware of a sex club among the wards of the State and called the Chicago police. She questioned the girls at different times and discussed the information she learned about the club from the girls with the police.

Officer Vana, a youth investigator with the Chicago police department, testified that in late November of 1983 he became involved in an investigation of sexual exploitation of juvenile residents of the Mary Bartelme system. He interviewed several residents of the homes in December of 1983, including Norma Jones, who identified a building at 7455 North Greenview as the building where Nelson’s apartment was located. Vana testified that he interviewed Louise Marino, the manager of the building at that address and asked her if she knew Denise or Nessie; Marino responded that it was Alice Nelson. Vana further testified as to the identification procedures used by the police department, which consisted for the most part of photographic displays. All four girls who testified identified the defendants from these photo arrays shown to them by the police; they also identified the defendants in court.

Officer Vana also testified regarding a statement made by defendant Nelson after her arrest on February 14, 1984 in which Nelson discussed her sexual relationship with Romanda Neeley. Vana further testified that defendant Boone denied knowing defendants Tillman and Nelson. On February 15, 1984, Officer Vana interviewed defendant Tillman, who told him he knew Boone as Hollywood and that he was a pimp for several young girls who were wards of the State. The record shows that Vana’s testimony as to each defendant was introduced and admitted only as to that particular defendant. The record also shows that Nelson’s statement was introduced and admitted only as to her.

At the conclusion of the evidence, the jury returned a verdict finding defendant Donald Boone guilty of soliciting for a juvenile prostitute, pandering, indecent liberties with a Jiild, and juvenile pimping. Subsequently, the trial judge found defendants Nelson and Tillman guilty of the same crimes. Following a sentencing hearing, defendant Boone was sentenced to 14 years; Tillman was sentenced to 12 years, and Nelson was sentenced to seven years.

All three defendants, Boone, Nelson and Tillman, contend on appeal that they were not found guilty beyond a reasonable doubt, arguing that the testimony of the complaining witnesses was inconsistent and that the physical evidence contradicted important portions of their testimony.

The defendants first point out that all four of the victims testified that most of the offenses occurred in Nelson’s apartment. The girls further stated that the apartment had a bedroom, although Louise Marino, manager of the building, testified that the apartment was a studio and had no bedroom. However, in the statement defendant Nelson made to the police, which was entered into evidence only as to her, she stated, “It was in the middle of 1982. Romanda came over to my apartment. We sat down and talked and smoked two joints. *** That same day Romanda and me went into the bedroom.” (Emphasis added.) We find from this evidence that a trier of fact in Nelson’s case would be justified in concluding that there was some type of bedroom area used in the apartment. As to Boone and Tillman, the issue of the absence or the presence of a bedroom as such does not alter the fact that all four of the victims testified to the existence of a distinct system of juvenile prostitution, soliciting for juvenile prostitutes, taking indecent liberties with children, and pandering, embracing a number of incidents which occurred over a protracted period of time in several different locations, involving at one time or another one or more of the defendants.

The defendants next point to certain inconsistencies in the girls’ testimony regarding dates and their inability to describe the apartment accurately. For example, although the manager of the building testified that Nelson moved from her apartment in January 1983, all of the girls testified that they had been in the apartment on dates after that time. When the girls were asked to draw a picture of the apartment, the defendants complain, they were unable to do so. None of the girls knew the apartment number, and only one witness was certain of what floor the apartment was on. But the State argues, and we can certainly agree, as indeed the judge and jury found, that these minor discrepancies in the complaining witnesses’ testimony can be explained by the extreme youth of the girls, the passage of time between the large number of different events to which they testified at the trial, and the pattern of sexual, alcohol and drug abuse which the trier of fact found the defendants inflicted upon the girls.

According to the defendants, another area of inconsistencies in the testimony of the witnesses involved identification of the alleged offenders. Nelson, for instance, points to a variety of names used for her. She was called Denise and Nessie by the complaining witnesses. Nelson had a scar on her abdomen, which the witnesses did not remember seeing. However, as the judge stated, “With respect to the bodily scar displayed in chambers during the course of the trial, the State has correctly pointed out that it would not have been observed.” Moreover, as we have previously noted, all four girls identified all of the defendants from photographs shown to them by the police and pointed them out in court.

Defendants cite numerous instances in the record in which the girls gave prior inconsistent statements pertaining to the number of times they had sex with the defendants, the number of other individuals with whom the witnesses had sex, which defendants gave the girls drugs, and the length of time the girls had been involved with the defendants. As to such complaints as well as the others referred to above, this court has held:

“However, this inconsistent statement only has the effect of impeaching the credibility of the witness against whom it is offered. [Citation.] Notwithstanding the impeaching evidence, the trier of fact may accept the credibility of the witness [against whom it is offered].” People v. Springfield (1975), 34 Ill. App. 3d 48, 53, 339 N.E.2d 334.

If the decision of the trier of fact is to convict, and if that decision is based on credible and substantial evidence, it will not be set aside because of minor inconsistencies which the trier of fact resolved in favor of the State. (People v. Devine (1981), 101 Ill. App. 3d 158, 163, 427 N.E.2d 1277.) In the instant case, the complaining witnesses all testified to the same pattern of activity against the defendants. The testimony covered a period of time of over a year, and while there are some discrepancies as to dates, numbers, etc., their versions of the elemental facts are substantially the same. Furthermore, here again the differences complained of by the defendants can be explained by the youth of the girls, the period of time that transpired between the occurrences of the numerous events about which they testified and the date of the trial, and the prolonged use of alcohol and drugs by the victims.

Defendants Boone and Nelson cite People v. Poltrock (1974), 18 Ill. App. 3d 847, 310 N.E.2d 770, as authority for the proposition that a court of review can set aside a conviction where the evidence is so unsatisfactory that it leaves a reasonable doubt of guilt. Boone and Nelson further rely on three appellate court cases in which convictions were reversed because the evidence was unsatisfactory. In the first case, the court reversed in part because an examination of the physical evidence showed that several of the alleged crimes had not occurred (People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278), a circumstance not present in the case now before us.

In the second cited authority, two codefendants were tried simultaneously, one by the judge and the other by a jury. The defendant who elected the bench trial was acquitted while the other was found guilty by the jury. (People v. Carter (1974), 19 Ill. App. 3d 21, 311 N.E.2d 213.) In that case, the court stated, “Where codefendants are tried on the same facts, the verdicts should be consistent.” (19 Ill. App. 3d at 23.) In the instant case, two defendants chose a bench trial and one chose to be tried by a jury and, as we have previously noted, all were found guilty of the same charges; thus the verdicts are obviously consistent.

In the third case, the evidence consisted of the testimony of a single witness, testimony which was found by the court to be “weak, contradictory, impeached and refuted.” (People v. Smith (1971), 3 Ill. App. 3d 64, 68, 278 N.E.2d 551.) In the case at bar, the four victims presented evidence that was clearly and unmistakably consistent as to the constituent elements of the offenses with which the defendants were charged. Moreover, Nelson’s statement substantiated Romanda Neeley’s account of the sexual relationship that existed between them; all four complaining witnesses testified that Nelson gave them drugs; and Clark, Neeley and Zemola testified that they had sex with Nelson. As noted above, the judge found the witnesses’ testimony credible and found Nelson guilty. We have been presented with no convincing reason to regard the evidence as unsatisfactory or to otherwise disturb that verdict.

Boone presented testimony regarding his incarceration during certain periods of time to which the girls testified. However, a close examination of the periods at issue reveals that Boone was in jail for two years prior to the time period involved and only three months during the year in question. Moreover, in their testimony the girls noted the occasional absences of Boone from the apartment and from the meetings of the Ladies Club. While there may have been some minor inconsistencies as to dates, we do not find this to be persuasive when viewed in light of all the evidence presented in this case.

Boone also contends that there were inconsistencies as to his identification by the witnesses, pointing out that Clark stated that she did not know how tall he was or how much he weighed. Yet all of the girls identified Boone from photographs and in court, and they described for the jury significant differences in his appearance, notably that he now wore glasses and was thinner than he had been during the period in question. All of the witnesses testified against Boone; Zemola, Jones and Clark each testified as to having sex with him.

Boone was found guilty by a jury, which found the witnesses’ testimony to be credible and returned the verdicts against him within three hours. Boone’s contentions do not present us with any satisfactory reasons to set aside this verdict.

Tillman maintains that the victims did not make an immediate outcry and that Donna Clark’s uncorroborated accusations against him are not enough to sustain a verdict of guilty, citing three cases to support his contention. However, each of the cases he cites involved a single occurrence of rape in which the complaining witness’ testimony was found to be not only unsupported but unconvincing as well. None of the cases is similar to the instant one, in which the charges involve a series of crimes that occurred systematically over a long period of time, committed against four complaining witnesses who substantiated each others’ account of the events.

Furthermore, it is well established in Illinois that when a conviction of a sexual offense depends upon the testimony of the victim, and the defendant denies the charge, the testimony must be clear and convincing or otherwise substantially corroborated. (People v. Rassmussen (1986), 143 Ill. App. 3d 11, 492 N.E.2d 612; People v. Allison (1983), 115 Ill. App. 3d 1038, 452 N.E.2d 148.) In the present case, Tillman’s involvement with the sex ring is clearly corroborated. Clark, Neeley and Zemola all recognized him as being present in defendant Nelson’s apartment and as taking an active role in the operation. The one charge with respect to which the testimony is uncorroborated is that of taking indecent liberties with a child. Donna Clark is the only one who testified that she had sex with Tillman; here, Clark’s testimony does stand alone. Consequently, her testimony must be clear and convincing in order for us to uphold Tillman’s conviction in regard to this particular charge.

The testimony of a complaining witness need not be crystal clear and perfect insofar as memory is concerned in order for her testimony to be clear and convincing. (Allison, 115 Ill. App. 3d at 1041.) In Allison, the testimony of a seven-year-old boy was found to be clear and convincing despite the fact that he did not immediately report the incident of sexual abuse and that he had a tendency to exaggerate.

Here, the trial judge found, as the trier of fact in Tillman’s and Nelson’s cases, “The failure of these witnesses to be precise with respect to details of time and place under the circumstances was far more natural than unnatural.” Further, the record discloses that on cross-examination Donna Clark did not contradict the testimony she gave on direct examination despite a long and grueling interrogation. Her testimony is clear and convincing and by no means creates a reasonable doubt as to defendant Tillman’s guilt.

Defendants Boone and Nelson also claim that they were denied a fair trial because the trial judge interrupted the witnesses and asked questions of his own. The State maintains that the judge’s questioning was for the purpose of clarification and within the bounds of the court’s discretion. This court has previously stated:

“It is clear that a trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure, [citations], or to clarify ambiguities in the witness’ testimony. [Citations.] The propriety of such examination must be determined by the circumstances of each case and rests largely in the discretion of the trial court.” People v. Delk (1981), 96 Ill. App. 3d 891, 900-01, 421 N.E.2d 1341.

Defendants cite over two dozen instances in the record in which the judge initiated questioning of the witnesses or interrupted testimony to ask questions, but our examination of these examples fails to demonstrate that any of them constitutes an abuse of discretion on the part of the court. The court’s questioning was often in response to a witness’ confusion about a question; on other occasions the judge’s questions were designed to obtain further information from a witness or to clarify an answer.

The cases cited by defendants in an attempt to demonstrate judicial abuse on the part of the trial court illustrate only extreme situations. In one case, for example, a judge openly accused a witness of lying and withholding evidence. The same judge also said that a certain comment of a witness was “typical of these people.” (People v. Tyner (1964), 30 Ill. 2d 101, 105, 195 N.E.2d 675.) In another case, People v. Cofield (1973), 9 Ill. App. 3d 1048, 293 N.E.2d 692, the appellate court found that the trial judge had not merely attempted to clarify issues but had assumed the role of prosecutor; for example, he called the State’s witnesses, conducted the examinations and asked questions directed at eliciting testimony against the defendant. (9 111. App. 3d at 1051.) In a third case, the trial judge interrupted defense counsel’s closing argument and stated, “Who said so? *** I didn’t hear that.” (People v. Bowie (1976), 36 Ill. App. 3d 177, 180, 343 N.E.2d 713.) In Bowie, the record further showed that the judge did not remember what the crux of the defense was when he entered judgment. None of the foregoing circumstances is present here.

Additional comments made by the trial judge in the instant case involved his admonishing defense counsel regarding the length of cross-examination and the propriety of impeachment. These comments, however, were made outside the presence of the jury and do not in any way suggest that counsel was impeded in conducting his defense. We find defendants’ charges of judicial abuse in this case and the authorities they cite in support thereof to be irrefragably disparate.

Nelson and Boone further contend that they should have been granted a mistrial because of certain other testimony given by Officer Vana. Prior to trial, the court granted Boone’s motion to preclude the State from introducing the nature of his previous offenses.

Officer Vana testified that as a youth officer assigned to investigate allegations of sexual exploitation of residents of the Mary Bar-telme Homes, he talked to some of the juveniles. Vana testified as follows:

“Q. [Assistant State’s Attorney] What names were given to you?
A. [Vana] Al, Hollywood and Nessie.
Q. With reference to the names of Al and Hollywood that was given to you, did you do any investigation with regard to those two names?
A. Yes.
Q. What was your investigation that you did?
A. We did an investigation as to the identity of Al and Hollywood.
Q. What did your investigation as to their identity consist of?
A. We interviewed other officers in our unit that had done sexual exploitation cases in the Rogers Park area — ”

An objection by defense counsel was immediately sustained. A motion for mistrial was made and denied.

Defendants contend that Vana’s statement about talking to other officers who had worked on sexual exploitation cases amounted to trial by insinuation. They point out that neither Boone nor Nelson had any prior provable criminal history relating to sex offenses. Additionally, defendants maintain that they could not rebut these inferences without giving up their right not to testify.

A mistrial should be granted only when the original trial is so sufficiently flawed or defective that a conviction would probably be reversed on appeal. If the problem could have been adequately corrected without aborting the trial, and a guilty verdict would be reasonably supportable on appeal, “neither manifest necessity [n]or the ends of public justice require a mistrial.” (People v. Phillips (1975), 29 Ill. App. 3d 529, 534, 331 N.E.2d 163.) As previously noted the judge in the instant case immediately sustained defendants’ objection to the statement.

Even if this court were to assume, arguendo, that the defendants’ contention had merit, the remarks of Officer Vana would not warrant a new trial in view of the fact that the evidence of defendants’ guilt was incontestably substantial. Both the judge and the jury found the defendants guilty. We fail to perceive that the verdict would have been different if the remark had not been made.

Boone’s next contention is that he was denied a fair trial because of remarks made by the State in its rebuttal to defendant’s closing argument. However, he failed to object to any of the complained of statements at the time they were made, nor did he raise the issue in his post-trial motion. It is hornbrook law that failure to object to allegedly improper comments waives the issue for review. (People v. Edwards (1973), 55 Ill. 2d 25, 35, 302 N.E.2d 306, cert. denied (1974), 415 U.S. 928, 39 L. Ed. 2d 486, 94 S. Ct. 1437; People v. Washington (1984), 127 Ill. App. 3d 365, 384, 468 N.E.2d 1285.) Moreover, if the defendant’s attorney fails to object to the argument deemed to be improper, a court of review will not reverse a conviction unless it appears that the defendant was deprived of his right to a fair trial. People v. Romero (1967), 36 Ill. 2d 315, 320, 223 N.E.2d 121; People v. Young (1975), 33 Ill. App. 3d 443, 447-448, 337 N.E.2d 40.

Assuming arguendo that there has been no waiver, Boone points to four statements in the State’s rebuttal to his counsel’s closing argument which he claims are prejudicial and inflammatory. During the course of that argument, the prosecutor made the following comments:

“It really boils down to you people here. People talk about the community, crime is running rampant. Ladies and gentlemen, in this court room here you have an opportunity to say, hey, the buck stops here. We’re not going to let this go on in our community.
Think about the next thirteen year-old that is walking out there on the street. Think about her. Don’t let this man go back out that door. Don’t let him walk back into the community to ruin the life of another thirteen year-old girl.”

Defendant contends that these statements were improper because they were intended to arouse fear in the jurors’ minds, citing People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827, in support of the proposition that a prosecutor may dwell on the evil of crime, but should refrain from making inflammatory appeals to the fears of the jury. While it is true that in the Crossno case the court found the statement, “Tomorrow, it may be your son or my son” to have an inflammatory effect, it nevertheless held that the remark did not rise to the level of reversible error. (93 Ill. App. 3d at 824.) Furthermore, warnings to the jury that they should not release the defendant unless they wanted an unsafe community have been found not to be inflammatory in nature. People v. Tedder (1980), 83 Ill. App. 3d 874, 884, 404 N.E.2d 437.

Boone also objected to the State’s comment that a witness had not been called by the defense. The assistant State’s Attorney’s comment was as follows:

“Where is Assistant State’s Attorney Stavropoulus? *** This man has subpoena powers like we have subpoena powers. *** So you know that if you would have heard it any differently from State’s Attorney Stavropoulus, that something shady went on, they would have had Stavropoulus on that stand testifying.”

However, the remark was in response to a statement made by the defense attorney in his closing argument:

“And Officer Vana said there was an Assistant State’s Attorney at the photo session with Donna Clark named Stavro-poulus, something to that effect, why didn’t he appear here? Couldn’t he had [sic] given some reliability to the fair identification procedure that took place there with Donna Clark?”

The rule is well established that “[a] defendant may not complain of statements made in rebuttal closing argument by the prosecutor which were invited by remarks made by defense counsel.” People v. Barnes (1983), 117 Ill. App. 3d 965, 976, 453 N.E.2d 1371.

Boone further contends that the prosecutor’s rebuttal argument contained two false statements; however, we do not find these charges to be substantiated by the record. He also raises an additional point regarding a civil suit filed by Donna Clark, one of the complaining witnesses, against the director of Jarvis House, the Illinois Department of Children and Family Services and others. Boone contends that the prosecutor argued that the suit was for the benefit of wayward girls when it was actually a suit brought for money damages.

Arguendo, even if we found this to be the case, such remarks would not warrant reversal unless they were such a material factor in the defendant’s conviction that the jury would likely have reached a contrary verdict had they not been made. (People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929.) We cannot perceive how the comments complained of here could have affected the outcome of this case. More important, as we have noted above, a defendant is estopped from asserting such prejudice where the comments of which he complains were provoked or invited by the arguments of his counsel. (Clay, 124 Ill. App. 3d at 149.) It was defense counsel in this case who raised the matter of the civil suit in his closing argument; the prosecutor was merely responding to that remark. We do not find Boone’s contention that the State’s closing argument deprived him of a fair trial to be persuasive.

Boone further contends that the trial court erred in considering certain information offered in aggravation at his sentencing hearing. After he had been arrested, given his Miranda warnings, and assigned an attorney, Boone made a statement to Officer Vana as to which Vana testified as follows:

“Q. [Assistant State’s Attorney] After having advised him of his rights for the second time, did Defendant Boone say anything to you?
A. [Vana] Yes, he did.
Q. What did he say?
A. He began in the processing. I was asking him questions pertaining to the arrest report and I asked him if he had any nicknames and he said no. I asked him if his name was Hollywood and he said no. He just went on saying he did not know A1 Tillman or Alice Nelson.
Q. What else did he say?
A. He said he is going to take care of anyone who testifies against them in this case.
Q. Did you ask him what he meant by that?
A. I said do you mean you would kill the witnesses or the victims or what are you talking about? He said, yes, I will. I am not afraid of going back to the penitentiary, and I am not afraid of dying. He kept on talking.
Q. What did he say?
A. He said that he currently had a juvenile pimping case pending in which the arresting officer was a Youth Officer Joyce from our unit and when he gets out—
Q. Do you know Officer Joyce?
A. Yes, I do.
Q. He is in your unit.
A. As soon as he gets out of penitentiary [sic], he is the first one he is going to take care of, and he is going to kill him.
Q. Who is that?
A. Officer Joyce.
Q. The Defendant Boone say anything else?
A. He told me if I was smart I would forget about the conversation we just had.”

Boone contends that this statement, although not introduced at trial, was taken in violation of his fifth and sixth amendment rights and was incorrectly admitted at the sentencing hearing. The State characterizes the statement as voluntary.

The Illinois Supreme Court reiterated in People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the guidelines for the type of information that may be elicited at a sentencing hearing by quoting from People v. Adkins (1968), 41 Ill. 2d 297, 242 N.E.2d 258, as follows:

“In Illinois, too, we have long held that the judge in determining the character and extent of punishment is not limited to considering only information which would be admissible under the adversary circumstances of a trial. While it must exercise care to insure the accuracy of information considered and to shield itself from what might be the prejudicial effect of improper materials [citation], ‘the court is not confined to the evidence showing guilt, for that issue has been settled by the plea. The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the [crime], and it may search anywhere, within reasonable bounds, for other facts which tend to aggravate or mitigate the offense. In doing so it may inquire into the general moral character of the offender, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and, as was said in People v. Popescue, [345 Ill. 142], the judge should know something of the life, family, occupation and record of the person about to be sentenced.’ ” 41 Ill. 2d at 300-01.

In addition, the LaPointe court quoted the United States Supreme Court’s “fundamental sentencing principle” as articulated in United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589; “[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” 404 U.S. at 446, 30 L. Ed. 2d at 596, 92 S. Ct. at 591.

The trial judge in the instant case stated:

“The court has considered the presentence report in this case, the arguments of counsel, the statements of defendants, the evidence heard during the trial of the case, the prior history of criminal delinquency, or lack thereof, of each defendant and the rehabilitative potential of each defendant.”

Although the trial court never specifically determined whether the statement testified to by Vana was taken in violation of Boone’s constitutional rights, we do not find that determination to be necessary for we find no evidence in the record that the trial judge relied on Officer Vana’s testimony in determining Boone’s sentence. “Absent any indication that incompetent evidence was actually considered in sentencing defendant, it must be presumed that the court disregarded it unless the record discloses evidence to the contrary.” People v. Strait (1983), 116 Ill. App. 3d 110, 114, 451 N.E.2d 631.

Further, neither our Constitution, nor our case law, nor our statutes requires a judge to detail for the record the thought process by which he concludes that the penalty he imposes is appropriate. (People v. LaPointe, (1981), 88 Ill. 2d 483, 431 N.E.2d 344; People v. Ruskey (1986), 149 Ill. App. 3d 482, 501 N.E.2d 146.) Besides, given Boone’s previous convictions for theft, armed robbery, battery, unlawful use of weapons, and bribery, a 14-year sentence would seem to be amply justified without the court’s having considered any aggravating factors.

In sum, we find no basis in the record or in any of these cases upon which any of the defendants’ assignments of error on the part of the trial court can be sustained.

Affirmed.

HARTMAN, P.J., and BILANDIC, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MURRAY

license: Public Domain

text:
    LANCE ERICKSON et al., Plaintiffs-Appellants, v. MUSKIN CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—3212
    Opinion filed February 3, 1989.
    Modified on denial of rehearing March 17, 1989.

      Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. De-metrio, and David A. Novoselsky, of counsel), for appellants.
    Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Daniel K. Cray, and C. Barry Montgomery, of counsel), for appel-lee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs, Lance and Valerie Erickson, appeal from various orders and the net verdicts in a strict liability/assumption of the risk case. The following facts are basic to this appeal.

On the afternoon of July 4, 1981, Lance and Valerie attended a party at the home of Charles Langdon, Sr. The Langdon’s had installed an above-ground pool designed and manufactured by defendant, Muskin Corporation, in 1974. The oval pool was 33 feet long, 18 feet wide, and the water depth varied from between 3x/2 and 4x/2 feet; it was deeper at the ends than in the middle as the result of an expandable liner. It is undisputed that Lance had consumed no alcoholic beverages.

Sometime during that afternoon, Lance climbed onto the deck and asked Eric Stenerson, who was in the pool, to move an inner tube over to the left side so Lance could dive through it. After making a head-first dive through the center of the inner tube, Lance hit his head on the bottom of the pool. He received a compression fracture of the fifth cervical vertabra, resulting in quadriplegia.

Subsequently, Lance brought a personal injury suit against defendant Muskin and the pool liner manufacturer, Swimline Corporation. His wife, Valerie, brought a loss of consortium suit against Swimline and the retail distributor, Marathon. Muskin brought a third-party action against Langdon, Sr., and Marathon. Before trial and pursuant to the Contribution Among Joint Tortfeasors Act (111. Rev. Stat. 1985, ch. 70, par. 301 et seq.), the Erickson’s entered into the following settlement agreement with all defendants except Muskin, as follows:

Lance Valerie

$25,000 $125,000 From Swimline Corporation:

10,000 90,000 From Langdon, Sr.:

5,000 45,000 From Marathon Enterprises:

$40,000 $260,000

The trial court, in a nonfinal order, ruled that the gross amounts of the settlements were in good faith, but after Muskin objected to the allocation thereof, the court declined to rule on the good faith of the allocation.

The Ericksons then proceeded to trial only against Muskin on the strict liability allegation, i.e., failure to warn. The jury, in answer to a special interrogatory, found that the pool was unreasonably dangerous because of a lack of warning regarding the dangers of diving into it and that Lance’s injuries were proximately caused by that unreasonably dangerous condition. In rendering its damages verdicts, the jury determined that Lance had assumed the risk to the extent of 96%. Based on Lance’s assumption of the risk, the jury also reduced Valerie’s consortium damages by 96%. The gross verdicts totaled $3,508,679 for Lance and $518,750 for Valerie. After the reductions for assumption of the risk, Lance received $140,347 and Valerie was awarded $20,750.

Thereafter, the court granted Muskin’s post-trial motion to allocate the pretrial settlement funds in the same ratio as the total verdicts bore to each plaintiff: Lance = $262,500; Valerie = $37,500. The court then set off these settlement amounts against the net verdicts, resulting in awards of $0 to each plaintiff.

Plaintiffs appeal from the jury’s net verdicts, the order granting defendant Muskin’s post-trial motion for allocation of the pretrial settlement funds, and the denial of their post-trial motion. Plaintiffs raise the following issues on appeal: (1) whether the affirmative defense of assumption of risk should have been submitted to the jury in this, a failure to warn based on strict liability, case; (2) whether the jury’s finding that Lance had assumed 96% of the risk was against the manifest weight of the evidence; (3) whether the jury instructions “fairly, fully and comprehensively” informed it of the relevant legal principles; (4) whether Lance’s 96% assumption of risk was properly imputed to Valerie; and (5) whether the post-trial allocation of pretrial settlement funds was proper. Plaintiffs are alternatively requesting that this court grant various judgments notwithstanding the verdicts, a new trial, and vacatur of the allocation of settlement order. In order to determine several of these issues, additional facts from the record will be set forth in the discussion.

ASSUMPTION OF THE RISK

This case went to the jury on the single issue as to whether Muskin had a duty to warn of an unreasonably dangerous condition in its above-ground pools. The jury affirmatively answered defendant’s special interrogatory: “Were the plaintiffs’ injuries and damages proximately caused by an unreasonably dangerous condition which existed in the Muskin swimming pool at the time it left the control of Muskin Corporation?” Muskin has not contested that finding in this appeal. Plaintiffs argue that an assumption of risk defense is legally and logically inconsistent with the jury’s finding of a breach of a duty to warn and, thus, this defense should not have been submitted to the jury. We disagree with plaintiffs as to their legal inconsistency argument.

Illinois courts have recognized that the doctrine of assumption of risk is an affirmative defense in product liability cases. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Further, a duty to warn of an unreasonably dangerous condition extends to the use of the product by an ordinary person with the ordinary knowledge common to the community regarding the characteristics of the product. (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959, citing Restatement (Second) of Torts §402A, comment i (1965).) Accordingly, the duty to warn is determined using an objective standard, i.e., the awareness of an ordinary person.

In order to show that a plaintiff assumed a risk, a defendant has the burden of proof to demonstrate that plaintiff knew the product was in a dangerous condition and proceeded to use it in disregard to the known danger. (Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill. 2d 64, 264 N.E.2d 170.) In determining whether a plaintiff assumed the risk in a strict liability case, the trier of fact focuses on the knowledge and conduct of that particular plaintiff, i.e., a subjective standard is applied. Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.

Prior to 1983, it would have been legally inconsistent to have found a defendant strictly liable in a products case it if was also determined that a plaintiff had assumed any of the risk. However, in that year and while this trial was proceeding, the supreme court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197, adapted to strict liability cases the comparative fault principles earlier established for negligence cases in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. The Coney court stated that application of comparative fault principles in strict products liability cases would not frustrate the policy reasons underlying strict liability, since “[T]he manufacturer’s liability remains strict; only its responsibility for damages is lessened by the extent the trier of fact finds the consumer’s conduct contributed to the injuries.” Coney, 97 Ill. 2d at 116, 454 N.E.2d at 202, citing Daley v. General Motors Corp. (1978), 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380.

However, the Coney court excepted from recovery-reducing conduct, i.e., assumption of risk or misconduct, “a consumer’s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect.” (Coney, 97 Ill. 2d at 119, 454 N.E.2d at 204.) In other words, mere contributory negligence would not act as a damage-reducer in strict liability cases. We agree with the view expressed in Justice Ryan’s dissent in Simpson v. General Motors Corp. (1985), 108 Ill. 2d 146, 483 N.E.2d 1, wherein it is considered inconsistent to not consider the causative fault of all parties in the apportionment of damages. If Illinois had followed the majority trend in these cases by adopting the principles of “pure” comparative fault (or causation) in strict liability cases, thus eliminating assumption of risk, we would not be confronted with resolving the oft-times extensive litigation issues arising out of such actions. Moreover, such causes of action accruing on or after November 25, 1986, are further complicated by enactment of a provision in the “tort reform” legislation in which a plaintiff’s misuse or assumption of the risk to the extent of more than 50% will absolutely bar strict liability. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116.

In any event, we must follow the rules delineated in Coney and elucidated in Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817: where a defendant’s product caused the injury but plaintiff’s misuse or assumption of the risk contributed to the damages, comparative fault principles operate to reduce plaintiff’s damage recovery in the amount which the trier of fact determines the plaintiff has caused by his conduct. The Auton court characterized this concept as “comparative damages.” Auton, 105 Ill. 2d at 546, 475 N.E.2d at 820.

We do note that no Illinois court has directly ruled on the issue of whether assumption of risk is appropriate in a failure to warn products liability case. However, we believe that this court’s decision in Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858, when read in tandem with the policy considerations expressed in the Coney and Auton cases, does give some perspective on the issue. In Pell, a failure to warn case involving a mini-trampoline, an issue arose concerning the trial court’s refusal to give assumption of risk and comparative negligence instructions to the jury. The Pell court held that the facts of the case were insufficient to establish that plaintiff’s negligence rose to the requisite level for the application of the doctrines of misuse or assumption of the risk, and the requested instructions were therefore properly denied.

Plaintiffs are correct in stating that the Pell decision did not actually consider whether assumption of risk was appropriate in failure to warn cases. However, we do not agree with them that it is “ludicrous” to take that decision one step further by declaring that where the facts support an assumption of risk defense — even in a failure to warn case — appropriate instructions should be given. In other words, we see no reason to differentiate between failure to warn cases and other types of strict products liability cases, if the policy considerations expressed in the above-discussed decisions are to have meaning.

Accordingly, under the applicable law (pre-1986), we find no legal inconsistency between the jury’s verdicts and its answer to the special interrogatory. Using an objective, reasonable person standard, it found defendant Muskin strictly liable for its failure to warn of an unreasonable dangerous condition. Then, using a subjective standard — what Lance actually knew about the danger of diving into this pool as he did — the jury found that he had assumed 96% of the risk. This latter finding was applied only to the damages-reducing portion of its deliberations, not to the liability issue.

We cannot agree with plaintiffs that the affirmative answer to the interrogatory was the equivalent of finding that the lack of a warning on the pool was the sole proximate cause of Lance’s injury. The answer reflected the jury’s determination that Muskin breached its nondelegable duty to warn the ordinary user of the dangers of diving into the pool. However, the verdicts indicated that the jury further found that Lance knew of the danger involved in diving into 41/a feet of water and did it anyway, thus assuming the risk. Therefore, although it may appear illogical for the doctrines of strict liability and assumption of the risk to coexist in the same cause, the Coney ruling leaves no doubt that the two doctrines, under the proper circumstances, may be legally compatible. As a result, we must conclude that the defense of assumption of risk was properly submitted for the jury’s consideration.

Plaintiffs also allege that Lance’s conduct did not constitute assumption of the risk, contending that, at the most, he was negligent. They rely on the Coney rule that a person’s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect is not a damage-reducing factor. (Coney, 97 Ill. 2d at 119, 454 N.E.2d at 204.) We must disagree with this argument. If there is some evidence from which a jury might infer plaintiff’s assumption of the risk, then it is within the jury’s province to determine that issue. (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.) The test for determining whether a plaintiff has assumed the risk was set forth in Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305. A subjective test is used, i.e., what plaintiff actually knew. Plaintiff’s age, experience, knowledge, and understanding, in addition to the obviousness of the defect and the danger it poses will all be relevant factors for the jury’s consideration. Furthermore, a jury need not rely solely on a plaintiff’s statements as to what he knew, but instead should consider all of the evidence. In other words, a jury need not accept a plaintiff’s testimony that he was unaware of the danger if the evidence shows the contrary. Williams, 45 Ill. 2d at 430-31, 261 N.E.2d at 312.

A reviewing court cannot overturn a jury verdict unless it is clearly erroneous or against the manifest weight of the evidence, and the evidence must be viewed in a light most favorable to the appellee (here, Muskin). (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 504 N.E.2d 772.) The record reveals that Lance was an air traffic controller and the son of an air traffic controller — as the trial court stated, “bom and bred into safety.” At the time of his accident, Lance was a 25-year-old college graduate and was 6 feet 5 inches tall and weighed over 200 pounds. He played football, baseball, and basketball while in school and earned a basketball scholarship to the University of Wisconsin. He had taken swimming lessons when he was six or seven years old. He had been swimming for many years, learning to dive on his own. He admitted to diving off both low and high boards and to knowing about the relationship between water depth and the angle of dives. The jury heard the following responses while Lance was being cross-examined by defense counsel C. Barry Montgomery:

“Q. I suppose what I’m asking is you knew before this accident about diving from sides of pools; diving boards, low diving boards, high diving boards?
A. Yes.
Q. Now, I take it that before you would dive into a body of water, whether it be a high dive, low dive, side of a pool, you would want to know how deep the water was?
A. Yes.
Q. You wouldn’t want to dive into water that was too shallow?
A. True.
Q. If you did, you could get hurt?
A. I suppose.
* * *
Q. *** [Y]ou wouldn’t dive from a high dive into four and a half feet of water, would you?
A. No.
Q. So you knew something about the depth of the water in relation to diving?
A. Yes.”

Also during the questioning, Lance answered that he wouldn’t want to dive virtually straight down into 4V2 feet of water and agreed with counsel that he might break his neck if he did so. However, it is unclear as to whether Lance was speaking here of his knowledge prior to or subsequent to his accident. Lance also responded negatively when asked if he was aware of the depth of the water. In addition, the jury was aware that Lance was 6 feet 5 inches tall and had been walking around in the water for at least an hour before his accident. It was also known that Lance directed that an inner tube be specifically placed so he could dive through the center and, by his own words, that he made a head first, hands first dive through the inner tube.

The jury did not have to accept Lance’s denial of knowing the dangers of diving head first into the pool. It could evaluate all of the evidence in concluding that Lance knew a head-first dive into shallow water could result in serious injury. Moreover, plaintiff’s use of expert testimony to show that the public may not be aware of the hazards of diving into an above-ground pool is not relevant to what Lance himself knew. Lance’s knowledge, or lack thereof, and whether he had assumed all or part of the risk was a question of fact to be resolved by the jury. Viewing the evidence in its aspect most favorable to Muskin, we cannot say that the jury’s determination, based on the above facts, that Lance assumed 96% of the risk was against the manifest weight of the evidence.

JURY INSTRUCTIONS

Plaintiffs next object to the trial court’s refusal to give various instructions to the jury. A party has the right to have the jury informed about the issues presented, the applicable legal principles, and the facts that must be proved to support a verdict. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 449 N.E.2d 211.) While the trial court is required to instruct the jury on all issues by the evidence, the determination as to what issues actually have been raised is within the court’s discretion. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 464 N.E.2d 866.) The instructions should not mislead the jury or prejudice a party, nor may they be argumentative. (Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 524 N.E.2d 615.) In reviewing the propriety of jury instructions, they are to be taken as a whole in determining if they are clear enough so as not to mislead and whether they fairly and accurately state the applicable law. (Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 476 N.E.2d 1378.) Furthermore, even if an instruction was erroneously refused by the trial court, reversal is required only where prejudice is shown. (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 502 N.E.2d 826.) After examining the instructions given, as a single unit, we conclude that the trial court did not err in refusing plaintiffs’ tendered instructions.

Plaintiffs claim that the jury should have been given their non-Illinois Pattern Jury Instruction (IPI): “[pjlaintiff’s inattentive, ignorant or awkward failure to discover or guard against the unreasonably dangerous condition of the swimming pool does not constitute assumption of the risk and is not a damage reducing factor.” They correctly state that this instruction accurately reflects current law, as expressed in Coney and its progeny, and contend that its omission resulted in the jury being denied guidelines necessary to weighing Lance’s conduct against Muskin’s liability. The record is cited in purporting to show that Muskin advanced the theory that Lance’s actions had been “foolish,” “improper,” and “dumb,” thus requiring that the jury be instructed as to the law regarding mere negligence in strict liability cases. However, we found that the above-mentioned words were each used perhaps once or twice by defendant in over 2,000 pages of transcript. None of those instances could be said to constitute the advancement of a theory. Muskin throughout the trial contended that Lance actually knew of the dangers associated with diving into 4P-k feet of water. Moreover, according to our supreme court, there can be no comparison of one party’s negligence with another party’s strict liability. Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817.

We first note that, pursuant to Supreme Court Rule 239(a) (107 Ill. 2d R. 239 (a)), IPI instructions should be given unless they inaccurately state the law. Only when the IPI does not contain a proper instruction on the subject may a non-IPI instruction be given (Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 502 N.E.2d 480.) In 1986, IPI instructions were supplemented with a chapter on strict liability. (Illinois Pattern Jury Instructions, Civil, No. 400.00 et seq. (2d ed. Supp. 1986) (hereinafter IPI Civil 2d No. 400.00 et seq. (Supp. 1986).) The lengthy introduction to chapter 400 contains a discussion on recent changes in strict liability law, including the supreme court’s decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197. After analyzing the Coney decision, the drafting committee concluded that its modified instructions, based on the comparative negligence instructions, were sufficient in assumption of risk cases. (IPI Civil 2d No. 400.00 (Supp. 1986).) The committee also recommended that no instructions on the duty to warn be given (IPI Civil 2d No. 400.07 (Supp. 1986)), and that further instructions, other than those given in chapter 400, should not be given regarding the evidentiary facts used in determining whether there was an assumption of the risk. IPI Civil 2d No. 400.05 (Supp. 1986).

The trial court did give the following chapter 400 instructions: No. 400.04 — definition of products liability proximate cause; No. 400.10 — due care not a defense; No. 400.06 — definition of “unreasonably dangerous”; No. 400.03 — reduction of damages for assumption of risk; No. 400.02 — burden of proof as to proximate cause; No. 400.01— issues raised by pleadings (failure to warn, assumption of risk); and No. 400.0-3.01 — definition and burden of proof as to assumption of risk. IPI Civil 2d No. 400.00 et seq. (Supp. 1986).

These IPI instructions, along with others given, clearly advised the jury as to the issues presented during trial and the applicable law; no others were needed. Furthermore, we agree with the trial court that plaintiffs’ instruction, taken from the Coney decision, was argumentative on its face, especially where the jury was informed that what Lance actually knew was crucial to an assumption of the risk finding. It stands to reason that if a person did not actually know of a danger, then there would be no assumption of the risk and no reduction of damages. It is entirely proper to refuse an instruction which accurately states the law if it is misleading or argumentative. Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 524 N.E.2d 615.

Plaintiffs also contend that refusal of six other instructions was error. These instructions concerned the issue of Muskin’s liability. However, since Muskin was found liable, we fail to understand how plaintiffs were prejudiced by the omissions. Plaintiffs’ argument is that failure to give the proffered instructions (e.g., failure to warn is a nondelegable duty, presumption that a warning would have been read and heeded), denied the jury knowledge of applicable law necessary for it to fairly balance Lance’s conduct against Muskin’s conduct.

We disagree with plaintiffs. What Muskin did or did not do is not relevant to the issue of Lance’s actual knowledge. “The manufacturer is liable without regard to negligence, and consequently no comparison can be made insofar as liability is concerned between the conduct of the manufacturer and that of the injured party.” (Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 546, 475 N.E.2d 817, 820, explaining Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) The finding of a 96% assumption of risk applied only to how much Lance actually knew regarding the dangers involved in diving as he did; the elements of strict liability were irrelevant to this finding.

We therefore find that the instructions given to the jury adequately informed the jury and the court’s refusal of certain other instructions was not reversible error.

VERDICT REDUCTION

Plaintiffs next argue that Valerie’s claim for loss of consortium should not have been reduced by the amount of Lance’s assumption of the risk. We agree with plaintiffs. The precise question as to whether a consortium claim is independent or derivative, in relation to damages in assumption of the risk cases, since the adoption of comparative fault principles has not been directly answered. However, our determination of this issue is guided by a trilogy of supreme court decisions revolving around consortium claims.

In Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, it was held that a wife’s loss of consortium claim was not barred by the two-year statute of limitations applicable to her husband’s personal injury action, even though the defendant had argued that the wife’s claim should be barred because it was derivative of the husband’s cause. The Hammond court also denied punitive damages in consortium cases because “the injury is ‘indirect,’ or derivative in nature, and recovery in such actions is intended only as compensation.” Hammond, 97 Ill. 2d at 212, 454 N.E.2d at 219.

Subsequent to Hammond, the court decided the case of Brown v. Metzger (1984), 104 Ill. 2d 30, 470 N.E.2d 302, wherein it ruled that an injured spouse’s settlement release for his personal injury claim did not bar his wife from proceeding with her loss of consortium suit. The court noted that in the past, loss of consortium actions were derivative (see, e.g., Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 317 N.E.2d 505; Rollins v. General American Transportation Corp. (1964), 46 Ill. App. 2d 266, 197 N.E.2d 68 (cases relied on by Muskin).) The Brown court, continued, “[m]ore recently, however, this court has spoken to the contrary in Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 208-09, ***. The clear implication of that holding is, of course, that the right of the deprived spouse to recover does not depend on whether the impaired spouse’s cause of action is still viable.” Brown, 104 Ill. 2d at 38, 470 N.E.2d at 306.

More recently, the court in Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69, considered whether a defendant employer could enforce a workers’ compensation lien against settlement proceeds received by an injured employee’s wife for release of her loss of consortium claim against a third-party tortfeasor. Although the decision was based, in part, on the provisions of the relevant workers’ compensation statute, the Page court also relied on the Hammond and Brown decisions, stating that a consortium action “is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society.” Page, 119 Ill. 2d at 48, 518 N.E.2d at 72.

In addition, several appellate court decisions have relied on this “independent” concept. It has been held that a loss of consortium claim is a separate cause of action for insurance purposes. In Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168, a wife successfully argued that her loss of consortium injury was separate from her husband’s claim for bodily injuries within the meaning of an insurance policy. Although the court based its holding upon the policy language, it indicated that the consortium claim was not dependent on her husband’s claim. It has also been stated that the elements of injury to companionship and conjugal relations in a loss of consortium claim are personal to the claimant and cannot be included in the other spouse’s jury award for personal injuries. Pease v. Ace Hardware Home Center (1986), 147 Ill. App. 3d 546, 498 N.E.2d 343.

Admittedly, these cases do not directly answer the question as to whether Valerie’s verdict should have been reduced by the 96% assumption of the risk attributed to Lance. In the cases discussed above, the terms “derivative” and “independent” are both used to describe loss of consortium claims. However, the above decisions are indicative of a shift away from the pre-Aims (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886) concepts that all contributory negligence of an injured spouse was imputed to the spouse claiming loss of consortium. It appears that the supreme court considers consortium claims derivative of the spouse’s personal injury action only as to the requirement- that the injured spouse must establish liability. Once liability is established, the consortium claim is an independent action personal to the claimant. We believe, therefore, that once liability is proved, it is fair and reasonable to compensate a loss of consortium claimant on the basis of his or her actual injuries without deducting any amount for the negligence of another — even that of a spouse.

In other words, the jury found that Muskin was liable to Lance and, consequently, Muskin was also liable to Valerie since her injuries occurred as a result of Lance’s injuries; thus, her claim is derivative. However, once this derivative basis for Valerie’s injuries is established, her injuries, which are different from Lance’s and personal to Valerie, are independent and she should therefore be independently compensated on the basis of her loss. Accordingly, Muskin is liable to Lance for his injuries minus his assumption of the risk percentage. Muskin is also liable to Valerie for the injuries incurred solely by her. Therefore, Valerie’s verdict should not have been reduced because of Lance’s assumption of the risk.

ALLOCATION OF SETTLEMENT FUNDS

In their final point, plaintiffs contend that the trial court erred in granting Muskin’s post-trial motion for allocation of pretrial settlement funds on a pro tanto basis, i.e., in the same ratio that the total verdicts bore to each plaintiff (7 to 1 ratio). In applying a pro tanto rule, Muskin, and the trial court, were guided by an Iowa Supreme Court decision, Duggan v. Hallmark Pool Manufacturing Co. (Iowa 1986), 398 N.W.2d 175, which we find is inapposite to the present case. Plaintiffs in the Duggan case were a husband seriously injured in a diving accident and his wife and children. After trial against one of the defendants, pretrial settlements with other defendants were adjusted so as to reflect the jury’s assessment of fault percentages in a special verdict. However, the Duggan court specifically noted that the pro tanto rule applied only to causes of action accruing before the adoption of comparative negligence in Iowa. These latter cases would use a pro rata basis for settlement distributions.

It is apparent that the Duggan allocation formula is inapplicable here. In adopting comparative negligence, our supreme court said that fairness requires that a plaintiff’s damages be “reduced by the percentage of fault attributable to him.” (Emphasis added.) (Alvis v. Ribar (1981), 85 Ill. 2d 1, 25, 421 N.E.2d 886, 897.) Since we have found that Lance’s assumption of the risk is not to be imputed to Valerie so as to cause a reduction in her damages verdict, the same principle should be applied to a good-faith settlement entered into before trial. Moreover, there is no evidence in the record that the jury entered its verdicts to a “family unit”; separate verdicts were entered as to each plaintiff. (See Eaton v. Jackson (1984), 128 Ill. App. 3d 893, 471 N.E.2d 651.) It is also true, as plaintiffs assert, that such a hindsight reallocation would operate to frustrate the policy underlying the Contribution Act by discouraging pretrial settlement agreements. See Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232.

Accordingly, we conclude that it was error to wait until the verdicts were delivered and to then allocate the pretrial settlement funds in the same ratio as the verdicts bore to each plaintiff.

In summary, we affirm the jury’s finding of Lance’s assumption of risk to the extent of 96% and his resulting net verdict of $140,347. We vacate that portion of the verdict entered in favor of Valerie which reflected a 96% reduction in her gross verdict of $518,750. We reverse the trial court’s order allocating the pretrial settlement funds in the ratio that the total verdicts bore to each plaintiff. We remand this cause with directions that the trial court enter judgments in the net amounts of $100,347 for Lance and $258,750 for Valerie, such sums reflecting the appropriate settlement setoffs to be corrected net verdicts.

Affirmed in part; reversed in part; vacated in part and remanded with directions.

LORENZ and PINCHAM, JJ., concur.


author: JUSTICE CAMPBELL

text:
    BERNARD O. LOPEZ, Adm’r of the Estate of Michael A. Lopez, Deceased, Plaintiff-Appellant, v. VICTOR R. OYARZABAL et al., Defendants-Appel-lees.
    First District (1st Division)
    No. 1—87—3599
    Opinion filed February 6, 1989.
    Rehearing denied March 17, 1989.

      Gary B. Friedman, Ltd., of Chicago (Jay R. Giusti, of counsel), for appellant.
    John C. Healy and Robert C. Farrar, both of Heineke, Burke, Healy & Bodach, of Chicago, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Bernard 0. Lopez, appeals from the dismissal of his wrongful death and dramshop action in the trial court which was dismissed on the basis that he failed to be appointed administrator of his son’s estate prior to the expiration of the statute of limitations and, therefore, he was not a proper party plaintiff. On appeal, plaintiff contends that his appointment as administrator following the expiration of the statute of limitations for both the wrongful death action and the dramshop action relates back to the date of filing of the original complaint wherein he alleged he was the administrator of the estate.

On October 17, 1984, plaintiff brought a wrongful death action against defendant, Victor R. Oyarzabal, and alleged that plaintiff, Bernard 0. Lopez, was the “duly acting and authorized administrator of the estate of Michael A. Lopez, Deceased.” Michael Lopez, the son of Bernard Lopez, had died in a motorcycle accident on October 6, 1984. At the time of the filing of the complaint, plaintiff had not been appointed as administrator of the estate pursuant to the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. llOVa, par. 1 — 1 et seq.).

On December 7, 1984, a first amended complaint was filed seeking recovery under the Illinois Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135) and adding the two additional defendants, Martha Margalski and Thomas Margalski. The first amended complaint also alleged that plaintiff was the administrator of the estate of the decedent. On December 21, 1984, defendant Oyarzabal filed a motion to strike the amended complaint contending that plaintiff had not been properly appointed administrator of the estate of Michael Lopez. On March 5, 1985, the trial court entered an order striking the first amended complaint, denying plaintiff’s motion for appointment of a special administrator and granting plaintiff leave to file a second amended complaint.

On March 18, 1985, plaintiff’s motion to be appointed as special administrator was granted by an order entered in the law division. On March 29, 1985, a second amended complaint was filed in which the allegations were identical to those stated in the first amended complaint. On December 3, 1986, defendants Two-Way Inn, Inc., Martha Margalski and Thomas Margalski moved to dismiss the second amended complaint arguing that plaintiff had never been properly appointed administrator of the estate of Michael Lopez by the probate court and that his action was barred since the statute of limitations had expired.

Thereafter, on February 4, 1987, pursuant to the Probate Act, letters of administration were granted to plaintiff naming him administrator of the estate of Michael Lopez. On March 18, 1987, plaintiff filed a response to defendants’ motion to dismiss contending that his appointment as administrator related back to the date of the filing of the original complaint and, therefore, any subsequent amended complaint arising out of the same occurrence was not barred by the expiration of the statute of limitations. On October 26, 1987, defendants’ motion to dismiss was granted by the trial court and plaintiff now appeals.

The Illinois Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 2) requires that the action be brought within two years of the date of the occurrence. Section 2 — 616 of the Illinois Code of Civil Procedure, however, provides that prior to final judgment an amendment may be allowed to introduce “any party who ought to have been joined as plaintiff or defendant.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616.) Section 2 — 616 further provides for the relation back of amended complaints:

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act *** which is a necessary condition precedent to the right of recovery *** if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616.)

The legislative intent of the relation back provision has been construed as the preservation of causes of action, including those brought under the Wrongful Death Act (Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95), and those brought under the Dramshop Act (Wolf v. Redmore (1986), 142 Ill. App. 3d 770, 491 N.E.2d 1367), “against loss by reason of technical rules of pleading” (Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 578, 447 N.E.2d 982, 984). “[T]he right to amend and the relation back of an amendment depend on whether the original complaint furnished to the defendant all the information necessary for him to prepare a defense to the claim subsequently asserted in the amended complaint. Joyce v. Wilner (1987), 156 Ill. App. 3d 702, 706, 509 N.E.2d 769.

In Pavlov, the plaintiff filed a wrongful death action alleging that he was the administrator of the estate of the decedent. At the time of filing the complaint, the plaintiff had not been appointed as the administrator of the decedent’s estate, and, therefore, did not fulfill the requirement of the Wrongful Death Act that the action be brought in the name of the deceased’s personal representative. (Ill. Rev. Stat. 1985, ch. 70, par. 2.) After the expiration of the limitation period for bringing an action under the Wrongful Death Act, the plaintiff was appointed administrator of the estate of the decedent, and an amended complaint making substantially the same allegations as in the original complaint was subsequently filed. The court held that under section 2 — 616, the amended complaint related back to the date of the first complaint, stating:

“In both pleadings the estate of decedent has been named as the interested party and it has been clear from the start that [the plaintiff] intended to bring the action as administrator of that estate. That [the plaintiff] was not properly named administrator on the motion of the decedent’s heirs until after the limitations period had run is a technical consideration which, in light of section 46, should not prevent the cause from being decided on its merits in furtherance of justice.” (Pavlov, 113 Ill. App. 3d at 579, 447 N.E.2d at 984.)

In our opinion, the holding of Pavlov is dispositive of the issue presented in the case at bar. In Pavlov, the court’s query was whether the plaintiff’s intent to file as the representative of the estate had been evidenced in all of the pleadings. It is clear from an examination of the pleadings here that plaintiff alleged he was the representative of the estate in the original complaint and the amended complaints. Further, plaintiff was appointed special administrator of the estate by an order entered in the law division on March 18, 1985, which was within the applicable limitations periods. Therefore, the trial court erred in dismissing plaintiff’s complaint. See also Stringer v. Estate of Jasaitis (1986), 146 Ill. App. 3d 270, 496 N.E.2d 1196; Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95.

The relation back doctrine has similarly been applied to an action brought under the Dramshop Act. In Wolf v. Redmore (1986), 142 Ill. App. 3d 770, 491 N.E.2d 367, the plaintiff improperly filed a dram-shop action as an individual seeking recovery for the death of a spouse within the one-year statute of limitations provided in the Act. After more than a year had elapsed from the date of the decedent’s death, the plaintiff filed an amended complaint alleging that he was the administrator of the decedent’s estate although in fact he had not been appointed by the probate court. The trial court dismissed the amended complaint, but gave leave to be appointed as administrator and to file a third amended complaint as administrator and to file a third amended complaint- as administrator of the decedent’s estate. Defendant filed a motion to dismiss contending that the one-year time limit under the Act had run before the plaintiff had been appointed and that the action was barred. As in Pavlov and Redmond, the Wolf court held that the third amended complaint related back to the date of filing of the original complaint since the causes of action in both arose out of the same occurrence and since defendant had been put on notice by the original action.

Defendants cite Scott v. Skokie Valley Community Hospital (1977), 54 Ill. App. 3d 766, 370 N.E.2d 107, as support for their position that plaintiff’s failure to be appointed administrator pursuant to the Probate Act rendered plaintiff’s first and second amended complaints a nullity. We find Scott distinguishable from the case before us. In Scott, the plaintiff filed a wrongful death action before being appointed as the personal representative of the decedent’s estate. More than two years later, following expiration of the statute of limitations, he petitioned the probate court to enter an order nunc pro tunc appointing him as the administrator of the estate and having his appointment relate back to the date of filing his wrongful death action. On appeal, it was held that the probate court was without authority to enter a nunc pro tunc order in that the purpose of such an order is to presently show that which was previously done. Since his appointment as administrator was invalid, the plaintiff lacked legal capacity to bring a cause of action and his complaint was dismissed. The analysis in Scott, however, did not rely upon section 2 — 616 nor did the court address the question of whether an amended complaint related back to the date of filing of the original complaint where there was a subsequent valid appointment of an administrator.

In the case at bar, plaintiff filed an amended complaint within the statute of limitations for both the wrongful death action and the dramshop action. In his complaint plaintiff alleged that he was the administrator of the decedent’s estate. Clearly defendants were put on notice that a cause of action was being brought under the relevant statutes and that they would have to defend the action. The causes of action alleged in plaintiff’s first amended complaint and second amended complaint are identical, and there is no dispute that they arose out of the same occurrence. Since plaintiff was subsequently validly appointed as administrator, it is our holding that his appointment as administrator related back to the date of filing of the original complaint and plaintiff’s action was improperly dismissed. Stringer, 146 Ill. App. 3d 270, 496 N.E.2d 1196; Pavlov, 113 Ill. App. 3d 576, 447 N.E.2d 982.

Having determined that plaintiff’s action was improperly dismissed in the trial court, we find it unnecessary to address the remaining argument raised on appeal by plaintiff that the trial court improperly granted defendant Oyarzabal’s oral motion to dismiss where proper notice of the intention to present the motion was not given.

For the reasons stated, the judgment of the circuit court of Cook County dismissing plaintiff’s complaint is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.

      Neither party has briefed or argued on appeal the propriety of the order of March 18, 1985, appointing a special administrator entered in the law division rather than the probate division of the circuit court of Cook County. Jurisdiction is vested in the court itself and not in any individual judge (People ex rel. Sanbach v. Weber (1949), 403 Ill. 331, 86 N.E.2d 202; State Bank v. Fair Winds, Inc. (1979), 73 Ill. App. 3d 597, 392 N.E.2d 638), and the divisions of the circuit court have equal and concurrent jurisdiction. See In re Estate of Olson (1983), 120 Ill. App. 3d 744, 458 N.E.2d 154; In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 412 N.E.2d 698; H. Fins, Illinois Appellate Practice Under the New Constitution 110 — 19 (2d ed. 1977).


author: JUSTICE LORENZ

text:
    RICHARD NEILLY, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—3743
    Opinion filed February 10, 1989.

      Scott L. Mitzner & Associates, P.C., of Westmont, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff was denied unemployment benefits and the Board of Review dismissed his appeal for lack of jurisdiction. Plaintiff sought administrative review in the circuit court, which affirmed the dismissal, and then plaintiff appealed to this court. We address the issue of whether section 801 of the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 471) requires that an appeal to the Board of Review must be filed within 30 days of the mailing of the referee’s decision. For the following reasons, we affirm.

Plaintiff filed a claim for unemployment benefits under the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 300 et seq.), and initially, a claims adjudicator found he was eligible to receive benefits. Plaintiff’s former employer sought reconsideration of the decision from a referee who conducted a telephone hearing with the parties. The referee found plaintiff was not eligible to receive benefits because he voluntarily left his employment without good cause. (See Ill. Rev. Stat. 1985, ch. 48, par. 431.) The referee’s decision denying benefits was mailed to plaintiff on May 2, 1986. Included with the decision was a document entitled “Right of Further Appeal,” which stated, “This decision will become final, unless WRITTEN NOTICE of appeal from the decision is filed within thirty (30) days from the date of mailing as shown on the decision.”

Plaintiff prepared a written notice of appeal to the Board of Review which was dated June 2, 1986. The Board of Review received the notice on June 6; however, it considered the notice filed on June 5, the date it was postmarked. Subsequently, the Board of Review issued its decision finding that the last day for filing the appeal was June 2 and that plaintiff did not file his appeal until June 5, more than 30 days after the referee’s decision was mailed. As a result, the referee’s decision became final and was no longer subject to appeal. (See Ill. Rev. Stat. 1985, ch. 48, par. 471.) The Board dismissed plaintiff’s appeal for lack of jurisdiction.

Plaintiff filed a complaint in circuit court seeking administrative review of the Board of Review’s decision. The circuit court affirmed, and plaintiff filed a timely notice of appeal to this court.

Opinion

At issue is whether section 801 of the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 471) requires a party to file a notice of appeal with the Board of Review within 30 days of the referee’s decision. The issue is one of statutory construction, which is a question of law. (Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 510 N.E.2d 422.) We must exercise independent review of the agency’s conclusion of law, and if the agency’s decision is based on the erroneous construction of a statute, the decision will not stand. Flex v. Department of Labor (1984), 125 Ill. App. 3d 1021, 466 N.E.2d 1050.

Section 801 states in relevant part:

“The decision of the Referee shall be final, unless, within 30 calendar days after the date of mailing of such decision, further appeal to the Board of Review is initiated, pursuant to Section 803.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 471.)

In the present case, the referee’s decision was mailed on May 2, 1986, and because the 30th day was a Sunday, plaintiff had until June 2 to initiate an appeal.

Plaintiff contends he initiated an appeal within the 30-day period because the notice was prepared and dated June 2. Plaintiff, however, cannot cite authority to support his argument that to initiate an appeal requires only preparing and dating a notice of appeal.

From our research, we have been unable to find an Illinois case that has directly construed the term “initiate” as used in section 801. However, similar circumstances were presented in Huggins v. Board of Review (1973), 10 Ill. App. 3d 140, 294 N.E.2d 32, where plaintiff filed a notice of appeal to the Board of Review after the statutory time for appeal expired. The court found the failure to file an appeal within the time period set forth in section 801 was fatal to the Board of Review’s jurisdiction. Although the court did not construe the term “initiate” as used in the section, the court equated the term with filing.

If we were to adopt plaintiff’s reasoning that to initiate an appeal requires only preparing and dating a notice of appeal, ridiculous results would follow. A party could prepare a notice of appeal within the 30-day period and then not mail it for a week, a month, or a year after the expiration of the 30-day period. There would be an indefinite period of time that the referee’s decision would not be final. It is axiomatic that the decision of the referee requires finality at some specific point in time. Accordingly, the Board’s construction of section 801 was not erroneous.

Plaintiff also argues he was entitled to an evidentiary hearing as to whether he timely filed an appeal with the Board of Review, relying on Angelo v. Board of Review (1978), 58 Ill. App. 3d 50, 373 N.E.2d 858. Angelo involved two plaintiffs, the first of which claimed she filed a late notice of appeal because she did not receive notice of the claims adjudicator’s decision until the last day for filing an appeal. The court found that due process required that a claimant must be given a reasonable time after receipt of the decision to file an appeal. The case was remanded for an evidentiary hearing to determine whether plaintiff’s claims were true. The second plaintiff in Angelo claimed she filed an appeal; however, the Board of Review did not have a record of it and contended she did not file an appeal. The Board never ruled on her attempted appeal. The court found that in that situation, plaintiff was entitled to an evidentiary hearing as to whether she timely filed a notice of appeal.

The situations presented in Angelo are distinguishable from the case at bar. In Angelo, both plaintiffs presented unresolved questions of fact which the court found required due process hearings. Here, the factual issues are resolved: the referee’s decision was dated May 2, 1986, plaintiff prepared his notice of appeal on June 2, and it was postmarked and filed on June 5. On appeal, plaintiff only raises a question of law as to the construction of the term “initiate” as used in section 801. Accordingly, we do not believe plaintiff is entitled to an evidentiary hearing as allowed in Angelo.

On appeal, plaintiff also argued that he was prevented from exhausting his administrative remedies and that section 801 is void for vagueness. These arguments were not raised before the administrative agency, and therefore, they cannot be raised for the first time on judicial review. (See Rackow v. Human Rights Comm’n (1987), 152 Ill. App. 3d 1046, 504 N.E.2d 1344.) While the waiver rule is not absolute, plaintiff’s arguments are without merit and do not warrant relaxation of the waiver rule.

For the foregoing reasons, we affirm the decision of the circuit court.

Judgment affirmed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE BILANDIC

text:
    JOSEPH A. ROMITO, Plaintiff-Appellant, v. DOROTHY WILLIAMSON, Defendant (Carol Williamson, Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—0554
    Opinion filed February 14, 1989.

      Joseph A. Romito, of Leahy & Eisenberg, Ltd., of Chicago, appellant pro se.

    Paul E. Karlstrom, of Champaign, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Joseph A. Romito, an attorney in Chicago, Illinois, brought this action in the circuit court of Cook County. His verified complaint alleges that Dorothy Williamson retained him to perform certain legal services; that he performed said services; and that Dorothy failed and refused to pay his fees and costs of $2,660.49. Therefore, plaintiff prays that judgment be entered against Dorothy on the theory of breach of contract.

The remaining counts of plaintiff’s verified complaint allege that defendant Carol Williamson knew of the professional relationship between plaintiff and Dorothy and through “fraud, misrepresentation, intimidation, and without justification induced” Dorothy not to pay said fees and costs to plaintiff. Under various legal theories alleged in counts II through VII, plaintiff seeks substantial compensatory and punitive damages against Carol.

The complaint was filed on July 6, 1987, and summons issued the same day with directions to serve a copy of the complaint and summons on each defendant in Champaign County, Illinois. On August 21, 1987, plaintiff filed a “Special Motion for Default Judgment” in which he represented that on July 13, 1987, process was duly served upon both defendants by the sheriff of Champaign County; that the 30-day period for defendants to answer or otherwise plead expired on August 12, 1987; and that as of August 13, 1987, neither defendant filed a responsive pleading “as required by law.” This motion was not verified but was signed by plaintiff in his individual capacity as a party and as his own attorney.

Based upon plaintiff’s representations, on August 24, 1987, a default judgment in the sum of $2,660.49 was entered against Dorothy. The complaint was taken as confessed against Carol and the matter was transferred to another courtroom for prove up of compensatory and punitive damages against Carol (in accordance with Cook County procedure).

On August 27, 1987, a notice of entry of the default judgment was mailed to the attorney for the defendants in Champaign County. Thereafter, a series of apparently acrimonious telephone conversations, letters, petitions and motion followed. It is not necessary to unduly lengthen this opinion by reciting the details. It is sufficient to state that defendants’ section 2 — 1401 petition to vacate the default judgments eventually came before Judge Dean Sodaro on January 13, 1988. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) After finding that the case had been rushed to judgment and that the equities were with the defendants, he vacated the default judgments and gave defendants leave to reinstate their special and limited appearance and motion to transfer venue. Plaintiff appeals.

Of critical importance to this opinion is the fact that plaintiff’s August 21, 1987, motion' for a default judgment was not accurate. It represents that as of August 13, 1987, neither defendant filed a responsive pleading. The record clearly shows that on August 11, 1987, at 2:57 p.m., both defendants filed a special and limited appearance and a motion to transfer venue to Champaign County. In addition, the record shows that notice of the filing of these documents was filed on August 14, 1987, at 12:40 p.m. The affidavit states that the special appearance and motion to transfer filed on August 11, 1987, were mailed to plaintiff from Champaign, Illinois, on August 12,1987.

The initial trial court default judgment entered on August 24, 1987, was based on plaintiff’s representation that defendants did not file a timely responsive pleading. It is uncontradicted that this representation was not correct. If the trial court was aware of the fact that a timely responsive pleading had, in fact, been filed, the default judgment would not have been entered.

When this obvious injustice was called to the attention of Judge Sodaro, he correctly vacated the default and reinstated the defendants’ special and limited appearance and motion to transfer venue.

It is not within the province of this opinion to determine what caused the trial court to enter an obviously incorrect judgment. Plaintiff’s motion for default was filed August 21, 1987. This was 10 days after the responsive pleading was actually filed (August 11, 1987), and seven days after defendants filed a notice that the responsive pleading was filed (on August 14, 1987). It appears that there may be a reasonable basis for plaintiff to be aware that defendants had indeed timely filed if the court records were diligently checked either before the August 21, 1987, motion or before the actual entry of the judgment on August 24, 1987, when the official file should have been before the trial court.

The default judgment of August 24, 1987, recited that the court was “fully advised in the premises.” The fact is that it was not so advised.

Plaintiff insists that the default judgment must stand because defendants were not diligent in filing their petition to vacate. What plaintiff overlooks is the fact that defendants were more than diligent; they were not in default from the outset. If there is any lack of diligence, it is on the part of the plaintiff, who in his haste to judgment did not exercise sufficient diligence between August 11, 1987, and August 24, 1987, to discover that the defendants had indeed filed a timely responsive pleading and, therefore, his motion for default judgment was out of order.

In the interest of justice and fairness, where a default judgment is entered under unfair or unjust circumstances, the judgment will be vacated. (Marks v. Gordon Burke Steel Co. (1973), 14 Ill. App. 3d 191, 193, 301 N.E.2d 835.) As this court stated in Morrey v. Kinetic Services, Inc. (1985), 133 Ill. App. 3d 1002, 479 N.E.2d 953, appeal denied (1985), 108 Ill. 2d 571, “[a]fter a shirt or blouse is incorrectly buttoned, the solution is to unbutton it completely and start all over.” (133 Ill. App. 3d at 1005.) Since the default judgment should not have been granted in the first instance, we are placing the case where it was before the erroneous entry of the default judgment.

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

Affirmed.

EGAN, P.J., and SCARIANO, J., concur.