author: JUSTICE GOLDENHERSH

text:
    LINDA DEERHAKE, Adm’r of the Estate of Kevin Deerhake, et al., Plaintiffs-Appellees, v. DuQUOIN STATE FAIR ASSOCIATION, INC., Defendant-Appellant.
    Fifth District
    No. 5-87-0540
    Opinion filed June 22, 1989.

      Cornelius Thomas Ducey, Jr., of Ducey, Feder & Ducey, Ltd., of Belle-ville, and Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Michael G. Bruton, of counsel), for appellant.

      Phillip J. Kardis and Robert S. Forbes, both of Kardis & Forbes, P.C., of Alton, for appellee Gerald A. DeGerlia.
    Bernard J. Ysursa, of Cook, Shevlin, Keefe & Ysursa, of Belleville, for appellee Linda Deerhake.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On January 30, 1987, a Perry County jury awarded plaintiff Linda Deerhake (Deerhake) $1,100,000 reduced by 30% to $770,000 for her decedent husband’s contributory negligence, and awarded plaintiff Gerald DeGerlia (DeGerlia) $2,155,500 reduced by 18% to $1,767,510 for his contributory negligence. After the trial court denied the post-trial motion of defendant, DuQuoin State Fair Association, Inc., defendant appealed. This court affirms with directions.

The record reveals the following facts. Defendant was scheduled to hold an American Motorcycle Association (AMA) sanctioned motorcycle race on Sunday, July 27, 1980. As the spectators gathered on the fairgrounds the Friday and Saturday before the race, defendant permitted them to camp on the grounds for a fee. Defendant also charged an admission to see the sanctioned race. However, due to the rain on July 27, the race was cancelled. Although a majority of the crowd left, some of the spectators stayed to watch unsanctioned drag races along Gate 2 Road on defendant’s property. During the drag races, Deerhake’s husband, Kevin Deerhake, was killed, and DeGerlia was seriously injured in a motorcycle accident.

On August 11, 1981, DeGerlia filed a complaint against defendant. On July 26, 1982, Linda Deerhake filed a complaint against defendant for wrongful death of her deceased husband, Kevin Deerhake. The cases were consolidated for a jury trial. On January 30, 1987, the jury awarded Deerhake $1,100,000 reduced by 30% to $770,000 for her decedent’s contributory negligence, and awarded DeGerlia $2,155,500 reduced by 18% to $1,767,510 for his contributory negligence. After the trial court denied defendant’s post-trial motion, defendant appealed. Since the record is voluminous and defendant raises many issues, this court will consider all facts regarding each issue as they arise.

Before this court can proceed to discussing the various issue, it must dispose of various subissues. These subissues are important to the discussion of the first issue regarding the duty of defendant to plaintiffs.

Defendant argues that the trial court erred when it allowed the jury to consider evidence that defendant made a profit from the sanctioned motorcycle event. Defendant argues that for such evidence to be relevant, it must tend to prove a matter in controversy. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235.) This court finds that the trial court properly denied defendant’s motion in limine regarding any profits raised from the race event because the admission fees to the sanctioned races ($8 camping fee; $12 grandstand admission, and parking fee) offered evidence of the invitee status of plaintiffs and the reasonableness of requesting defendant to hire more security or purchase equipment.

Defendant also argues that the trial court erred when it prohibited defendant from inquiring about plaintiff DeGerlia’s prior motorcycle accidents. This court holds that the trial court properly denied defendant’s request to present evidence of DeGerlia’s prior motorcycle accidents as evidence of knowledge of the dangerousness of driving a motorcycle at “certain” speeds. As a general rule, the trial court has the discretion to prohibit admission of evidence which is otherwise admissible but whose probative value is outweighed by the danger of prejudice or confusion. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 911, 469 N.E.2d 708, 722.) In this case, the admission of DeGerlia’s prior accidents on a motorcycle would cause confusion because the issue is defendant’s duty to a business invitee regarding highly dangerous, negligent and criminal activities of third parties occurring on defendant’s property. Most importantly, DeGerlia was not operating the motorcycle at the time of the accident.

At this point, this court addresses another subissue regarding the admission of testimony concerning subsequent measures taken to prevent drag racing on defendant’s property. This court finds that defendant cannot allege error because defendant opened the door. On direct examination, plaintiff did not elicit any such testimony from witness Ray Davenport. Defendant’s cross-examination and re-cross-examination proceeded to elicit this evidence. Furthermore, the other alleged errors occurred after defendant elicited the initial response regarding subsequent measures. Since defendant used the testimony in its defense, it cannot now complain of error. Plaintiffs’ counsel on direct did not question the witness on why he did not go to the races after 1982. It was defendant’s counsel who asked why the races diminished.

Defendant argues that the trial court erred when it allowed introduction of prior motorcycle accidents on the fairgrounds. It is well established that evidence of prior accidents, occurring under substantially similar conditions, is admissible to show the existence of a hazard and - to show that defendant had notice of its existence. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373; Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534.) Defendant specifically argues that there is a lack of substantial similarity.

This case involves a motorcycle drag race occurring on the fairgrounds at which plaintiffs were injured when a motorcycle (decedent’s) went out of control and was unable to stop. In 1979, Deputy Sheriff James Wessler witnessed an accident involving motorcycle drag racing on the same road and area. In the 1979 accident, a motorcyclist was drag racing, lost control and was unable to stop at the end of the road, colliding with the gate. This court finds sufficient similarity in accidents, and therefore defendant’s position is without merit.

Defendant also argues that the introduction of a 1979 newspaper article titled, “Unauthorized Racing Claims 4 Casualties,” was highly prejudicial and lacked proper foundation regarding substantial similarity. The court allowed the evidence on the issue of notice. The article was also used in part to refresh the recollection of Lyndal Graff, was not read to the jury, and did not go to the jury. The article mentioned not only the accident Deputy Sheriff Wessler saw but also another motorcycle accident occurring on the same road. The article is well within the exception to the hearsay rule for showing notice and as such the court properly admitted it. (Smith v. Solfest (1978), 65 Ill. App. 3d 779, 782-83, 382 N.E.2d 831, 834.) Furthermore, the use of the newspaper article was permissible to refresh the memory of a witness. (Clifford v. Drake (1884), 110 Ill. 135, 136-37.) This court finds that the trial court did not err.

In connection with defendant’s issue regarding the statements made by Lyndal Graff and printed in a newspaper article, this court finds that the issue has been waived for failure to object properly.

I

Defendant’s first major issue on appeal is whether the trial court properly entered judgment against it. Defendant argues that the court should have directed a verdict for defendant or granted defendant’s motion for summary judgment because it did not have a duty to protect the plaintiffs from the open and obvious dangers associated with unauthorized motorcycle drag racing. Defendant argues that whether the trial court classified plaintiffs as invitees, licensees or trespassers, it did not owe them a duty to protect them from unauthorized drag racing pursuant to sections 343 and 343A of the Restatement (Second) of Torts. Restatement (Second) of Torts §§343, 343A (1965).

However, this court finds that defendant’s argument is without merit because sections 343 and 343A are not applicable. Plaintiffs were injured by negligent activity of a third party on defendant’s property. Sections 343 and 343A apply to dangerous conditions known to or discoverable by the possessor of land and to dangerous activities conducted by the owner-occupier, not to dangerous activities conducted by third parties.

The applicable section in the case at bar is section 344. Section 344 provides:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Restatement (Second) of Torts §344 (1965).

The comments to section 344 contain the following explanation:

“f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” Restatement (Second) of Torts §344, comment f. at 225-26 (1965).

Although the trial court did not apply this standard at the time defendant made its motion, applying instead section 341 (Restatement (Second) of Torts §341 (1965)), the court commented:

“I believe this case can be nothing other than an activity case rather than just a pure premises liability case. *** [B]ut principally it’s an activities case with all its burden of contributory negligence.”

Later in the proceedings, conforming to the evidence presented, the court ruled the applicable duty was that stated in section 344 of the Restatement (Second) of Torts.

Section 344 has been applied to similar situations in which a party was injured by the activity of a third party. In Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099, this court held section 344 may impose liability for injuries sustained by a spectator struck by a golf ball where the evidence showed that golf balls had regularly landed in the concession area in the park. See Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 225 N.E.2d 83.

Section 344 specifically applies to business invitees or visitors. In this case defendant allowed plaintiffs as well as many other business visitors to enter upon its premises, after a fee was paid for the privilege, to camp on the business property two days prior to the anticipated authorized motorcycle races.

Defendant knew for the three years prior to the accident in question of the unauthorized drag races on its property. It not only knew of the criminal activities (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 504 (defining and prohibiting drag racing)), but also used them to its advantage. Defendant opened its facilities two days prior to any sanctioned races and received a fee for parking, camping and admission to the race. Defendant provided security “to watch over” the unsanctioned races and did nothing to prevent the illegal activity. Defendant also knew of prior accidents occurring at the drag races and still failed to exercise any due care in prohibiting such illegal and dangerous activity.

Defendant cites many cases to support his argument that a possessor of land has no duty to protect an invitee from open and obvious dangers. These cases are not applicable because they deal with dangerous conditions and not activities of third parties. Although defendant does find support in a Georgia Appellate Court case of Tatum v. Clemones (1962), 105 Ga. App. 221, 124 S.E.2d 425, the Tatum case lacks precedential value in this court and is distinguishable from the case at bar. In Tatum, the court found that the owner of a go-kart race track was not liable for a customer who was injured while in the “pit.” The customer first paid general admission to view the go-karts in a protected area but also obtained another pass not generally available to all spectators as part of the general admission to view the races from the “pit,” an unprotected area. The Georgia court found that a spectator who enters the pit area knows the obvious dangers of being close to go-karts traveling at approximately 100 miles per hour without the protection afforded the spectators in the general admission area.

In this case, defendant did not limit which spectators could closely view the drag races. Defendant just “turned its head” as the dangerous activity was commenced while accepting a fee for the opportunity to carry on this illegal activity. We find that section 344 was the proper section to apply and, when applied, this court finds that defendant did owe a duty to plaintiffs.

In light of these findings, this court also finds that plaintiffs’ instruction No. 16 was properly submitted to the jury. Jury instruction No. 16, which restated section 344, contained the proper duty in light of the evidence submitted at trial. Furthermore, the evidence at trial more than adequately revealed that defendant had notice of the negligent acts being performed by third parties on its premises. The evidence at trial revealed that defendant had held the sanctioned motorcycle races for three years prior to 1980, that defendant increased security because of the unsanctioned races, and that defendant had knowledge of prior accidents happening at the unauthorized drag races.

II

Defendant’s second issue on appeal is whether the verdict should be set aside because it was “excessive, contrary to the manifest weight of the evidence, shocking to the conscience and clearly the result of passion and prejudice.” (See Jones v. Karraker (1983), 98 Ill. 2d 487, 457 N.E.2d 23.) It is well established that a reviewing court will give great weight to the determination of a jury on the issue of damages and on review may examine the damage award and order a remittitur or new trial. (Ball v. Continental Southern Lines, Inc. (1977), 45 Ill. App. 3d 827, 830-31, 360 N.E.2d 81, 84.) Each verdict for a personal injury must be examined in the light of the particular injury involved, with deference to the discretion of the jury and to the ruling of the trial judge on the post-trial motion. Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 453, 158 N.E.2d 63, 69.

EVIDENCE PRESENTED BY PLAINTIFF DEERHAKE

Linda Deerhake had been married to the decedent, Kevin Deerhake, for two weeks at the time of the accident. The decedent was unemployed at the time of his death because he had been laid off from Better-Built, Inc., where he was working as a carpenter. Decedent had a high school diploma and was a member of a trade union.

The bookkeeper for Better-Built stated that decedent was hired on October 12, 1979, and terminated on December 13, 1979, but was recalled to work from May 5 until May 29, 1980, at which time he was laid off. Decedent’s last hourly wage was $3.90.

Although Linda and Kevin were not married for long, there is a presumption of substantial pecuniary damages from the relationship alone. It does not matter whether she received pecuniary assistance from the deceased in the past. (Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 1052, 510 N.E.2d 1208, 1218.) In cases of relationship based on marriage, the substantial pecuniary damages consist of companionship, society and conjugal relationship and are the benefits of pecuniary value that the decedent might have expected to contribute to Linda. In this case, the jury heard testimony that Linda and decedent were married two weeks, they were rebuilding a mobile home for their marital residence, decedent was a high school graduate, a union carpenter and possessed mechanical skills. If decedent had not been killed, at the time of trial he would have been the third most senior employee at Better-Built. The $1.1 million verdict does not appear to be a result of passion and prejudice “but rather well within the reasonable range for such a great and permanent loss.” Furthermore, defendant did not rebut the presumption of substantial damages. Illinois Pattern Jury Instructions, Civil, No. 31.04 (2d ed. 1971).

EVIDENCE PRESENTED BY PLAINTIFF DeGERLIA

Plaintiff DeGerlia accurately summarized the findings as follows: As a result of the accident, DeGerlia suffered a serious brain injury resulting in missing brain tissue and general shrinking of brain substance causing memory difficulties, forgetfulness and diminished intellectual capacity.

His dominant left hand received a severely comminuted (pulverized) fracture requiring two operations and ultimately the fusing of the wrist. DeGerlia’s wrist is now essentially a stiff wrist with loss of dexterity and agility. DeGerlia also sustained a comminuted compound fracture to his left tibia resulting in a weak union because pieces of bone were missing, requiring a skin and bone graft. A permanent IM rod was inserted in his left fractured femur. From a fractured vertebra in his neck and thoracic spine, DeGerlia lost 50% rotation and tilting of his neck. He also lost 40% of motion in his left ankle. His face received multiple facial fractures and injury to the mandibular condyles resulting in loss of 50% of the ability of his jaw to open. He also suffered extensive damage to his teeth. The vocational specialists for both parties stated that DeGerlia could not return to his previous employment.

It is very difficult to fix a pecuniary value on human life, and that amount must depend to quite an extent on the good judgment of the jury under proper instructions from the court. (Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1050, 460 N.E.2d 464, 470.) Furthermore, the assessment of damages is left to the “sound, deliberate, fair or intelligent judgment, or common or good sense, of the jury; and the jury may allow such damages as they deem reasonable in accordance with their common knowledge, experience and good sense.” (Tonarelli v. Gibbons, 121 Ill. App. 3d at 1050; Ill. Rev. Stat. 1985, ch. 70, par. 2.) In this case, this court finds that the jury properly awarded to Deerhake $1,100,000 reduced by 30% to $770,000 due to contributory negligence.

Although DeGerlia sustained considerable extensive and permanent injury to his body, defendant insists that the award was excessive. Defendant points to the fact that DeGerlia was unemployed at the time of the accident but defendant fails to note that DeGerlia was scheduled to return to work the next day. Defendant does correctly state that plaintiff stayed in the hospital S1^ weeks to recover and had several operations to repair his leg and wrist. However, defendant does not find a great deal of support for the award from the hospital stay and operation justifying the award. This court finds to the contrary. Considering that DeGerlia had to undergo such extensive recovering and has many permanent injuries, the hospital stay and operation more than adequately support the jury award. Since such damages are not subject to mathematical computation but must be evaluated in the context of the particular injuries in the case (Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329, 335, 481 N.E.2d 957, 961), this court finds that the award was not excessive.

In summary, this court finds the awards for both plaintiffs were not excessive.

Ill

Defendant also raises the issue of whether the trial court’s comments in open court had a prejudicial impact on the jury which resulted in the allegedly excessive awards. Defendant refers to the court’s involvement in the cross-examination of Gus Jabr, the former secretary and assistant treasurer of the DuQuoin State Fair Association. Defendant argues that the trial court expressed its opinion regarding the credibility of the witness and the witness’ involvement in attempting to hide the truth.

The alleged interference by the trial court involves whether Jabr had fully disclosed names of persons who had knowledge of the allegations in the complaint. Defendant contends that the trial court became an advocate of plaintiffs.

Initially, this court must address why Jabr was being impeached. Plaintiff DeGerlia filed, on May 21, 1984, a request for production and interrogatories. Interrogatory No. 1 sought the names of pre- or post-occurrence witnesses. Not for 2V2 years and several motions to compel later, including a pretrial conference resulting in an order to compel, did defendant finally answer the interrogatory. However, Jabr’s name was not included in those persons with knowledge of relevant facts. The only person listed as having knowledge of drag racing was Gerald Lively, who had suffered a brain aneurysm and had no memory of the accident. On the other hand, Jabr personally signed the interrogatories under oath but plaintiffs did not have any reason to depose him prior to trial. Accordingly, the court properly allowed plaintiffs broad discretion in their examination.

Nonetheless, defendant argues that the court became an advocate for plaintiffs. The record reveals that outside the presence of the jury, the court expressed concern that the answers to the interrogatories were “seriously lacking.” The court stated:

“I don’t know if there is lying or anything so rash as that going on or deliberately trying to hide facts. But the subject of drag racing is certainly something and other things that the man has touched upon certainly pertain to the events alleged in this Complaint. His name is not listed. His brother-in-law’s name is not listed [and] apparently some other people’s names aren’t listed. So I don’t know if the defect goes to the extent of pleadings should be stricken and so on, but at least it is the Court’s feeling at this time, however the ruling comes out, that there is a serious deficiency in the answering of this interrogatory. Now, what to do about it is the next question. I believe it would be proper to continue with the questioning of this witness before the jury and get him and the jury out of the way and then we will go on from there. If things come out before the jury, after all we are here to try the case and get these facts to the jury with some degree of rapidity and we will just instruct the jury as to what they should or should not listen to. But I think we should go on at this time and take the motion under advisement.”

When questioning resumed before the jury, the court ordered the witness to give a direct answer several times because the witness had not answered a question. At no time in the cross-examination of the witness with the jury present did the court act as an advocate for plaintiffs. Outside the presence of the jury, the court properly and very correctly appraised the situation. The court acted well within its discretion to maintain order and integrity in its courtroom in view of defendant’s deliberate attempts to frustrate the judicial process. In light of defendant’s discovery misrepresentations and the evasiveness of witness Jabr, the trial court acted with commendable restraint and wisely allowed plaintiffs’ counsel wide latitude in examination. This court finds that defendant’s allegations are seriously without merit.

In addition, this court finds that impeachment was proper because Jabr (1) signed the interrogatories under oath, (2) refused to give a direct answer, and (3) had more than apparent knowledge of the drag races even in light of his deliberately evasive answers. Thus, this court finds that defendant’s later subissue that the trial court erred in permitting the impeachment of Jabr is without merit.

IV

Defendant also raises numerous allegations of error as its last issue. Defendant specifically argues that the cumulation of these errors made it impossible for the jury to return a verdict consistent with the evidence and free from prejudice. This court finds otherwise.

A

Defendant argues that the court improperly allowed evidence of alcohol being sold on the premises. However, defendant was the first to raise the issue of alcohol, and raised it not only once, but three times. Defendant elicited such evidence during cross-examination of witness Davenport. Defendant cannot now complain of such evidence. Moreover, since defendant first raised the issue, the court properly gave plaintiff an opportunity to address it. Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 410 N.E.2d 149.

In this case the court prohibited defendant from introducing evidence that plaintiffs had been drinking because there was no evidence that they were intoxicated. On the other hand, the court permitted evidence that alcohol was sold on the premises, as that evidence was directly related to the effects alcohol had on the demeanor of the crowd and the ability of security to control the crowd in an orderly manner. In turn, that evidence directly addressed the issue whether there was sufficient security to control the crowd. The evidence was not used to show intoxication of a particular person as a proximate cause of the accident.

Defendant cites Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 443 N.E.2d 1085; however, the case is distinguishable. In Wagner, the defendant attempted to introduce evidence that plaintiff was intoxicated and as such was the proximate cause of the accident. In this case, defendant initially opened the door to the introduction of such evidence. Plaintiff, however, only introduced evidence that alcohol was sold but not of the intoxication of any particular person. In summary, this court finds that the trial court acted properly.

B

Defendant argues that the trial court erred when it prohibited defendant from inquiring about DeGerlia’s prior conviction in 1979 for unlawful sale of a controlled substance. A prior conviction may be admitted into evidence for the purpose of impeaching a witness. (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 101; Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 590-91, 363 N.E.2d 805, 808.) On the other hand, evidence of a prior felony conviction, even if otherwise admissible, is not admissible if the trial court determines that its probative value is substantially outweighed by the danger of prejudice. (People v. Montgomery (1971), 47 Ill. 2d 510, 517, 268 N.E.2d 695, 699.) This decision is within the discretion of the trial court and will not be reversed on appeal absent abuse. People v. McCoy (1987), 156 Ill. App. 3d 194, 199, 509 N.E.2d 567, 570.

In this case, the court examined the evidence in light of the issue of liability but found that DeGerlia does not remember the accident. Therefore, the attack on credibility would only be directed at De-Gerlia’s memory prior to the accident and as such that evidence would not be relevant or proper for impeachment. The court added that in this case involving motorcycles, the conviction would only further prejudice DeGerlia in a case where he “has an uphill” battle to begin with. This court finds the trial court did not abuse its discretion.

C

Defendant argues that the trial court erred when it allowed the jury to consider testimony regarding the behavior of the crowd watching the drag races. Defendant refers to the following answer:

“Everybody seemed to be excited at the drag races. They were a fairly calm crowd. They were cheering people on down at the starting line and farther down the line people were watching. They seemed excited at watching races.”

Defendant contends that it was offered for the “purpose of painting a picture that the crowd at the time of the accident was riotous and out of control.” In view of the testimony and its context, this court does not find the testimony prejudicial.

D

Defendant argues that the trial court erred when it allowed the jury to consider testimony from another witness concerning the view DeGerlia may have had immediately before the accident because the witness lacked personal knowledge. In reading the relevant testimony, this court finds that the witness could in fact see the accident. He was 30 to 40 yards from the accident and 20 yards from the curb. He saw that the crowd was lined up along the curb on both sides of the road. Without objection, he stated that the decedent was about two feet from the crowd. The crowd angled in toward the center of the road where the drag racing occurred. Later, counsel attempted to ask the witness what view DeGerlia had. After several objections, counsel asked:

“Q. [Phillip Kardis, attorney for DeGerlia]: I guess the first question is, from where you were standing, looking, could you, the guy that is on the bike that comes off the curb. Could you tell what his view was looking to the left? ***
A. Okay. It looked like he wouldn’t have a real good view until after he got off the curb, because there was people in the way kind of.”

In light of the witness’ vantage point in the crowd, the question was proper to establish personal knowledge. Thus, the trial court did not err.

E

Defendant argues that the trial court erred when it allowed DeGerlia to testify that he uses a transubcutaneous nerve stimulator for pain because a proper foundation had not been laid to establish if a doctor had prescribed the stimulator. Defendant also argues that plaintiffs laid no foundation connecting use of it to the injuries from the accident.

The trial court permitted the testimony regarding the stimulator just as it could have allowed testimony regarding aspirin use for pain. The court limited the testimony to that area alone since it is customary for plaintiffs in injury cases to testify regarding injuries they claim they received. Jensen v. Richardson (1968), 93 Ill. App. 2d 237, 240-41, 235 N.E.2d 397, 399.

At trial, evidence was adduced that DeGerlia had extensive injuries to his left leg. DeGerlia suffered a comminuted compound fracture to the tibia resulting in a weak union because pieces of bone were missing. DeGerlia had a skin and bone graft done to the area. He also sustained a fractured femur which had been repaired with a permanent IM rod. Defendant’s expert Dr. Hornstein saw the stimulator during examination and diagnosed the leg as having “extensive deformity and atrophy of the left lower extremity involving scarring about the thigh, calf and foot.”

During DeGerlia’s brief testimony regarding the stimulator, he stated that he uses it for pain relief. DeGerlia did not state how it works or who prescribed the stimulator. In light of the brief and limited testimony and the extensive injuries to the leg, the court did not err in allowing evidence for the limited purpose to show use of the stimulator for relief of pain.

F

Defendant argues that the trial court erred when it allowed William Johnson to testify as an expert for plaintiffs because he was testifying to matters within common knowledge of the jurors. “Expert opinions thus may not be admitted on matters of common knowledge unless the subject is difficult of comprehension and explanation.” (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 99, 382 N.E.2d 1201, 1205.) Defendant cites Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276, 293 N.E.2d 483, in which the court held that an expert is not permitted to testify that a location of a picnic area could expose the area to traffic along a nearby street and rails, and that barriers or blocks along or in front of the picnic area would have the effect of slowing, stopping or deflecting a vehicle coming onto the premises from that direction.

In the case at bar, this court finds that although the expert would utilize common facts to state what precautions could have been taken by defendant, he would use those facts to address a complex matter, the management of thousands of people and a potentially dangerous situation, including the risk of a riot. The management of such large groups of people is not within the common knowledge of all persons. Different situations require different tactics to quell a riotous situation. Whereas Ray involved a simple situation in which a jury could have used its own knowledge to assess what would have stopped a vehicle from entering a picnic area, in this case such a simple evaluation was not possible, and an expert was essential to aid the trier of fact. This court finds that the trial court did not err.

G

Defendant argues that the court erred when it allowed plaintiffs to question Lyndal Graff about the reason for holding a rock concert on the Saturday before the sanctioned races. The court permitted plaintiff to read to the jury from Graff’s evidence deposition, which stated:

“Q. Well, wouldn’t that indicate to you that the DuQuoin State Fair Association was taking steps to increase the crowd on the day before the authorized race, rather than decreasing it?
A. That’s correct. I did not — was not involved in that decision to bring in a rock concert.
Q. Would the rock concert have been expected to increase the crowd at the fairgrounds on the night before the sanctioned race?
A. I think what the thought was to provide entertainment in another form for the spectators on the grounds.”

After reviewing the contest of the questions and answers, this court finds that the trial court did not err. The answers were not highly prejudicial but rather went to the circumstances surrounding the drag race, the three-day camping event, and the rock concert, as well as defendant’s invitation for those spectators to camp on the grounds before the sanctioned races. The questions were directed at defendant’s knowledge that approximately 10,000 persons were invited to the grounds to camp.

H

Defendant argues that the trial court erred when it allowed the jury to consider the case history of DeGerlia taken by Dr. Samuel Bernstein, a vocational rehabilitation specialist. Defendant states that Melecosky v. McCarthy Brothers Co. (1986), 115 Ill. 2d 209, 503 N.E.2d 355, reaffirms Jensen v. Elgin, Joliet & Eastern Ry. Co. (1962), 24 Ill. 2d 383, 182 N.E.2d 211, which held that statements to a nontreating physician who was consulted solely for purposes of rendering an opinion at trial are not within the hearsay exception regarding subjective statements made to a physician for purposes of treatment.

This court notes, however, that defendant does not complete its analysis. The Melecosky court in effect abrogated the Jensen rule in its use of Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, which held a physician may rely upon hospital records in forming an opinion even when the records are not admitted into evidence. Wilson did not make a distinction between treating and nontreating experts. It further adopted the rationale of Federal Rules of Evidence 703, which allows expert witnesses to base an opinion on inadmissible facts and data, and 705. The Melecosky court then held it was proper for the nontreating expert to testify even though the doctor based his opinion on the plaintiff’s subjective statements.

In light of defendant’s misinterpretation of the relevant case law, this court finds that Dr. Bernstein’s testimony was admissible hearsay. Dr. Bernstein diagnosed DeGerlia’s vocational rehabilitation potential after a series of tests and after hearing DeGerlia’s subjective statements and work history. Afterward, when Dr. Bernstein recommended therapeutic help for DeGerlia’s depression, he became a treating physician and not merely a consulting physician evaluating DeGerlia for trial purposes, as defendant contends. Defendant does point out that Dr. Bernstein did not attempt to rehabilitate DeGerlia but fails to note that he found DeGerlia to be unemployable, and accordingly, further rehabilitation was not indicated. Since Dr. Bernstein was a treating vocational rehabilitation specialist, his testimony can be based on hearsay evidence. (J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106, 117, 483 N.E.2d 273, 278.) Thus, the trial court did not err.

I

Defendant argues that the trial court erred when it admitted DeGerlia’s medical bills into evidence because DeGerlia failed to lay a proper foundation. Regarding the bill of $901 for physical therapy, De-Gerlia admits that no foundation was laid for its admission and the trial court had stated that there was no foundation. Plaintiff also agrees that there is sufficient foundation “except to the extent that the court feels that the physical therapy bill would be unjustly prejudicial to the defendant.” In view of the record, this court finds the evidence prejudicial and agrees with DeGerlia’s suggestion to grant a remittitur in the amount of $901.

Regarding the bill for services rendered by Dr. Jacques Schaerer, defendant contends that Dr. Schaerer was employed solely for litigation. However, defendant fails to state that Dr. Schaerer also treated DeGerlia when he prescribed an anti-arthritic/anti-inflammatory medication. Thus, defendant’s argument is without merit.

Defendant also asserts that DeGerlia is not entitled to recover for the value of services that he has obtained without expense, obligation or liability. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 362, 392 N.E.2d 1, 5.) In Peterson, the court held that since the plaintiff received free medical services from the hospital, the value of those services was not'admissible. In this case, however, De-Gerlia did not receive any free medical services. His insurance company paid a majority of the bills — $23,026.31. His mother paid $9,046.92, for which DeGerlia reimbursed her. In light of these findings, this court finds defendant’s argument without merit. In summary, this court finds that the trial court did not err in admitting the evidence of the medical bills but does grant a remittitur in the amount of $901.

J

Defendant argues that the trial court erred when it instructed the jury on plaintiffs’ instruction No. 14, which stated:

“When I use the expression ‘proximate cause,’ I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

The instruction is Illinois Pattern Jury Instructions, Civil, No. 15.01 (2d ed. 1971) (IPI Civil 2d No. 15.01) in its entirety. The comment to IPI Civil 2d No. 15.01 states that the last two sentences of IPI Civil 2d No. 15.01 should be used only where there is evidence that something or someone other than defendant was the proximate cause of the injury-

In this case, decedent Deerhake’s conduct was a contributing or concurring cause to DeGerlia’s injury. Moreover, defendant’s liability under section 344 involves evidence of negligence of a third party. Evidence was presented which made it necessary and proper to instruct the jury on IPI Civil 2d No. 15.01. Defendant’s argument is without merit.

K

Defendant argues that the trial court erred when it instructed the jury on plaintiff’s instruction No. 18(b), which listed the various allegations of negligence. Defendant argues' that it did not have a duty to protect these plaintiffs from injuries associated with unauthorized drag racing. However, defendant’s duty was addressed in issue I and need not be discussed further. This court finds defendant’s argument without merit.

For the foregoing reasons, this court affirms the verdict of the jury and the judgment of the circuit court of Perry County, but orders a remittitur in the amount of $901.

Affirmed with directions.

LEWIS and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
      In re MARRIAGE OF JO ANNE INGRAM, Petitioner-Appellee, and DONALD R. INGRAM, Respondent-Appellant.
    Fifth District
    No. 5-87-0842
    Opinion filed June 22, 1989.
    Kathleen Moran, of Callahan & Moran, P.C., of Trenton, for appellant.
    Ralph J. Mendelsohn, of Alton, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Jo Anne Ingram (petitioner) and Donald Ingram (respondent) were divorced on March 2, 1977, ending their marriage of nearly 25 years. Their marriage produced seven children, all of whom have now reached the age of majority, although the respondent continues to pay for the college expenses of the two youngest. At the time of their divorce the parties entered into a property settlement agreement which was incorporated into the divorce decree. The agreement provided, inter alia, that the respondent was to pay $200 per month towards the support of each minor child, was responsible for all costs of educating the children through college, and he was to pay $1,000 per month toward the mortgage on the family home, which was to be sold after the children reached majority, with the proceeds divided between the parties. The agreement also provided that the petitioner was to receive $1,500 per month for support and maintenance, but if she obtained employment: “Forty percent of the gross income earned by Wife over and above the first $3,000 shall be deducted from said alimony payments.” In February of 1985 the parties, by agreement, modified the maintenance provision to add an additional $40 per week from November of 1984 until July of 1985.

In June of 1986, the respondent filed a petition for modification requesting that the maintenance payments be terminated because the petitioner had obtained employment which provided her with enough income to meet her needs and because the respondent had suffered a decrease in income and had incurred financial setbacks which substantially reduced the income available to pay support. In July of 1986, the petitioner filed a motion to increase maintenance and a petition for contempt claiming that the respondent owed her back maintenance payments. After a hearing held on February 25, 1987, the trial court ordered that the maintenance payments be reduced in accordance with the property settlement agreement. Although the court’s order did not explicitly deny the respondent’s motion to terminate maintenance or the petitioner’s motion to increase it, the effect of the order reducing maintenance payments was to deny both motions. The court further found that the respondent was more than $8,000 in arrears and that his failure to pay constituted willful contempt. The court ordered the respondent to pay the amount in arrears within 30 days and also ordered him to pay the portion of attorney fees and costs associated with the contempt portion of the proceedings. The respondent’s motion to reconsider was denied and he now appeals, contending that the trial court abused its discretion in failing to terminate the maintenance payments and that the court abused its discretion in holding him in willful contempt of court for failure to pay the past-due maintenance.

The respondent is a practicing physician in the Alton area. He testified that his practice has been negatively affected by the increase in health maintenance organizations in Alton, as well as a general economic decline in the area. He also testified, however, that since the parties’ marriage was dissolved in 1977, he has earned between $100,000 and $150,000 per year. In addition, although there was evidence that the respondent did not receive his salary at regular intervals because of cash flow problems, he agreed with the testimony of his accountant that he had earned approximately $120,000 in 1986, and he was projected to earn the same amount in 1987.

The respondent also testified about several financial setbacks he has suffered in recent years and their effects. He started a nursery business which failed, resulting in considerable financial loss, and for which he still owes $16,000. His attempt to buy a building from Alton Memorial Hospital resulted in the hospital taking the building back and he remains liable to the hospital for an amount somewhere between $40,000 and $96,000. Although the hospital filed suit, no judgment has been entered against the respondent for the debt, and its status remains unclear. In addition, the respondent and his accountant both testified that the respondent has incurred a tax liability of approximately $110,000 in connection with the building. This liability stemmed from the recapture of depreciation deductions which the respondent had taken on prior tax returns. The respondent’s accountant stated that the benefits of the depreciation deductions were less than the tax now due on recapture because of other losses sustained by the respondent. These losses prevented the respondent from taking full advantage of the depreciation deduction. The accountant acknowledged, however, that the respondent paid very little personal income tax in the years 1981 through 1984.

The respondent also testified that at the time his marriage was dissolved in 1977 he was required to make payments of $1,000 per month on the marital home, but he was no longer required to make those payments. He and the petitioner each received $68,000 when the house was sold in 1986, and he used that money to pay debts. Respondent also acknowledged that he is no longer obligated to pay significant child support, and that in 1977 this obligation was $800 per month. In addition, while the respondent stated that he pays approximately $10,000 per year for educational expenses for each of the two children still in school, he believed he was no longer legally obligated to pay the expenses for one of the children under the terms of the settlement agreement. The respondent further testified that he owned no significant real or personal property, had no savings or retirement program, and lives in a home for which he pays $800 per month, with an option to purchase for $60,000. In an attempt to increase his income, he stated he has extended his office hours to six days and two evenings per week and has opened a part-time office in Edwardsville, Illinois.

The petitioner testified that after the marriage was dissolved she attended school part time and earned a master’s degree. She has been working full time for about a year as a counselor at a drug rehabilitation center and she also teaches part time at Lewis & Clark College. Her combined gross income from these two job's is $18,900. Her monthly expenses are approximately $2,100. When the marital residence was sold in 1986, the petitioner used her share of the proceeds as a down payment on a house valued at $100,000. The outstanding mortgage on the home is approximately $49,000. In addition to her home, the petitioner testified that her remaining assets are two bank accounts totalling approximately $9,000 that represented an inheritance from her grandmother which she received before the marriage was dissolved. In addition, she has accumulated $13,700 in an individual retirement account which was funded with an annual gift from her mother. The petitioner also owns a 1985 Toyota on which she makes monthly payments of $187. Petitioner also testified that the respondent was in arrears on maintenance payments in 1986, had made no payments in 1987, and the total amount in arrears was $8,339.

The trial court found that the respondent was in arrears in the amount of $8,339 and that he had sufficient income in the months involved to make the payments. The court therefore found the respondent to be in contempt and ordered him to pay the arrearage within 30 days. The court also ordered the respondent to pay the attorney fees and costs associated with the contempt portion of the case, a sum of $675. The court further ordered that the $1,500 maintenance payments were to be reduced by 40% of the petitioner’s gross income over $3,000, a reduction of over $500 per month. This reduction was in accordance with the formula set out in the settlement agreement.

We begin by noting that the power of a court to reduce the amount of periodic payments is not defeated by the fixing of the amount of the payments in a settlement agreement which was incorporated in the divorce decree. (Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31.) A modification is warranted, however, only upon a showing of a substantial change in circumstances, and the party seeking modification bears the burden of proving this change. (In re Mar riage of Logston (1984), 103 Ill. 2d 266, 287, 469 N.E.2d 167, 176.) The decision to modify or terminate maintenance payments rests within the sound discretion of the trial court, and such a decision will not be disturbed absent an abuse of discretion. Logston, 103 Ill. 2d at 287, 469 N.E.2d at 176; Geittmann v. Geittmann (1984), 126 Ill. App. 3d 470, 472-73, 467 N.E.2d 297, 299.

We find no abuse of discretion by the trial court in refusing to terminate the maintenance payments. While the record indicates that the respondent has suffered some significant financial misfortune, we do not believe he has presented sufficient evidence of a substantial change in circumstances to warrant a termination of maintenance payments. The evidence of the debt owed to the hospital was less than convincing. The amount of the debt was never clearly established, and although the hospital had filed a suit, no action had been taken for more than a year prior to the time of the hearing. The debt had not been reduced to judgment and the hospital was apparently not seeking immediate payment. The claimed loss of income was unsubstantiated. The tax liability, although large, is essentially little more than an accumulation of deferred tax liabilities from prior years. In addition, in view of the fact that the respondent is no longer required to pay child support, and has been relieved of the obligation to make mortgage payments of $1,000 per month on the family residence, he now pays significantly less than he did when the marriage was dissolved. Moreover, the respondent had the financial wherewithal to pay $10,000 in educational expenses that he believed he was not required to pay. Insofar as the petitioner’s income and assets are concerned, we believe that any modification warranted by her employment was adequately resolved through the court’s reduction of maintenance based on the settlement agreement.

Nor do we find any abuse of discretion by the court in finding the respondent to be in contempt for failure to pay maintenance. Noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt, and after nonpayment is shown, the burden shifts to the defendant to show that he is unable to pay. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 285, 469 N.E.2d 167, 175.) Respondent failed to meet that burden. While he presented evidence of outstanding debts, neither the tax liability nor the debt owed, to the hospital could have been responsible for respondent’s failure to pay maintenance since he had made no payments towards those debts by the time of the hearing. We find that the record supports the trial court’s finding that the respondent had the ability to pay maintenance during the period in question.

Finally, although respondent does not appear to contest the award of attorney fees to the petitioner, we note that a party who must use the judicial process to secure compliance with the terms of a divorce judgment is entitled to reasonable attorney fees. (In re Marriage of Moriarty (1985), 132 Ill. App. 3d 895, 478 N.E.2d 537.) We find the fees to be reasonable. Accordingly, we affirm the judgment of the circuit court of Madison County.

Affirmed.

HOWERTON and RARICK, JJ., concur.


author: JUSTICE HARRISON

text:
    DARLENE KIGIN, Next Friend of Misty Mitchell, a Minor, Plaintiff-Appellant, v. WOODMEN OF THE WORLD INSURANCE COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 5-88-0287
    Opinion filed June 22, 1989.

      G. Patrick Murphy, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellant.
    James B. Bleyer, of Bleyer & Bleyer, of Marion, for appellee Woodmen of the World Insurance Company.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Misty Mitchell, by her mother and next friend, Darlene Kigin, filed an action in the circuit court of Williamson County to recover damages for personal injuries she sustained when she was sexually molested while a guest at a youth camp operated by defendant Woodmen of the World Insurance Company (Woodmen). According to plaintiff’s second amended complaint, the person who molested her was defendant Vadar Stultz, who was employed at the time as a counselor at the camp. Plaintiff’s complaint was in two counts. Count I was directed against defendant Stultz. Count II sought recovery from defendant Woodmen. On Woodmen’s motion, the circuit court dismissed count II with prejudice pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) for failure to state a cause of action. In entering that order, the circuit court made an express written finding that there was no just reason for delaying enforcement or appeal. This appeal followed (see 124 Ill. 2d R. 304(a)), and the sole question for our review is whether the circuit court erred in granting Woodmen’s motion to dismiss. For the reasons which follow, we hold that it did. We therefore reverse and remand.

The general rule in this State is that in determining the legal sufficiency of a complaint on a motion to dismiss, all well-pleaded facts are to be taken as true, and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which,relief may be granted. (Chefs No. 4, Inc. v. City of Chicago (1983), 117 Ill. App. 3d 410, 413, 453 N.E.2d 892, 895.) A pleading should be dismissed with prejudice only where it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to recover. Fayette County Farms v. Vandalia Farms (1988), 167 Ill. App. 3d 471, 476, 521 N.E.2d 300, 303.

In this case, plaintiff alleged in her second amended complaint that on July 31, 1983, she was a guest at a youth camp operated by defendant Woodmen. She was 15 years old at the time. Defendant Stultz, who was 41 years old, was a counselor at the camp and was, in fact, the “counselor in charge.”

That evening, Stultz became intoxicated after consuming alcohol, and he provided liquor to plaintiff, which she consumed. At about 11:30 p.m., after having become intoxicated and given plaintiff liquor to drink, defendant Stultz allegedly assaulted plaintiff by placing his hands upon her genital area and breasts. This apparently occurred “at a remote location outside the presence of other sober adults.” At the same time, he is said to have attempted to persuade plaintiff to engage in sexual intercourse with him. Plaintiff alleged that these actions by defendant Stultz were done intentionally and in an offensive manner and that as a direct and proximate result of the assault, she suffered “a severe nervous shock and has suffered and will suffer great emotional and mental distress.”

In her complaint, plaintiff sought to impose liability for her injuries not only on Stultz, but also on Woodmen, Stultz’s employer. As grounds for its motion to dismiss, Woodmen argued, inter alia, that even though it employed Stultz, it could not be held liable under traditional respondeat superior analysis because when Stultz molested plaintiff he was not acting within the scope of his employment, but rather was acting solely for his own benefit. Whether an employee has departed from the scope of his employment by acting purely for his own interest, rather than at least in part for the employer, is normally a question for the jury. (Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964-65, 524 N.E.2d 966, 968.) Assuming, however, that this is a case in which we could hold as a matter of law that Stultz was not acting within the scope of his employment when he molested plaintiff, we nevertheless believe that plaintiff’s complaint established a basis for imposing liability on Woodmen.

Even when an employee is acting outside the scope of his employment, his employer may still have a duty to exercise reasonable care to control him in order to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them under certain conditions. According to the Restatement (Second) of Torts section 317 (1965), this duty exists if:

“(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and (b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.”

Illinois courts have followed this rule. Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 494, 422 N.E.2d 925, 930-31.

In our view, the allegations of plaintiff’s complaint were sufficient to bring defendant Woodmen within the duty imposed under section 317. The complaint clearly indicated that Stultz was on Woodmen’s premises, namely, the camp grounds, when he molested plaintiff. Plaintiff alleged that at the time of the events giving rise to her claim an individual named Jack Overstreet was acting on behalf of defendant Woodmen in a supervisory capacity and “did, in fact, have overall supervisory and managerial authority as to the Camp.” The complaint further alleged that Overstreet had actual knowledge prior to Stultz’s molestation of plaintiff that Stultz was the “counselor in charge” at the camp. From this, we believe that one could reasonably infer that Woodmen, through Overstreet, knew or should have known that it had the ability to control Stultz at the time.

We likewise believe that the complaint sufficiently alleged that Woodmen, through Overstreet, knew or should have known of the need to exercise its control over Stultz. According to the complaint, Overstreet knew before the sexual molestation took place that Stultz had become intoxicated and that he had provided plaintiff with alcohol which she consumed. Yet Stultz, a 41-year-old male, was allowed “to be isolated with a 15-year-old girl at a remote location outside the presence of other sober adults.” In our view, this was a formula for disaster. Intoxicated 41-year-old men do not normally go off into the woods at 11:30 at night alone with 15-year-old girls after plying them with alcohol except for illicit purposes. When Woodmen, through Overstreet, learned of these circumstances, as it is alleged to have done, we therefore believe that it had a duty under section 317 to take steps to protect plaintiff. According to the complaint, it failed to do so, as a result of which plaintiff was injured. Hence, we believe that plaintiff’s complaint was sufficient to state a cause of action against Woodmen. Count II should not have been dismissed.

Plaintiff suggests other grounds upon which its complaint against Woodmen could be sustained, but in light of our conclusion that count II of the complaint stated a cause of action against Woodmen under section 317 of the Restatement (Second) of Torts (1965), these need not be addressed.

For the foregoing reasons, the judgment of the circuit court of Williamson County dismissing count II of plaintiff’s complaint is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and CHAPMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BENJAMIN HANNA et al., Defendants-Appellees.
    Fifth District
    No. 5-87-0150
    Opinion filed June 22, 1989.
    Rehearing denied July 26, 1989.

      John R Clemons, State’s Attorney, of Murphysboro (Kenneth R Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, and Howard B. Eisenberg and Elizabeth Berg Streeter, both of Southern Illinois University, of Carbondale, for appellee Benjamin Hanna.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee William Lindsey.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The people of the State of Illinois appeal from an order of the circuit court of Jackson County dismissing the driving under the influence (DUI) charges against defendants, Benjamin Hanna and William Lindsey, and rescinding the summary suspension of both defendants’ driving privileges. This court reverses and remands with directions.

The record reveals the following facts. On December 16, 1986, defendant Benjamin Hanna (Hanna) was given a ticket for the offense of DUI in violation of section 11 — 501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95V2, par. ll-501(a)(l)). The ticket stated that defendant was to appear in court on January 7, 1987. Accompanying the ticket was a notice that defendant’s license would be suspended because his blood-alcohol level was 18 and he nearly struck three pedestrians.

On December 21, 1986, defendant William Lindsey (Lindsey) was given a ticket for DUI in violation of section 11 — 501 of the Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 501). The ticket stated that his appearance at court was set for January 7, 1987. The accompanying notice stated that defendant’s license would be summarily suspended because he refused to submit to a breath test. The notice also contained a statement by the arresting officer that he observed defendant driving the wrong way on a one-way street; defendant smelled of alcohol; and he failed a field sobriety test.

On January 7, 1987, both defendants appeared in court and the State filed a DUI information against each defendant. The court appointed the public defender to represent them and set the cases for trial on January 29, 1987. On January 22, Hanna filed a petition to rescind his summary suspension alleging lack of probable cause and that he was never properly placed under arrest for DUI.

Prior to the time their trial was to start, both defendants filed a motion to dismiss their informations on the ground that the traffic citations were not transmitted to the circuit court within 48 hours of their arrest pursuant to Supreme Court Rule 552 (107 Ill. 2d R. 552). The trial court granted the motions. The court noted that a photocopy of Hanna’s citation was filed on January 14, 1987. In the order granting Lindsey’s motion, the court noted that a photocopy of his citation was mailed on December 31,1986.

The record does not reveal whether the trial court acted on Hanna’s rescission petition. However, the clerk of the court sent notice to the Secretary of State stating that the trial court found that the summary suspension should be rescinded based on Supreme Court Rule 552. The clerk sent the same notice for Lindsey to the Secretary of State. However, Lindsey did not file a rescission petition and there is no record of the trial court rescinding the order.

The State appealed and filed with it a motion to supplement the record with documents from the Secretary of State’s office reflecting the notice of rescission sent by the circuit clerk. This court denied the motion to supplement because the documents were not part of the trial record and a judgment on this issue was not in the record. This court ordered the State to show cause why the appeal from the rescission of the summary suspension should not be dismissed.

The State subsequently filed a response to the order to show cause stating that a proposed nunc pro tunc order was sent to the trial court. The order reflected that the rescission of the suspensions was ordered. However, the trial court returned the proposed order unsigned with a notation stating, “The responsibility of preparing an accurate trial record transmittal on appeal is that of the trial attorney, not the Court.”

This court remanded the cause to the trial court for a Supreme Court Rule 329 hearing, which provides in part:

“Material omissions *** may be corrected *** by the trial court, either before or after the record is transmitted to the reviewing court ***.” (107 Ill. 2d Rules 329, 612(g).)

The trial court was to determine whether the suspension had been rescinded.

At the Rule 329 hearing, the trial court stated that it had “no independent recollection of whether or not the statutory summary suspension was rescinded or not, however, I have a pretty good idea that it was basically because there is no case.” The trial court eventually stated:

“I have entered an order and I have sent it to the Secretary of State ***. * * *
I hope that this record will be sufficient for the Appellate Court to know that the statutory summary suspension has, in fact, been rescinded ***.”

On February 29, 1988, this court dismissed the State’s appeal from the rescission of Hanna’s license because there was no order of rescission of record. In view of this court’s determination, the Secretary of State suspended Hanna’s driver’s license, effective on May 3, 1988.

Hanna filed a petition to rescind the suspension. The trial court held a hearing on the petition and determined:

“Any further summary suspension entered by the Secretary of State, who is not a party to these proceedings, is without the jurisdiction or authority of chapter 951/2, section 11 — 501.1(d) or (e).”

Accordingly, the court “immediately rescinded” the summary suspension for Hanna. The State appeals.

I

The first issue on appeal is whether the trial court properly dismissed the DUI citations against both defendants because the arresting officers failed to transmit the citations to the circuit clerk’s office within 48 hours pursuant to Rule 552.

Rule 552 is part of article V of the supreme court rules entitled, in part, “Rules on Trial Court Proceedings in Traffic *** Offenses.” (107 Ill. 2d R. 552.) The principal purpose of article V is “to provide a comprehensive system to allow bail to be taken, pleas of guilty made and fines received in certain traffic and other minor criminal cases without the presence of a judge.” (People v. Zlatnik (1975), 29 Ill. App. 3d 498, 500, 331 N.E.2d 1, 3.) Article V was adopted by the supreme court of this State to ensure judicial efficiency and uniformity as well as “to expedite the handling of traffic cases.” People v. Roberts (1983), 113 Ill. App. 3d 1046, 1050, 448 N.E.2d 185,188.

To further analyze the statutory purpose of Rule 552, this court must look at the language of the statute itself. Rule 552 provides in part:

“The arresting officer shall complete the form or ticket and, within 48 hours after the arrest, shall transmit the portions entitled ‘Complaint’ and ‘Disposition Report’ and, where appropriate, ‘Report of Conviction,’ either in person or by mail, to the clerk of the circuit court of the county in which the violation occurred.” 107 Ill. 2d R. 552.

In determining whether the language of the statute is mandatory or directory, the supreme court of this State held:

“Ordinarily a statute which specifies the time for the performance of an official duty will be considered directory only where the rights of the parties cannot be injuriously affected by failure to act within the time indicated. However, where such statute contains negative words, denying the exercise of the power after the time named, or where a disregard of its provisions would injuriously affect public interests or private rights, it is not directory but mandatory.” Carrigan v. Liquor Control Comm’n (1960), 19 Ill. 2d 230, 233,166 N.E.2d 574, 576.

In view of the purpose of Rule 552 and the language of the rule, this court finds that the duty to file or mail a traffic citation with the clerk of the court within 48 hours is directory. Nothing in the rule suggests that failure to follow the rule will injuriously affect a party’s rights. The goal of Rule 552 is to assist the traffic court in controlling its docket. Thus, this court reverses the order of the circuit court dismissing the citations.

In light of the purpose of Rule 552 and the language of the rule, this court must further analyze the ramifications of the possible remedies.

The State urges this court to reverse the dismissal of the DUI citations. Defendants seek an affirmance. If this court reverses this case without directions, it will be condoning a violation of a supreme court rule and will be hindering the trial court’s authority to control its docket. On the other hand, if this court affirms the dismissal, it will penalize the State on matters over which it has no control while granting an absolute right to dismissal where no such right was intended.

This court agrees with the trial court that the supreme court does not make useless rules. In light of this situation, this court remands this cause for a hearing to determine whether the procedure used by the arresting officer or the police station was part of an ongoing violation of Supreme Court Rule 552. Since the trial court has authority to control its docket and enforce supreme court rules, dismissal is warranted where there is a clear and consistent violation of Rule 552. However, if the trial court finds that the violations of Rule 552 were inadvertent actions, then dismissal is not warranted.

Thus, this court remands this cause for further proceedings.

II

The second issue on appeal is whether Supreme Court Rule 552 governs an implied consent hearing. The State argues that Rule 552 does not secure any right of an accused motorist. Furthermore, the State argues that supreme court rules do not govern an implied consent hearing because that hearing is civil in nature.

This court stated in People v. Cassidy (1979), 67 Ill. App. 3d 43, 384 N.E.2d 599:

“It is the arrested person, not the arresting officer, who requests an implied consent hearing, as did the defendant here, and the arresting officer does not set an appearance date for such a hearing. In fact, no date is set unless the arrested person requests a hearing. These considerations, in addition to the fact that an implied consent hearing is civil rather than criminal in nature [citation], lead to the logical conclusion that the implied consent hearing is outside the intended purview of [Supreme Court] Rule 504 and can not be dismissed merely because the hearing occurs beyond the 10- to 45-day time limitation for hearing traffic citations.” 67 Ill. App. 3d at 47, 384 N.E.2d at 603.

An implied consent hearing is a separate and distinct proceeding from the underlying criminal action. (People v. Gerke (1987), 156 Ill. App. 3d 43, 45, 508 N.E.2d 1223, 1224.) Furthermore, this court notes that at the implied consent hearing the trial court is limited to the following issues:

“1. Whether the person was placed under arrest for an offense as defined in Section 11 — 501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and
2. Wliether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, other drug, or combination thereof; and
3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person’s alcohol or drug concentration; or
4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.” (Ill. Rev. Stat. 1985, ch. 95^2, par. 2 — 118.1(b).)

It is evident from the statute that the court is limited in its findings.

Thus, this court finds that since the supreme court rules do not apply to the implied consent hearing, the trial court erred when it rescinded the summary suspensions. Accordingly, this court remands this cause for an implied consent hearing for defendant Benjamin Hanna because the record reveals that only Hanna petitioned for rescission, and reinstates the remaining time on the statutory summary suspension for defendant William Lindsey.

Reversed and remanded in part, with directions.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID A. BROM, Defendant-Appellee.
    Fifth District
    No. 5-88-0083
    Opinion filed June 23, 1989.

      John R. Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, David A. Brom, was charged by information on February 19, 1986, in the circuit court of Jackson County with the offense of State benefits fraud. (Ill. Rev. Stat. 1985, ch. 38, par. 17 — 6(a).) Specifically, Brom was charged with giving a false address in obtaining a $500 National Direct Student Loan (NDSL). Brom moved to dismiss, arguing that the Federal statute establishing the NDSL program precludes State prosecutions for crimes involving loans made pursuant to the program. Noting that Congress had enacted a comprehensive statutory scheme for the administration of the loan program, the trial court found that State prosecution was preempted and dismissed the charges.

The sole issue on appeal is whether prosecution under State law is preempted by the Federal statute. Preemption can either be express, or may be inferred where “the scheme of Federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” (Hillsborough County v. Automated Medical Laboratories, Inc. (1985), 471 U.S. 707, 713, 85 L. Ed. 2d 714, 721, 105 S. Ct. 2371, 2375.) State law may also be preempted where the subject of regulation is one in which “the [Fjederal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 91 L. Ed. 1447,1459, 67 S. Ct. 1146,1152.

In the present case, there is no Federal statutory provision expressly preempting State law, nor do we believe that the area in question is one of such overwhelming Federal dominance that enforcement of State law can be said to be precluded. We must examine the National Direct Student Loan Act to determine whether it is so comprehensive that we may reasonably infer that Congress intended to preclude State prosecution.

The statutes and regulations establishing the NDSL program provide a comprehensive scheme for implementation of the program. The statutes provide, inter alia, that any institution of higher education wishing to participate in the program must apply to the Secretary of Education and enter into an agreement which provides for establishment and maintenance of a loan fund and details the purposes for which the fund can be used. (20 U.S.C. §1087bb (1986).) The statutes also specify who is eligible for a loan, provide formulas for determining the amount of the loan, and specify the contents of the loan agreement. (20 U.S.C. §§1087dd, 1087kk through 1087qq (1986).) The statutes further provide a criminal penalty for fraudulently obtaining money from the loan program. 20 U.S.C. § 1097(a) (1986).

Participating institutions are required to contribute to the loan fund a sum equal to one-ninth of the Federal capital contribution. (20 U.S.C. §1087cc (1986).) The institution bears the initial responsibility for the collection of defaulted loans, and the institution may avail itself of State civil process to do so.

Upon reviewing the statutes we do not agree with the trial court’s conclusion that the criminal penalty provided in the statute indicates an intention by Congress to preempt State law.

The trial court in this case based its decision on People v. Chicago Magnet Wire Corp. (1987), 157 Ill. App. 3d 797, 510 N.E.2d 1173, rev’d (1989), 126 Ill. 2d 356, 534 N.E.2d 962. In Chicago Magnet Wire several company executives were charged with multiple counts of aggravated battery and reckless conduct in connection with harm sustained by some of its employees as a result of numerous violations of the Occupational Safety and Health Act (OSHA). The first district affirmed the trial court’s dismissal of the indictments, holding that State criminal prosecutions for conduct regulated by OSHA were preempted by Federal law. Subsequent to the trial court’s decision in the case at bar, our supreme court reversed the decision in Chicago Magnet Wire, holding that State criminal law is not preempted merely because it is applied to conduct which is subject to Federal regulation. The purpose and scope of interest of State criminal law is not the same as OSHA safety regulations.

The determinative factor in questions of preemption is the nature of the conduct the State is seeking to regulate. That conduct in this case is not the administration of a student loan program, but the act of theft by fraud of State funds. The power to prosecute criminal conduct has traditionally been regarded as within the scope of State superintendence and not to be superseded unless such was the clear and manifest purpose of Congress. The only provision in the statute addressing the conduct of fraud is section 1097(a), which provides for criminal penalties for anyone who wrongfully obtains student loan money. We do not believe this demonstrates a manifest intent on the part of Congress to preempt State laws despite the similarity of conduct in this instance. We note that institutions participating in the NDSL program must contribute capital to the program. In the case of State institutions, State money is contributed to the fund. The State has a concurrent interest in punishing those who obtain a loan by fraud. The object of the State benefits fraud statute is the protection of State money. To find that the criminal penalties provided in the Federal statute preempt State law in this case would commit the protection of this State’s legislative interest in protecting State funds solely to the Federal government. We do not believe such was the intent of Congress.

For the foregoing reasons, the judgment of the circuit court of Jackson County is reversed and remanded.

Reversed and remanded.

HARRISON and CHAPMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. VUNETICH, Defendant-Appellant.
    Fifth District
    No. 5-87-0423
    Opinion filed June 23, 1989.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Thomas A. Dossett, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Gary L. Vunetich, appeals from an order of the circuit court of St. Clair County which dismissed his post-conviction petition without an evidentiary hearing.

Defendant entered a plea of guilty to burglary in the circuit court of St. Clair County on January 17, 1977, and was sentenced to a three- to nine-year term of imprisonment. On January 8, 1987, defendant filed a pro se pleading alleging, inter alia, that he had been denied his right to counsel before and during his guilty plea. Thereafter, on January 26, 1987, the court appointed counsel to represent the defendant on his post-conviction petition. Defendant’s counsel filed an amended post-conviction petition wherein defendant made the following allegations: (1) that his trial counsel had failed to interview certain listed and identified alibi witnesses; (2) that his trial counsel failed to investigate his case; (3) that his trial counsel assured him that he would be sentenced to a 25-year term of imprisonment if he were sentenced after a trial; and (4) that he told his trial counsel to file a motion to withdraw his plea and, if necessary, take an appeal, and that his counsel failed to do so. The defendant’s mother subsequently filed an affidavit in conjunction with defendant’s amended post-conviction petition.

A hearing was held on the State’s motion to dismiss the post-conviction petition, and the court found that the transcript of the January 17, 1977, guilty plea did not support defendant’s post-conviction claims. The court thereafter entered an order which stated that “the transcript of defendant’s plea and sentence, is devoid of any evidence that would support defendant’s allegations *** [and] defendant has waived any right to an evidentiary hearing by failing to file his petition within the statutory time limit of 10 years from date of conviction.”

On appeal, defendant contends (1) that the trial court’s finding that his post-conviction petition was not filed within the 10-year limitation period was erroneous and (2) that his post-conviction petition raised genuine issues of fact, thereby precluding the trial court from dismissing the petition without an evidentiary hearing.

With respect to the defendant’s first contention, the State admits in its brief that defendant “is correct in believing that he filed his petition in a timely manner in regard to the ten-year statute of limitations.” The State, however, contends that the defendant lacks standing to file the petition.

The Post-Conviction Hearing Act states in pertinent part:

“Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1.)

The State contends that the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) only permits review of convictions to those who are imprisoned or still on parole for the offense which they seek to overturn. The State claims that the defendant is not in prison or on parole for the 1977 Illinois conviction and therefore cannot use the post-conviction remedy.

The defendant in this case filed neither a motion to withdraw his guilty plea, nor a direct appeal. At the time the defendant filed his post-conviction petition he had completed his prison sentence on the challenged conviction. However, this Illinois conviction was used to enhance a subsequent Kentucky sentence years later. The State argues that although the defendant filed his petition within 10 years of his Illinois conviction, he is too late because he is no longer in prison as the result of that challenged conviction.

Initially, “imprisoned in the penitentiary” was construed by the courts to necessitate the actual incarceration of the petitioner at the time of bringing the petition. (People v. Dale (1950), 406 Ill. 238, 246-47, 92 N.E.2d 761, 766.) Over time, the courts have expanded the meaning of the phrase to include all persons under a felony sentence at the time the petition was filed. “Imprisoned in the penitentiary” has been held to include those who have been released from incarceration after filing their petition (People v. Davis (1968), 39 Ill. 2d 325, 328-29, 235 N.E.2d 634, 636) and those who are on mandatory supervised release (People v. Correa (1985), 108 Ill. 2d 541, 546, 485 N.E.2d 307, 309). The courts have further extended the Post-Conviction Hearing Act to include persons who have been sentenced to probation, rather than incarceration (People v. Montes (1980), 90 Ill. App. 3d 355, 357, 412 N.E.2d 1363, 1364), or are released on appeal bond after conviction (People v. Martin-Trigona (1984), 129 Ill. App. 3d 212, 215, 472 N.E.2d 508, 511).

The State contends that no Illinois court has extended post-conviction relief to include persons, like the defendant, who have fulfilled their sentence and then been incarcerated in another State for totally unrelated acts as a result of unrelated proceedings. The State submits that, accordingly, the defendant in the instant case lacks standing to file his petition. We disagree. We find that defendant does have standing under the Post-Conviction Hearing Act because his parole term for his 1977 conviction was not completed until January of 1988. See Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 527 N.E.2d 307.

In Faheem-El, the defendant was sentenced to an indeterminate term of 30 to 90 years’ imprisonment in 1973, and was released from the Department of Corrections (DOC) on parole in 1983. A mandatory parole term of three years applied to his sentence. (Faheem-El, 123 Ill. 2d at 296, 527 N.E.2d at 309.) In 1987, some 3^2 years after he was first paroled, the defendant was arrested as a parole violator and later reincarcerated. The defendant argued that he served three years on parole; therefore, he had served his maximum parole time and could not be incarcerated as a parole violator. The supreme court disagreed and held that defendant was on “discretionary parole” from 1983 until his maximum term of imprisonment had passed (in the year 2063), whereupon the “mandatory parole term” of three years would begin. That is, defendant’s term of imprisonment was the amount of time he was subject to serve, not the amount of time he actually spent imprisoned before parole. Accordingly, the mandatory parole term did not begin to run until after the maximum term of imprisonment was satisfied, either by actual incarceration or by “discretionary parole.” 123 Ill. 2d at 298-300, 527 N.E.2d at 310-12.

Pursuant to the principle set forth by the supreme court in Faheem-El, the defendant in the instant case was still subject to being held as a parole violator for his 1977 conviction. At the time of his conviction in 1977, burglary was a Class 2 felony. (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(b).) A Class 2 felony has a two-year parole term. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(d)(2).) Defendant received a three- to nine-year term of imprisonment on January 17, 1977, and therefore was subject to serve a term of imprisonment until January 16, 1986, at which time he was subject to parole for two more years. Thus, defendant remained “on parole” and therefore under sentence until January 17, 1988. Despite any attempted release by the DOC, defendant was still subject to potential parole revocation under Fa heem-El, and must be considered subject to being reconfined when he filed his post-conviction petition. We accordingly find that defendant has standing to file his petition and that the trial court’s finding that defendant’s petition was not filed within the 10-year limitation was manifestly erroneous.

Defendant’s second contention on appeal is that the circuit court erred in dismissing his amended post-conviction petition without an evidentiary hearing. The trial court concluded that the allegations raised by the defendant were insufficient and dismissed the defendant’s petition without a hearing. In his amended post-conviction petition, defendant alleged: (1) that his trial counsel had failed to interview certain listed and identified alibi witnesses; (2) that his trial counsel failed to investigate his case; (3) that his trial counsel assured him that he would be sentenced to a 25-year term of imprisonment if he were sentenced after a trial; and (4) that he told his trial counsel to file a motion to withdraw his plea, and, if necessary, take an appeal, and that his counsel failed to do so.

In order to obtain a hearing under the Post-Conviction Hearing Act, a petitioner must make a substantial showing that his constitutional rights have been violated. The burden is on the petitioner to clearly set forth the violations and support the allegations by affidavits, records, or other evidence containing specific facts. (People v. Graham (1977), 48 Ill. App. 3d 689, 692, 363 N.E.2d 124, 127.) The post-conviction petition must be based on clear factual allegations. Mere conclusory allegations that constitutional rights have been violated are insufficient to entitle a petitioner to an evidentiary hearing. (People v. Hysell (1971), 48 Ill. 2d 522, 527, 272 N.E.2d 38, 40-41.) In assessing the sufficiency of the allegations, the trial court is to consider the petition in light of the entire record. Further, the provisions of the Post-Conviction Hearing Act are to be liberally construed and all well-pleaded facts in the petition and in any accompanying affidavits are to be treated as admitted. (People v. Cihlar (1984), 125 Ill. App. 3d 204, 208, 465 N.E.2d 625, 628, aff'd (1986), 111 Ill. 2d 212, 489 N.E.2d 859.) A motion to dismiss a post-conviction petition admits the truth of the allegations and only attacks the legal sufficiency of those allegations. People v. Wilson (1968), 39 Ill. 2d 275, 277, 285 N.E.2d 561, 562.

In the instant case, defendant swore that he told his trial counsel to file a motion to withdraw his guilty plea, and, if necessary, to take an appeal, and that his trial counsel failed to do so. To be entitled to a hearing on his post-conviction petition, the defendant need allege only that his counsel failed to preserve his appeal rights — thus violating his sixth amendment right to effective assistance of counsel — and allege the grounds upon which his withdrawal of his guilty plea would have rested had his counsel properly filed a motion to withdraw the plea. (See People v. Wilk (1988), 124 Ill. 2d 93, 107-08, 529 N.E.2d 218, 223.) Here, the defendant alleged in his post-conviction petition that his counsel failed to preserve his appeal rights. He also alleged several grounds upon which counsel could have moved to withdraw the guilty plea. The defendant is thus entitled to a hearing on his post-conviction petition.

In light of defendant’s allegations regarding his trial counsel’s failure to file a motion to withdraw his guilty plea, we find that the trial judge erred in dismissing the defendant’s amended post-conviction petition without a hearing. We accordingly reverse the trial court and remand this case for an evidentiary hearing.

Reversed and remanded.

WELCH, P.J., and CHAPMAN, J., concur.