text:
    MELVIN SCHULTZ, Plaintiff-Appellant, v. HENNESSY INDUSTRIES, INC., et al., Defendants-Appellees (Mueller Electric Company of Cleveland et al., Defendants).
    First District (6th Division)
    No. 1—90—3127
    Opinion filed November 22,1991.

      Donald A. Kurasch, Ltd., of Chicago (Donald A. Kurasch and Jessica B. Tucker, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Eric Samore and Ellen Martin, of counsel), for appellee Vulcan Tools Company.
    Jobin & Flynn, of Chicago (Mark Quinniff, of counsel), for appellee Hennessy Industries, Inc.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Melvin Schultz, brought an action against several defendants, seeking recovery for personal injuries sustained while he attempted to use a remote starter switch to start an automobile which had been brought in for repairs to the automotive shop at which plaintiff was employed. Counts III and IV of plaintiff’s 10-count complaint, as finally amended, included allegations of negligence and strict liability in tort against Vulcan Tools Company (Vulcan), the distributor of the remote starter switch. In counts VI and VII plaintiff asserted negligence and strict liability in tort against Hennessy Industries, Inc. (Hennessy), the manufacturer of the remote starter switch. Count X alleged negligence by both Vulcan and Hennessy based upon the theory of res ipsa loquitur.

Upon motions filed by Vulcan and Hennessy, the trial court granted summary judgment in favor of the defendants on the negligence and strict liability claims. The court also dismissed with prejudice the count premised upon res ipsa loquitur. The court’s order disposing of these claims included a statement that there was no just reason to delay enforcement or appeal of this ruling pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff has appealed the ruling of the trial court. The other named defendants are not parties to this appeal.

The issues before this court are (1) whether the trial court erred in granting summary judgment in favor of defendants on the negligence and strict products liability claims, and (2) whether the trial court erred in dismissing with prejudice the count premised upon res ipsa loquitur.

The record indicates that on September 26, 1984, plaintiff was employed by Cottman Transmissions and was injured while using a remote starter switch to start an automobile which had been parked on the street adjacent to the automotive shop. Plaintiff was standing in front of the car upon which he was working when it started and began to move forward. The car caught plaintiff in his mid-section and propelled him into 47th Street, where he was struck by a passing vehicle, resulting in the severance of his left leg.

Count III of plaintiff’s complaint was directed against Vulcan, the distributor of the remote starter switch, and asserted that Vulcan was negligent because (a) it sold and distributed the remote starter switch when it knew or should have known that the switch was defective and could cause injury; (b) failed to inspect the switch to ascertain its condition before selling it to the plaintiff; (c) failed to test the switch to ascertain its condition before selling to its customers, including the plaintiff; and (d) failed to warn its customers and plaintiff of the dangerous condition of the switch.

Count IV was also directed against Vulcan and sought recovery under strict liability, asserting that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) at the time the switch was sold by Vulcan to plaintiff, it was unreasonably dangerous for its intended use in that it was not designed in a manner that would prevent the switch from causing automobiles on which it was used to suddenly move forward; and (c) the defects and unreasonably dangerous condition were present at the time the switch left the control of Vulcan and said defects in design and unreasonably dangerous condition continued up to and including the time of the accident complained of.

Count VI was directed against Hennessy, the manufacturer of the remote starter switch, and alleged negligence in that Hennessy (a) manufactured, designed, fabricated, and sold the switch in a defective manner inadequate to prevent the switch from causing an automobile to move forward suddenly and without warning; (b) failed to inspect the switch for defects before distribution; (c) manufactured, designed, and fabricated the switch in a defective condition when it knew or should have known that the switch would be unsafe and unfit for its intended use; (d) failed to warn the plaintiff of the danger incident to the foreseeable use of the switch; and (e) failed to furnish adequate safety devices to insure that the switch would not cause automobiles on which it was being used to suddenly move forward.

Count VII was also directed against Hennessy and sought recovery under strict liability, asserting that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) at the time the switch was manufactured and sold by Hennessy, it was defective in design and was unreasonably dangerous for its intended use in that it was not designed in a manner that would prevent the switch from causing automobiles on which it was used to suddenly move forward; and (c) the defects and unreasonably dangerous condition were present at the time the switch left the control of Hennessy and said defects in design and unreasonably dangerous condition continued up to and including the time of the accident complained of.

Count X was directed against both Vulcan and Hennessy and asserted that these two defendants were guilty of negligence based upon the theory of res ipsa loquitur. Count X alleged that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) the switch suddenly and without plaintiff’s knowledge or any voluntary act on his part started the automobile’s engine, causing the automobile to suddenly move forward; and (c) the accident was the type which would not have occurred in the ordinary course of events and in the absence of negligence.

Plaintiff testified at his discovery deposition that at the time of the accident, he was 26 years old, was employed by Cottman Transmissions, and had completed schooling through grade 10, but had no formal training in automobile mechanics. He had worked for various transmission shops where he used remote starter switches in removing and replacing transmissions, but he did not recall whether he had used remote starter switches to start vehicles. Although it was a rare occurrence for plaintiff to work on a transmission which had been stuck in the “drive” position, he had done so more than once.

Plaintiff testified further that less than 12 months before the accident, he purchased the subject remote starter switch from a Vulcan dealer who came to his place of employment. When the Vulcan dealer delivered the switch to him, it was “wrapped up like in a ball” and was not accompanied by any instructions, warnings, or packaging.

Prior to the occurrence, plaintiff had been cleaning his tools, but he had not cleaned the starter switch. Plaintiff was told by Kathleen Bartunik, the manager trainee at Cottman Transmissions, to bring into the shop a Ford Torino which had been parked on the street in front of the shop, but Bartunik did not give plaintiff any information as to the nature of the problem with the automobile.

When he went out to move the car, plaintiff noticed that the indicator on the column shift of the car was pointed to the “drive” position and that the keys were in the ignition. Plaintiff then asked Bartunik for assistance, and she got into the driver’s seat of the car. After she was behind the wheel, plaintiff connected the remote starter switch by attaching both leads to the solenoid. He then told Bartunik to turn the ignition, and he depressed the starter switch button, causing the engine to start. Thereafter, plaintiff disconnected the starter switch by removing the alligator clips from the solenoid. He then closed the hood and told Bartunik to drive the car around the block and into the shop, but Bartunik refused. She then directed plaintiff to pull the car around to the shop.

Plaintiff stated that he had depressed the emergency brake pedal before Bartunik got into the driver’s seat. He also indicated that he did not consult any books, brochures, or owner’s manual prior to connecting the remote starter switch to the car’s engine.

Plaintiff testified further that when Bartunik told him to drive the car into the shop, he reached into the car through the driver’s window and turned the ignition off, which caused the engine to stop running. After Bartunik went back into the office, plaintiff attempted to restart the vehicle alone because he could not get anyone to help him. Plaintiff opened the front window on the passenger side and made sure that the emergency brake pedal was depressed and pulled the key partially out of the ignition. Plaintiff then placed the remote starter switch inside the car between the dashboard and the windshield, and he fed the leads through the front passenger window to the engine. He opened up the hood of the car and connected the leads to the solenoid in the engine. Plaintiff indicated that the button on the remote starter switch was facing the seat and the rear of the vehicle when he placed it on the dashboard.

Plaintiff stated that he then walked around to the front of the car and began to close the hood when he heard the engine start. Plaintiff testified that he never closed the hood, and it never came into contact with the switch cable. Plaintiff then let go of the hood and leaned over to try to disconnect the leads from the solenoid when the vehicle began to move forward, catching him in his mid-section. Plaintiff hoisted himself up over the engine so that his feet were off the ground. As the car moved forward, plaintiff removed the air cleaner and put his hands over the carburetor, causing the engine to stall and the car to stop. After he lowered himself to the ground in front of the car, he was struck by a passing vehicle which severed his left leg.

Plaintiff testified that he had used the subject remote starter switch at least a couple of times before the date of the accident and that he had owned other remote starter switches before he purchased the subject switch.

Plaintiff retained Gordon Cnare as an expert witness in this litigation. At his discovery deposition, Cnare testified that he purchased four different starter switches to compare them to the switch that was in use when the accident occurred. All four of the competing switches came with warnings and operating instructions. Cnare did not examine or test another switch manufactured by Hennessy because Vulcan did not have any switches in stock at the time of Cnare’s inquiries and because he learned in June 1987 that Hennessy no longer manufactured remote starter switches. Of the five switches examined by Cnare, the four he purchased plus the one involved in the accident, the one used by plaintiff had the longest leads, allowing the user to place it on a dashboard.

In examining the subject switch, Cnare disassembled it to look at its components. He was of the opinion that the switch was manufactured from components which were not originally intended to be used in a remote starter switch. Cnare requested from Hennessy engineering drawings for this switch, but was told that such drawings did not exist. Hennessy subsequently provided Cnare with assembly drawings for the subject switch. Upon examination of the switch and the assembly drawings, Cnare concluded that the switch was made up of numerous component parts and that many of these components could easily be purchased in a store. Cnare indicated that the design and manufacture of the subject switch raised the possibility that a foreign object or substance, such as moist dirt, dampness, or a nail, could enter the switch and short out the circuit.

Cnare testified, however, that his examination of the switch revealed no physical evidence to suggest that the circuit had been shorted out at the time of the accident. He stated that when he disassembled the switch he did not observe any foreign object or any moisture in the switch. Cnare stated further that there were no visible markings or residue indicating that some foreign object or substance, such as water, dirt, or a nail, had previously been inside the switch. Cnare could not testify that the circuit had been shorted out and stated that such an opinion would be based upon speculation.

Cnare also testified that given the number of component parts in the switch and the fact that one of the components had metal tabs which were bent over, this might indicate that the parts could loosen and that the tolerances could change. Yet, Cnare was unable to determine if any parts had loosened without engineering drawings reflecting the tightness requirements. Cnare stated, however, that there was no evidence that loose parts caused the subject car to start. Cnare stated that there was no indication that the alligator clips attached to the solenoid had crossed to cause a short circuit.

Cnare was unable to give an opinion as to whether inadequate warnings or instructions were a proximate cause of the plaintiff’s accident, but stated that other instructions or warnings might have possibly prevented the accident.

Cnare could find no indication that the subject remote starter switch malfunctioned in any way. He stated that it is not possible to start a car with a remote starter switch if the ignition is in the “off” position and that the car would not start even if a foreign object shorted out the circuit in the switch. Cnare testified that he had no opinion as to why the car started under the circumstances described by the plaintiff.

On March 22, 1990, plaintiff sent Vulcan and Hennessy notices of deposition for the “person with the most knowledge of the occurrence.” Plaintiff also sent Rule 201(k) letters demanding responses to his outstanding discovery requests. Vulcan’s attorney responded to these requests by informing the plaintiff that the ownership of the corporation had been sold or transferred at least three times since June 1984 and that the corporation had filed for bankruptcy protection under chapter 11 in 1987. Vulcan’s counsel indicated that they had been unable to locate a representative capable of providing the necessary responses and a verification thereof.

On June 1, 1990, Vulcan filed a motion for summary judgment, asserting that the plaintiff’s claims were premised upon guesswork and speculation and that they had no duty to warn the plaintiff because he was injured in a “freak” accident which was not foreseeable. On June 6, 1990, Hennessy joined in and adopted the motion for summary judgment filed by Vulcan.

Vulcan’s motion for summary judgment was set for hearing on June 22, 1990. On June 18, 1990, plaintiff filed motions to compel and for sanctions due to the defendants’ failure to comply with written and oral discovery requests. On June 19, 1990, plaintiff filed a motion to strike the defendants’ motions for summary judgment. On June 19, 1990, plaintiff also filed a response in opposition to defendants’ motions for summary judgment. Plaintiff’s response was accompanied by an affidavit under Supreme Court Rule 191(b) (134 Ill. 2d R. 191(b)) executed by plaintiff’s attorney which averred that defendants had failed to comply with outstanding discovery requests and that plaintiff believed “that much of the relevant information concerning the manufacture and distribution of the remote starter switch [was] known only to persons either currently or previously employed with the defendants.” This affidavit did not set forth the nature of the information sought or what it would show.

On June 22, 1990, the trial court denied plaintiff’s motion to strike, his motion for sanctions, and his request for further discovery under Supreme Court Rule 191(b). The transcript of this hearing is not, however, included in the record on appeal. On that date, Vulcan and Hennessy served plaintiff with their responses to the outstanding written discovery previously requested by plaintiff.

On July 6, 1990, plaintiff filed a second amended complaint which was identical to the first amended complaint, except that it added count X, premised upon res ipsa loquitur. In July 1990 both Vulcan and Hennessy brought motions to dismiss count X the second amended complaint, asserting that (a) there were no facts showing that the accident would not ordinarily have occurred in the absence of negligence by the defendants and (b) there were no allegations that the remote starter switch was in the exclusive control of either defendant.

On July 18, 1990, plaintiff filed an additional response in opposition to the motions for summary judgment, asserting that questions of fact existed as to whether (a) the subject switch was unreasonably dangerous in its design; (b) defendants’ failure to warn made the switch unreasonably dangerous; and (c) the accident in which he was injured was foreseeable to defendants.

Plaintiff’s response to the motions for summary judgment included the affidavit of Lee Rose, a licensed professional mechanical engineer, who averred that the car may have started as a result of “the possibility that the two electrical clips connected to the remote starter switch may have touched one another during the closing of the hood by [the plaintiff].” This affidavit did not, however, specify the evidentiary facts upon which he relied in drawing his conclusions. In addition, this affidavit contradicted the plaintiff’s deposition testimony that he never closed the hood after connecting the remote starter switch.

On September 20, 1990, the trial court granted summary judgment in favor of defendants as to counts III, IV, VI, and VII. The court also dismissed with prejudice count X. Plaintiff has appealed these rulings.

We initially consider whether the trial court erred in granting summary judgment in favor of defendants on the negligence and strict products liability claims.

In order to prevail on a claim of common law negligence, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207.) The concept of proximate cause is the same in both cases of negligence and strict liability in tort, and liability cannot be predicated upon speculation, surmise, or conjecture as to the cause of the injuries. (Lindenmier, 156 Ill. App. 3d at 85, 508 N.E.2d at 1207.) Proximate cause can only be established when there is a reasonable certainty that the defendant’s acts caused the injury. Lindenmier, 156 Ill. App. 3d at 85, 508 N.E.2d at 1207.

To recover in strict liability in tort, a plaintiff must prove that his injuries resulted from an unreasonably dangerous or defective condition of the product and that the condition existed at the time the product left the manufacturer’s control. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 31, 402 N.E.2d 194, 196; West v. Deere & Co. (1990), 201 Ill. App. 3d 891, 897, 559 N.E.2d 511, 515.) The fact that an injury has occurred, in and of itself, is insufficient to show the existence of a product defect. (West, 201 Ill. App. 3d at 897, 559 N.E.2d at 515.) The plaintiff must prove that his injuries derived from a distinct defect in the product which subjected those exposed to the product to an unreasonable risk of harm. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372; West, 201 Ill. App. 3d at 897, 559 N.E.2d at 515-16.) Thus, the plaintiff must establish that the injury proximately resulted from the defective condition of the product. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.

A failure to warn of a product’s dangerous propensities can make a product unreasonably dangerous and may serve as the basis for holding a manufacturer or seller strictly liable in tort. (Woodill, 79 Ill. 2d at 29, 402 N.E.2d at 196; Mason v. Caterpillar Tractor Co. (1985), 139 Ill. App. 3d 511, 518, 487 N.E.2d 1043, 1048.) A duty to warn is imposed only where the injury suffered by the plaintiff was foreseeable by the defendant. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471; Mason, 139 Ill. App. 3d at 518, 487 N.E.2d at 1048.) Foreseeability is established by a determination of what it is “objectively reasonable” to expect, not merely what might conceivably occur. (Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471.) Thus, an injury is foreseeable if it is “objectively reasonable” to expect the user of the product to be injured in the manner in which the plaintiff was injured. Mason, 139 Ill. App. 3d at 518, 487 N.E.2d at 1048.

A plaintiff predicating a products liability action upon a failure to warn must plead and prove that the manufacturer or seller of the product knew or should have known of the danger that caused his injury. (Woodill, 79 Ill. 2d at 37, 402 N.E.2d at 199; Kempes v. Dunlop Tire & Rubber Corp. (1989), 192 Ill. App. 3d 209, 218, 548 N.E.2d 644, 649.) The determination of whether a duty to warn exists is a question of law and not of fact. Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471; Mason, 139 Ill. App. 3d at 518, 487 N.E.2d at 1048.

In the case at bar, plaintiff presented no evidence to establish that the defendants acted negligently in the design, manufacture, or distribution of the remote starter switch or that a defective condition made the switch unreasonably dangerous and proximately caused his injuries. Moreover, plaintiff did not present any evidence which established that the injuries sustained by him were foreseeable by the defendants. In addition, plaintiff failed to present any evidence that the defendants knew or should have known that the remote starter switch could cause a car to start suddenly and unexpectedly even though the switch button had not been depressed and the ignition of the vehicle was in the “off” position but failed to warn of that danger.

Plaintiff’s expert witness, Gordon Cnare, testified that he believed the design and manufacture of the subject switch raised the possibility that a foreign object or substance could enter the switch and short out the circuit. Yet, Cnare stated that his examination of the switch revealed no physical evidence to suggest that the circuit had been shorted out at the time of the accident, and he did not observe any foreign object or moisture in the switch, or any visible markings or residue indicating that some foreign object or substance had previously been inside the switch. Cnare could not testify that the circuit had been shorted out and stated that such an opinion would be based upon speculation.

In addition, Cnare testified that there was no evidence that any of the component parts of the switch had become loose or that loose parts caused the subject car to start. Cnare also stated that there was no indication that the alligator clips attached to the solenoid had crossed to cause a short circuit.

Cnare was unable to give an opinion as to whether inadequate warnings or instructions were a proximate cause of the plaintiff’s accident. Although he stated that other instructions or warnings might have possibly prevented the accident, Cnare acknowledged that this conclusion was based upon speculation.

Cnare could find no indication that the subject remote starter switch malfunctioned in any way and stated further that it is impossible to start a car with a remote starter switch if the ignition is in the “off” position and that the car would not start even if a foreign object shorted out the circuit in the switch. Cnare testified that he had no opinion as to why the car started under the circumstances described by the plaintiff.

The affidavit of Lee Rose averred that the car may have started as a result of “the possibility that the two electrical clips connected to the remote starter switch may have touched one another during the closing of the hood by [the plaintiff].” This affidavit contradicted the plaintiff’s deposition testimony that he never closed the hood after connecting the remote starter switch. In addition, Rose’s affidavit did not specify the evidentiary facts upon which he relied in drawing his conclusions.

Affidavits in support of or in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim is based; and shall not consist of conclusions but of facts admissible in evidence. (134 Ill. 2d R. 191.) Because Rose’s affidavit contradicted plaintiff’s deposition testimony that he never closed the hood after connecting the remote starter switch, it was based upon speculation. In addition the affidavit did not specify the evidentiary facts upon which Rose relied in drawing his conclusions. Consequently, it was insufficient to defeat the defendants’ motion for summary judgment.

It is evident that all of the expert testimony presented by plaintiff as to the cause of the accident and the dangerous condition of the remote starter switch was based purely on speculation and conjecture. Expert testimony based on speculation, guess, or conjecture is insufficient to avoid summary judgment. Mason, 139 Ill. App. 3d at 518, 487 N.E.2d at 1048.

We find that there is nothing in the record from which it can be inferred that any of the alleged breaches of duty by defendants in manufacturing or distributing the remote starter switch proximately caused the plaintiff’s injuries. The mere possibility that the design of the switch might have permitted a short circuit by a foreign object or substance or that a warning might have prevented the injury to the plaintiff is insufficient to establish a causal relationship between defendants’ alleged negligence and plaintiff’s injuries. See Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 620, 510 N.E.2d 1176,1179.

A motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402.) Considering the entire record in a light most favorable to the plaintiff, we hold that the plaintiff failed to establish a prima facie case on his claims for negligence and strict liability. Consequently, the trial court properly granted summary judgment in favor of the defendants on plaintiff’s claims under negligence and strict liability.

In opposing the defendants’ motions for summary judgment, plaintiff requested additional discovery under Supreme Court Rule 191(b) (134 Ill. 2d R. 191(b)). Yet, the affidavit filed in support of this request did not comply with the requirements of that rule. The affidavit did not set forth what plaintiff’s attorney believed the prospective witnesses would testify to if sworn or his reasons for this belief. Rather, the affidavit merely stated that plaintiff believed that much of the relevant information concerning the manufacture and distribution of the remote starter switch was known only to persons either currently or previously employed with the defendants. Plaintiff’s counsel did not include in his affidavit the nature of the “relevant information” or how it related to the instant litigation. Consequently, the trial court properly denied plaintiff’s request for further discovery under Supreme Court Rule 191(b).

We next address plaintiff’s claim that the trial court erred in dismissing with prejudice the count premised upon res ipsa loquitur.

The doctrine of res ipsa loquitur permits a trier of fact to infer negligence based upon circumstantial evidence when the direct evidence concerning the cause of the injury is primarily within the knowledge and control of the defendants. (Bernardi v. Chicago Steel Container Corp. (1989), 187 Ill. App. 3d 1010, 1021, 543 N.E.2d 1004, 1012; Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 862, 403 N.E.2d 470, 474.) When the doctrine is invoked, the plaintiff bears the burden of proving (1) that the occurrence is one that ordinarily does not occur in the absence of negligence, and (2) that the defendant had exclusive control over the instrumentality that caused the injury. Dyback v. Weber (1986), 114 Ill. 2d 232, 242, 500 N.E.2d 8, 12.

When these elements are shown, the occurrence itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. (Dyback, 114 Ill. 2d at 242, 500 N.E.2d at 12; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449, 207 N.E.2d 305, 307.) Although the plaintiff need not conclusively prove these elements in order to invoke the doctrine, he must present evidence reasonably showing the existence of elements which allow the inference that the occurrence is one that ordinarily does not occur without negligence. (Dyback, 114 Ill. 2d at 242, 500 N.E.2d at 12; Bernardi, 187 Ill. App. 3d at 1022, 543 N.E.2d at 1012.) Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law which must be decided by the trial court. Imig v. Beck (1986), 115 Ill. 2d 18, 27, 503 N.E.2d 324, 329.

The evidence before the trial court in the case at bar established that the plaintiff had owned the remote starter switch for a period of several months and had used it on more than one occasion prior to the date of the accident. Thus, the plaintiff, and not the defendants, had exclusive control over the switch at the time of the accident. Because plaintiff has not established that defendants exercised exclusive control over the instrumentality that may have caused his injuries, the doctrine of res ipsa loquitur is not applicable in the instant case. Rinck, 82 Ill. App. 3d at 862, 403 N.E.2d at 474.

Moreover, the doctrine is inapplicable where, as here, the facts as alleged do not necessarily imply negligence on the part of the defendants. (Rinck, 82 Ill. App. 3d at 862, 403 N.E.2d at 474.) Where there are several possible causes for the accident, apart from any negligence by defendants, the doctrine of res ipsa loquitur cannot be invoked to impose liability upon the defendants. Rinck, 82 Ill. App. 3d at 862, 403 N.E.2d at 474.

Plaintiff has argued that the doctrine of res ipsa loquitur should apply in the instant case despite the fact that plaintiff exercised exclusive control over the remote starter switch at the time of the accident. Plaintiff correctly asserts that the fact that the defendants did not have control of the instrumentality which caused plaintiff’s injuries is not sufficient to defeat a recovery under the doctrine of res ipsa loquitur as long as the intervening possession is not of such a nature as to destroy the inference of negligence. Wuench v. Ford Motor Co. (1982), 104 Ill. App. 3d 317, 319, 432 N.E.2d 969, 970; Kruger v. Newkirk (1976), 40 Ill. App. 3d 581, 585, 352 N.E.2d 436, 439-40.

We note, however, that the evidence established that the plaintiff had owned the remote starter switch for a period of several months and had used it on more than one occasion prior to the date of the accident. It is certainly possible that while plaintiff owned and used the switch, it was used or damaged in some manner which could have contributed to its alleged failure to function properly. Because the intervening possession of the remote starter switch by the plaintiff presents plausible explanations for the accident other than the negligence of the defendants, we hold that the inference of negligence through res ipsa loquitur is inappropriate here. See Wuench, 104 Ill. App. 3d at 319-20, 432 N.E.2d at 971; Nunez v. Horwitz (1990), 205 Ill. App. 3d 976, 982, 563 N.E.2d 946, 950.

In determining the legal sufficiency of a complaint on a motion to dismiss, the court must accept as true all well-pleaded facts and then determine whether the allegations of the complaint, when interpreted in a light most favorable to plaintiff, are sufficient to state a cause of action against the defendants. (Rinck, 82 Ill. App. 3d at 863, 403 N.E.2d at 474.) A cause of action is properly dismissed on the pleadings where it clearly appears that no set of facts can be proved which will entitle the plaintiff to relief. (Rinck, 82 Ill. App. 3d at 863, 403 N.E.2d at 474.) Considering the allegations in count X of the second amended complaint in the light most favorable to the plaintiff, it appears that plaintiff has failed to adequately state a cause of action for negligence based upon the doctrine of res ipsa loquitur. Consequently, the trial court acted properly in dismissing count X with prejudice.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE R. VILLEGAS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1964
    Opinion filed November 25,1991.

      Jerome Rotenberg, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Gael O’Brien, Special Assistant State’s Attorney, and Renee Goldfarb and Andy LeFevour, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Jose Villegas was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) and received concurrent terms of 50 and 30 years, respectively. Defendant alleges the following reversible errors on appeal: (1) the court improperly excluded numerous hearsay statements of defendant’s brother, Gonzolo Villegas, which profess that he, not defendant, murdered the victim; (2) the court erred when it allowed the State to introduce the prior inconsistent statement of defendant’s wife, Carmen Villegas; (3) defendant was denied a fair trial when the State confronted defendant with a prejudicial, prior inconsistent statement and then failed to prove it up in rebuttal; (4) the court erred in refusing to instruct the jury on second-degree murder based on sudden and intense passion; and (5) defendant’s conviction and sentence for armed violence should be vacated where they are based on the same physical act as defendant's murder conviction.

On January 1, 1988, Jacob Bulthius received multiple stab wounds which caused his death. Defendant was charged with his murder and tried before a jury; the record reflects the following evidence.

Timothy Anderson testified that on January 1, 1988, at approximately 8:30 to 9:30 p.m., he and his friend David Jambrosek went to John and Mary’s Tap located in Cicero, Illinois. They were later joined by their friends David Wisnieski and John Beja.

Anderson testified that he played and lost a couple games of pool with two of the Villegas brothers. An argument ensued after Anderson refused to play for money. Defendant then challenged Anderson to a fight, and the two went outside and wrestled alone for 15 to 20 minutes. Anderson testified that defendant was wearing a white sweater with a red “V” in the center.

While defendant and Anderson wrestled, a car containing Jacob Bulthius, his brother Michael and their father, William, pulled up and parked. As the three Bulthius men walked toward the fight, defendant and Anderson stopped fighting. Anderson entered the bar again and soon learned that another fight had begun in the parking lot. Anderson later looked out the bar’s window and saw two of the Bulthius men lying on the ground. Anderson saw defendant get into the Bulthiuses’ car and drive it away. Anderson stated that defendant, at this time, had what looked like a bloody knife in his hand.

On cross-examination, Anderson admitted that he initially identified Pedro Villegas as the person with whom he was fighting. Two hours later, after being allowed to think about the identification, Anderson selected defendant. Officer DeFalco would later testify that it was Francisco Villegas, not Pedro, that Anderson initially identified. DeFalco also stated that Anderson never told him that he (Anderson) saw defendant with bloody hands and that Anderson told him that defendant never drove away in the Bulthiuses’ car.

Michael Bulthius testified that he, his brother and father were driving by the bar when they saw Anderson and defendant fighting. They yelled at them to stop fighting, exited their car and walked towards them. A group of “Mexicans” were standing at the entrance door and asked if they were the police. They responded no and began walking back to the car. As they were walking, they were attacked from behind. Efren Villegas, defendant’s brother, struck Michael Bulthius with a pool cue as Michael was being held by two of the Mexicans. Efren tried to stab Michael with the now broken pool cue, but Michael broke free and ran away. Michael was chased by two Mexicans down an alley and got away. When he returned, his brother Jacob was dead and his father was bleeding from his stomach. The police had arrived and were all over the scene. William Bulthius later died of stab wounds. Michael testified that defendant was wearing a white sweater with a red collar or something red underneath.

John Beja testified that Anderson was fighting with the guy wearing a white V-neck sweater which had red on it. After Anderson came back in the tavern, the six Villegas brothers went outside. One of the brothers came back in the bar and said, “Give me my jacket, I have a gun, I’ll shoot them all.”

Dave Wisnieski testified that Efren Villegas stabbed William Bulthius three times in the belly. However, at the lineup, Wisnieski identified defendant as the one who stabbed William Bulthius.

Dave Jambrosek testified that defendant and Anderson went outside to fight. Defendant was wearing a white V-neck sweater with a red shirt underneath. After Anderson returned to the bar, he saw defendant arguing with the three Bulthius men. The other Villegases went outside and three of them had pool sticks. Jambrosek saw defendant stab Jacob Bulthius.

Shortly after the Cicero police arrived, a witness informed them that the group of Mexicans fled down the street into a house. The officers proceeded to the house and spoke with a female on the first floor. The officers then went to the attic apartment and knocked on the door. The officers discovered blood on the stair railing and saw movement inside the apartment. The officers kicked the door down and found five male Hispanics hiding in the apartment. Defendant was found hiding without a shirt under a bedroom mattress and placed under arrest.

The parties stipulated that the blood on defendant’s pants and stair railing could have come from Jacob Bulthius, Efren Villegas or defendant but not from William Bulthius.

The following witnesses testified for the defense. Carmen Ville-gas, defendant’s wife, testified that during the early morning hours of January 2, 1988, Gonzolo Villegas came to the apartment, went into the kitchen and left a few minutes later. When he returned, he had a knife in his hand with blood on it.

Francisco Villegas testified that he saw one of the Bulthiuses hitting the defendant in an effort to help Anderson. Michael Bulthius said, “Stop the fight. We are police.” When Francisco went outside, Michael showed him a police star and told him he was a policeman. Michael then hit Francisco in the face, causing him to bleed. Francisco saw Gonzolo Villegas stab William and Jacob Bulthius.

Jose Villegas (not the defendant) testified that one of the Bulthius men grabbed defendant and also hit Francisco in the face. The older Bulthius man called him a “wetback” and hit him. He defended himself and saw Gonzolo fighting with the younger Bulthius man. He saw something in Gonzolo’s hand which could have been a knife; he also saw blood.

Pedro Villegas testified that he saw Michael Bulthius hit Francisco. He saw Gonzolo stab William Bulthius while he (Pedro) was fighting with him.

Defendant testified that he did not have a knife and did not stab Jacob Bulthius. He also stated that he was wearing a white sweater with a blue jacket and was not wearing anything red.

In rebuttal, the State called Carmen Villegas. She testified that she did not remember telling Detective Wolff that her husband was wearing a white sweater with some type of red shirt underneath it on the night of the murder. The State did not ask her directly what her husband was wearing the night of the murder.

Detective Wolff of the Cicero police testified that on January 2, 1988, at 4:45 a.m., Carmen Villegas told him that her husband was wearing a white sweater with a red shirt underneath the sweater.

Defendant first contends that the court erred when it granted the State’s motion in limine to preclude any defense witness from repeating the extrajudicial statements of Gonzolo Villegas that he, not defendant, stabbed Jacob Bulthius. Defendant’s offer of proof on this matter showed that: (1) shortly after the incident and while in the Cicero police lock-up, Gonzolo told Efren and Jose Villegas that he stabbed Jacob Bulthius; and (2) after being released from custody and in the presence of Carmen Villegas and other family members, Gonzolo stated that he did the stabbing and was fleeing to Mexico because he was scared. The record shows that Gonzolo has fled to Mexico and not returned.

In People v. Lettrich (1952), 413 Ill. 172, 108 N.E.2d 488, our supreme court recognized the general rule that “extrajudicial [statements] of a third party, not made under oath, that he committed the crime, are purely hearsay, and even though they are declarations against interest, are inadmissible.” (Lettrich, 413 Ill. at 178, 108 N.E.2d at 491.) Lettrich, however, held that “where it is obvious that justice demands a departure,” an exception to the general rule may prevail. Lettrich, 413 Ill. at 178-79, 108 N.E.2d at 492.

Cases subsequent to Lettrieh no longer employ the “if justice so requires” language when discussing this hearsay exception. Rather, in light of Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, the exception is now generally termed the “statement-against-penal-interest exception to the hearsay rule.” (People v. Bowel (1986), 111 Ill. 2d 58, 66, 488 N.E.2d 995, 999; see also People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470; People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1.) Under this exception, the admission of the hearsay statement turns on whether the statement is supported by sufficient indicia of trustworthiness. In Chambers, as recognized in Bowel, the Supreme Court expressed that the following four indicia should be considered in determining the existence of the exception: (1) whether the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) whether the statement is corroborated by other evidence; (3) whether the statement is self-incriminating and against the declarant’s penal interest; and (4) whether there is adequate opportunity for cross-examination. (Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49; Bowel, 111 Ill. 2d at 66, 488 N.E.2d at 999.) No one factor is a prerequisite to admissibility (Bowel, 111 Ill. 2d at 68, 488 N.E.2d at 999-1000; People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 1018, 501 N.E.2d 207, 219), other indicia of trustworthiness may be considered (Kokoraleis, 149 Ill. App. 3d at 1024-25, 501 N.E.2d at 223-24; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §804.7 (5th ed. 1990) (hereinafter Handbook)), and the court’s determination on the issue of admissibility will be affirmed absent a clear abuse of discretion. Bowel, 111 Ill. 2d at 68, 488 N.E.2d at 1000.

In this case, we believe the court properly excluded the proffered testimony. Initially, we note that the State does not dispute the existence of the first and third Chambers factors. The State recognizes that Gonzolo’s statements were made to family members shortly after the incident and are against Gonzolo’s penal interest. We also note that defendant does not contest Gonzolo’s unavailability for cross-examination. Accordingly, the issue before the court is whether, under the second Chambers factor, Gonzolo’s statements are sufficiently corroborated by other, independent evidence. As to this factor, Chambers illustrated the type of corroboration required:

“[Ejach [declaration] was corroborated by some other evidence in the case — McDonald’s sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each.” Chambers, 410 U.S. at 300, 35 L. Ed. 2d at 312, 93 S. Ct. at 1048.

Here, we cannot help but note that all the witnesses who would testify regarding Gonzolo’s extrajudicial statements are related to defendant and, therefore, have a defense bias. Second, no physical evidence was introduced at trial to tie Gonzolo to the crime: no blood was found on Gonzolo’s person or clothing, no knife was ever found and no fingerprints exist. Third, no independent witness, such as an eyewitness or police officer, testified to corroborate Gonzolo’s claim that he committed the stabbing. In this regard, an independent witness, Dave Jambrosek, identified defendant as wielding the knife which stabbed Jacob Bulthius. Finally, Gonzolo’s alleged statements could be characterized as cumulative of defendant’s other witnesses. These witnesses offered testimony to support the conclusion that Gonzolo, not defendant, stabbed Jacob Bulthius. Accordingly, the proffered statements would have added nothing more to the testimony which the jury ultimately rejected. For these reasons, we find the trial court did not abuse its discretion in excluding Gonzolo’s extrajudicial statements.

Defendant’s second contention is that the court erred in admitting, as impeachment evidence, Carmen Villegas’ out-of-court statement to the police regarding what color shirt defendant was wearing on the night of the murder. Defendant further notes this error was aggravated when the State, during closing argument, used Carmen’s statement as substantive evidence of defendant’s shirt color on the night of the murder.

The record with respect to this issue reflects that the State called Carmen Villegas in rebuttal to contradict defendant’s testimony that he wore nothing red on the night of the murder. She testified as follows:

“Q. [Assistant State’s Attorney]: And ma’am, I am going to ask you if you recall talking with Cicero police officers on January 2, 1988 at approximately 4:45 in the morning?
A. No, I don’t.
Well, I remember talking to them and everything, but I don’t remember the time exactly.
Q. Okay, Was it sometime in the early morning hours?
A. Yes.
Q. And was it at the Cicero Police Department?
A. Yes.
Q. Do you recall talking with a Sergeant Wolff?
A. Yes.
Q. And do your recall telling him that when your husband left home earlier on the evening of January 1, 1988—
MR. LUCENTI [Defense attorney]: Judge, I will object. This is improper rebuttal.
THE COURT: Overruled.
Q. Do you recall telling Detective Wolff or Sergeant Wolff that when your husband left your home earlier on the evening of January 1, 1988, he was wearing a white sweater and some type of red shirt underneath his sweater?
A. I don’t remember exactly what I said to him.”

The State then called Officer Wolff. Over objection, Wolff testified that he interviewed Carmen Villegas on January 2, 1988, and she told him that her husband was wearing a white sweater with a red shirt underneath the sweater on the night of the murder. During closing argument, the State referred to Carmen’s testimony as follows:

“The defendant tells you or wants you to believe that he wasn’t wearing anything red under his V-neck sweater, yet even his wife told the police at the time of his arrest that earlier in the evening he had been wearing a white V-neck sweater with red underneath the ‘V.’ Now, of course, Carmen doesn’t remember that fact, but she did tell that to the police shortly after the incident.”

The impeachment of witnesses is governed by Supreme Court Rule 238(a); this rule provides: “The credibility of a witness may be attacked by any party, including the party calling him.” (134 Ill. 2d R. 238(a).) Cases interpreting this rule have held that a party impeaching its own witness with a prior inconsistent statement must first show that the witness’ testimony has damaged its position. (People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433; People v. Amato (1984), 128 Ill. App. 3d 985, 471 N.E.2d 928; People v. Bolden (1987), 152 Ill. App. 3d 631, 504 N.E.2d 835.) The rationale for this showing was stated by our supreme court in People v. Weaver (1982), 92 Ill. 2d 545, 563-64, 442 N.E.2d 255, 262-63:

“A court’s witness, or any witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party’s evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness’ testimony. It is only when the witness’ testimony is more damaging than his complete failure to testify would have been that impeachment is useful.”

In this case, Carmen Villegas’ testimony clearly failed to damage the State’s position. The short of the matter is that she was never asked directly what her husband was wearing on the night of the murder. What the State did in this case was jump directly into her extrajudicial statement without first asking this direct question. Prior to this jump, Carmen’s testimony had not hurt the State’s case. To attempt an impeachment of Carmen was therefore erroneous because there was simply no in-court testimony to impeach. Accordingly, the court erred in allowing Carmen’s extrajudicial statement into evidence under the guise of impeachment testimony. Compare People v. Bradford (1985), 106 Ill. 2d 492, 478 N.E.2d 1341; Weaver, 92 Ill. 2d 545, 442 N.E.2d 255; Bolden, 152 Ill. App. 3d 631, 504 N.E.2d 835; Johnson, 138 Ill. App. 3d 980, 486 N.E.2d 433 (no damage shown), with People v. Chevalier (1987), 159 Ill. App. 3d 341, 512 N.E.2d 1001; Amato, 128 Ill. App. 3d 985, 471 N.E.2d 928 (damage shown).

Having determined that error occurred, we must examine whether reversal is required. Where there is sufficient competent evidence establishing a defendant’s guilt beyond a reasonable doubt, and defendant cannot show that the error was the basis of the jury’s verdict, the error is harmless, and reversal is not required. (People v. Spence (1989), 188 Ill. App. 3d 761, 766, 544 N.E.2d 831, 835.) It is the defendant’s burden to demonstrate prejudice and to establish that there was a reasonable possibility that the error, in light of all the evidence, was a material factor in his conviction. Spence, 188 Ill. App. 3d at 766, 544 N.E.2d at 835.

In this case, we agree with defendant that the color of his shirt was a crucial fact for it served as the basis of his identification. We also agree that the State aggravated the error when it improperly imparted substantive value to Carmen’s testimony during closing argument. Nevertheless, we believe that sufficient, independent evidence exists aside from Carmen’s testimony to establish the color of defendant’s shirt that evening.

John Beja and Dave Jambrosek described defendant as wearing a white V-neck sweater with a red shirt underneath. Tim Anderson described defendant as having a white V-neck sweater with a red “V” in the center. Michael Bulthius testified that defendant was wearing a white sweater with a red collar or something red underneath. Significantly, all these witnesses had ample opportunity to view defendant and isolate him in their minds from the rest of the Villegas brothers. We believe this evidence, taken wholly apart from Carmen’s testimony, sufficiently established the color of defendant’s shirt on the night of the murder. Accordingly, Carmen’s testimony on this matter was cumulative and, therefore, harmless.

Defendant next contends that the State erred when it failed to perfect defendant’s impeachment regarding a conversation defendant allegedly had with the police following his arrest. During defendant’s cross-examination, the following colloquy took place:

“Q. [Assistant State’s Attorney]: Okay. During the conversation with [the police officer], do you recall telling him that when you ran to your house to the attic apartment, you took off your red sweater, your shoes, and a blue plaid jacket and laid in bed to go to sleep?
A. I don’t remember me telling him that.”

The State admits that it failed to perfect the attempted impeachment but contends that any error was harmless. We agree.

A good-faith basis of inquiry regarding a prior inconsistent statement is required; innuendos or insinuations of a nonexistent statement are improper. (Handbook, §613.3, at 466.) If the witness denies making the statement, states that he cannot remember making it, or otherwise equivocates, the prior statement, if noncollateral, must be proved. (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 896, 420 N.E.2d 461, 469, cert, denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448; Handbook, §613.3, at 467.) However, a failure to follow through with proof of a prior inconsistent statement will not require reversal where there is positive evidence of guilt, the comment was not a material factor in the conviction, or the verdict would not have been different had the error not- been made. Purrazzo, 95 Ill. App. 3d at 897, 420 N.E.2d at 469-70; see also People v. Allen (1959), 17 Ill. 2d 55, 160 N.E.2d 818; People v. Redman (1985), 135 Ill. App. 3d 534, 481 N.E.2d 1272; People v. Green (1983), 118 Ill. App. 3d 227, 454 N.E.2d 792; People v. Cain (1979), 70 Ill. App. 3d 1, 388 N.E.2d 54.

In this case, we believe the jury’s verdict would have been the same had the attempted impeachment not been made. First, the question was isolated and not referred to again during the course of trial. Second, the question referred to defendant as wearing a red sweater. All the State’s witnesses testified that defendant was wearing a white sweater. Defendant himself testified to this effect. Finally, defendant was not wearing any shirt when he was arrested and, thus, there is some partial truth to the State’s question. For these reasons, we believe the State’s attempted impeachment does not require reversal as defendant would have been convicted anyway had the error not occurred.

Defendant next contends that the court erred when it failed to instruct the jury on second-degree murder. During the instruction phase of this case, defendant tendered pattern jury instructions pertaining to second-degree murder. The court refused to give these instructions. Defendant contends this refusal was error because evidence exists to show that mutual combat occurred between the Villegas brothers and the Bulthius family. Defendant cites in particular the defense testimony that Michael Bulthius started the fight by punching Francisco Villegas in the face which caused him to bleed. Thereafter, fighting erupted between the two families.

The second-degree murder statute relevant to this issue provides in part:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; ***
* * *
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.

Whether to tender a jury instruction on voluntary manslaughter is within the discretion of the trial court; however, this discretion is controlled by clear guidelines established by our supreme court. (People v. Austin (1989), 133 Ill. 2d 118, 124, 549 N.E.2d 331, 333-34.) Defendant has the burden of proving there is at least “some evidence” of serious provocation or the trial court may deny the instruction. (Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334.) Even where “some evidence” of provocation exits, however, the instruction will be denied where the law does not recognize the submitted evidence of provocation as being reasonable and adequate (Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334) or where defendant’s retaliation is out of all proportion to the provocation (Austin, 133 Ill. 2d at 126-27, 549 N.E.2d at 335).

In this case, the second-degree murder statute requires us to focus on the interaction between defendant and Jacob Bulthius. As the second-degree murder statute indicates, the defendant must be “acting under a sudden and intense passion resulting from serious provocation by the individual killed.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.) Here, the record is devoid of evidence that Jacob Bulthius ever provoked defendant or that defendant’s deadly response was an appropriate amount of retaliation. The only State’s witness who could specifically illuminate how the fight started was Michael Bulthius. He testified that he, his brother and father were jumped from behind as they walked back to the car. He was then held by two Villegas brothers and beaten by a third with a pool cue. He then broke away and ran down an alley with two Villegas brothers in pursuit. As for the State’s other witnesses, their testimony does not reflect how the fight started. We note, however, the State’s witnesses are consistent that after the fight started, the witnesses watched “people swing and run and punch all over the place.”

The defendant’s evidence can be summarized as asserting that Michael Bulthius started the fight by punching Francisco Villegas. Significantly, however, these witnesses do not offer any other physical, aggressive behavior by Jacob Bulthius. Indeed, no testimony exists that Jacob Bulthius ever fought back or carried weapons, or that any of the Villegases suffered any injury at the hands of Jacob Bulthius. The short of the matter is that there is simply no evidence illuminating the conduct of Jacob Bulthius immediately prior to or during the fight.

It is worth noting that the absence of evidence in this case relating to Jacob Bulthius’ involvement is due in large part to the defense posture of this case. All defense witnesses testified consistent with a theory of misidentification, rather than a theory involving sudden and intense passion. The thrust of defendant’s case was that defendant briefly fought with Michael Bulthius, chased him down an alley and then proceeded home. Any stabbing that did occur was committed by Gonzolo Villegas while defendant was far removed from the scene. Indeed, defendant’s testimony makes no mention of defendant having any contact whatsoever with Jacob Bulthius.

We recognize that a defendant is entitled to have the jury instructed on inconsistent theories of defense where there is some evidence to support each theory. (People v. Robinson (1989), 189 Ill. App. 3d 323, 349, 545 N.E.2d 268, 286.) In this case, however, defendant’s defense posture emphasized his absence from the scene of the crime rather than how he reasonably responded to Jacob Bulthius’ provocation. Paradoxically, one result of this defense posture is that there is an utter absence of testimony concerning Jacob Bulthius’ actions in this case.

Defendant contends that an instruction was required in this case because evidence exists to show that the Bulthiuses and Ville-gases engaged in mutual combat. We disagree. While defendant correctly asserts that evidence of mutual combat is sufficient to require an instruction to the jury on voluntary manslaughter due to serious provocation (see, e.g., Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334), we conclude that mutual combat, as the phrase has been defined, did not occur here. Mutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334.

Here, the evidence merely shows that a fight broke out between two families during which Jacob Bulthius was stabbed. Absent evidence demonstrating the circumstances surrounding the deceased’s involvement in the fight, we cannot determine whether Jacob and defendant’s quarrel was “sudden,” “in hot blood,” or upon “equal terms.” Accordingly, absent “some evidence” that a second-degree murder instruction was appropriate here, the trial court properly concluded that no such instruction was required.

Defendant’s final issue is that he was improperly convicted of both armed violence and murder where both convictions are based on the same underlying violent act. The State agrees that the armed violence conviction should be vacated. Accordingly, we vacate defendant’s armed violence conviction. See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and vacated in part.

Affirmed in part and vacated in part.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE CAMPBELL

text:
    CAMERON WILLIAMS, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—0206
    Opinion filed November 25,1991.

      Demos & Burke, of Chicago (William J. Burke and Lawrence P. Devens, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold, Philip J. Domagalski, and David T. Nani, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Cameron Williams, brought a personal injury suit against the defendant Board of Education of the City of Chicago (the Board) and appeals from orders of the circuit court of Cook County dismissing count III of his first amended complaint on the ground that it was barred by the statute of limitations. For the reasons which follow, we reverse the judgment of the circuit court and remand for further proceedings.

In his initial complaint, plaintiff alleged that the Board owned, operated, maintained and controlled Harper High School in Chicago, Illinois. The school offered athletic programs to its students, including a varsity football team. On August 27, 1981, plaintiff, a member of the varsity football team, was severely injured during a scrimmage with Chicago Vocational High School.

On August 13, 1982, plaintiff served the Board with a written notice of his injury, which was in accordance at the time with section 8— 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) (Tort Immunity Act). In August 1982, plaintiff also filed suit against the Board and others. Count I of the complaint alleged that the Board and the City of Chicago negligently provided plaintiff with, and permitted plaintiff to wear, defective or inadequate football equipment. Count II of the complaint was brought against various football equipment manufacturers, sounding in strict products liability. Plaintiff attached a copy of the aforementioned notice of injury to the complaint. Paragraph six of this notice states:

“The general nature of the accident is: While claimant was participating as a member of the Harper High School football team in a regularly scheduled scrimmage supervised by personnel of the Board of Education of the City of Chicago and using equipment issued to him by said personnel, he was tackled and, as a result thereof, became a quadriplegic.”

Plaintiff amended this complaint on December 30, 1983, changing the manufacturer defendants and adding allegations concerning the face mask of plaintiff’s helmet. In October 1985, all defendants moved for summary judgment. Plaintiff voluntarily dismissed this complaint in December 1985 and refiled in October 1986 pursuant to section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217).

The refiled suit again took the form of a two-count complaint. Count I alleged that the Board negligently provided plaintiff with defective, improperly sized or worn equipment. Count II again sounded in strict liability against the manufacturers.

The defendants again moved for summary judgment. On June 16, 1987, the trial court granted summary judgment in favor of the shoulder-pad manufacturer, but denied the motions of the other defendants. These remaining defendants later refiled their summary judgment motions with accompanying affidavits.

On March 10, 1989, plaintiff filed an amended complaint. The amended complaint contained the original two counts and added count III, which alleged that the Board had engaged in willful and wanton misconduct. Plaintiff alleged that the Board knew that football was a dangerous sport and that high school players would require special instruction and weight training to reduce the risk of spinal cord injuries. Plaintiff also alleged that the Board knew that high school scrimmages were potentially dangerous, requiring close supervision to avoid rules infractions, such as “spearing,” which could result in spinal cord injuries. Plaintiff then alleged that the Board nevertheless failed to provide plaintiff with the required training or instruction and failed to adequately supervise and officiate the scrimmage of August 27, 1981.

The Board moved to dismiss count III of the amended complaint pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619). The motion asserted that count III was barred by the statute of limitations and that the Board was immune from any liability arising from the alleged failure to supervise plaintiff. Following a hearing on the motion, the trial court granted summary judgment to the manufacturer defendants on counts I and II and dismissed count III as time barred. Plaintiff’s timely appeal of the dismissal of count III followed the denial of his motion to reconsider; plaintiff is not contesting the summary judgment entered on the first two counts.

Although the Board’s motion was purportedly filed pursuant to sections 2 — 615 and 2 — 619, the statute of limitations and statutory immunity are affirmative matters to be considered pursuant to section 2 — 619 alone. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 619(a)(5), (a)(9); see also Urbaitis v. Commonwealth Edison (1991), 143 Ill. 2d 458, 475, 575 N.E.2d 548, 555 (comparing sections 2 — 615 and 2 — 619).) Section 2 — 619 provides a mechanism for disposing of issues of law or easily proved issues of fact. (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341.) A trial court should grant a motion to dismiss if, after construing the documents in the light most favorable to the non-moving party, the court finds no disputed issue of fact. (Samansky v. Rush-Presbyterian-Saint Luke’s Medical Center (1990), 208 Ill. App. 3d 377, 567 N.E.2d 386.) The court assumes that the well-pleaded facts of plaintiff’s complaint are true, but conclusions of law or fact unsupported by specific factual allegations may be disregarded. (Foreman v. Consolidated Rail Corp. (1991), 214 Ill. App. 3d 700, 574 N.E.2d 178.) We may affirm a dismissal granted pursuant to section 2 — 619 on any grounds supported by the record, regardless of the trial court’s reasons. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303, 305.

Plaintiff contends that his amended complaint, filed after the expiration of the relevant statute of limitations, was not time barred because it “relates back” to the original complaint. Section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 616(b)) provides that a cause of action alleged in an amended complaint filed after the expiration of the statutory limitations period will relate back to the filing of the original complaint if two requirements are satisfied: (1) the original pleading was timely filed and (2) the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. (Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44, 46, 570 N.E.2d 327, 329.) In this case, defendant argues that plaintiff has not satisfied the second requirement.

4 In order for a cause of action to relate back under section 2 — 616(b), the original pleading need not have technically stated a cause of action, nor need the cause of action set out in the amended pleading be substantially the same as that stated in the original pleading. (Cannon v. Bryant (1990), 196 Ill. App. 3d 891, 554 N.E.2d 489; Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 289 N.E.2d 481.) Rather, an amended pleading grows out of the original pleading if the latter provided defendant with all of the necessary information to prepare his defense to the subsequently asserted claim. (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 512 N.E.2d 824.) If defendant shows that the amendment hindered defendant’s ability to present a case on the merits, the court will find prejudice and the amendment will not relate back. However, if the original complaint directed defendant’s attention to the facts on which the amended claim is predicated, the court will not find prejudice and the amendment will relate back. (United Parcel Service v. Church’s Fried Chicken, Inc. (1988), 174 Ill. App. 3d 378, 528 N.E.2d 367.) In some cases, even an amendment which differs materially from the original complaint may relate back, so long as the defendant was put on clear notice of the facts included in the amendment prior to the expiration of the limitations period. Cf. Wolf, 143 Ill. 2d at 48, 570 N.E.2d at 329 (amended slip-and-fall complaint with materially different location relates back where defendants knew of correct location of accident from depositions and other discovery prior to expiration of statutory period).

In this case, the record indicates that the trial court found count III of plaintiff’s amended complaint to be time barred because the court “could not see any way that the city would have been apprised from *** the facts alleged in the first pleading that [plaintiff] would later come in on the theory of weight training and other things.” The record also indicates that plaintiff attached the notice of injury served on the Board (and the city) as an exhibit to his initial complaint. Such exhibits are deemed to be part of the pleadings, and facts stated therein are considered as if they were alleged in the complaint itself. (Patterson v. Carbondale Community High School District No. 165 (1986), 144 Ill. App. 3d 254, 259, 494 N.E.2d 240, 244.) Thus, the record shows that the initial complaint alleged that plaintiff was injured during a football scrimmage supervised by the Board.

Given the allegation of supervision, the Board was placed on notice of facts which form the basis of count III of the amended complaint. Indeed, although we need not go beyond the pleadings to reach this conclusion, the record indicates, similar to Wolf, that defendant in fact investigated the inadequate supervision claim years prior to plaintiff’s amendment.

Moreover, we believe the claims of inadequate weight training and instruction as to the dangers of spearing also relate back to the date of the original complaint. The notice of injury incorporated into plaintiff’s complaint states that plaintiff was a member of his high school football team and was injured during a “regularly scheduled” scrimmage. The duty to supervise a scrimmage extends beyond mere observation of the play on the field and adequate officiation of the game to include supervision of the participants. In Fustin v. Board of Education of Community Unit District No. 2 (1968), 101 Ill. App. 2d 113, 242 N.E.2d 308, the plaintiff alleged that the defendant failed to supervise a player who assaulted plaintiff during a high school basketball game. The Fustin court stated:

“This Court is aware of the general nature of high school basketball, as played between the various districts, a competitive and highly organized activity. Boards of Education have expert, well trained physical education instructors who have coaching experience and ability with reference to the training of students in these competitive endeavors. These employees associated with the basketball activity of the defendant, are required to decide the propriety of doing various acts such as selecting the participants and the manner in which the contests are conducted ***.” (Emphases added.) (Fustin, 101 Ill. App. 2d at 119, 242 N.E.2d at 311.)

This court has no reason to believe that high school football differs in these respects from high school basketball. The duty of adequate supervision of a scrimmage therefore includes the duty to exercise reasonable care in the selection of those who will participate in the scrimmage. That duty may be breached if those who supervise the scrimmage, such as the coaches, field players who lack adequate physical training or adequate instruction in the rules of safe play. Thus, plaintiff’s notice concerning the supervision of the scrimmage may place the Board on notice of claims relating to training and instruction given to players and officials prior to the actual date of injury. Indeed, the record indicates that on February 4, 1982, a date which falls between the date of the injury and the date the Board received the written notice of injury from plaintiff, the coach in this case was interviewed concerning the training program and instructions given to the officials and players, indicating that the Board in fact anticipated these claims even before plaintiff filed suit.

Given that section 2 — 616(b) is to be liberally construed in favor of hearing plaintiff’s claim (Whitney v. City of Chicago (1987), 155 Ill. App. 3d 714, 718, 508 N.E.2d 293, 296), that the cases cited by both parties are distinguishable on their facts and that the Board has failed to show from the record that it would be hindered in its ability to defend against these claims at this time, we conclude that count III should not have been dismissed due to the statute of limitations.

Finally, the Board urges this court to affirm the dismissal of count III on other grounds, chiefly issues related to governmental tort immunity, which were raised in its motion to dismiss. An order granting a motion to dismiss without specifying the ground on which it is based places before the appellate court every issue raised in the motion; if any ground raised by the motion was proper, the appellate court must affirm. (See Bashton v. Ritko (1987), 164 Ill. App. 3d 37, 517 N.E.2d 707.) Nevertheless, where the record on appeal indicates that an issue urged on appeal was not decided by the trial court, the issue is not properly preserved and is deemed to be waived on appeal. See Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 445 N.E.2d 1.

In this case, a number of issues were presented in the motion to dismiss and plaintiff’s response thereto. The record, however, indicates that the trial court ruled solely on the statute of limitations issue and did not decide or even discuss these other issues. The report of proceedings at the hearing on the motion includes the following dialog:

“MR. NANI [counsel for the Board]: In the Order shall we specifically say that your decision is based on the statute of Limitations argument?
THE COURT: Right, right, right.
MR. NANI: Okay.
THE COURT: So that it is specific on that one, that one issue so that it is clear what you had to address.”

Moreover, the order granting the motion specifically refers to the statute of limitations and does not refer whatsoever to other grounds of decision. Given this record, which indicates that it was the Board that asked for an order based solely on the statute of limitations, the other issues raised by the Board are waived on appeal.

For all of the aforementioned reasons, we reverse the judgment of the circuit court of Cook County and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF R. MARIE HARTIAN, Petitioner-Appellee, and ROBERT M. HARTIAN, Respondent-Appellant.
    First District (1st Division)
    No. 1—90—1008
    Opinion filed November 25,1991.

      James H. Wolf & Associates, Ltd., of Chicago (James H. Wolf, of counsel), for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert J. Franco and Robert Marc Chemers, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Respondent, Robert Hartian (Robert), appeals from an order of the circuit court which held him in contempt of court. Robert argues that the circuit judge abused her discretion by refusing to recuse herself after Robert had filed a complaint against her with the Judicial Inquiry Board. For the following reasons, we affirm the circuit court’s order.

This is the second appeal arising from the divorce action filed by petitioner, R. Marie Hartian (Marie). In the prior appeal, this court affirmed the judgment of dissolution entered by the circuit court on March 21, 1985, but reversed various fees which had been awarded to Robert. See In re Marriage of Hartian (1988), 172 Ill. App. 3d 440, 526 N.E.2d 1104, appeal denied (1988), 123 Ill. 2d 558, 535 N.E.2d 401.

During the pendency of this earlier appeal, the case was reassigned to Judge Cervini. On April 28, 1987, Robert filed an amended motion to vacate the dissolution order, which sought various forms of relief including the payment of the attorney fees awarded to him by the circuit court.

Marie moved to strike the amendment, alleging that the settlement was res judicata to all counts of the amended motion. She also requested attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). Robert then sought judgment on the pleadings, arguing that Marie’s motion failed to indicate whether relief was sought under section 2— 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) or under section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) of .the Code. Robert also asserted that the motion failed to meet the statutory requirements of either procedure.

Meanwhile, Robert obtained a garnishment of one of Marie’s bank accounts which he claimed contained sufficient funds to satisfy the monetary judgment awarded to him against Marie. Marie filed a motion to quash garnishment which was subsequently granted by the court on July 21. The court later entered an order staying all proceedings pending review in the appellate court.

On October 15, the circuit court heard argument on Marie’s amended motion to strike Robert’s amended petition. The court granted the motion, basing its ruling on section 2 — 615. The court further granted Marie’s request for attorney fees in the amount of $400. Four days later, the court informed both parties that it was vacating the fee award because that issue had not been briefed and argued. During this hearing, Marie’s counsel informed the court that the motion to strike was argued under section 2 — 619, but that the order reflected that the court granted relief under section 2 — 615. The court then changed the order to correct this mistake. Prior to the hearing, the court had telephoned both parties’ attorneys and explained the nature of the hearing. Robert’s attorney could not be present at the hearing, but he apparently agreed that Robert would attend the proceedings.

On September 29, 1989, Marie filed a petition seeking to compel Robert to pay her 37% of his Navy disability pension as set forth in the dissolution agreement. After hearings on the motion, the circuit court ruled that Robert had the ability to comply with its order, but willfully refused to do so. He was therefore ordered confined to the Department of Corrections for six months or until the $3,123 arrearage was paid. The court stayed enforcement of the judgment, allowing Robert the opportunity to purge the contempt. This appeal followed.

Robert presents a multipronged argument concerning the propriety of the court’s order of contempt in addition to the trial judge’s refusal to recuse herself under the circumstances presented in this case. Robert first maintains that Judge Cervini should have recused herself under Supreme Court Rule 63(C) (134 Ill. 2d R. 63(C)). Although Rule 63(C) governs the disqualification of judges from cases and provides an extensive list of circumstances requiring judicial disqualification (see 134 Ill. 2d R. 63(C)), none of the listed reasons are implicated in the case at bar. Moreover, nothing in the record supports Robert’s appellate allegations of prejudice on the part of the circuit court.

Robert next contends that the circuit court should have granted his motion for a change of venue pursuant to section 2 — 1001 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1001.) Robert’s post-decree petition constituted a continuation of the dissolution proceeding and, as such, precluded a change of venue as of right since substantial rulings had been made at bar. (See In re Marriage of Kozloff(1984), 101 Ill. 2d 526, 463 N.E.2d 719.) Accordingly, Robert is entitled to a change of venue only if he can demonstrate actual prejudice. In re Marriage of Kozloff 101 Ill. 2d at 532.

Robert argues that the record in this case establishes that Judge Cervini engaged in a course of prejudicial conduct against him. A trial judge is presumed to be impartial, and the burden of overcoming this presumption rests on the party making the charge of prejudice, who must present evidence of personal bias stemming from an extrajudicial source and evidence of prejudicial trial conduct. (McCormick v. McCormick (1988), 180 Ill. App. 3d 184, 194, 536 N.E.2d 113, appeal denied (1989), 127 Ill. 2d 620, 545 N.E.2d 113.) Robert maintains that his complaint against the judge, filed with the Judicial Inquiry Board, is an extrajudicial source which necessitates a finding of actual prejudice. This position has not been adopted by any court in Illinois and has been rejected by courts in two foreign jurisdictions. (See Jones v. Alper (1990), 21 Phila. 344; In re S.S.K. (1990), 154 Wis. 2d 868, 455 N.W.2d 678.) In each of these cases, the courts affirmed the trial courts’ denials of petitions for recusal because the allegations of prejudice were not supported by the facts of each case. Both reviewing courts found that recusal was sought due to adverse rulings or in an attempt to intimidate the trial court. Likewise, in the case at bar, Robert’s grievance appears to stem from his belief that Judge Cervini wrongly ruled against him. Allegedly erroneous findings and rulings by the circuit court are insufficient reasons to believe that the court had personal bias or prejudice for or against a litigant. (McCormick, 180 Ill. App. 3d at 194.) To allow a change of venue under these circumstances would create a dangerous precedent whereby those seeking venue changes need only file charges with the Judicial Inquiry Board to achieve that purpose. Robert’s argument for recusal on this ground is meritless.

A party seeking a change of venue must predicate its motion on facts other than adverse rulings. (Dayan v. McDonald’s Corp. (1985), 138 Ill. App. 3d 367, 485 N.E.2d 1188.) However, Robert points to various adverse rulings to support his allegations of prejudice. For example, he alleges that the court improperly quashed his garnishment; however, the record indicates that the garnishment was quashed so that the issue could be addressed in toto with other issues. The court later issued a stay on all issues, pending the appellate court’s decision. The alleged ex parte hearing appears to have been held with the consent of Robert’s attorney. Moreover, Robert never filed a motion to reconsider any decision made at the hearing nor did he move for a rehearing. The circuit court did not abuse its discretion in denying Robert’s petition for recusal.

The circuit court here held Robert in contempt because he refused to pay 37% of his disability pension to Marie. In the first appeal, this court specifically found that Robert agreed and promised to pay that percentage of the disability to Marie. (In re Marriage of Hartian, 172 Ill. App. 3d at 446-47.) Issues previously determined by a court of review bind subsequent proceedings at both the trial and appellate levels. (Stallman v. Youngquist (1987), 152 Ill. App. 3d 683, 504 N.E.2d 920, rev’d on other grounds (1988), 125 Ill. 2d 267, 531 N.E.2d 355.) Robert, therefore, was obliged to comply with this order. Whether and on what grounds a party is guilty of contempt and the decision whether or not to punish a contemnor rests within the sound discretion of the circuit court, whose decision should not be reversed except if grossly abused. (Board of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600 (1970), 126 Ill. App. 2d 418, 262 N.E.2d 125.) Furthermore, a party is in contempt of court when he willfully violates an order of the court. (In re Marriage of Cierny (1989), 187 Ill. App. 3d 334, 346, 543 N.E.2d 201.) The record in this case clearly establishes that Robert willfully refused to comply with the court’s order to pay Marie the disability payment and does not reveal an abuse of discretion.

For the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.