author: JUSTICE McCULLOUGH JUSTICE COOK,

text:
    ANDREW J. ROBERTS III, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—91—0647
    Opinion filed June 4, 1992.

      COOK, J., specially concurring.
    Karl D. Dexheimer, of Belleville, for appellant.
    Glenn E. Bradford and Clarence W. Harrison II, both of Morris B. Chapman & Associates, Ltd., of Granite City, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Andrew J. Roberts brought suit against his employer, Norfolk and Western Railway Company (N&W), pursuant to the Federal Employers’ Liability Act (45 U.S.C. §§51 through 60 (1988)) (FELA) for personal injuries sustained during the course of his employment. A jury awarded Roberts approximately $1.4 million in damages. N&W appeals, raising the following six issues: (1) whether the trial court erred in permitting Roberts to present evidence of statements made by another employee of N&W and treat those statements as admissions of N&W; (2) whether the trial court erred in denying discovery of medical records regarding Roberts’ psychiatric condition and chemical dependencies; (3) whether the trial court erred when barring the testimony of Dr. Murray Finn and portions of the testimony of Dr. Richard Ashby and Dr. Pedro Ochoa; (4) whether the trial court erred in denying N&W leave to have Roberts examined by a registered occupational therapist; (5) whether the trial court erred in submitting the court’s instruction No. 1, regarding mitigation of damages, instead of N&W’s tendered instruction regarding mitigation of damages; and (6) whether the amount of the jury verdict was grossly excessive. We reverse and remand for a new trial based on one of the issues raised, but address the issues likely to recur on retrial.

I. Facts

Roberts began working for N&W in 1974 as a switchman. The duties of the switchman include throwing the switch (a device which allows cars to go onto different tracks), making up and taking apart trains, and classifying cars for different trains. Roberts was working on April 8, 1984, as a switchman on the “12 [p.m.] No. 1 crew.” On that same night in that same area of the yards, another crew, known as the “11:15 No. 1 crew,” was also working. Roberts’ train consisted of only an engine while the 11:15 No. 1 train had approximately 14 cars.

The 11:15 No. 1 train was in a position east of the master switch waiting on the classification track to move onto another track. Roberts’ train was also on the classification track, only to the west of the 11:15 No. 1 train. Roberts train was in the process of leaving the classification track and maneuvering onto the back tracks. To do this, Roberts’ train had to pass through the master switch and in front of the 11:15 No. 1 train. Before passing through the master switch, Roberts jumped off his engine and threw the switch in order to align it so that his train went onto the back tracks.

Roberts testified that after his train went through the master switch, he threw the switch to align it for the other crew. Roberts saw the switchman for the 11:15 No. 1 train near the master switch and told him that he had already thrown the switch for that train. Roberts then gave his engineer a signal to back up the train. Roberts testified that after he threw the switch he turned around and walked toward his engine to start to get on it. Roberts stated he had one foot on the engine when all of sudden he turned around and realized the 11:15 No. 1 train was going to run into his train. He then fell off of his engine and heard a pop in his back. Roberts noticed a car on the 11:15 No. 1 train was starting to shake and roll, and he tried to get out of the way because he thought it was going to derail on top of him. Roberts began to run away from the train, and fell down and hit his back on one of the railroad tracks.

Roberts testified the signal he gave to his crew engineer was done through a series of arm movements with a switch lantern and the signal he gave to his engineer that night was a “backup” signal. Roberts indicated he realigned the switch for the 11:15 No. 1 crew as a courtesy and that this was not unusual in this type of industry. Roberts admitted he was familiar with the rules and regulations of the railroad, and knew he was not authorized to give a signal to another crew member nor was another crew member authorized to take a signal from him.

Roberts attempted to return to work after reporting the accident but after four or five hours had to be taken to the hospital. At the hospital, X rays were taken of his back, and he was diagnosed as having a sprained back. Roberts continued to have back pain and finally in September 1984, upon referral from his attorney, Roberts went to see Dr. Pedro Ochoa. Dr. Ochoa admitted Roberts to the hospital and recommended a back specialist, Dr. Richard Ashby. Roberts had his first surgery on his back on September 25, 1984, after which he was hospitalized for a period of one month. Roberts indicated he improved for approximately four months after the surgery but began having severe pain again. He was admitted to the hospital in August 1985 again for muscle tension and back spasms. In 1986, Roberts was given a spinal nerve block for pain. Approximately six months later, he had his second back surgery and was hospitalized for approximately four weeks thereafter. Roberts continued to have physical therapy after the second surgery, and for approximately three months, the pain started to go away.

In 1988, Roberts was again hospitalized for back pain, at which time he received more physical therapy. In September 1989, Roberts was still experiencing back pain and went to see Dr. Ashby, who recommended surgery. On his third surgery, Roberts’ lower back was reconstructed. Roberts testified he still is in a lot of pain but it has improved since the last surgery.

Roberts has not worked since the date of his injury. In 1987, he attempted to get his general equivalency diploma but that attempt was unsuccessful. After his third surgery, Roberts obtained a partial release from his doctors indicating he could return to work on a trial basis. However, N&W refused to allow him to work on a trial basis.

Roberts presented testimony of six other witnesses. Dr. Ochoa described the three surgical procedures performed on Roberts and the various diagnosis and treatments he had given Roberts. Mary Jo Hilliard testified she was an occupational therapist and in that capacity performed evaluations on injured employees to determine their functional capability in terms of returning to their jobs. Hilliard performed such an evaluation on Roberts on November 29 and December 3, 1990. She described the tests performed on Roberts and the results thereof.

James England, a rehabilitation counselor, testified he had received a referral from Roberts’ attorney to perform an evaluation of Roberts. In September 1989, England performed a series of tests on Roberts and evaluated his employability and educational skills. England concluded that vocational rehabilitation was not appropriate for Roberts because of the combination of problems he was experiencing, including his pain and intellectual background. Gilbert Rutland, a professor of economics, explained to the jury the damages incurred by Roberts in terms of past lost wages and future lost wages. He described how he calculated the various figures for Roberts’ lost wages and reduced them to present cash value.

Finally, Roberts presented testimony of two N&W employees. One, Paul E. Gibson, a division superintendent of N&W, testified he had received a letter from the chief medical doctor of N&W, who indicated that Roberts could not return to work for a trial period of time. This letter also indicated that doctor did not believe Roberts could ever return to work as a switchman. L.P. Reed was the hearing officer who presided over the investigative hearing conducted after the accident in April 1984. His testimony will be discussed in further detail below.

The first witness for N&W, Robert Branham, was the engineer on Roberts’ train in April 1984. Branham explained that after Roberts threw the switch, and attempted to get back on the engine, he had to slow the train down in order to allow Roberts to jump on the train. Branham testified Roberts gave a fast “backup” signal with his switch lantern, which indicated to him to move in a reverse direction. Branham further testified that when he turned around to see if Roberts had gotten on the engine yet, he could see the other train coming down the track and he knew that they were going to collide.

Thomas Daniels, the switchman for the 11:15 No. 1 crew, testified he was aware that the 12:00 No. 1 crew was working in the same area that evening and that it was his job to throw the switch to make sure that his train went down the proper track. Daniels spoke with Roberts in the area of the master switch and Roberts had told him he (Roberts) would throw the switch for their crew. Daniels said he would get the switch himself because it was his job. Daniels testified Roberts gave an exaggerated “backup” signal, which could be interpreted as a “kick” signal. It was this signal, according to Daniels, that resulted in the engineer for the 11:15 No. 1 train moving his train. After seeing his cars start to move, Daniels gave his engineer a “stop” signal.

Bruce Cobbs, an assistant train master for N&W, testified he spoke with Roberts shortly after the incident in April 1984 and the signal demonstrated that evening by Roberts was a large, exaggerated signal. He explained the signal demonstrated by Roberts was a “kick” signal, which is an indication for the engineer of the train to increase the speed of the engine so he can kick the cars down the track.

Douglas Cole testified he was an occupational therapist in St. Louis, Missouri, and had been provided Roberts’ records by N&W’s attorney. Based on those records, he believed Roberts would be physically capable of performing at least light-level employment and possibly more than that. Finally, N&W presented testimony of Dr. Ashby, which will be discussed below.

On March 1, 1991, the jury returned a verdict in favor of Roberts in the amount of $1,410,296. Defendant’s post-trial motion was denied on August 6, 1991. N&W filed this appeal on September 3,1991.

II. Roberts’ Testimony On Wainscott’s Statements

The first issue raised by N&W is that the trial court erred in allowing L.R Reed, the hearing officer who presided over N&W’s internal investigation of the incident, to testify to statements made by Doug Wainscott, the engineer of the 11:15 No. 1 train.

Over objection by N&W, Roberts elicited testimony from Reed regarding two statements made by Wainscott at this hearing. The first statement was an admission of Wainscott that he was not aware that Roberts’ train was in the same area as his train. The second statement of Wainscott testified to by Reed was that Wainscott admitted it was “virtually impossible” to determine who gave the signal by the switch lantern. Reed had difficulty in remembering this statement of Wainscott but his memory was refreshed after looking at the written transcript of the hearing.

At trial, N&W contended these statements were not admissible under the business records exception to the hearsay rule and also were inadmissible as admissions of the railroad. Roberts specifically stated these statements were not being offered as business records but were admissible as admissions against interest because N&W had asserted in its opening statement the 11:15 No. 1 crew knew the 12:00 No. 1 crew was in the same area. Roberts also relied on two cases, Poltrock v. Chicago & North Western Transportation Co. (1986), 151 Ill. App. 3d 250, 502 N.E.2d 1200, and Amos v. Norfolk & Western Ry. Co. (1989), 191 Ill. App. 3d 637, 548 N.E.2d 96, for support of its admission-against-interest argument.

However, the statements admitted in Amos and Poltrock, which were contained in written reports admitted into evidence, were so admitted under the business records exception to the rule against hearsay. The Amos court stated:

“Where the report is damaging to the party who prepared it, as here, there is no reason to question its trustworthiness. As in Poltrock, the summaries of defendant’s employees’ statements were properly admitted under the business records exception to the hearsay rule.” (Amos, 191 Ill. App. 3d at 646, 548 N.E.2d at 101.)

(See also Poltrock, 151 Ill. App. 3d at 254-55, 502 N.E.2d at 1203.) Here, Roberts specifically stated he was not seeking to have these statements admitted under the business records exception and the transcripts of the hearing were not admitted. Thus, these cases offer no support for the admission of these two statements.

Hearsay evidence is testimony in court or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. (People v. Silagy (1984), 101 Ill. 2d 147, 171, 461 N.E.2d 415, 427.) As a general rule, the substantive use of such a statement at trial is inadmissible unless it comes within a recognized exception to the hearsay rule. (Taylor v. Checker Cab Co. (1975), 34 Ill. App. 3d 413, 419, 339 N.E.2d 769, 775.) In order to introduce a statement or act by an agent or employee as an admission it must first be shown (1) that he was such an agent or employee; (2) that such statement or act was made or done in and about a matter over which he had actual or apparent authority, and (3) that he spoke or acted under or by virtue of his authority as such agent or employee. Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 42, 343 N.E.2d 207, 210; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.9, at 609 (5th ed. 1990).

It is undisputed that Wainscott was an employee of N&W at the time of the occurrence. Furthermore, testimony at trial established he had authority to make the statements which would constitute admissions of N&W. Branham testified the foreman is in charge of the crew. However, at the time of the accident, the foreman of Wainscott’s train was not present. Since Wainscott was the engineer of the train and was authorized to take the signals from the switch-man, and was the highest ranking crew member present at the site of the occurrence, it can be concluded that at that particular point in time, he was in charge of the operation of the train. As such, we believe he had authority over the matter of the accident about which the statements were made. At the hearing when the statements were made, Wainscott spoke by virtue of the authority he had at the time of the accident and thus his statements qualify as admissions of N&W. Accordingly, they were properly admitted into evidence as exceptions to the hearsay rule.

Similarly, these statements were also admissible as declarations against interest. The common law requirements of the declaration against interest exception to the hearsay rule are (1) that the declarant be unavailable; (2) the declaration has been made against his pecuniary or proprietary interest when made; (3) the declarant has had competent knowledge of the fact declared; and (4) the declarant had no probable motive to falsify. The basis for this exception is that there is an assumption that people do not make false statements damaging to themselves. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §804.7, at 695 (5th ed. 1990).

First, testimony at trial indicated Wainscott was unavailable in that he no longer resided in the State of Illinois and was no longer an employee of N&W. Next, Wainscott’s statements were against his pecuniary interest when made because of the nature of the proceedings in which they were made. Direct acknowledgements of facts giving rise to liability are against interest. (Karlin v. Inland Steel Co. (1979), 77 Ill. App. 3d 183, 186, 395 N.E.2d 1038, 1040.) Wainscott was admitting he violated the safety rules of his employer by taking a signal not knowing who it was from, and he knew he could be subject to discipline for this action. Wainscott had competent knowledge of the fact declared, inasmuch as he was the engineer of the train that ran into Roberts’ train, and by taking this signal, caused the collision. Finally, Wainscott had no motive to falsify the statements. If Wainscott had lied about these statements, he would have made contrary statements, thereby relieving himself of any wrongdoing, and would instead have accused Roberts of wrongdoing. However, his admission of wrongdoing indicates he had not lied about these statements. Wainscott made damaging statements about himself and there is no reason to question their trustworthiness. Accordingly, admission of this testimony was not error.

III. Denial Of Discovery Of Plaintiff’s Medical Records On Psychiatric Condition And Chemical Dependency

Next, N&W contends the trial court erred in denying discovery of Roberts’ medical records regarding his psychiatric condition and chemical dependency. Roberts asserts that these records are privileged under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (Ill. Rev. Stat. 1989, ch. 911/2, par. 801 et seq.) and the Illinois Alcoholism and Other Drug Dependency Act (Alcoholism Act) (Ill. Rev. Stat. 1989, ch. HV-k, par. 6351 — 1 et seq.). In response, N&W alleges that Roberts has waived his privilege under these acts because he (1) identified Dr. Murray as an expert witness, and (2) allowed Dr. Finn’s evidence deposition to be taken, in which Finn discussed Roberts’ history, diagnosis and treatment for psychiatric disease and chemical dependency. N&W further suggests Roberts has waived this privilege by placing his mental condition in issue by seeking damages for lost wages. We need not address the merits of either party’s argument, however, because we conclude that N&W has waived the issue of the admissibility of these records.

On February 28, 1989, N&W filed a motion to compel the production of these records. The docket entry for April 5, 1989, indicates that the trial court conducted an in camera review of these records. The court concluded, “Plaintiff’s complaint places at issue his general physical and mental condition arising from the alleged ‘numerous and permanent injuries to his body.’ ” The court further stated Roberts had waived the physician-patient privilege as to the records and, since the records were relevant, ordered Roberts’ attorney to make the records available to N&W for inspection and copying within 28 days.

Neither party learned of the court’s order and Roberts’ attorney failed to forward the records to N&W. Sometime thereafter, at a pretrial conference, the trial court noted it was unaware that Roberts was relying on the privilege pursuant to the Confidentiality Act and the Alcoholism Act. The court advised Roberts to file a motion to reconsider, which he did on December 18,1989.

On January 2, 1990, the trial court heard arguments on Roberts’ motion to reconsider. Because of the critical importance of this issue to our determination, we quote the docket entry for that date in full:

“Attorney Glenn E. Bradford present in open court in behalf of plaintiff. Attorney William Niehoff present in open court in behalf of defendant. By agreement cause called for hearing on plaintiff’s motion to reconsider which was filed December 18, 1989. Defendant files memorandum in opposition to motion to reconsider this date, attached thereto Exhibit 1, which is deposition of Dr. Finn. Arguments on plaintiff’s motion to reconsider heard. Plaintiff’s motion granted. Order entered on April 5, 1989 is vacated. It is the order of the court that the plaintiff is not required to make available to the defendant the plaintiff’s records of drug and alcohol or mental health treatment prior to April 9, 1981. It is further the order of the Court that at trial defendant will be barred from presenting evidence of plaintiff’s disability or unemployability except as it relates directly to plaintiff’s back injury and back surgery and disability and unemployability directly resulting from the plaintiff’s claimed injury and subsequent treatment. All plaintiff’s mental health and drug and disability records are barred form [sic] discovery except by leave of Court. No written order to be filed. Clerk is directed to mail copy of the minute order to attorneys for plaintiff and defendant by regular mail and file proof of mailing.” (Emphasis added.)

Subsequently, on January 17, 1990, N&W filed a stipulation to reform the order of January 2, 1990, since the docket entry of that date contained a typographical error. A proposed amended order was submitted and the court approved that amendment. The amended order stated plaintiff was barred from presenting evidence of his disability or unemployability except as it related to his back injury and surgery. The docket entry for January 17, 1990, indicated this approval and directed the clerk to mail duplicate copies of the order to both parties. The docket entry for January 19, 1990, noted the filing of the clerk’s certificate of mailing copies of the amended order to both parties.

As noted in the emphasized portion of the docket entry of January 2, 1990, the trial court barred Roberts’ medical records for drug, alcohol, or mental treatment prior to April 9, 1984, the date he was injured. Clearly, any treatment for drug or alcohol abuse or psychiatric problems prior to the injury is not relevant and is privileged under the Confidentiality Act and the Alcoholism Act. There was no evidence presented at trial to suggest Roberts was under the influence of drugs or alcohol at the time of the occurrence, nor did any mental problems contribute to or cause this accident. N&W suggests that these records are relevant because they directly relate to the extent of Roberts’ injury and damages. Yet, no evidence was presented to show Roberts missed work prior to the accident because of these problems. Therefore, we conclude the trial court properly barred all records of treatment prior to the incident.

Furthermore, the other sentence emphasized in the docket entry for January 2, 1990, indicated Roberts’ medical records for treatment after the date of the injury were barred from discovery except by leave of court. Thus, with leave of court, N&W may have been permitted to obtain the records for drug, alcohol or mental treatment after the accident. However, so far as we are able to determine from a search of the record on appeal, N&W made no further effort to obtain leave of court to discover these records. N&W failed to file any pleadings to discover these records, although the docket entry implies it could do so.

Issues raised for the first time on appeal may not normally be considered by the appellate court or be argued on appeal. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575, 577.) Inasmuch as N&W had the opportunity to discover Roberts’ medical records for treatment after the accident, but failed to seek leave of court to obtain those records, it cannot now claim the denial of discovery of those records as error. See, e.g., Manning v. Mock (1983), 119 Ill. App. 3d 788, 808, 457 N.E.2d 447, 459.

IV. Motion In Limine Ruling

N&W next contends the trial court erred in granting Roberts’ motion in limine to exclude portions of Dr. Ochoa’s and Dr. Ashby’s depositions and completely excluding Dr. Finn’s deposition.

A. Dr. Ochoa’s Deposition

Dr. Ochoa’s deposition was presented to the jury by videotape. Prior to showing the tape, the trial court explained to the jury that the tape had been edited to delete matters on which it had granted an objection. While the record on appeal contains a transcript of the videotaped deposition as heard by the jury, it does not contain a copy of the deposition setting forth the deleted testimony upon which its argument is based. An appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) N&W complains that the parts of Dr. Ochoa’s deposition that were deleted should not have been, but without the benefit of seeing the deleted testimony, there is no basis for holding the trial court abused its discretion in deleting those portions of the deposition.

B. Dr. Ashby’s Deposition

Dr. Ashby’s deposition was read to the jury by defense counsel. Prior to this, portions of his deposition had been deleted. The attorneys made a record of this process, indicating which lines were to be omitted; however, this was done referring to the page numbers of the original deposition. The record on appeal instead contains the deposition in its entirety paginated in sequence with the rest of the trial transcript; it does not reflect the original pagination. N&W has failed to include on the record on appeal the original deposition of Dr. Ashby. Thus, this court cannot determine which portions were deleted from the deposition. N&W has indicated in its brief which lines were deleted from Dr. Ashby’s deposition, but without the original deposition, we cannot determine whether these in fact were the lines deleted from this deposition. Accordingly, there is no basis to hold the trial court abused its discretion in deleting portions of the deposition.

C. Dr. Finn’s Deposition

Finally, Dr. Finn’s deposition was entirely barred from being admitted into evidence and has been included in the record on appeal. The trial court indicated it had read Dr. Finn’s deposition in its entirety before ruling on its admission. N&W contends that this testimony was relevant because it bears upon the causation of Roberts’ disability and the extent of his pain and suffering. N&W further asserts that this testimony would be proper for impeachment purposes.

Section 10(a)(1) of the Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91V2, par. 810(a)(1)) provides that a patient’s records may be disclosed in a civil proceeding in which the recipient has introduced his mental condition or any aspect of his services received for such condition as an element of his claim or defense. The records can be disclosed if, after an in camera examination of the evidence, a trial court determines that (1) the records are relevant, probative, not unduly prejudicial or inflammatory and otherwise clearly admissible; (2) other satisfactory evidence is demonstrably unsatisfactory evidence of the facts sought to be established by such evidence; and (3) disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other who disclosure is likely to harm. Ill. Rev. Stat. 1989, ch. 91½, par. 810(a)(1).

1. Waiver by Identifying Finn as an Expert

N&W suggests that Roberts has waived this privilege in two ways. First, it alleges Roberts waived the privilege by identifying Dr. Finn as an expert witness pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220). The purpose of section 10(a)(1) of the Confidentiality Act is to preserve the confidentiality of the records and communications of persons who are receiving or who have received mental health services. The privilege of confidentiality encourages complete candor between patient and therapist and provides motivation for persons who need treatment to seek it. (Novak v. Rathnam (1985), 106 Ill. 2d 478, 478 N.E.2d 1334.) We do not believe Roberts waived his privilege merely by identifying Dr. Finn as an expert witness. By accepting N&W’s argument that disclosure of an expert and the taking of a deposition waives any privilege under the Confidentiality Act, that privilege would effectively be eliminated. The purpose of the privilege is to encourage candor between a physician and his patient and that candor would be hampered by allowing the privilege to be waived through discovery. Discovery is a vital part of the pretrial phase of a case and would be severely limited by a fear that naming a physician as a potential witness and allowing that deposition to be taken would allow communications regarding mental treatment to be discoverable. Accordingly, we reject this aspect of N&W’s waiver argument.

2. Waiver by Placing Mental Condition at Issue

N&W also suggests Roberts has waived this privilege by introducing his mental condition as an element of his claim or defense. This privilege can also be waived by placing one’s mental condition in issue. (Bland v. Department of Children & Family Services (1986), 141 Ill. App. 3d 818, 490 N.E.2d 1327.) We conclude that Roberts has placed his mental condition in issue by seeking compensatory damages.

The purpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish defendants or bestow a windfall upon plaintiffs. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 321, 546 N.E.2d 524, 530.) The purpose of awarding compensatory damages is to make the injured party whole and not to give him a profit. J.F. Equipment, Inc. v. Owatonna Manufacturing Co. (1986), 143 Ill. App. 3d 208, 217, 494 N.E.2d 516, 522.

Part of Roberts’ claim included damages for past and future lost wages. These damages are compensatory in nature because they purport to make him whole since, but for the injury, he could have worked. However, the deposition testimony of Dr. Finn might have established that Roberts’ back injury is not the only reason he was unable to return to work. Dr. Finn stated in his deposition that Roberts’ inability to return to work could have been caused by his alcoholism or chemical dependency. Moreover, Dr. Finn’s testimony might have established that during Roberts’ hospitalization for mental health treatment, which was after his injury but prior to his first back surgery, he was physically active and did not complain of back pain. Accordingly, inasmuch as Dr. Finn’s testimony related to the amount of damages suffered by Roberts, the trial court abused its discretion in barring his testimony. Because this testimony should have been admitted into evidence, N&W is entitled to a new trial.

V. Denial Of Rehabilitation Exam

N&W asserts that the trial court erred in denying its motion for a rehabilitation examination. N&W suggests the trial court should have ordered Roberts to submit to an examination by an occupational therapist of its choice to determine what physical work capacity and vocational rehabilitation potential existed for him. N&W offers no authority for the trial court to order such an examination other than asserting such authority comes from “the court’s inherent power to order discovery.”

Supreme Court Rule 215(a) (134 Ill. 2d R. 215(a)) provides, in pertinent part:

“In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court, upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination * * * >>

The provisions of Rule 215(a) are not mandatory, but vest broad discretion in the trial court to determine whether a physical examination should be ordered. (Jackson v. Whittinghill (1963), 39 Ill. App. 2d 315, 324, 188 N.E.2d 337, 341; People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 456, 392 N.E.2d 606, 608.) The purpose of the rule permitting the court to order the party to submit to a physical or mental examination by a physician suggested by the party requesting examination is not to provide an expert witness for the litigant but to permit discovery. Carlisle v. Harp (1990), 200 Ill. App. 3d 908, 913-14, 558 N.E.2d 318, 321.

N&W had adequate opportunity to discover Roberts’ work capacity. Its own expert, Douglas Cole, a rehabilitation counselor, examined all of Roberts’ medical records and was able to form an opinion about Roberts’ work capacity. N&W also had the opportunity to cross-examine Roberts’ witnesses, Hilliard and England, regarding his work capacity. While we are not inclined to interpret Rule 215 so strictly as to allow examinations by physicians only, we conclude that the trial court did not abuse its discretion in denying N&W leave to have Roberts submit to such an examination by an occupational therapist of its own choice.

VI. Instruction On Plaintiff’s Duty To Mitigate Damages

N&W next contends that the trial court erred when it refused its instruction regarding Roberts’ duty to mitigate his damages and instead submitted its own instruction on that issue. The instruction submitted by N&W was used in Baker v. Baltimore & Ohio R.R. Co. (6th Cir. 1974), 502 P.2d 638, 644, and is as follows:

“The law requires that any person who sustains a personal injury must mitigate his damages to the extent reasonably possible. Therefore, with respect to any claim of the plaintiff concerning a reduction in earning power, future lost wages or any inability to earn as much in the future as he would have been able to earn but for the injuries sustained on April 9, 1984, the plaintiff was required to mitigate his damage, and such mitigation may include further scholastic training, vocational rehabilitation training or any other preparation reasonably necessary to include the plaintiff’s earning ability in light of his injury.”

The instruction submitted by the court provided:

“An injured party is under legal obligation to mitigate his damages, that is to minimize economic loss resulting from his injury. Failure of the injured party to make reasonable efforts to minimize his damages does not prevent all recovery for economic loss, but it does preclude recovery for damages or losses which could have been avoided had a reasonable effort to lessen damages been made.”

Where no Illinois Pattern Jury Instruction (IPI) accurately states the law, a non-IPI instruction is permissible under Supreme Court Rule 239(a) (134 Ill. 2d R. 239(a)) if it is simple, brief, impartial, and nonargumentative. Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 46, 502 N.E.2d 480, 482; Daly v. Carmean (1991), 210 Ill. App. 3d 19, 31-32, 568 N.E.2d 955, 963.

Although N&W’s tendered instruction was adopted by the Sixth Circuit in Baker, neither the United States Supreme Court nor any Illinois court has adopted that particular instruction. Accordingly, this court is not bound to accept that instruction.

In Brown v. Chicago & North Western Transportation Co. (1987), 162 Ill. App. 3d 926, 516 N.E.2d 320, the First District Appellate Court recently addressed this particular issue and instruction. The instruction tendered by defendant there was almost identical to the one given in the present case, the only difference being the instruction in Brown included the phrase, “ ‘by resuming gainful employment as soon as such can reasonably be done’ ” at the end of the first sentence of the instruction. (Brown, 162 Ill. App. 3d at 931, 516 N.E.2d at 324.) The instructions were otherwise identical. See also Amos, 191 Ill. App. 3d at 639-40, 548 N.E.2d at 97-98 (wherein this instruction was also tendered).

The court in Brown concluded the instruction offered by defendant correctly stated the law. Under FELA, employees have a duty to mitigate their damages by returning to gainful employment as soon as reasonably possible. (Brown, 162 Ill. App. 3d at 931-32, 516 N.E.2d at 324-25; Amos, 191 Ill. App. 3d at 641, 548 N.E.2d at 99.) The instruction tendered by the court in this case met the requirements of Supreme Court Rule 239(a). It was simple, brief, nonargumentative and correctly stated the law as noted in Brown.

Although it differs slightly from the one tendered in Brown, the difference is of no consequence on the facts before us. The phrase deleted by the trial court here merely explained how the employee was to mitigate his damages, i.e., by going back to work as soon as was reasonable. Much of the evidence adduced at trial raised the issue of whether Roberts was capable of going back to work. N&W’s counsel stated in closing argument that Roberts' duty to mitigate his damages included his obligation to go back to work. Therefore, since the instruction met the requirements of Rule 239(a), and the specific process of how Roberts was to mitigate his damages was argued by N&W, the instruction given by the trial court was proper.

VII. Conclusion

In summary, the trial court properly admitted the statements of Wainscott as admissions of N&W, properly refused to order Roberts to undergo an examination by an occupational therapist of N&W’s choice and correctly instructed the jury regarding mitigation of damages. However, the trial court abused its discretion in barring the testimony of Dr. Finn, and for this reason, the judgment is reversed and this cause is remanded for a new trial. Since we have determined that N&W is entitled to a new trial, we need not address its last issue, i.e., the jury verdict was grossly disproportionate to any injury suffered by Roberts.

Reversed and remanded.

LUND, J., concurs.

JUSTICE COOK,

specially concurring:

While I agree with the majority as to reversal and remand for a new trial, and with the majority’s analysis of most issues, I disagree on some points.

A recipient of mental health or developmental disabilities services who wishes to prevent disclosure of his records or communications must be consistent in expressing his desire for confidentiality. If there is a disclosure of confidential information by the recipient, or if he permits such a disclosure, the privilege is waived and cannot be reasserted. (Novak v. Rathnam (1985), 106 Ill. 2d 478, 484, 478 N.E.2d 1334, 1337 (psychiatrist called by defendant in criminal trial required to testify in subsequent civil case; of. self-incrimination privilege).) As to issue IV(C)(1), I would find it inconsistent with the exercise of the privilege for plaintiff to have designated Dr. Finn as an expert witness in accordance with Rule 220(a)(1). (134 Ill. 2d R. 220(a)(1).) Plaintiff chose to make that designation so that he could call Dr. Finn as a witness at trial — -so that plaintiff would avoid disqualification of the witness under Rule 220(b)(1). (134 Ill. 2d R. 220(b)(1).) Designation as an expert exposed Dr. Finn to discovery on his conclusions and opinions and the bases therefor. Plaintiff argues he was forced to designate Dr. Finn as an expert because a local court rule required that treating physicians be designated as experts. (Cf. Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.) It is still clear the reason Dr. Finn was designated was because plaintiff wanted to be free to call him at trial. Plaintiff could have protected Dr. Finn from discovery by designating him a “consulting expert,” but then plaintiff could not have called Dr. Finn as a witness. (134 Ill. 2d Rules 220(a)(2), (b)(2).) Clearly when plaintiff went on to permit Dr. Finn to be deposed, and did not assert the privilege during the deposition, plaintiff waived the privilege. All matters that are privileged against disclosure at trial are privileged against disclosure through any discovery procedure. 134 Ill. 2d R. 201(b)(2).

Section 10(a)(1) of the Confidentiality Act requires the trial court to balance plaintiff’s need for confidentiality against defendant’s need for disclosure. Balancing is difficult where different parties suffer the harm and enjoy the benefit. There is a difference between a plaintiff-witness and an ordinary -witness. Plaintiff wanted to keep out the testimony of Dr. Finn because it harmed his case, not because plaintiff wanted to preserve the integrity of the therapist-patient relationship. If Dr. Finn’s deposition had been more favorable, plaintiff would have called Dr. Finn himself. A plaintiff should not be allowed to use a privilege as both a sword and a shield. In re Marriage of Hartian (1988), 172 Ill. App. 3d 440, 452-53, 526 N.E.2d 1004, 1113 (privilege against self-incrimination).

When the trial court heard argument, examined plaintiff’s psychiatric and chemical dependency records in camera, and issued an order requiring disclosure of those records, then issued a second order barring them from discovery “except by leave of court,” the trial court definitively ruled the records were not discoverable. The quoted language in the court’s order did no more than remind all concerned that the order was interlocutory and could be changed as circumstances warranted. The language was neither an invitation to nor a requirement that defendant proceed further. I would find that defendant has not waived the issue that denial of discovery of these records was error.

Counsel for defendant was allowed to examine the records which were not disclosed when they were included in the record on appeal in this court. A better procedure would have been to have impounded that portion of the record as was done in People v. Bean (1990), 137 Ill. 2d 65, 102-03, 560 N.E.2d 258, 275, cert, denied (1991), 499 U.S. 932, 113 L. Ed. 2d 270, 111 S. Ct. 1338. The fact these records have now been disclosed is one more reason why no privilege exists, for example, on retrial. “ ‘To enforce it thereafter is to seek to preserve a privacy which exists in legal fiction only.’ ” Novak, 106 Ill. 2d at 484, 478 N.E.2d at 1337, quoting 8 Wigmore, Evidence §2389(4), at 860-61 (McNaughton rev. ed. 1961).

In criminal cases the public policy in maintaining the confidentiality of mental health records is subordinate to a defendant’s constitutional right to effectively cross-examine an adverse witness to show bias. Bean, 137 Ill. 2d at 99-100, 560 N.E.2d at 273-74 (an in camera procedure is appropriate to determine which records should be disclosed); cf. People v. Knuckles (1992), 226 Ill. App. 3d 714, 718 (defendant’s communications protected by attorney-client privilege); In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, 721, 558 N.E.2d 388, 393 (trader Illinois Marriage and Dissolution of Marriage Act mental condition considered introduced only if recipient or his witness first testifies concerning the record or communication).

Habitual drug use is a significant factor in evaluating witness credibility. (People v. Di Maso (1981), 100 Ill. App. 3d 338, 342-43, 426 N.E.2d 972, 975; People v. Givens (1985), 135 Ill. App. 3d 810, 825, 482 N.E.2d 211, 222.) Records regarding a plaintiff’s treatment for alcoholism have similarly been held not protected by the Confidentiality Act. (Maxwell v. Hobart Corp. (1991), 216 Ill. App. 3d 108, 115, 576 N.E.2d 268, 273.) Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (People v. Chambers (1989), 179 Ill. App. 3d 565, 578, 534 N.E.2d 554, 561), but I would not hold the Confidentiality Act to be an absolute bar to the disclosure of evidence relevant on credibility, especially in a case such as this where plaintiff’s credibility is crucial.

As to issue V, I agree with the majority that Supreme Court Rule 215(a), which allows the court to order a party to submit to a mental or physical examination by the opponent’s physician, should not be interpreted so strictly as to allow examination only by physicians. I disagree, however, that the trial court properly exercised its discretion in refusing an examination by defendant’s occupational therapist or rehabilitation counselor. The rule provides that “[t]he court may refuse to order examination by the physician suggested but in that event shall permit the party seeking the examination to suggest others.” 134 Ill. 2d R. 215(a).

“Absent some substantial countervailing consideration, the defendant should be entitled to a physical examination by a physician chosen by him or the court, even though plaintiff ‘informs’ defendant by exhibiting to him a report of plaintiff’s physicians, hospital records or similar data on which plaintiff may intend to rely at the trial. A party should ordinarily not be relegated to reports obtained by his adversary for his discovery of the nature and extent of his adversary’s injuries.” (Ill. Ann. Stat., ch. 110A, par. 215, Historical and Practice Notes, at 355 (Smith-Hurd 1985).)

There is no suggestion in the record that the examination would have been painful, embarrassing, or uncomfortable for plaintiff, and if that suggestion had been made the court could have imposed conditions on the examination. Carlisle v. Harp (1990), 200 Ill. App. 3d 908, 558 N.E.2d 318, cited by the majority, denied the request as untimely, a consideration not present in this case. Jackson v. Whittinghill (1963), 39 Ill. App. 2d 315, 324, 188 N.E.2d 337, 341, cited by Carlisle for the proposition that the purpose of a Rule 215 examination is not to provide an expert witness for the litigant but to permit discovery, involved a request that a second defense expert examine the plaintiff after one examination had been conducted by a general practitioner. When plaintiff here chose to be examined by his own occupational therapist with the intent to present that testimony at trial, the court should have exercised its discretion under Rule 215 to order plaintiff to submit to examination by an occupational therapist chosen by defendant.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BASHAM, Defendant-Appellant.
    Fourth District
    No. 4—91—0892
    Opinion filed May 28, 1992.

      L. Stanton Dotson, of Mattoon, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Larry Basham appeals his conviction for aggravated battery under section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)), following a jury trial in the circuit court of Coles County. Defendant was acquitted of the offense of aggravated battery by use of a deadly weapon (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(1)). He was also acquitted of the offense of battery against Lilly Lewis. Defendant argues (1) he is not guilty under the doctrine of self-defense; (2) the verdict is against the manifest weight of the evidence; (3) the jury was prejudiced because a prosecution witness had independently contracted with the employer of a juror; (4) jury instructions were improper and prejudicial; and (5) the court erred in denying a motion for mistrial, where the jury heard evidence concerning defendant’s prior criminal conduct.

Facts

Tim Smith and defendant live on lots adjoining a bank parking lot where children often play baseball. On May 25, 1991, Tim Smith approached a number of children in the lot and asked if they would hit the ball in a different direction or play down the street at the baseball diamond. He was apparently concerned because balls would often hit his house and otherwise land on his property. He was afraid a ball might hit his five-year-old son or his father, Lonnie Smith, who was mowing the lawn.

According to Tim and his father, defendant came rushing out to the lot and began yelling wildly at Tim, apparently telling him that the children could play in any direction they wished. Defendant then allegedly encouraged the children to continue hitting the ball in the same direction, toward the Smith house. The first pitch resulted in a ball landing in the Smith yard and Tim yelled something to the effect that the ball was now his. Defendant’s father walked over to Tim and asked for the ball back, but Tim refused. About this time, defendant ran back to his garage and returned with a basket of balls and a few more bats and, according to the Smiths, encouraged the children to keep hitting the balls. At this point, Lonnie Smith climbed off his riding mower and walked out to the playing field to talk with defendant. Lonnie claims he said to defendant, “Me and you have to talk.” Defendant claims he said, “Punk, me and you are going to tangle.” Lonnie was followed by his wife, Lilly, who began yelling at defendant and pointing her finger toward his face. Defendant had, in the meantime, picked up a bat and, when Lilly came close to him, he allegedly grabbed her by the neck and pushed her. Defendant claims he just slapped her hands away from his face. John Poorman, an independent witness, testified that he saw Lilly step backward as though she was trying to regain her balance after being pushed.

Lonnie testified he was only trying to reason with defendant, asking him why he would teach his children to hit balls toward his son’s house. Defendant claims Lonnie was encouraging him to drop the bat and fight it out. Poorman testified that defendant jabbed the bat toward Lonnie a few times and then began to walk back toward his house, turning a few times to face Lonnie. Lonnie was apparently quite heated at this point, yelling at defendant for hitting his wife and following defendant as he walked toward his home.

The moment they both reached defendant’s property, defendant turned around, told Lonnie to get off his property, and then swung the baseball bat hard, toward his knees. A number of witnesses, including defendant’s mother, testified that defendant hit Lonnie immediately after telling him to get off his property. Lonnie blocked the bat with his forearm; they struggled and eventually fell into defendant’s garage. Lilly and Tim ran in behind and, after a heated exchange of words, broke up the fight. It was later discovered that Lonnie’s forearm had been broken when he blocked the baseball bat.

Defendant claims that Lonnie came after him with his hands doubled up and was just about to hit him. He claims he swung the bat at Lonnie’s knees in self-defense. Lonnie claims he never intended to hit anyone; he approached defendant with his hands unclenched and claims that defendant’s actions were unprovoked. Defendant called the police and spoke with Officer Hale, who came to defendant’s house to investigate. After speaking again with defendant and taking statements from witnesses, Officer Hale returned to defendant’s house and arrested him for aggravated battery.

Defendant argues that he is not guilty under the doctrine of self-defense. Whether one has acted in self-defense is a question for the jury. (People v. Jordan (1960), 18 Ill. 2d 489, 165 N.E.2d 296.) Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Including testimony of the victim and defendant, the jury heard 14 different versions of the event in question, each differing slightly in detail. Of the 14 occurrence witnesses, only 2 are adults and unrelated to either party.

The primary issue for the jury was whether Lonnie appeared ready to strike defendant just before defendant hit him with the bat. John Poorman, a disinterested witness and neighbor, testified that Lonnie never tried to strike defendant and never clenched his fists. In his opinion, Lonnie was not threatening defendant at all. Another disinterested witness, Steve Shadwick, lives between defendant’s house and defendant’s parents’ house. He testified that Lonnie had his fists clenched and walked toward defendant in a fast-paced, angry manner. The State impeached this version with testimony of Officer Hale, who claims Shadwick told him on the date of the occurrence that Lonnie approached defendant in a calm manner, with open hands down at his sides.

It is not the function of this court to retry defendant. Our supreme court reiterated the applicable standard in People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268, cert, denied (1990), 498 U.S. 881, 112 L. Ed. 2d 174, 111 S. Ct. 215, where it held that after reviewing the evidence in the light most favorable to the prosecution, a conviction will be upheld as long as “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (Eyler, 133 Ill. 2d at 191, 549 N.E.2d at 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) In this case, the jury was capable of weighing the credibility of witnesses and amply justified in finding sufficient evidence to convict. We find it neither unreasonable nor improbable that the jury would disbelieve defendant’s claim of self-defense.

Defendant next argues that the jury was impaneled improperly and was prejudiced against defendant. During voir dire, it was disclosed that a member of the jury, Maria Miller, worked with the Department of Children and Family Services (DCFS). As a result, she occasionally worked with prosecuting attorney Novak. Although her contact with Novak was generally infrequent, she had just finished working a case with him only two weeks before. She stated she did not know any of the witnesses and had minimal contact with the police officers scheduled to testify. Miller was questioned by the court, defense counsel, and prosecutor before defense counsel accepted the panel. The court then turned to the selection of alternate jurors. After the first alternate was interviewed, defense counsel asked to have Miller removed from the panel and replaced by the alternate. The request was denied. Defense counsel then argued to have her eliminated for cause, claiming that her relationship to the prosecutor was too close for a juror. This request was also denied. During trial, Debbie Lynn Smith, the victim’s daughter-in-law, testified on cross-examination that she was employed as a counselor and independently contracted with DCFS. She was never asked if she knew Miller and gave no indication that she did.

At the end of trial, as the jurors were being led from the courtroom, defense counsel requested a side bar and repeated his objection to Miller. He claimed he saw her smile at the prosecutor as she was leaving, and also pointed out that she was employed at DCFS, where a witness does some business. The request to substitute her for an alternate juror was denied. In defendant’s post-trial motion and appeal, the issue of Miller’s relationship with Novak was discarded. Defendant argues that since Miller’s employer has done business with a witness, there is a presumption of unfair prejudice that calls for a mistrial.

Defendant’s objection is neither timely nor persuasive. Counsel should have known through discovery that Debbie was employed at DCFS and ought to have made his objection during voir dire. Furthermore, when the witness’ occupation was elicited during defense counsel’s cross-examination, he had the opportunity to ask the essential question — -whether she knew any of the jurors on the panel. He did not. Miller claims she did not know any of the people on the witness list, and we find virtually no evidence in the record to rebut this assertion. The mere fact that a witness has independently contracted with an agency that employs one of the jurors is not, by itself, indicative of prejudice and is not grounds for a mistrial.

Defendant next argues his case was unfairly prejudiced when the court refused to give the second paragraph of fllinois Pattern Jury Instructions, Criminal, No. 24 — 25.09 (2d ed. 1981) (hereinafter IPI Criminal 2d), which read:

“A person who initially provokes the use of force against himself is justified in the use of force only if
the force used against him is so great that he reasonably believes he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause death or great bodily harm to the other person;
or
he in good faith withdraws from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and terminate the use of force, but the other person continues or resumes the use of force.”

Defense counsel failed to preserve his objection to the jury instruction in his post-trial motion. “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis omitted.) (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) We acknowledge that certain instructions such as those involving elements of the offense, presumption of innocence, and burden of proof are essential to a fair jury trial. In these cases, the concept of waiver will not be employed to bar reversal. (People v. Tucker (1988), 176 Ill. App. 3d 209, 219-20, 530 N.E.2d 1079, 1086.) We agree with the decision in Tucker, where the court held that this particular instruction is not one of the “essential” instructions required for a fair trial. (Tucker, 176 Ill. App. 3d at 220, 530 N.E.2d at 1086.) The second paragraph of this instruction is optional, and is only to be used when the court finds it is applicable. (See IPI Criminal 2d No. 24 — 25.09, Committee Note, at 557.) We find the court was justified in eliminating the second paragraph of the instruction.

Finally, defendant argues that the court erred in denying a motion for mistrial, where the jury heard evidence concerning defendant’s prior criminal conduct. The complained-of evidence reads, in relevant part:

“Q. [Defense counsel:] So you didn’t really know whose children it was, did you?
A. [Prosecution witness Lilly Lewis:] I knew they were Larry Basham’s children because I had seen those children before because I had had an occasion to speak with a couple of them at one time when I asked them to please leave the yard when they were throwing snowballs at Corey and Jessie and my cousins that live down the street, my cousin’s children. And they were real small children, and they informed me that I couldn’t come on their property either, then.
* * *
Q. [Prosecution:] Concerning Mr. Basham, did you know Mr. Basham prior to that date?
A. [Prosecution witness Officer Hale:] Um, I am not acquainted with Mr. Basham. I had an incident sometime prior to meeting him on that occasion which involved a juvenile problem in Humboldt, and I briefly spoke — .”

We find the testimony here to represent trivial incidents involving defendant’s children, not evidence of prior criminal acts of the defendant. While no objection was made to the testimony of Lilly Lewis, counsel did object to Officer Hale’s testimony and the jury was properly instructed to ignore the Information volunteered in the answer shown above. We find the likelihood that this testimony served to inflame the jury to be slight and uphold the court’s denial of defendant’s motion for mistrial.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. GRAHAM, Defendant-Appellant.
    Fourth District
    No. 4—91—0841
    Opinion filed June 4, 1992.
    Kristen H. Fischer, of Kristen H. Fischer Law Offices, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Beth McCann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, John Graham, pleaded guilty to driving under the influence (DUI), a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 95V2, pars. 11 — 501(a)(1), (c).) The Champaign County circuit court sentenced him to 24 months’ probation but, after defendant indicated he did not believe he could comply with the terms of probation, the court vacated the sentence of probation and sentenced him to 364 days’ incarceration. The defendant appeals the imposition of the sentence of incarceration. We affirm.

Defendant’s presentence investigation report indicates he is 43 years old. He has been employed sporadically and previous employers have rated his job performance as fair or poor. They stated he was not dependable and was often absent due to his drinking problem. The report showed two DUI convictions, one in 1986 and one in 1990. An alcohol and drug evaluation report diagnosed defendant at level III, problematic use/dependence (high risk) (see 92 Ill. Adm. Code §1001.410, at 6352 (1991)) and recommended outpatient treatment for alcohol abuse.

At the sentencing hearing in October 1991, defendant made a statement in which he argued incarceration was not in his best interest and instead sought probation. He described the evaluation process as aggravating and felt he had been mistreated during the evaluation. He believed the assessment of his alcohol use was inaccurate.

The court announced a sentence of 24 months’ probation with the following conditions: report to the county court services department; pay court costs within a specified time; pay a probation fee of $10 per month; obtain 75 hours of outpatient alcohol and drug treatment, followed by a minimum of 22 hours of follow-up service at a licensed alcohol treatment agency; serve 180 days in jail; and attend three Alcoholics Anonymous (AA) meetings each week while not incarcerated.

The court indicated the defendant would be released from incarceration on November 25, 1991, so he could begin to receive treatment. He was to report back to the court in January 1992 with proof of treatment and attendance at AA meetings and compliance with other terms of probation. If defendant met these conditions, the court stated he would not be sent back to jail, i.e., the remainder of the 180 days’ incarceration could be remitted. The following colloquy then immediately occurred:

“THE DEFENDANT: Your Honor, you’ve taken away my means of even accomplishing the first part of it. I will lose not only my place of residence but my source of income and everything. I have no transportation. I—
THE COURT: Are you telling me [that] you’re not going to do these things, Mr. Graham?
THE DEFENDANT: You’ve made it impossible for me to complete by putting me in jail.
THE COURT: Are you telling me you’re not going to do these things, Mr. Graham?
THE DEFENDANT: I’m telling you, your Honor, you have made—
THE COURT: No, Mr. Graham. I haven’t made anything impossible for you. You — this could be a felony matter where you could be going to the penitentiary. Sir, you have made this possible for yourself. What I am doing, sir, is giving you a break. If you aren’t going to do it, if you’re telling me you’re not going to do it, you might as well tell me—
THE DEFENDANT: Your Honor-
THE COURT: —and save both of us time.
THE DEFENDANT: I can’t say I can do something I don’t think I can do.
THE COURT: Well, then fine. Show prior orders vacated. Defendant is sentenced to the Champaign County Correctional period [sic] for a period of 364 days with credit for 7 days’ time served.
Mr. Graham, at this point, if you’re not going to try, if you don’t feel that there’s any possibility, if you’re telling me you’re not going to do it, then I accept that, sir, and I will sentence you just to 364 days in jail. I will give you credit for the 7 days already served.
I told you you had a choice. It would appear from your attitude from what you [have] told me about this matter that you are a person who will not be able to be trusted. If you are a person who will not do what they’re supposed to day [sic] because you don’t believe that you have the ability or means to do it, I can accept that, sir; and at this point I will do that for you and not give you the hassle of having to deal with me. So, you’ll just go to jail for 364 days and be ordered to pay the costs in this matter.”

The court later denied defendant’s motion to reconsider the sentence. This appeal followed.

The first issue is whether the court had authority to impose the sentence of incarceration. Section 5 — 8—1(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 1(c)), states, in part: “[T]he [trial] court may reduce [or modify] a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed.” Subsection (c) of this section applies to misdemeanor as well as felony cases. People v. Cornett (1975), 29 Ill. App. 3d 244, 247, 329 N.E.2d 922, 925 (discussing section 5 — 8—1(d) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(d)), predecessor to present section 5 — 8—1(c)).

On appeal, defendant argues the court improperly increased his sentence in violation of section 5 — 8—1(c) of the Code. (People v. Stiger (1979), 69 Ill. App. 3d 188, 191, 387 N.E.2d 55, 57 (discussing section 5 — 8—1(d) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(d)), predecessor to present section 5 — 8—1(c)).) According to the defendant, the court’s oral pronouncement of the sentence was the judgment of the court and the later sentence of incarceration was barred because it constituted an increase in punishment. We disagree with the defendant’s characterization of the proceedings.

“[I]n a criminal proceeding, the pronouncement of the sentence is the judicial act which comprises the judgment of the court. The entry of the sentencing order is a ministerial act and is merely evidence of the sentence.” (People v. Williams (1983), 97 Ill. 2d 252, 310, 454 N.E.2d 220, 248; see also People v. Allen (1978), 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284.) In this case the trial court clearly intended to honor the defendant’s request and sentence him to probation. However, before the trial judge could conclude the sentencing hearing, the defendant interrupted and indicated he could not or would not comply with the terms of probation. Once the judge learned of defendant’s recalcitrance, he immediately imposed the sentence of incarceration. We conclude the court had the authority to impose 364 days’ incarceration because the sentencing hearing had not yet concluded, the defendant rejected the conditions of probation and thus rejected the sentence itself, and the court acted immediately.

The court’s prompt action also conserved judicial resources. A trial judge need not enter judgment on a sentence of probation when the defendant has just informed the court he will not comply with the terms of probation. This would necessitate additional action by the court at a later date, probably in the form of a probation revocation hearing. “Scarce resources should not be wasted on uncooperative offenders who demonstrate no willingness to abide by the simplest of conditions.” People v. Harlan (1991), 219 Ill. App. 3d 255, 258, 579 N.E.2d 1152, 1154; see also People v. Bell (1991), 219 Ill. App. 3d 264, 268, 579 N.E.2d 1154, 1157.

We must now determine whether the court abused its discretion in imposing this sentence. Defendant argues it is excessive. We disagree. The sentence did not exceed statutory limits. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—3(a)(1).) Given defendant’s record of prior DUI convictions, his unwillingness to accept the diagnosis of the severity of his alcohol problem, and his unwillingness to comply with the terms of probation, the court did not abuse its discretion in sentencing him to 364 days’ incarceration.

The judgment of the Champaign County circuit court is affirmed.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re JOHN J. WIESSING, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. John J. Wiessing, Respondent-Appellant).
    Fourth District
    No. 4—91—0972
    Opinion filed June 4, 1992.
    William D. Reid, of Elmore & Reid, of Springfield, for appellant.

      Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by respondent, John J. Wiessing, from the judgment of the circuit court of Sangamon County directing respondent to be hospitalized with the Illinois Department of Mental Health after finding him to be a person subject to involuntary admission. On appeal, respondent raises three issues: (1) whether the petition for involuntary admission was fatally defective because it failed to contain a detailed statement of the reason for asserting respondent to be a person subject to involuntary admission, failed to state the date of the alleged occurrence on which it was based, and did not state a diligent inquiry had been made to ascertain the names and addresses of the spouse, parent, guardian, close relative, or friend of respondent; (2) whether reversible error occurred when the trial court did not ask respondent whether he desired copies of the petition and notice to be sent to any other person pursuant to section 3 — 704(b) of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 9DA, par. 3 — 704(b)); and (3) whether the trial court’s judgment is against the manifest weight of the evidence. We reverse and for reasons hereinafter stated we address only part of the first issue, the failure to include in the petition the name and address of persons named in section 3 — 601(b)(2) of the Code or in lieu thereof to allege diligent inquiry has been made. Ill. Rev. Stat. 1989, ch. 9DA, par. 3— 601(b)(2).

On December 26, 1991, a petition for involuntary admission was filed alleging respondent is a person who is mentally ill and who, because of his illness, is reasonably expected to inflict serious physical harm upon himself or another in the near future. (Ill. Rev. Stat. 1989, ch. 9DA, par. 3 — 601(a).) The detailed statement alleged respondent had “raised his voice” to a child with regard to getting him Christmas presents as respondent is “Santa’s Helper.” Respondent was considered to be a threat to the child and police escorted him to the hospital. The petition further stated respondent appeared “manic, hostile and out of control. Mr. Wiessing has a series of unsuccessful hospitalizations.” Sally Heffernan signed the petition on December 24, 1991. There was no designation of witnesses nor were there any names of a spouse, parent, guardian, close relative, or friend.

A November 27, 1991, report of a social work consultation done at St. John’s Hospital indicated respondent’s parents were deceased and he has two brothers and one sister living in Springfield, one sister in Orlando, Florida, one sister in California, and one sister who is an Ursuline nun in Pueblo, New Mexico.

This court has stated that, in mental health cases, strict compliance with the statutory provisions is compelling since a liberty interest is involved. Noncompliance with statutorily prescribed involuntary commitment procedure renders the judgment erroneous and of no effect. (In re Elkow (1988), 167 Ill. App. 3d 187, 193, 521 N.E.2d 290, 294.) As stated, we need only address the contention that section 3 — 601(b)(2) was not complied with because the petition fails to allege that a diligent inquiry to find respondent’s spouse, parent, guardian, close relative, or friend had been made.

Section 3 — 601(b)(2) of the Code requires that the petition shall include the names and addresses of such persons or, if the petitioner was unable to supply such names and addresses, the petition “shall state that diligent inquiry was made to learn this information and specify the steps taken.” (Ill. Rev. Stat. 1989, ch. 911/2, par. 3— 601(b)(2).) According to the report, although respondent has little contact with his family, there is no excuse for failure to contact a close relative as required by the statute. The issue as to compliance with section 3 — 601(b)(2) is not whether there was substantial compliance. The petition fails to show any compliance. To say this petition was adequate would render meaningless the provisions of section 3 — 601(b)(2) and eliminate an important protection to persons similarly situated to respondent. Elkow, 167 Ill. App. 3d at 193, 521 N.E.2d at 294.

Accordingly, the judgment of the circuit court of Sangamon County is reversed.

Reversed.

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL K. JOHNS, Defendant-Appellant.
    Fourth District
    No. 4—91—0652
    Opinion filed May 20, 1992.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

The circuit court of Adams County resentenced defendant to six years of imprisonment, after revoking his probation. Defendant appeals, arguing that the trial court abused its discretion in sentencing him to a term longer than the originally agreed five-year cap on imprisonment. We reject that argument, but because defendant could not be sentenced to a term longer than the maximum sentence of which he was advised by the trial court, we reverse and remand for resentencing.

An Adams County information charged defendant Carl Johns with three counts of burglary. (See Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1.) On November 2, 1990, defendant agreed to plead guilty to count III and pay restitution on all counts in return for dismissal of the other charges and a cap of five years of imprisonment. The court admonished defendant and inquired as to whether (1) his guilty plea was knowing, intelligent, and voluntary; his understanding that (2) the court could sentence him to the Department of Corrections for as much as five years for pleading guilty; (3) there was no guarantee he would receive a sentence to the Treatment Alternatives for Special Clients (TASC) program; (4) his plea as a waiver of his right to trial or to confront witnesses; and (5) his guilty plea as a waiver of his right to be presumed innocent. Since defendant was already on probation for a burglary in Pike County, the court admonished him of the possibility that his sentence could run consecutively to any sentence resulting if his probation was revoked in Pike County. The court ordered that defendant was to be considered for eligibility with the TASC program for his drug and alcohol problems. The court did not, however, advise defendant of the minimum and maximum sentences for burglary, three to seven years (see Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 1(b), 1005-8-l(a)(5)).

On January 9, 1991, the court sentenced defendant to five years of probation with six months of imprisonment, and ordered defendant to complete the TASC program. The court emphasized that defendant must successfully complete the TASC program and his failure to do so would leave the Department of Corrections as his only alternative. Specifically, the court stated: “If you don’t take advantage of this opportunity, then you will burn all your bridges and you will have no options left and neither will the Court and you will have to go to the Department of Corrections [(DOC)] tor five years.” (Emphasis added.)

Defendant entered the Gateway program in Springfield, Illinois, but was given a “neutral” discharge on June 13, 1991. The State filed a petition to revoke defendant’s probation, alleging he had thereby violated his probation. On June 26 the court informed defendant that if the State proved its allegations, “then your probation could be revoked and you could be resentenced to any terms up to the maximum to the Department of Corrections for the offense of burglary, which means you could be sentenced 3 to 7 years in the Department of Corrections and fined up to $10,000.” (Emphasis added.) The court had not previously admonished defendant that he could be sentenced to a term longer than the five-year cap.

On August 14, the court denied the State’s motion to modify defendant’s probation and ordered TASC to accept defendant at another facility. The court ordered defendant to remain in the Adams County jail until another position in the TASC program could be found to accept him. On August 26, the State filed another petition to revoke probation, again alleging defendant had failed to complete the program. The petition contained an affidavit from Rubin Bigger, an employee of TASC, which averred he had found no other treatment facilities which would accept defendant. Bigger explained Gateway’s “neutral” discharge, stating that “due to mental and/or psychiatric defects that developed or first exhibited themselves subsequent to [defendant’s admission on] February 19, 1991, Gateway was unable to provide service and discharged the defendant.” At a hearing August 15, the court revoked defendant’s probation, finding that treatment for defendant was not available at any facility. The court resentenced defendant to six years of imprisonment with credit for 242 days previously served.

Defendant’s conduct, though apparently nonculpable, does not preclude a sentence to DOC if no TASC facilities are available. Revocation of probation need not be based on wilful conduct of the defendant for the court to resentence a defendant to a term longer than the original agreement. People v. Davis (1984), 123 Ill. App. 3d 349, 462 N.E.2d 824; People v. Allegri (1985), 109 Ill. 2d 309, 487 N.E.2d 606.

For a guilty plea to be constitutionally valid the record must affirmatively show the plea was intelligent and voluntary. (People v. Woods (1985), 134 Ill. App. 3d 294, 299, 480 N.E.2d 179, 183.) The constitutional requirement is satisfied when the trial court substantially complies with Rule 402(b) (134 Ill. 2d R. 402(b)). (Woods, 134 Ill. App. 3d at 300, 480 N.E.2d at 183.) Under Rule 402, the trial court shall not accept a plea of guilty without first informing defendant of and determining that he understands the nature of the charge, the minimum and maximum sentence prescribed by law, that he had the right not to plead guilty, and that he is relinquishing certain rights by pleading guilty. 134 Ill. 2d Rules 402(a), (b).

In support of his contention that he was not properly admonished, defendant cites People v. Bray (1989), 186 Ill. App. 3d 394, 542 N.E.2d 512, where the court revoked a defendant’s probation after a negotiated plea agreement to a maximum of three years of imprisonment. In Bray the appellate court affirmed the trial court’s resentencing of defendant to five years of imprisonment after the probation revocation, finding that the court was free to resentence defendant to any permissible sentence under the statute if he did not meet the terms of probation. The court noted that the trial judge specifically admonished defendant at the guilty plea hearing of the possibility that, if his probation were revoked, he could be resentenced up to the statutory limit for his offense. (Bray, 186 Ill. App. 3d at 398, 542 N.E.2d at 515.) Here, defendant was not informed at the time he entered his plea that any sentence beyond five years was possible. Indeed, the judge specifically asked him if he understood that he “could be sentenced to the Department of Corrections for as much as five years by pleading guilty today.”

The clear purpose of Rule 402 admonitions is to ensure defendant understands the plea, the rights he has waived by his plea, and the results of his actions. (People v. Louderback (1985), 137 Ill. App. 3d 432, 435, 484 N.E.2d 503, 505.) This court has previously noted that if a defendant’s plea of guilty is made in reliance on a misrepresentation as to the sentence imposed, the plea is not voluntary and should be set aside. (People v. Culp (1984), 127 Ill. App. 3d 916, 923, 468 N.E.2d 1328, 1333.) This court has also held that, upon revocation of a defendant’s probation, the trial court is limited in sentencing by the maximum penalty upon which the defendant had originally been admonished. (People v. Wenger (1976), 42 Ill. App. 3d 608, 356 N.E.2d 432.) In Wenger, the trial court initially sentenced defendant to two years of probation after admonishing defendant that he could be sentenced to one to three years in the penitentiary and fined up to $10,000. When defendant’s probation was revoked, defendant was re-sentenced to a term from 32 to 96 months in the penitentiary. This court reversed and found that a proper admonition would have informed the defendant at the time his guilty plea was accepted that he was accused of an offense carrying a potential penalty from 1 to 10 years in the penitentiary plus a fine of up to $15,000. This court quoted from People v. Jackson (1973), 13 Ill. App. 3d 232, 236, 300 N.E.2d 557, 560, in support of its holding:

“ ‘It is readily apparent that an accused’s knowledge of the consequences is not only a determining factor in the voluntariness of his plea but is often an inducement to a guilty plea.
[ ] Justice and fairness demand that if a guilty [plea] rests on an inaccurate representation as to the maximum penalty the promise implied in the representation should be fulfilled.’ ” (Emphasis omitted.) Wenger, 42 Ill. App. 3d at 610-11, 356 N.E.2d at 434.

This court has applied similar reasoning to defendants who were not admonished as to mandatory supervised release terms. People v. O’Toole (1988), 174 Ill. App. 3d 800, 801, 529 N.E.2d 54, 55 (defendant advised he would be sentenced to “ ‘a flat ten years’ ”); People v. Wills (1975), 61 Ill. 2d 105, 330 N.E.2d 505.

It is not enough that the trial court here admonished defendant at the time of an earlier arraignment as to the minimum and maximum sentences applicable for burglary. Substantial compliance with the requirements of Rule 402 may not be found from admonitions given at proceedings prior to the guilty plea proceedings. (People v. Culbertson (1987), 162 Ill. App. 3d 319, 321, 515 N.E.2d 465, 467; People v. Porter (1978), 61 Ill. App. 3d 941, 945, 378 N.E.2d 788, 791.) The time the plea is taken is the crucial time and the record must clearly and affirmatively show that the plea was intelligently and understandingly made within the mandates of Rule 402.

Accordingly, we reverse the order sentencing defendant to six years in the Department of Corrections and remand for sentencing in conformity with this order.

Reversed and remanded for resentencing.

GREEN, P.J., and McCULLOUGH, J., concur.


text:
    THE CITY OF SPRINGFIELD (Police Department), Plaintiff-Appellant, v. SPRINGFIELD POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION, UNIT No. 5, Defendant-Appellee.
    Fourth District
    No. 4—91—0648
    Opinion filed May 28, 1992.

      James K. Zerkle, Corporation Counsel, of Springfield (Jill Leka, Assistant Corporation Counsel, of counsel), for appellant.
    Ronald J. Stone, of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The genesis of this appeal was conduct by John Workman, a police officer of the City of Springfield (City), which resulted in discipline. After specific discipline was accepted, the City refused to assign Workman to the third shift. One year later, his request to return to the night shift was denied and a grievance was filed which resulted in mandatory arbitration under the terms of the collective-bargaining agreement. The arbitrator entered an award in favor of Workman, finding there was insufficient reason for continued disciplinary action. With no adequate reason to support its disciplinary action, the City’s refusal to assign Workman to the third shift was held to be arbitrary and capricious and, therefore, without just cause.

The City submitted an application in the circuit court to vacate the arbitration award (Ill. Rev. Stat. 1989, ch. 10, par. 112), claiming that the arbitrator exceeded his authority and, in the alternative, that the award violated public policy. The circuit court denied the application. On appeal, the City asserts only the single claim that the arbitrator’s award should be vacated because it violates public policy.

We now discover that Workman was reassigned to the third shift before the trial court action and evidently before the arbitration award was entered. Normally, consistent with our duty to resolve actual, live controversies, and not those as to which our ruling would be advisory only, we would hold that the issue giving birth to this cause of action is now moot and the appeal should be dismissed. (See People v. Redlich (1949), 402 Ill. 270, 278-79, 83 N.E.2d 736, 741; People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, 104 N.E.2d 769, 772.) However, both parties by stipulation have suggested the issue of monetary damages was remanded by the arbitrator and is yet to be determined, pending the outcome of this appeal.

Facts Of This Case

Workman has been a police officer with the City of Springfield for approximately 10 years. In December 1987, Workman received a one-day suspension for excessive use of force when he pushed someone three times, allegedly without justification or reason. He was cited for violation of section 1.28 (use of force) of the departmental rules and regulations.

In October 1988, during the course of the arrest of Fred Hears, he plunged his nightstick into Hears’ abdomen with such force as to double him over and knock him backward. Despite the fact that Hears was handcuffed with both hands behind his back during these events, Workman continued to swing his nightstick, striking Hears an additional 8 to 10 times. For violation of police department regulations sections 1.28 (use of force) and 1.29 (treatment of persons in custody) and civil service rule 48(c) (offensive conduct in treatment of fellow employees or public), the following actions were imposed in January 1989: (1) a 10-working-day suspension; (2) removal from the position of field training officer; (3) a transfer from the third watch (night shift) to the first watch (day shift); and (4) an order to contact the Employee Assistance Program (EAP) to receive counseling. No grievance was filed in connection with this disciplinary action. A lawsuit against the City was threatened over this second use-of-force incident, but it was settled due to the City’s concern that liability could increase if the matter went to court.

While the initial disciplinary documents do not expressly state that the shift reassignment was temporary, the record indicates it was of a trial nature. Three months after the reassignment, Chief Walton recommended that Workman be returned to the third shift, but the director of public safety disagreed. Citing Workman’s serious problems dealing with people, and the greater likelihood of confrontational situations on the third shift, he ordered that Workman be kept on the first shift.

Approximately one year later (December 1989), Workman requested an assignment to the third watch (11 p.m. to 7 a.m.), effective January 1990, as a part of the annual shift selection process provided for in the collective-bargaining agreement. Walton denied the request on the basis of three factors. First, the two prior incidents of excessive force were an indication of violent propensities which could result in civil liability if precautions were not taken. Both prior incidents occurred on the third watch, and it is generally acknowledged that use-of-force occurrence is less likely on the first shift than on the third. Second, Workman had been referred for additional counseling in conjunction with the second use-of-force incident, and the department had been informed (erroneously) that he refused counseling. Third, he displayed a bad attitude during the internal affairs investigation of his excessive use of force.

Workman filed a grievance. In response, Walton offered to return him to the third shift in May 1990, on the condition that Workman receive no sustained internal affairs complaints in the interim. The Police Benevolent and Protective Association Unit No. 5 (the union) was not satisfied and continued to pursue the grievance. At this point, the director of public safety denied the grievance and overrode the chief’s recommendation to return Workman to the third shift in May, citing potential civil liability to the City for doing so. It was decided to keep Workman on the first shift for one additional year, but this limitation was apparently not communicated to either Workman or the union.

The union advanced the matter to arbitration, and a hearing was held on August 30, 1990. The parties stipulated to the following statement of the issue: Did the City violate the collective-bargaining agreement when it failed to allow Workman his shift selection effective January 1,1990?

The City asserted that because there is no contractual prohibition against the employer’s denying a shift selection, there was no violation of the collective-bargaining agreement. Its responsibility was therefore met when the grievant was allowed to participate in the shift selection process. The arbitrator rejected this assertion and categorized the shift reassignment as a form of disciplinary action. As such, the action was subject to article 14.1(b) of the agreement, which states that no officer shall be disciplined in any manner without just cause. The City’s reasons for rejecting the officer’s shift selection were then evaluated under the just-cause standard, which the arbitrator defined as a prohibition against arbitrary and capricious conduct by employers.

Both parties agreed that situations calling for the use of physical force are more likely to occur on the third shift than they are on the first. The arbitrator therefore accepted “as fact” the notion that a person with a propensity for violence does not belong on the third shift. However, the only testimony on record regarding Workman’s psychological condition was that of his EAP counselor, who gave him a clean bill of health. Based on the counselor's finding that Workman had no psychological problem, the arbitrator made a “finding of fact” that Workman did not have a propensity for violence. Workman’s refusal to accept counseling was dismissed as erroneous information, and his attitude during the internal affairs investigation was held to be an insufficient reason for continued disciplinary action. With no adequate reason to support its disciplinary action, the City’s refusal to assign Workman to the third shift was held to be arbitrary and capricious and, therefore, without just cause.

The City submitted an application to vacate to the circuit court, claiming that the arbitrator exceeded his authority and, in the alternative, that the award violated public policy. The circuit court denied the application, and this appeal followed.

Arbitration Under Collective-Bargaining Agreements Rather than a mere substitute for litigation, arbitration is considered a necessary complement to negotiation and an expedient in averting economic strife between the parties. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 419, 386 N.E.2d 47, 50, citing United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 578, 4 L. Ed. 2d 1409, 1415, 80 S. Ct. 1347, 1351.) In a recent case, the Supreme Court reaffirmed their commitment to the Steelworker line of cases and summarized the standard of review:

“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. *** [T]he arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United, Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 37-38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 370-71.

Arbitrator Decision

The arbitrator’s decision included the following:

“[T]he Arbitrator has concluded that the Employer’s denial of the Grievant’s shift selection did constitute disciplinary action and is, therefore, subject to the just cause standard. And the just cause standard has been well-defined over the last two decades. It includes a prohibition against arbitrary and capricious conduct by employers, thus rendering moot the Employer’s argument here that those terms in Article 15.4 do not apply to this case.
But was the Employer’s denial of the Grievant’s shift selection in December, 1989, arbitrary and/or capricious? The record has convinced the Arbitrator that it was. First, the Employer was simply incorrect in its conclusion that the Grievant refused the referral of his E.A.P. counsellor Michael Stratton for further professional assistance. According to Stratton’s testimony, his two one-hour sessions with the Grievant convinced him that the Grievant had no serious emotional difficulty, no substance abuse problem, and no despondency of any sort. It was Stratton’s conclusion that the Grievant ‘could do his job with no problems.’ Stratton further advised the Grievant that he could ‘see someone (meaning a therapist and at his own expense) on a continuing basis to enlarge his life,’ but that he was not required to do so. The Grievant declined. This scenario as described by E.A.P. Counsellor Stratton himself is a far cry from the Employer’s mistaken conclusion that the Grievant refused to follow an E.A.P. referral for additional counseling.
A second reason given by the Employer for denying the Grievant’s shift selection was his ‘bad attitude’ during an Internal Affairs investigation. It is the Employer’s obligation to prove the merit of that allegation, and the record contains insufficient evidence to do so. No transcript or tape of the comments allegedly made by the Grievant during that investigation was introduced, nor was there any testimony from the Internal Affairs Officer(s) who conducted the interview. Yet, according to then Chief Michael Walton, he had listened to a tape of the interview and concluded that the Grievant had a bad attitude. The Grievant denies displaying a bad attitude during that interview. Without hearing the tape itself, the Arbitrator must resolve this particular point against the party raising the allegation — the Employer. Walton's hearsay testimony is simply not enough to carry the Employer’s burden of proving that its allegation was meritorious. Besides, Walton also testified that 75% of all officers called in for an Internal Affairs interview become defensive and get upset. Even if the Grievant did ruffle his feathers a bit during his own interview, such behavior does not necessarily mean he had a bad attitude in general.
The Employer’s third reason for denying the Grievant’s shift selection was related to the two disciplinary incidents involving the Grievant’s use of force and its conclusion that the Grievant has a propensity for violence. Both parties agree that situations calling for the use of physical force are more likely to occur on the 3rd shift than they are on the 1st. The Arbitrator therefore accepts as fact the notion that a person with a propensity for violence does not belong on the 3rd shift. But does the Grievant have a ‘propensity for violence?’ The only expert testimony in the record about the Grievant’s psychological condition was that presented by former E.A.P. Counselor Stratton, who indicated that the Grievant had no psychological problem which would prevent him from doing his job. Certainly a ‘propensity for violence’ would prevent a police officer from performing his job properly, and if Stratton thought the Grievant suffered from such a condition it is reasonable to expect he would not have given him a clean bill of psychological health.
There is yet another reason the Arbitrator has concluded that the Employer did not have just cause to discipline the Grievant. In effect, the discipline was not given a fixed duration. The Employer has taken the position that the Grievant would not be given a 3rd shift assignment until it was ready to give it to him. Such an ill-specified sanction against the Grievant was unreasonable and repugnant to the notion of corrective discipline in general. In a sense, the Employer suspended the Grievant from the 3rd shift for an indefinite time period for arbitrary reasons. Furthermore, it argued that its decision to do so was not disciplinary and, therefore, it did not need to base the decision on a just cause. In the opinion of the undersigned such circumstances placed the Grievant in an untenable situation not contemplated by the parties when they negotiated the relevant sections of the collective bargaining agreement.”

Public Policy

An arbitrator’s award may not stand if it results in the contravention of paramount considerations of public policy. Board of Trustees, 74 Ill. 2d at 423-24, 386 N.E.2d at 52.

We do not hesitate in saying that the use of excessive force by law enforcement officers is against public policy. When an arbitrator’s decision is in conflict with this policy, it will be set aside. However, the record indicates the arbitrator’s award in this case was based upon the particular facts relating to Workman’s conduct and completed discipline. The public policy issue is not clearly intertwined with the arbitrator’s decision.

Appellate Decision

We recognize that governmental authorities have the power to discharge those who batter prisoners. (Department of Central Management Services v. American Federation of State, County & Municipal Employees (1990), 197 Ill. App. 3d 503, 514, 554 N.E.2d 759, 766.) The present case is distinguished by the fact that Workman was not discharged and his shift reassignment was never intended to be permanent. The evidence does not justify our overruling the arbitrator’s determination that the City’s action was disciplinary in nature and that discipline of indeterminate duration is a violation of the contract.

Our power of review is sufficiently restricted when considering an arbitrator award so that the award in the present case must be affirmed.

Affirmed.

GREEN, P.J., and COOK, J., concur.