author: JUSTICE BOWMAN

text:
    ELLEN FETZER, Adm’r of the Estate of Elva Sloan, a/k/a Dolly Sloan, et al., Plaintiffs-Appellants, v. MICHAEL J. WOOD et al., Defendants-Appellees.
    Second District
    No. 2—90—0433
    Opinion filed April 1, 1991.

      Benson, Mair & Gosselin and Durrenberger & Wechter, P.C., both of Batavia, and Kenneth C. Chessick, of Schaumburg (Lawrence D. Wechter, of counsel), for appellants.

      Hollis L. Webster, of Hinshaw & Culbertson, of Lisle, and D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago (Robert G. Black, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs Ellen Fetzer, as administrator of the estate of the deceased, Elva Sloan, and Richard Hall filed the instant medical malpractice action against defendants, Dr. Michael Wood, Dreyer Medical Clinic, and Mercy Center for Healthcare Services on October 13, 1987. Pursuant to a settlement agreement, defendant Mercy Center was later dismissed as a party to the action. On January 16, 1990, plaintiffs filed their first amended complaint against the remaining two defendants pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) and the Survival Act (Ill. Rev. Stat. 1985, ch. 110½, par. 27-6).

According to the complaint, defendant Dr. Wood was negligent in his treatment of the deceased in that he failed to obtain an adequate history from the patient; failed to obtain appropriate consultations with other medical specialists; failed to administer appropriate medication; failed to order necessary tests and procedures; and failed to diagnose and treat the gastric ulcers which ultimately caused the death of Elva Sloan. Defendant Dreyer Medical Clinic was alleged to be negligent in that defendant Dr. Wood was an employee of the clinic, acting within the scope of his employment at all times relevant to the litigation. The complaint further alleged that the negligent acts or omissions of the defendants occurred beginning on March 8, 1986, when defendant Dr. Wood first treated the deceased, and continued until Elva Sloan’s death on February 23,1987.

Prior to trial, defendants filed a motion in limine to exclude the testimony of Stanley Smith, plaintiff’s economic expert. Defendants argued that Smith’s testimony regarding the economic valuation of the deceased’s loss of the enjoyment of life and loss of society was not admissible in Illinois. The lower court granted the motion, ruling that Smith’s testimony was speculative, intangible and unrecognized in Illinois.

At trial, plaintiffs presented the expert medical testimony of Dr. Arthur Lurvey. Dr. Lurvey’s testimony, if believed, tended to establish defendants’ negligence. Specifically, Dr. Lurvey opined that defendant Dr. Wood breached the standard of care applicable to a physician when he treated Mrs. Sloan on March 8, 1986, April 4, 1986, and during and after Mrs. Sloan’s hospitalization in January 1987. Defendants presented the expert medical testimony of Dr. Brett Hanauer. Dr. Hanauer’s testimony, if believed, tended to establish that defendants were not negligent. Dr. Hanauer testified that, in his opinion, defendant Dr. Wood did not deviate from the standard of care either on March 8, 1986, April 4, 1986, or at any other time during his treatment of the deceased.

A jury instruction conference was held on January 25, 1990, at which time the court approved defendants’ instruction No. 31 (Illinois Pattern Jury Instructions, Civil, No. B21.02 (3d ed. 1990)(IPI Civil 3d)), which described the standard under the modified comparative negligence statute. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1116.) Plaintiffs objected, arguing that the causes of action accrued prior to the death of Mrs. Sloan and prior to the enactment of the statute precluding any recovery to plaintiffs deemed to be more than 50% negligent. The lower court ruled that both the Survival Act claim and the Wrongful Death Act claim accrued at the time of death of the deceased and that the instructions were therefore appropriate. The court also refused plaintiffs’ instructions which sought to include the loss of the enjoyment of life as part of the definition of pain and suffering. At the close of the jury instruction conference, plaintiffs also made an offer of proof regarding the testimony of their economic expert.

Following trial, the jury answered the special interrogatory, which asked whether or not the contributory negligence of the deceased exceeded 50% of the proximate cause of her injury or damage, in the affirmative. The jury also returned a verdict in favor of the defendants and against the plaintiffs. Plaintiffs’ subsequent post-trial motion was denied, and plaintiffs filed their timely notice of appeal.

On appeal, plaintiffs raise the following issues: (1) whether the trial court erred in giving the jury an instruction and a special interrogatory permitting a verdict in favor of defendants if the deceased’s contributory negligence exceeded 50% of the proximate cause of her injuries and death; and (2) whether the trial court erred in excluding the testimony of plaintiffs’ economic expert regarding the economic valuation of the loss of enjoyment of the decedent’s life and the loss of her society. We affirm in part, reverse in part, and remand.

Plaintiffs’ first contention is that the trial court erred in giving the jury the modified comparative negligence instruction and a related special interrogatory, which precluded any recovery by plaintiffs as to both the Survival Act and Wrongful Death Act claims if the jury found that the deceased’s contributory negligence exceeded 50% of the proximate cause of her injuries and death. In Illinois, parties have the right to have the jury instructed on the issues presented, principles of law to be applied, and the necessary facts to be proved in support of its verdict. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1990), 202 Ill. App. 3d 817, 823.) The test is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 568.) Where an erroneous instruction results in prejudice, reversal for a new trial is required. Korpalski, 114 Ill. App. 3d at 568.

The parties agree that resolution of this issue depends upon the date on which plaintiffs’ causes of action accrued. If the claims accrued prior to November 25, 1986, the instruction incorporating the “modified” comparative negligence standard was erroneous, and an instruction based on “pure” comparative negligence should have been given. If the claims accrued on or after November 25, 1986, the instruction was proper. Prior to the enactment of the modified comparative negligence statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—1116), Illinois had applied the pure form of comparative negligence. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 28.) Under the pure form, the plaintiff’s damages were simply reduced by the percentage of fault attributable to him, even if his contributory negligence exceeded 50%. (Alvis, 85 Ill. 2d at 25.) On the other hand, as to causes of action accruing on or after November 25, 1986, the modified form applies, and a contributorily negligent plaintiff may recover only so long as the percentage of his fault does not exceed 50% of the total. Ill. Rev. Stat. 1989, ch. 110, par. 2-1116.

Briefly, the arguments of the parties are as follows. Plaintiffs argue that their claims, based on negligence, accrued as early as March 8, 1986, when defendant Dr. Wood first treated, and allegedly misdiagnosed, the deceased. They contend that negligence occurred on that date, resulting in injury to the deceased, and that such negligence continued until the deceased’s death on February 23, 1987. Plaintiffs maintain, therefore, that the causes of action accrued prior to the effective date of the modified comparative negligence statute. Defendants argue that the actual injury to the deceased was sustained on February 23, 1987, at the time of her death; that the Survival Act claim did not accrue until after the deceased’s death, when plaintiffs first discovered a potential basis for the lawsuit; and that the Wrongful Death Act action could not possibly accrue before the deceased’s death. Defendants contend, therefore, that both causes of action accrued after the effective date of the modified comparative negligence statute.

We first address plaintiffs’ arguments as they relate to the wrongful death claims. Defendants initially argue that plaintiffs’ arguments concerning the wrongful death claims are waived, since plaintiffs’ notice of appeal seeks review of the jury verdict but not the denial of the post-trial motion. The defendants argue that the only point for review in the record regarding jury instructions is plaintiffs’ “singular objection that plaintiff could have filed before November 25, 1986.” Defendant argues that this objection goes to the survival action alone, not the wrongful death claims. Defendant correctly points out that a notice of appeal confers jurisdiction upon a reviewing court to consider only the judgment or portion of the judgment specified in the notice. (Premo v. Falcone (1990), 197 Ill. App. 3d 625, 628.) The following colloquy was had at the instruction conference.

“THE COURT: The next one is on the 51 percent. B21.02.
MR. WECHTER: Is that defendants’ 31?
THE COURT: Yes, it will be given.
MR. WECHTER: For the record, Judge, we wanted to state the objection we made the last time because—
THE COURT: I understand that you say the accruement took place on the survivorship prior to and I’m saying that both causes of action accrued at the time of death.
MR. WECHTER: Right, we’re saying that this is an action she could have filed before November 25, of 1986 and then continued after her death and therefore, we shouldn’t be denied recovery if she’s found to be over 50 percent negligence [sic],
THE COURT: And my finding is that both accrued at the time of death. Given over objection, special interrogatory is appropriate. It will be given.
MR. WECHTER: We will object on the same basis. And also that it’s already covered in Defendants’ No. 31.”

Since plaintiffs’ attorney’s objection was somewhat cut off by the trial judge, and because of the finding as to “both” was “given over objection,” and for the sake of clarity on remand, we shall consider plaintiffs’ wrongful death arguments on appeal.

While plaintiffs concede that a Wrongful Death Act cause of action does not accrue prior to the death of a deceased, they argue that the same accrual analysis must apply to both the Wrongful Death and Survival Act claims. They argue that where, as here, the claims are based on the same set of facts, to hold otherwise would result in an anomalous situation, unintended by the legislature, in which different verdicts on the two causes of action could result. Defendants, of course, argue that the wrongful death action may only accrue at the time of death. Both parties refer to Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403, in support of their arguments. We agree that Wyness is dispositive of this issue.

The issue in Wyness was whether the two-year filing provision of the Wrongful Death Act was triggered by the “discovery rule” at such time that the cause of action could have accrued prior to the death of an individual when a potential plaintiff seeking recovery under the Act knew or reasonably should have known of a wrongfully caused injury. In answering that question in the negative, our supreme court stated the following:

“The ‘injury’ which opens the door to initiation of a personal injury suit *** is not the same ‘injury’ which opens the door to a wrongful death suit. Though both actions require an individual to have been harmed in some way through the actions of another, this injury at the hands of another is not the sole thread which weaves a fabric undergirding both causes of action. A wrongful death action can only be instituted for the benefit of the next of kin who have suffered an ‘injury’ because a family member has died when that family member’s death resulted from an injury wrongfully caused by another. (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2.) The precipitating ‘injury’ for the plaintiffs in a wrongful death action, unlike the injury in a personal injury action, is the death; that the death must also be the result of a wrongfully caused injury suffered by the deceased at the hands of another does not alter the analysis. *** This analysis is not against the weight of this court’s prior decisions which addressed applicability of the Wrongful Death Act. Implicit in such cases as Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, and this court’s earlier decision in Mooney v. City of Chicago (1909), 239 Ill. 414, 423 (which held that ‘[i]n suits like this, the cause of action is the wrongful act, neglect or default causing death, and not merely the death itself’), is the fact that not until the death occurred could the court examine whether there was a viable wrongful injury which would permit the case to proceed.” Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403, 414-15.

There are other distinctions as well. As the Wyness court noted, while the Survival Act does not create a statutory cause of action, the Wrongful Death Act created a new cause of action for death. (Wyness, 131 Ill. 2d at 411, 413.) Moreover, the court stated:

“A survival action allows for recovery of damages for injury sustained by the deceased up to the time of death; a wrongful death action covers the time after death and addresses the injury suffered by the next of kin due to the loss of the deceased rather than the injuries personally suffered by the deceased prior to death.” Wyness, 131 Ill. 2d at 410.

See also Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 431.

Based on the reasoning set forth in Wyness, we find nothing inconsistent or anomalous in finding that, even where the underlying facts are the same, the Wrongful Death and Survival Acts causes of action may accrue at different times. We agree with the trial court that the wrongful death cause of action accrued at the time of death, i.e., after the effective date of the modified comparative negligence statute. As such, the giving of the modified comparative negligence instruction was not erroneous as it applied to the wrongful death claims. We therefore affirm as to that part of the judgment appealed from. Since we find in favor of the defendants on this issue, we need not address plaintiffs’ related argument that the trial court erred regarding the admissibility of expert testimony on wrongful death related damages.

We turn next to plaintiffs’ argument regarding accrual of the Survival Act cause of action. It is well settled that a tort cause of action accrues when all the elements are present: duty, breach, and resulting injury or damage. (West American Insurance Co. v. Sal E. Lobianco & Son Co. (1977), 69 Ill. 2d 126, 130.) In a personal injury action arising out of negligence, the cause of action accrues at the time of the injury. (West American Insurance Co., 69 Ill. 2d at 130.) Said another way, a cause of action or right of action accrues when facts exist which authorize the bringing of an action. Schreiber v. Hackett (1988), 173 Ill. App. 3d 129, 131.

Here, plaintiffs argue that the deceased suffered pain, and therefore the requisite injury or damage, from defendants’ alleged negligence beginning on the date of the alleged misdiagnosis, March 8, 1986, and continuing until her death. Defendants argue that the actual injury did not occur until death due to the bleeding ulcer. Alternatively, defendants argue that if the time of injury was not ascertainable with reasonable certainty, then under the “discovery rule” the cause of action accrued when plaintiffs first knew or reasonably should have known that an injury was wrongfully caused. (See Withrell v. Weimer (1981), 85 Ill. 2d 146, 156.) We agree with the plaintiffs.

As noted previously, the Survival Act does not create a new cause of action. Rather, it “merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the deceased before he died.” (Emphasis added.) (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 172.) It would seem logical that just as a wrongful death claim may not accrue prior to death (Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403, 415), by its very nature a Survival Act claim must accrue prior to death. The lower court’s ruling to the contrary, that the Survival Act cause of action accrued at the time of death, was therefore erroneous.

Defendants then argue that where the time of injury is not readily ascertainable, the only other basis for determining when a cause of action accrues is when it may be “discovered.” In medical malpractice actions in which the so-called discovery rule is applied, the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 232; Withrell v. Weimer (1981), 85 Ill. 2d 146, 156.) Defendants also cite Moore for the proposition that “a plaintiff cannot bring an action until he knows or reasonably should know of injury, and that it was caused by the wrongful acts of another.” In doing so, defendants completely misrepresent the point the court was trying to make. In Moore, the issue was whether an amendment to the statute of limitations could be applied retroactively to the plaintiff’s cause of action. In answer to defendants’ assertion that the cause of action had not accrued prior to the enactment of the amendment, and that therefore the cause of action was nonexistent, the court stated:

“We do not agree that a cause of action is nonexistent prior to the time of accrual. Logic dictates that a plaintiff cannot bring a cause of action until he knows or reasonably should know of his injury, and also knows or reasonably should know that the injury was caused by the wrongful acts of another. However, that does not mean that the plaintiff does not have an existing cause of action of which he is unaware.” (Emphasis added.) Moore, 95 Ill. 2d at 232.

In their complaint, plaintiffs allege that from March 8, 1986, until her death on February 23, 1987, the deceased suffered severe depression and anxiety, mental confusion, severe upper abdominal and lower chest pain, was totally disabled and sustained a loss of wages. If so found by the trier of fact, these allegations would establish that the deceased suffered the requisite injury or damage prior to November 25, 1986, the effective date of the modified comparative negligence statute. The fact that some damage or injury may have occurred prior to the effective date of the statute and some occurred-after such date does not affect our treatment of the basic issue, i.e., when the cause of action accrued. It is for the trier of fact to determine whether the deceased’s interests were invaded prior to that date, and the mere fact that the extent of damages was not immediately ascertainable would not postpone the accrual of the claim. (See Del Bianco v. American Motorists Insurance Co. (1979), 73 Ill. App. 3d 743, 747.) We note briefly that defendants’ attempt to distinguish Del Bianco as concerning only tort actions arising out of contractual obligations is ineffective. In referring to the statement cited above, that court correctly noted, “[t]his is clearly the rule for a pure tort cause of action.” Del Bianco, 73 Ill. App. 3d at 747.

In addition, we feel compelled to point out that too much reliance by defendants on the “discovery rule” is misplaced. First, statutes of limitations, like other statutes, must be viewed in light of their objectives. (Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 289.) The purpose of the statute of limitations is certainly not to shield a wrongdoer; rather, it is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions. (Del Bianco, 73 Ill. App. 3d at 746.) Second, the discovery rule concerns charging a plaintiff with knowledge of an injury and its wrongful cause for purposes of the running of a statute of limitations. Such is not at issue here. Rather, this case concerns if and when facts existed to support a cause of action for purposes of determining the applicability of the modified comparative negligence statute. Moreover, the discovery rule does not actually provide for new accrual rules; it instead tolls the running of the statute of limitations, until a plaintiff’s “discovery,” on an existing cause of action.

Defendants also argue that, even if the trial court erred in giving the modified comparative negligence instruction, it was harmless error in the absence of a showing that negligence was the sole basis for the jury’s verdict. We disagree. The tendered modified comparative negligence instruction was in accord with IPI Civil 3d No. B21.02 and provided in pertinent part as follows:

“The plaintiff has the burden of proving each of the following propositions:
First, that the defendants acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendants were negligent;
Second, that the plaintiffs’ decedent, Elva Sloan, was injured and died;
Third, that the negligence of the defendants was a proximate cause of the injury to the plaintiffs’ decedent, Elva Sloan.
If you find in favor of the plaintiff and against the defendant, you must then consider defendants’ claim that Elva sloan [sic] was contributorily negligent.
* * *
If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of her and that the defendant has proved both of the propositions required of him, and if you find that the plaintiff’s contributory negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the defendant.” (Emphasis added).

According to the plain meaning of the instruction, to reach the issue of the deceased’s contributory negligence, the jury had to first find for plaintiffs on the issue of liability. If the jury had found for defendants on the liability issue, there would have been no reason to address the special interrogatory which found that the deceased’s negligence exceeded 50%. Here, once the jury had found the plaintiff 51% negligent, they had to find in favor of defendants on the general verdict form.

We find that the trial court erred when it instructed the jury according to the law of modified comparative negligence. The error was also prejudicial (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 568), in that it precluded plaintiffs from any recovery once the jury found the deceased 51% negligent. Moreover, the giving of the instruction was not cured by the fact that the jury answered the general verdict form in defendants’ favor. We therefore reverse that part of the judgment appealed from.

Since we reverse as to the Survival Act cause of action, we must next consider plaintiffs’ argument that the trial court erred in excluding the testimony of their expert economist regarding the economic evaluation of the deceased’s loss of enjoyment of life as a component of the element of pain and suffering damages in the Survival Act cause of action. Defendants argue that no such separate category of damages is recognized in Illinois; that such damages are both speculative and punitive in nature; and that even if such damages were recognized, they are better left to the jury. We find that while the concept of loss of the enjoyment of life is a relevant consideration in determining damages for pain and suffering, the trial court did not err in excluding expert testimony on the subject.

We are in basic agreement with defendants’ initial assertion that no Illinois decision has determined that a separate award for loss of enjoyment of life damages is expressly recoverable in Illinois. However, plaintiffs do not contend that the loss of enjoyment of life is a separate element of compensable damages. Rather, they contend that such loss constitutes a component of damages for pain and suffering. In fact, defendants concede as much in their brief. While attempting to shift the focus to the question of whether a separate category of damages should be recognized, defendants in their brief state that “lost enjoyment values in essence are not new, but are part and parcel of the very subjective elements available within the age-old damage areas of disability, disfigurement, and pain and suffering.” Later, defendants also state that “a plaintiff’s inability to enjoy life to its fullest *** has long been considered one type of suffering to be factored into a general award for damages commonly known as pain and suffering or disability.” While Illinois case law on this issue is quite sparse, our research has revealed two cases which may be interpreted to stand, in part, for the proposition that damages for loss of enjoyment of life are to some extent recognized in Illinois.

Batteast v. Wyeth Laboratories, Inc. (1988), 172 Ill. App. 3d 114, rev’d & remanded on other grounds (1990), 137 Ill. 2d 175, concerned a personal injury action based on theories of negligence, strict liability and willful and wanton conduct. In reviewing the issue of compensatory damages, the court found that since the time of plaintiff’s injury, he had suffered from brain damage and epilepsy, and that he was incapable of “appreciating the bare enjoyments of human life.” {Batteast, 172 Ill. App. 3d at 140.) Winters v. Greeley (1989), 189 Ill. App. 3d 590, concerned a claim for punitive damages in a libel action. Defendant in that case argued that presumed damages were not compensatory, but, rather, were punitive in nature and would result in an impermissible windfall to plaintiff. The court disagreed and found that the amount awarded was “an estimate of the extent of loss the plaintiff has suffered in the past and would suffer in the future, either from a monetary or enjoyment of life standpoint.” Winters, 189 Ill. App. 3d at 598.

We note that neither Batteast nor Winters addressed the specific issue before us in the instant case, i.e., the admissibility of expert testimony on such damages. We turn now to our discussion of this specific question.

Plaintiffs cite Sherrod v. Berry (7th Cir. 1987), 827 F.2d 195, for the propositions that testimony on such damages is admissible, not overly speculative, and of aid to the jury. In Sherrod, plaintiff’s decedent had been killed by a police officer. Plaintiff then filed a wrongful death action alleging a violation of section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1988)). One of the issues in that case was whether expert testimony as to the economic value of human life was admissible. We note that the expert in Sherrod, Stanley Smith, is the same expert whose testimony is at issue in the instant case. Similar to defendants’ arguments here, defendants in Sherrod argued that Smith’s testimony in this area was speculative and inadmissible. The district court and the court of appeals disagreed. The court of appeals stated that it was “axiomatic that plaintiffs seeking to recover the value of a decedent’s life must be entitled to submit expert testimony to help guide the jury in reaching an appropriate damages award.” (Sherrod, 827 F.2d at 205.) That court also stated:

“The trial judge ably addressed defendant’s arguments contesting the admissibility of Mr. Smith’s testimony concerning the hedonic value of human life, 629 F. Supp. 159 (N.D. Ill. 1985). Judge Leighton explained that the rule against recovery of ‘speculative damages’ applies where it is uncertain whether the defendant caused the damages, or whether the damages flowed from his act. The fact that the measure or extent of the injury suffered may be uncertain does not bar recovery. Judge Leighton concluded, ‘The fact that the hedonic value of a human life is difficult to measure did not make either Smith’s testimony or the damages speculative.’ 629 F. Supp. at 164.
The testimony of expert economist Stanley Smith was invaluable to the jury in enabling it to perform its function of determining the most accurate and probable estimate of the damages recoverable for the hedonic value of Ronald’s life. The trial court committed no error by admitting that testimony.” Sherrod, 827 F.2d at 205-06.

Defendants argue that the Sherrod case is not precedential since it was subsequently vacated, then reversed and remanded. Plaintiffs argue that although Sherrod was later vacated, the succeeding court of appeals opinion retained the reasoning and the precedential value of the initial appellate opinion. Although the second opinion did not directly address the issue of Smith’s testimony, the court of appeals concluded in its second opinion as follows:

“Because we reverse and remand for a new trial, we need not discuss the district court’s other evidentiary rulings or jury instructions. We leave these questions for the district court on remand to decide in light of this court’s prior discussions of those matters, specifically those found in our earlier vacated opinion.
For the afore-mentioned reasons, we reverse and remand this case for further proceedings in the district court consistent with this decision.” (Sherrod v. Berry (7th Cir. 1988), 856 F.2d 802, 807-08.)

Whether Sherrod retained its precedential value, we note that that case involved not an interpretation or application of Illinois law, but rather a civil rights violation under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1988)).

According to plaintiffs’ offer of proof, their economic expert, Stanley Smith, would have testified to the effect that the value of life is an estimate of the value that society is willing to pay on the average to prevent the loss of life. Specifically, Smith begins by identifying the value of the life of a “statistically anonymous” person. The value range of a statistically anonymous life is between $1.6 million and $8.5 million. In this case Smith would have testified that the value of the statistically anonymous person is $2.7 million. After adjusting this figure for the average life expectancy of an anonymous person in the United States, as well as considering growth and discount rates, Smith would have arrived at a $60,000 annual value for the life of an anonymous person.

In excluding the testimony of plaintiff’s expert in the instant case, the trial court reasoned that “any testimony relating to the relationship of the decedent and family and what meaning it has between the parties is something I think the jury is in a better position to decide without imposing an expert’s theory as to valuation.” We agree.

As the parties have noted, there is a paucity of Illinois case law to guide us on the specific issue of whether such expert testimony is admissible. However, it is well settled that, with respect to damages for pain and suffering, i.e., nonpecuniary damages, it is improper for counsel to suggest that the jury calculate such damages by placing a dollar figure upon each minute, hour or day as to which pain and suffering was or will be experienced, since such argument presents an illusion of certainty. (Caley v. ManicJce (1962), 24 Ill. 2d 390, 393-94.) In reaching this conclusion, our Illinois Supreme Court reasoned as follows:

“Pain and suffering have no commercial value to which a jury can refer in determining what monetary allowance should be given to a plaintiff for the pain and suffering he has experienced and is reasonably certain to experience in the future. This determination, like many others that a jury must make, is left to its conscience and judgment. ***
It begs the question to say that the jury needs to be guided by some reasonable and practical consideration. A formula by definition is a ‘conventional rule or method for doing something, especially when used, applied, or repeated without thought.’ [Citation.] It would appear that a formula, rather than encouraging reasonable and practical consideration, would tend to discourage such consideration.
* * *
Jurors are as familiar with pain and suffering and with money as are counsel. We are of the opinion that an impartial jury which has been properly informed by the evidence and the court’s instructions will, by the exercise of its conscience and sound judgment, be better able to determine reasonable compensation than it would if it were subjected to expressions of counsels’ partisan conscience and judgment on the matter.” (Caley, 24 Ill. 2d at 392-94.)

Moreover, the court noted that while it is accepted practice for counsel to suggest a total monetary award for pain and suffering, such practice is far less misleading than the argument of a mathematical formula. Caley, 24 Ill. 2d at 394.

We believe that similar reasoning can be applied, by analogy, to the precise issue in the instant case. Here, plaintiffs seek to present expert economic testimony on damages which, by their very nature, are not amenable to such analytical precision. Expert testimony is admissible when it will assist the trier of fact to understand the evidence or to determine a fact in issue. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, 587.) Even as to matters of common knowledge and experience of jurors, where helpful to comprehension or explanation, expert testimony is permitted. (People v. Albanese (1984), 104 Ill. 2d 504, 518.) However, expert opinions on matters of common knowledge are not admissible unless the subject is difficult of comprehension or explanation. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 99.) We note that plaintiffs in their brief basically concede that juries understand the concept of the economic value of life in a general sense. Thus, it is not clear that expert testimony on the subject would be of aid to the jury in its deliberations.

The determination as to the admissibility of evidence rests primarily in the discretion of the trial court, and its decision will be reversed only where that discretion clearly has been abused. (Country Mutual Insurance Co. v. Adams (1980), 85 Ill. App. 3d 501, 506.) Here, the proposed economic expert testimony would be overly speculative and would serve to invade the province of the jury, and we see no abuse of discretion in the exclusion of such evidence.

For the foregoing reasons, we affirm as to the trial court’s rulings on the Wrongful Death Act claims. As to the Survival Act claims, we reverse as to the trial court’s ruling on accrual and affirm as to the ruling on the exclusion of expert testimony. The cause is remanded for a new trial consistent with this opinion.

Affirmed in part; reversed in part and remanded.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY ROLLINS, Defendant-Appellant.
    Second District
    No. 2—89—0543
    Opinion filed April 2, 1991.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (Kevin T. Busch, Assistant State’s Attorney, and William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a jury trial in the circuit court of Kane County, defendant, Leroy Rollins, was found guilty of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)) and was sentenced to a 15-year term of imprisonment.

On appeal, defendant contends that the circuit court committed grave error when it failed specifically to instruct the jury that the State was required to prove beyond a reasonable doubt that the complaining witness did not consent to the act of sexual penetration.

In view of the single issue raised, it is only necessary to summarize briefly the evidence at trial.

The complainant testified that, while he was incarcerated in cell-block 163 of the Kane County jail on pending charges, defendant forced him to engage in an act of anal penetration against his will. Another inmate verified the threat of force by defendant, although he did not witness the act.

Defendant’s version was that the complainant willingly engaged in the sexual act. A sheriff’s deputy investigating the incident testified that defendant at first denied any sexual contact with the complainant but the next day admitted the sexual act, claiming it was performed with the complainant’s initiation and consent.

Defendant argues on appeal that, because his defense was that the sexual act was performed with the complainant’s encouragement and consent, the jury should have been specifically instructed that the State bore the burden to prove beyond a reasonable doubt that the complainant never consented to the act. Although acknowledging that he did not object to the omission of this element in the State’s tendered issues instruction, he contends that this omission is grave error that requires reversal pursuant to Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)); see also People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487.

The jury was given, without objection, the following instructions: “To sustain the charge of Criminal Sexual Assault, the State must prove the following propositions:
First: That the Defendant committed an act of sexual penetration upon [the complainant], and,
Second: That the act was committed by the use of force or threat of force.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.
It is a defense to the offense of Criminal Sexual Assault that [the complainant] consented.
The word ‘consent’ means a freely given agreement to the act of sexual penetration in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force by the Defendant shall not constitute consent.
•I* 4*
The term ‘force or threat of force’ means the use of force or violence, or the threat of force or violence, including but not limited to when the accused threatens to use force or violence on the victim, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat.”

When this case was tried before the jury in February 1989, the Illinois Pattern Jury Instructions, Criminal (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d (Supp. 1987)) did not list as an element of the offense of criminal sexual assault that the State prove that the victim did not consent to the act of sexual penetration. (See IPI Criminal 2d No. 11.32 (Supp. 1987).) However, the committee note to IPI Criminal 2d No. 11.32 (Supp. 1987) did recommend that, when proof of force or threat of force is an element of the offense and the defense of consent is raised by the evidence, the jury should be given an instruction that the State must prove the victim did not consent to the act of sexual penetration. IPI Criminal 2d No. 11.32 (Supp. 1987), committee note; see also People v. Haywood (1987), 118 Ill. 2d 263, 274, 515 N.E.2d 45.

The State concedes that under IPI Criminal 2d No. 11.32 (Supp. 1987), the court should have included in the instruction on the State’s burden of proof the element that the victim did not consent to the act of sexual penetration. It argues, however, that the issue is waived by the failure of defendant to object at the conference on instructions and to offer an alternative instruction to the court. The State further contends that the grave error exception to the waiver rule is inapplicable under the circumstances here because the case was not close nor was defendant denied a fair trial by omission of this part of the instruction. In particular, the State maintains the instructions taken as a whole and the statements and arguments to the jury by counsel for both parties informed the jury that the State had the burden to prove the victim did not consent to the sexual act.

The same issue presented here arose in the context of trials for the offense of aggravated criminal sexual assault in People v. Coleman (1987), 166 Ill. App. 3d 242, 520 N.E.2d 55, and People v. Roberts (1989), 182 Ill. App. 3d 313, 537 N.E.2d 1080, with contrary holdings. In Coleman, the court held that the failure to instruct the jury on the State’s burden to prove lack of consent beyond a reasonable doubt was grave error requiring reversal even though the jury was instructed that consent was a defense. (Coleman, 166 Ill. App. 3d at 248, 520 N.E.2d at 59.) In Roberts, however, the court held that nonconsent is properly proved by inference when the State proves “force or threat of force” which was set forth in the jury instructions as an element of the offense to be proved by the State. (Roberts, 182 Ill. App. 3d at 317, 557 N.E.2d at 1083.) Accordingly, the court found that the failure to instruct the jury that the State had the burden to prove lack of consent was not grave error and, further, that even were it to be error, any error would be harmless beyond a reasonable doubt. Roberts, 182 Ill. App. 3d at 319, 557 N.E.2d at 1084.

For the reasons that follow, we are persuaded that the holding in Roberts, which examines all the circumstances, including all the instructions to the jury, the statements of counsel, and the weight of the evidence, is the proper approach, rather than Coleman, which appears to adopt a per se rule of grave error when the jury is not specifically instructed in an issues instruction that the State has the burden to prove nonconsent.

In People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45, our supreme court stated that force and consent are opposites in the context of the offense of criminal sexual assault and that to prove the element of force is implicitly to show nonconsent. (Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50.) In People v. Layhew (1990), 139 Ill. 2d 476, 564 N.E.2d 1232, the supreme court held, in circumstances analogous to the case at bar, that the failure to instruct the jury specifically of the presumption of defendant’s innocence and that the State had the burden of proving defendant guilty beyond a reasonable doubt in order to protect defendant’s right to a fair trial, although error, does not automatically result in a finding of a violation of the right to a fair trial requiring reversal. (Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1236-37.) The court held that a reviewing court must determine whether the defendant received a fair trial in light of all the circumstances, including all the instructions to the jury, the arguments of counsel, and whether the weight of the evidence was overwhelming. (Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1237, citing Kentucky v. Whorton (1979), 441 U.S. 786, 789, 60 L. Ed. 2d 640, 643, 99 S. Ct. 2088, 2090.) Although conceding that the evidence in the case before it was short of overwhelming, the court concluded the omission of the basic burden of proof instruction was not reversible error because the jury was properly informed that the State carried the burden of proof beyond a reasonable doubt, the trial judge during voir dire repeatedly invoked the presumption of innocence and the standard of proof beyond a reasonable doubt, and defendant’s attorney repeatedly stressed the State’s burden of proof throughout the trial and that certain of the instructions that the jury did receive referred to the standard of proof beyond a reasonable doubt. Layhew, 189 Ill. 2d at 489-92, 564 N.E.2d at 1237-39.

We note, too, that in People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248, another analogous case, the supreme court refused to reverse the defendant’s conviction of murder even though the trial court had failed to instruct the jury that, in order to convict the defendant of murder, the State was required to prove beyond a reasonable doubt that the defendant was not justified in the use of force. (Huckstead, 91 Ill. 2d at 547, 440 N.E.2d at 1253.) The trial court did instruct the jury that the justifiable use of force would be a defense to murder. The supreme court held that, where the jury was instructed generally on the State’s burden of proof and specifically on the defense of justification, both sides emphasized in closing argument that the State had the burden of proving that the defendant was not justified in the force he used, and the evidence was not very close, there was no grave error. Huckstead, 91 Ill. 2d at 544-47, 440 N.E.2d at 1252-53.

Defendant relies, in part, on People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573, in which the supreme court reversed a rape conviction because the trial court refused a defense instruction that would have informed the jury that the State was required to prove beyond a reasonable doubt that the complaining witness did not consent to the act of sexual intercourse. (Fryman, 4 Ill. 2d at 231-32, 122 N.E.2d at 577-78.) In light of the more recent decisions in Layhew and Huckstead, we do not find Fryman controlling. In any event, Fryman is distinguishable from Layhew and Huckstead, as in Fry-man the issue was preserved for review, no instruction on. or definition of consent (beyond that implicit in the instruction that the State must prove that intercourse took place “forcibly and against her will”) was tendered, and the facts were very closely balanced.

In the present case, the jury was instructed as to the State’s burden of proof on the elements of criminal sexual assault, namely, sexual penetration (not in dispute here) and the accomplishment of that penetration by force or the use of force. (See Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(1).) The jury was also instructed that consent was a defense and given definitions for the terms “consent” and “force or threat of force.” Although the trial court erred when it did not specifically instruct the jury that the State must disprove the consent defense, that error does not reasonably appear to have had any effect on defendant’s right to a fair trial looking at all the circumstances at trial.

It is clear that the force issue and the consent issue were indeed two sides of the same coin. Both the prosecutor and defendant’s attorney endorsed this formulation during voir dire, in opening statements, and in their final arguments to the jury. For example, in his closing argument the prosecutor stated that the second of the two issues that the State was required to prove was “that the act was committed by the use of force or the threat of force. In a nutshell, this is the issue of consent. *** [Cjonsent is a defense. Consent means that there was no force or threat of force.” He argued further that the jury should read the instructions on force and consent together because they were “really two sides of the same coin.”

While the evidence against defendant in this case is not overwhelming, it is sufficient to sustain defendant’s conviction. The complainant’s testimony was sufficient to withstand defendant’s contrary version of the events and was corroborated, in part, by another inmate’s testimony. Defendant’s credibility was impeached by his statement made to an investigating deputy sheriff whom defendant told at first that he did not engage in the sexual acts and by introduction into evidence of prior convictions to affect his believability.

Based on the foregoing, we conclude that the failure specifically to instruct the jury in written form that the State has the burden to prove beyond a reasonable doubt that the complainant did not consent to the act of sexual penetration did not deprive defendant of a fair trial, and, accordingly, such omission was harmless beyond a reasonable doubt under the circumstances.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

DUNN and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAHE JETT, Defendant-Appellant.
    Fourth District
    No. 4—90—0631
    Opinion filed March 28, 1991.

      Daniel D. Yuhas and Lawrence J. Essig,- both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On August 30, 1990, the circuit court of Sangamon County dismissed the post-conviction petition of defendant Rahe Jett. Defendant now appeals, asserting this was error. We disagree and affirm.

On January 30, 1987, defendant entered a guilty plea to the offense of murder and received a 30-year prison sentence. On January 8, 1990, he filed a pro se motion to withdraw his guilty plea and vacate the judgment. On January 17, 1990, the court appointed counsel to represent defendant on the motion. The State filed a motion to dismiss the pro se motion, asserting more than 30 days had elapsed since the entry of the guilty plea.

On March 2, 1990, defendant filed a responsive pleading and requested that he be allowed to convert the pro se motion to withdraw into a petition for post-conviction relief. On April 26, 1990, the trial court converted the motion into a petition under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, pars. 122—1 through 122—8), and gave defendant 30 days to file any amendments. The court also gave the State 30 days to respond to any filing by defendant.

On May 11, 1990, defendant filed his post-conviction petition. On July 16, 1990, the State filed a motion to dismiss the petition. Following a hearing on August 3, 1990, the court granted the motion and dismissed the petition. This appeal followed.

Defendant first alleges that the order of the court dismissing the petition is null and void because the court did not follow the provisions of the Act.

The Act sets forth the procedure to be used in evaluating claims of defendants for post-conviction relief. First, the petition is docketed for the limited purpose of an examination by a judge who may, within 30 days, dismiss it as “frivolous” or “patently without merit” (Ill. Rev. Stat. 1989, ch. 38, par. 122—2.1(a)(2)), in which case the order is appealable; or, the court may order the petition docketed for further consideration as provided for in the succeeding sections of the statute (People v. Novak (1990), 200 Ill. App. 3d 189, 190, 558 N.E.2d 644, 645). This initial examination must be made by the court inops consilii; that is, without input by the State or further pleadings from the petitioner. (People v. Ramsey (1985), 137 Ill. App. 3d 443, 447, 484 N.E.2d 555, 557.) This 30-day evaluation is mandatory, and the failure to dismiss a petition within that time period requires the court to proceed to the next step. People v. Porter (1988), 122 Ill. 2d 64, 86, 521 N.E.2d 1158, 1167; People v. Bostic (1988), 173 Ill. App. 3d 428, 430, 527 N.E.2d 1109, 1110.

It is only if the petition survives this initial examination that the State may file responsive pleadings within the confines of section 122—5 (Ill. Rev. Stat. 1989, ch. 38, par. 122—5). (Novak, 200 Ill. App. 3d at 190, 558 N.E.2d at 645.) A motion to dismiss filed by the State prior to the court having made the initial determination as to the petition’s frivolousness is a nullity, and any order entered thereto has no effect. Novak, 200 Ill. App. 3d at 191, 558 N.E.2d at 645.

This is what defendant maintains happened. It is agreed by the parties that April 26, 1990, when the court converted the motion to dismiss into a post-conviction petition, is the proper starting point of our analysis. Defendant notes that the court at that time gave him 30 days to file any amendments and gave the State time from then to respond. He therefore argues that the court, in essence, is docketing the petition for further consideration, and the court must necessarily have skipped the independent analysis of the frivolousness of the petition. Accordingly, he maintains the ultimate order pursuant to the State’s motion to dismiss is a nullity and has no impact.

Defendant’s position would be well taken if the motion to dismiss had been filed within the 30-day period of review required by section 122—2.1. In Porter, the supreme court determined that this initial exam had to be completed within the 30-day period following filing of the petition. (Porter, 122 Ill. 2d at 85, 521 N.E.2d at 1166.) It further concluded that if the trial court did not enter the dismissal order within this time period, the petition was to be docketed for further proceedings pursuant to the Act. (Porter, 122 Ill. 2d at 86, 521 N.E.2d at 1167.) Thus, if more than 30 days have elapsed since the petition’s filing, the petition is to be treated as if the court had found it was not frivolous or patently without merit. This is what transpired in the present case.

The actual post-conviction petition was filed on May 11, 1990. This started the 30-day clock. On July 16, 1990, more than 60 days later, the State filed its motion to dismiss. Since more than 30 days had elapsed, this procedure comports with the Act and with Porter. We do not find that the fact the court, prior to filing of the petition, granted the State 30 days to respond to the petition affects this analysis. The important consideration is that the court had 30 days, without any other input, to review the petition. As long as there is no motion to dismiss or other pleading from the State within this 30-day window of opportunity, section 122 — 2.1 has been complied with. Here, the court could still have entered the order to dismiss the petition as frivolous within 30 days following May 11, 1990. It did not do so. Once those 30 days were up, the court lost the authority to do so, and the other provisions of the Act must be followed. Accordingly, we conclude there was no error with the procedure followed.

Defendant’s other contention is that his post-conviction counsel was ineffective for failing to allege in his post-conviction petition that defendant’s trial counsel was ineffective for failing to perfect his appeal.

The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, formulated a two-part test for evaluating whether a claim of ineffective assistance of counsel rises to the level of a constitutional deprivation. Defendant must first demonstrate that counsel’s performance was deficient. (People v. Owens (1989), 129 Ill. 2d 303, 309, 544 N.E.2d 276, 278, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.) Defendant must also prove that his counsel’s deficient performance substantially prejudiced his defense. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To meet this second test, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed 2d at 698,104 S. Ct. at 2068.

Thus, to sustain his claim, defendant must show that post-conviction counsel was deficient for failing to raise trial counsel’s alleged ineffectiveness and, if post-conviction counsel had raised it, the result on defendant’s post-conviction petition would have been different. To meet this burden, defendant must establish that trial counsel’s representation was, in fact, ineffective. Therefore, it is necessary to examine trial counsel’s conduct under the light of Strickland.

Defendant’s complaint concerning his trial representation appears to center on the waiver of his right to file a motion to withdraw his guilty plea and his ability to perfect an appeal. He observes that the trial court, when admonishing him concerning his appeal rights pursuant to Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)), while properly explaining the need for the filing of a motion to withdraw his guilty plea, failed to mention that this motion must be filed within 30 days. He also observes the trial counsel did not file a motion to withdraw his guilty plea within the 30 days required by Rule 604(d) (134 Ill. 2d R. 604(d)). The failure to file such a motion within this time period waives not only the opportunity to do so, but also defendant’s opportunity to appeal from the guilty plea. (See People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) Accordingly, defendant maintains his right to seek to withdraw his plea and his right to appeal were waived through no fault of his own. This is the conduct which he believes resulted in ineffective representation. He maintains this ineffectiveness of trial counsel should have been obvious to his post-conviction counsel, who in turn was ineffective for failing to raise this in his post-conviction petition.

For trial counsel to be ineffective for failing to file a Rule 604(d) motion, it must be shown that he was requested to do so. In Wilk, the court commented on the ability of defendants in post-conviction petitions to raise the issue of failure of trial counsel to file a Rule 604(d) motion. The court noted the Strickland test applied and stated:

“The first prong, whether the attorney’s performance fell below an objective standard of reasonableness trader prevailing professional norms, will require a minimal factual basis. The questions will be: Did the defendant communicate a desire to appeal? Was counsel appointed? Did counsel fail to follow Rule 604(d)?” (Wilk, 124 Ill. 2d at 108, 529 N.E.2d at 223.)

However, there is no indication anywhere in the record that defendant sought earlier to have his guilty plea withdrawn and so communicated to trial counsel. Nothing is contained in the post-conviction petition, nor in the pro se motion to withdraw his guilty plea, which suggests that defendant requested counsel to do so. This is particularly interesting in view of the fact that both documents assert that trial counsel is ineffective for other reasons. In fact, in his post-conviction petition, defendant explains that the reason he did not initiate an appeal or seek to change his plea earlier was due to the intimidating manner of the investigators which instilled a fear of the death penalty in defendant. Thus, defendant has failed to meet the first prong of the Strickland test by failing to establish that trial counsel was deficient for not filing a Rule 604(d) motion.

Even if it could be concluded that trial counsel’s performance was deficient because he should have filed this Rule 604(d) motion, either because he was asked or because the court’s admonition was deficient, or because trial counsel should have warned defendant of this 30-day time period, it is still necessary that defendant establish that he suffered substantial prejudice by this failure. This he cannot do.

In his pro se motion to withdraw his guilty plea, defendant alleged that he was “misrepresented” by trial counsel and that he was intimidated by two detectives and a representative of the State’s Attorney’s office into pleading guilty. In his petition for post-conviction relief, he alleged he was denied effective assistance of counsel in that counsel failed to advise him of all the consequences of a guilty plea, that his plea was obtained through intimidation tactics by the prosecutor and investigators, and that he did not appeal or move to withdraw his plea within the time period allowed due to his fear of the death penalty which the investigators had instilled in him. After a hearing on the petition and a review of the guilty-plea transcript, the court found that defendant entered a knowing and understanding plea after being fully admonished. Thus, it is clear that the grounds which would have been asserted in a motion to withdraw a guilty plea were presented in the post-conviction petition, and the court found them meritless. As an aside, it is interesting that defendant does not now contest this ultimate conclusion by the court. Since the merits of defendant’s complaint have ultimately been addressed and denied, it is difficult to see how defendant was prejudiced in the trial court by trial counsel’s alleged failure to raise these arguments then. Thus, defendant is unable to establish that trial counsel’s conduct satisfies either prong of Strickkmd, and his assertion that counsel was ineffective must fail. Since this assertion of trial counsel’s ineffectiveness fails, it is readily apparent that post-conviction counsel is not ineffective, since he is not deficient for failing to raise trial counsel’s asserted ineffectiveness. Even if he should have, there is no prejudice to defendant from his failure to do so.

For the above-mentioned reasons, the order of the circuit court of Sangamon County dismissing defendant’s post-conviction petition is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JAN D. BOYD, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Fourth District
    No. 4—90—0657
    Opinion filed March 28, 1991.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On August 12, 1990, the circuit court of Adams County issued an order directing the Secretary of State (Secretary) to issue defendant Jan Boyd a judicial driving permit (JDP). The Secretary now appeals, alleging this order was erroneously entered.

On May 26, 1990, defendant was arrested for the offense of driving under the influence of alcohol (DUI). (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.) He took a breath test, with results showing an alcohol concentration in excess of 0.10. Accordingly, he received a statutory summary suspension effective from July 12, 1990, to October 12, 1990. (See Ill. Rev. Stat. 1989, ch. 95½, pars. 11-501.1, 6-208.1.) On July 10, 1990, defendant filed a petition seeking a JDP. On July 24, 1990, defendant pleaded guilty to the DUI offense and was placed on probation for a one-year period. At the same time, the court, granting the petition for a JDP for a period from August 12, 1990, to October 12, 1990, entered an order directing the Secretary to issue it to defendant. The Secretary objected. The court, pursuant to the Secretary’s request, reconsidered the matter and reaffirmed its earlier order. The Secretary now appeals.

At the outset, we note that appellee has not filed a brief in this court. However, since the record is simple and the issues are clear, we will address the merits of the case. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) We are also aware this case may appear moot. However, due to the short duration of the action involved and the fact this particular issue is likely to recur again, an exception to the mootness doctrine is applicable. See People v. Meece (1987), 162 Ill. App. 3d 658, 660, 515 N.E.2d 1321, 1322.

The Secretary argues that the court was without authority to enter the order granting the JDP because defendant’s driving privileges were revoked due to his guilty plea to the DUI. We agree and reverse.

Section 6—206.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 6—206.1) sets forth the requirements and procedures to be used when a driver, who has received a statutory summary suspension, seeks a JDP. Of relevance to the current inquiry is section 6—206.1(a)(4)(iii), which provides:

“Any person whose privilege to operate a motor vehicle was invalid at the time of arrest for the current violation of Section 11 — 501, or a similar provision of a local ordinance, except in cases where the cause for a driver’s license suspension has been removed at the time a JDP is effective. In any case, should the Secretary of State enter a suspension or revocation of driving privileges pursuant to the provisions of this Code while the JDP is in effect or pending, the Secretary shall take the prescribed action and provide a notice to the person and the court ordering the issuance of the JDP that all driving privileges, including those provided by the issuance of the JDP, have been withdrawn.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 95½, par. 6—206.1(a)(4)(iii).

In the case at bar, since defendant’s driving privileges were valid at the time of the arrest, the first sentence is inapplicable. However, the record shows that, pursuant to defendant’s guilty plea to the DUI, the Secretary entered the mandatory order revoking defendant’s driving privileges (see Ill. Rev. Stat. 1989, ch. 95½, par. 6—205(a)(2)) on August 8, 1990. On August 13, 1990, the Secretary received the court’s order granting defendant’s JDR Obviously, by that time, defendant’s driving privileges were revoked and the second sentence of section 6—206.1(a)(iii) became applicable. The Secretary then notified the court of this problem, but the court persisted in entering this order. Clearly, the court was mistaken in doing so.

The statutory summary suspension is a temporary suspension of a driver’s privileges upon his arrest for DUI when he has refused a breath test or shows an alcohol level of 0.10 or more. (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1.) This suspension is unrelated to the ultimate disposition of the underlying DUI violation. (See People v. Meyer (1988), 166 Ill. App. 3d 1030, 520 N.E.2d 1244.) To relieve undue hardship, the Code allows the court to order the Secretary to issue a JDP to qualifying individuals. (Ill. Rev. Stat. 1989, ch. 95½, par. 6—206.1.) This JDP is effective for a portion of the statutory summary suspension period and gives the driver limited driving privileges during that time. However, it is clear the JDP is only effective for statutory summary suspensions. (See Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 206.1(a).) It can have no impact on any other suspension or revocation authorized by the Code. Therefore, if a driver’s underlying driving privileges are lost for another reason and he also has received a statutory summary suspension, the court cannot issue a JDP and any JDP already issued is invalid because there are no driving privileges to be allowed to be used. This is clearly the import of section 6-206. 1(a)(4)(iii).

Much of the confusion in this case can be placed on the notice the Secretary sent to the court. In the notice, the Secretary indicated why it believed the order issuing the JDP was improper. It then concluded with a paragraph asking the court to reconsider its order and stating:

“If the Judge wishes to again officially order the issuance of the JDP, we will issue the permit and make the appropriate entries to our official records.”

Thus, by this language, the notice suggests the court could still order issuance of the JDP.

However, the second sentence of section 6—206.1(a)(4)(iii) does not indicate that the Secretaiy is to notify the court of the loss of privileges and ask the court to reconsider its order. It simply states that the Secretary is to notify the driver and the court that the driver’s driving privileges, including any pursuant to the JDP, are lost.

Once the driving privileges are lost, for reasons other than the statutory summary suspension, the Secretary’s regular procedures are invoked. That means the Secretary is required to give the driver notice of this action pursuant to section 6—209 of the Code. (Ill. Rev. Stat. 1989, ch. 95V2, par. 6—209.) We conclude this notice, which in these circumstances must also be given to the court, will also suffice for the notice requirements of section 6—206.1(a)(4)(iii). This notice is just that — a notice. It is not a request or a suggestion to the court that any hearing be held to reconsider an order. It is simply a notice to the court that any JDP entered or to be entered is invalid because the driver’s underlying driving privileges have been suspended or revoked.

For the reasons mentioned above, it is clear, since defendant’s privileges were revoked on August 8, 1990, that the entry of the order by the circuit court of Adams County directing the Secretary to issue a JDP was error.

Reversed.

SPITZ and KNECHT, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WALTERS, Defendant-Appellant.
    Fourth District
    No. 4—90—0464
    Opinion filed March 28, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On May 3, 1990, defendant, James Walters, was charged by indictment with aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12—4.3(a)) and battery (Ill. Rev. Stat. 1989, ch. 38, par. 12—3(a)(1)). After a jury trial on May 14, 1990, defendant was acquitted of aggravated battery of a child, convicted of battery, and sentenced to 364 days in jail. Defendant’s sole argument on appeal is that the trial court improperly refused an instruction he requested. We affirm.

At trial, the State called two witnesses to testify: the victim, J.W., who is defendant’s son, and Sandra Walters, defendant’s wife and J.W.’s mother. Defendant presented no evidence.

The State’s evidence showed that in January 1990, J.W. was eight years old, four feet tall, and weighed about 70 pounds. J.W. was a nervous child who had a problem with bed-wetting. Three days before the incident in question, which occurred in late January 1990, J.W. had wet his bed. Sandra had heard defendant previously threaten J.W. about bed-wetting, so she washed the sheets and cleaned the mattress as best she could to get rid of any evidence of bed-wetting.

On the date in question, defendant walked into J.W.’s bedroom, and placed his face onto J.W.’s mattress. Defendant said that he smelled urine. Defendant then struck J.W. and went out to the garage. He returned shortly with a stick. Defendant then made J.W. bend over and touch his toes while defendant struck him repeatedly on his buttocks. J.W. kept falling forward because of the force defendant was using, and defendant would pick him up and tell him “to stand there and take it like a man.” Defendant told J.W. that he “was going to make his ass as black as his pants.” Defendant also said that if he had “to beat [J.W.] to death,” J.W. “would learn to stop wetting the bed one way or another.”

Defendant struck J.W. at least 20 or 30 times. Sandra tried to pull defendant off J.W., but he pinned J.W. to the ground and told Sandra that if she did not leave him alone, he was “going to break the little bastard’s neck.” The stick defendant was using was about two inches wide, half an inch thick, and about a foot or two long. The incident finally ended when defendant picked J.W. up and threw him to the ground two or three times. Defendant then told J.W. to go to his room and stay there.

A few hours later, Sandra observed the area of J.W.’s buttocks and saw that it was “totally black and dark blue.” She described that area as one which was “basically covered by the underwear.” J.W. testified that the area of his buttocks hurt for about three to four weeks after this incident.

Defendant’s sole argument on appeal is that the trial court erred when it denied defendant’s request to give the jury an instruction that is not contained in the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (IPI). The refused instruction reads as follows: “Parents have a legal right to spank their children.” Defendant argues that he was deprived of his right to a fair trial because the trial court refused to instruct the jury concerning the legal justification of spanking. Citing People v. Swartz (1989), 186 Ill. App. 3d 399, 542 N.E.2d 515, and People v. Crane (1990), 196 Ill. App. 3d 264, 554 N.E.2d 1117, defendant argues that the trial court committed reversible error by depriving him of the opportunity to explain to the jury his theory that he was legally justified in spanking his son. We disagree and find those cases to be inapposite.

In People v. Sanchez (1982), 110 Ill. App. 3d 893, 903, 443 N.E.2d 252, 259, the court wrote the following: “In the absence of an IPI criminal instruction, the decision whether to give a non-IPI instruction rests within the discretion of the trial judge.” (See also People v. Blackwell (1979), 76 Ill. App. 3d 371, 379, 394 N.E.2d 1329, 1336.) In People v. Pankey (1978), 58 Ill. App. 3d 924, 927, 374 N.E.2d 1114, 1116, this court wrote the following: “Any non-IPI instruction given by the trial court is to be simple, brief, impartial, and free from argument. (Supreme Court Rule 451(a).)” See 134 Ill. 2d R. 451(a).

Judged by the foregoing standards, the trial court did not abuse its discretion in refusing defendant’s instruction. The court stated that it found objectionable the use of the word “spank” in the instruction. The court also stated its agreement “with many of the reasons given by the State” for its objections, which the prosecutor stated as follows:

“This instruction doesn’t answer, for example, what a parent can spank with, how long, what injuries, if any. It doesn’t specify any of that. And so I don’t think parents have a blanket legal right to spank their children as this instruction indicates. There is a line where you cross from legality into criminality, and that’s exactly what this case is about. So I think that, again, coming from the court, an instruction like this is not appropriate.”

We approve of the trial court’s ruling sustaining the State’s objection for the reasons given, and we reaffirm an earlier holding of this court that even a jury instruction that accurately states the law may be refused if it is misleading or argumentative. See In re Estate of Casey (1987), 155 Ill. App. 3d 116,122, 507 N.E.2d 962, 966.

Based upon our review of the record, we are satisfied that the instructions given, taken as a whole, fully and fairly defined the applicable law and were sufficient. Further, while the refused instruction may have been “simple” and “brief,” it was not “impartial and free from argument,” as required by Pankey (58 Ill. App. 3d at 927, 374 N.E.2d at 1116).

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    PHILLIP SCOBY, Plaintiff-Appellant, v. VULCAN-HART CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—90—0491
    Opinion filed March 28, 1991.

      Jeffrey W. Tock, of Phebus, Tummelson, Bryan & Knox, of Urbana, and Michael J. Tague, of Franklin, Flynn & Palmer, of Champaign, for appellant.
    D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On October 14, 1986, plaintiff Phillip Scoby filed a complaint in the circuit court of Champaign County against defendant Vulcan-Hart Corporation seeking damages for personal injuries. As is before us, plaintiff’s complaint sounded in the tort of strict liability for defective product. He alleged he was injured when he was working in a restaurant kitchen, fell, and his arm became submerged in hot oil contained in an open deep-fat fryer manufactured by defendant.

On January 9, 1989, the day the case was originally set for trial, defendant filed a motion for summary judgment, which was granted by the trial court. Plaintiff appealed, and this court reversed the judgment for failure to give proper notice and remanded to the trial court. (Scoby v. Vulcan-Hart Corp. (1989), 188 Ill. App. 3d 89, 544 N.E.2d 106.) Upon return to the trial court, defendant renewed its motion for summary judgment. The motion was granted on May 9, 1990, and reconsideration was denied on July 2, 1990. Plaintiff appeals.

Section 2 — 1005(c) of the Code of Civil Procedure (Code) provides that summary judgments shall be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) In a case where the foregoing material constitutes “all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict,” a summary judgment is then proper. Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.

Plaintiff’s deposition indicated (1) on the night he was injured, plaintiff was employed as a cook with Chi Chi’s restaurant in Champaign; (2) he slipped, lost his balance, fell, and immersed his right arm up to his elbow in the vat of hot oil; and (3) although the fryer was turned off, the oil contained within the fryer was still hot enough to cause burns to plaintiff’s arm.

The parties have agreed and stipulated to the following facts: (1) the deep-fat fryer in which plaintiff burned his arm was manufactured by defendant Vulcan-Hart and sold to defendant N. Wasserstrom & Sons, Inc., in 1984 for the price of $834. N. Wasserstrom then sold the same fryer to Chi Chi’s restaurant in 1984 for the price of $918; (2) at the time Vulcan-Hart sold the deep-fat fryer in question, it manufactured two covers for the fryer, referred to as a simmer cover and a tank cover; and (3) the simmer cover was manufactured by Vulcan-Hart at a cost of $12.70 each and was offered by Vulcan-Hart as optional equipment for the fryer in question at the price of $150 per cover. A simmer cover had been available from Vulcan-Hart since 1969.

In addition, the parties stipulated that (1) if a simmer cover had been in place and in the down position on the fryer at the time plaintiff slipped and fell, his hand would not have come into contact with the oil in the fryer; and (2) the cover was not sold with the machine as standard equipment but was available as an extra to create a “saturated atmosphere” for frying certain products, particularly chicken. The function of the cover was to trap moisture in the product being cooked. For example, the “original recipe” Kentucky Fried Chicken would be used under a similar cover while the “extra crispy” Kentucky Fried Chicken would be used in an open fryer to achieve the desired crispness. The simmer cover was not designed, manufactured, marketed, or sold by Vulcan-Hart as a safety device.

Further, stipulation was made that (1) the tank cover was manufactured by Vulcan-Hart at a cost of $6.44 each and was offered by Vulcan-Hart as optional equipment for the fryer in question at a price of $64 per cover; (2) the tank cover was available from Vulcan-Hart since 1980; (3) if a tank cover had been in place on the fryer at the time that plaintiff slipped and fell, it might have prevented his hand from coming into contact with the oil in the fryer; and (4) the purpose of the tank cover was to be placed over the fryer after it had been turned off and the cooking oil or lard had cooled down to prevent vermin from getting into the oil or lard. The tank cover was a specialty item and was not designed, manufactured, marketed, or sold by Vulcan-Hart as a safety device.

Thus, no dispute exists as to the underlying facts, and the question presented is whether a judgment for plaintiff could stand under the facts. At issue is the question of whether the recited facts could give rise to a cause of action by plaintiff against defendant in strict liability for a defective product. As stated most recently by the supreme court, “Illinois follows the formulation set forth in section 402A of the Restatement (Second) of Torts (1965), which imposes strict liability upon one ‘who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property.’ ” (Lamkin v. Towner (1990), 138 Ill. 2d 510, 528, 563 N.E.2d 449, 457.) As we indicated in our previous opinion, the trial court originally granted summary judgment to the defendant, following the rule in Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, that the dangerous nature of the open fryer without a top to keep portions of people’s bodies from coming into contact with the hot contents was so obvious that, as a matter of law, plaintiff could not recover. The criterion used by the court was the consumer-user contemplation test set forth in section 402A of the Restatement (Second) of Torts. (See Restatement (Second) of Torts §402A, comment i (1965).) Under the test, a product’s design is defective and unreasonably dangerous when the danger it presents is not obvious to the consumer or user. In addition to being applicable in Hunt, this test has been followed in theory by the supreme court in Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.

On remand, the trial court made the same ruling as before for the same reason. Clearly, the dangerous nature of the open fryer containing hot oil was obvious to plaintiff’s employer, who was the ultimate consumer of the fryer, and that same danger was also obvious to plaintiff. However, plaintiff maintains now, as he did before, that a product may be found to be defective and unreasonably dangerous when a safer design for the product is practical and effective, and can be provided at a reasonable cost. This criterion for determining liability for defective product has been described by a leading authority on torts as the “danger-utility” test. (See W. Keeton, Prosser & Keeton on Torts §99(3), at 699-700 (5th ed. 1984).) Some aspects of that test were applied by the supreme court in Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959, Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, and Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690.

The danger-utility test is described in these words:

“Under this approach, a product is defective as designed if, but only if, the magnitude of the danger outweighs the utility of the product. The theory underlying this approach is that virtually all products have both risks and benefits and that there is no way to go about evaluating design hazards intelligently without weighing danger against utility. There have been somewhat different ways of articulating this ultimate standard or test. But in essence, the danger-utility test directs attention of attorneys, trial judges, and juries to the necessity for weighing the danger-in-fact of a particular feature of a product against its utility. Under this test, a product can be said to be defective in the kind of way that makes it ‘unreasonably dangerous’ if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product. There are three primary reasons for so concluding: (1) the harmful consequences in fact from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff’s injury outweighed the benefits in terms of wants, desires, and human needs served by the product; (2) although the harmful consequences in fact did not exceed the benefits, alternative products were available to serve the same needs or desires with less risk of harm; (3) although the harmful consequences did not outweigh the benefits, there was a feasible way to design the product with less harmful consequences. Most of the products liability litigation related to design hazards has been concerned with the feasibility of a safer alternative design.” W. Keeton, Prosser & Keeton on Torts §99(3), at 699-700 (5th ed. 1984).

In the past, the supreme court has described the appropriate test for a defectively designed product case to be a test similar to the consumer-user contemplation test or one similar to the danger-utility test. In Lamkin, for the first .time, that court held that ordinarily such a cause of action can be proved under either test. There, suit was brought for injuries to a small child who had fallen through a screened-in window in an apartment house. The theory of the suit was that the screens should have been strong enough to prevent the child from going through the screen. One count was against the manufacturer of the screens. The propriety of the trial court’s denial of a summary judgment to the manufacturer was before the supreme court pursuant to interlocutory appeal under Supreme Court Rule 308 (134 Ill. 2d R. 308). The supreme court held summary judgment should have been granted the manufacturer. The court applied both tests, holding (1) the inability of the screens to hold back a child was obvious to all consumers and users, and (2) no feasibility of any alternate screen design was shown.

In describing the test to be applied, the Lamkin court stated:

“A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs. See generally Palmer v. Aveo Distributing Corp. (1980), 82 Ill. 2d 211, 219-20, citing Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 427-28, 573 P.2d 443, 452, 143 Cal. Rptr. 225, 234-35.” Lamkin, 138 Ill. 2d at 529, 563 N.E.2d at 457.

The Lamkin court later stated that the purpose of the screens was to keep out insects and not to keep people from falling out the window. The court then stated:

“Virtually any manufactured product can cause or be a proximate cause of injury if put to certain uses or misuses (Hunt, 74 Ill. 2d at 211), but strict liability applies only when the product is ‘ “dangerous to an extent beyond that which would be contemplated by the ordinary [person] ***, with the ordinary knowledge common to the community as to its characteristics” ’ (Palmer, 82 Ill. 2d at 216, quoting Restatement (Second) of Torts §402A, comment i (1965); see also Hunt, 74 Ill. 2d at 211-12.)” (Emphasis added.) (Lamkin, 138 Ill. 2d at 529-30, 563 N.E.2d at 458.)

We do not take the foregoing to negate the intent of Lamkin that usually both tests should be applied.

Defendant recognizes the adoption in Lamkin of the dual test for determining defective design. However, defendant points out that the Lamkin court relied heavily on the decision of the supreme court of California in Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225. There, that court pointed out that a number of decisions of the appellate courts of California had held a product can be found defective in design even though consumer expectations have been met “if through hindsight the jury determines that the product’s design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger *** outweighs the benefits of such design.” (Emphasis added.) (Barker, 20 Cal. 3d at 430, 573 P.2d at 454, 143 Cal. Rptr. at 236.) Defendant maintains that here, the danger presented by not having a top for the fryer was not “excessive” and the danger-use test should not be applied.

Defendant’s concern with the use of the danger-utility test here is well taken. The mechanics involved are simple. Very hot liquid is, of course, quite dangerous, but the danger was very obvious to both the defendant and the plaintiff. Clearly, at times, efficient kitchen operation would require keeping a top off of the fryer. Defendant draws analogy to a sharp kitchen knife that might be on a table. It asks whether a manufacturer of the knife could be strictly liable if somebody were cut by the knife if the manufacturer did not furnish with the knife, as a usual part and advertised as a safety factor, a sheath to cover the blade of the knife. The analogy is appropriate. Many manufactured products have a potential to cause substantial injury, and most can be made safer by a different design.

We do not deem that Lamkin or other cases applying aspects of the danger-utility test intend that all manufacturers of products described above should be subject to liability depending upon a trier of fact’s balancing under that test, when suit is brought by one injured by such a product. Somewhere, a line must be drawn beyond which the danger-utility test cannot be applied. Considering not only the obvious nature of any danger here but, also, the simple nature of the mechanism involved, we conclude the circuit court properly applied only the consumer-user contemplation test. Under that test, summary judgment for the defendant was clearly proper.

Defendant also maintains that plaintiff’s fall was the sole proximate cause of his injury and any danger in the open fryer containing hot liquid was merely a condition. We cannot agree. The likelihood that a person working in a restaurant establishment will likely have part of his body come in contact with a fryer in the working area is readily foreseeable. As this court stated in Reed v. Danville Concrete Products Co. (1981), 102 Ill. App. 3d 205, 429 N.E.2d 605: (1) the existence of proximate cause is largely a jury question; and (2) the difference between causes and conditions is no longer deemed an important tool in analyzing causation. As this court pointed out there, Illinois Pattern Jury Instruction, Civil, No. 15.01 (2d ed. 1971) describes “proximate cause” as that which “in natural or probable sequence, produced the injury complained of.” (See also W. Keeton, Prosser & Keeton on Torts §42 (5th ed. 1984).) The record here falls far short of showing, as a matter of law, that the failure of defendant to provide a cover for the fryer could not be a proximate cause of plaintiff’s injuries.

However, proximate cause does not create a right to recover absent the existence of a tort. Accordingly, the judgment of the circuit court granting summary judgment to the defendant is affirmed.

Affirmed.

SPITZ and KNECHT, JJ., concur.