author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD JONES, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3268
    Opinion filed September 6, 1991.
    Rehearing denied October 11, 1991.

      Michael J. Pelletier and Pamela L. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Ado L. Rugai, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

A jury found defendant Ronald Jones guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 3.1). The court sentenced the 16-year-old defendant as an adult, to a term of years’ imprisonment. On appeal, defendant contends that the trial court improperly admitted hearsay identification testimony by two police officers; that the trial court improperly admitted the victim’s testimony about a prior lineup; that defendant was denied his right to a fair trial when the State failed to disclose information regarding a police officer’s identification of defendant prior to trial; that the court abused its discretion in sentencing defendant by considering irrelevant information contained in the victim impact statement; and that he was denied due process of law and ineffective assistance of counsel when the trial court failed to advise him of his right to be sentenced as a juvenile under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(6Xc)).

Vivian Wallace testified that on July 5, 1986, at 8:30 p.m., she was entering her car on the passenger’s side when a man came up to the car with a gun drawn. He told her to open the door or he would blow her brains out. He entered the car on the driver’s side, and a second man, later identified as defendant, entered the back of the car. He also held a gun in his hand. She was able to see the faces of both men.

The driver pointed his gun at Wallace’s temple, and defendant put his gun to the back of Wallace’s head. Defendant demanded her purse. Wallace turned around to hand it to defendant, and again saw his face. The driver ordered Wallace to turn around while defendant rummaged through the purse. The driver then started the car and drove for several minutes, finally stopping in an alley. Defendant, with his gun still pointed at Wallace’s head, then demanded Wallace’s gold earrings, rings and necklace. The driver had his arm around Wallace’s shoulder and had his gun pointed in her face. Defendant then got out of the back seat and sat in front, next to Wallace, where she again observed his face. The two men told Wallace to get out of the car, and not to turn around or she would be shot. Defendant and the driver drove away in the car. Wallace telephoned the police.

Wallace testified further that she viewed more than one lineup. She made no identification in the first lineup, and identified defendant in the second lineup on July 18,1986.

Officer Anthony Maslanka testified for the State that on July 5, 1986, he investigated the armed robbery and discovered defendant’s name after speaking with Colvin. A lineup was held on July 18, 1986, and the victim identified defendant.

Officer Paul Phillips testified that on July 7, 1986, at 9:30 p.m., he was on patrol when he observed two men stripping the victim’s car. His partner apprehended Fredrick Colvin. Phillips chased the other man, whom he observed face to face for a second or two. Phillips was not able to catch the other man. Phillips was asked if he saw the other man in court.

The defense objected on the basis that it had received no discovery response or other notice that Phillips was an identification witness. The State responded: “It’s in the police reports.” The court overruled the objection. Defense counsel argued further: “There is nothing in the police report about him identifying anybody. I just want to make that clear.” The court replied, “Well, you made it clear. There’s been a response.” (The record shows that defendant submitted a detailed request for witnesses; occurrence witnesses; and identification witnesses. The State’s reply merely stated generally that the “State may call as witnesses any persons named in police reports” and other documents not relevant here.)

Phillips then pointed to defendant and stated: “I believe that’s the young man.” Phillips acknowledged that the police report did not state that he could identity the person he chased. He later told his superiors he could identify the man, but did not know if they included that fact in any follow-up reports.

Phillips also testified that the police received information about the second person from Colvin. He included in a report that the person’s first name was “Ronald” and last name was “Smith, Williams or Jones.”

Defendant first contends that it was improper to admit the hearsay testimony of Officers Phillips and Maslanka regarding Colvin’s identification of defendant as the man who ran away when Colvin was caught stripping the victim’s car.

Testimony regarding the prior identification of defendant as the perpetrator by a third person is hearsay since it is an out-of-court statement introduced to prove the truth of the matter asserted. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223; People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133.) It would be inadmissible hearsay if “a third person were to testify that he saw or heard A identify B as the person who committed the offense,” unless that person was subject to cross-examination. People v. Rogers, 81 Ill. 2d at 579. See also Ill. Rev. Stat. 1989, ch. 38, par. 115 — 12; People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371 (both person making prior identification and person testifying to prior identification must be available for cross-examination). See generally M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.16, at 435 (5th ed. 1990).

Maslanka testified that he spoke with Colvin and learned defendant’s name.

“[PROSECUTOR]: Pursuant to that investigation [of the armed robbery] did you gain a lead on any suspects?
A. Yes, I did.
Q. Who was that?
A. A suspect by the name of Ronald.
Q. And, did you subsequently in your investigation find out that person’s last name?
A. Yes, I did.
Q. What is his last name?
A. Ronald Jones.
Q. Now, how did you determine the suspects [sic] last name?
[DEFENSE COUNSEL]: Objection. Calls for hearsay answer I believe.
THE COURT: He may answer. Rephrase the question.
[PROSECUTOR]: Yes, Judge.
Q. Who did you speak to regarding this Ronald?
A. Subject by the name of Fredrick [Colvin].
Q. And, what were the circumstances surrounding your conversation with Fredrick [Colvin]?
A. Fredrick had been arrested for stripping Mrs. Wallace’s car that was taken in the robbery.”

The State raised the question again in its examination of Phillips:

“[PROSECUTOR]: Did you learn any other information regarding the identification of the person that ran from the car?
A. I did from—
[DEFENSE COUNSEL]: Objection.
* * *
THE COURT: Well, overruled.
[PROSECUTOR]: Officer, did you learn any information as to the identify of the person that ran away from the car on this date?
A. We received a little information from the guy we arrested.
Q. Okay. And that was who?
A. Frederick Colvin.”

Thus, Maslanka and Phillips offered testimony which was tantamount to stating that Colvin identified defendant as the person who committed the offense. Although, because of the interposed objections, they did not specifically articulate that Colvin reported defendant’s name to them, nevertheless the total import of the testimony makes it clear that the police learned defendant’s name from Colvin.

The opening statement and closing argument made by the State further highlighted and further exacerbated the impropriety of the testimony.

In its opening statement, the State told the jury:

“[Y]ou will hear from police officers. And, those officers will tell you about their investigation. And, how they determined through information that they found that the car that the victim was driving and they found person stripping that car [sic]. And, that one of the persons stripping that car was apprehended, a Fredrick [Colvin]. And, you will hear the police officer tell you when Fredrick [Colvin] was brought in for stripping the victim’s car that at that time — excuse me, he gave him the name of the other person who was driving the car. And, that person the officer will tell you the name they got was Ronald Jones.”

In closing arguments, the State again used the officers’ testimony in question as substantive evidence:

“[PROSECUTOR]: Yet police officers who told you about their investigation and in this case they didn’t have to rely, fortunately for them, fortunately for us, fortunately for Vivian Wallace, they didn’t have to rely on a description given by a woman who had just been robbed at gun point.
* * *
Now, as to this defendant and his being arrested after the officer spoke to Mr. Colvin, no, the State did not bring in Frederick Colvin. You heard from the stand that Frederick Colvin was arrested in the matter for stripping the car.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: And we did not bring him in. He wasn’t an eye witness to the armed robbery of Vivian Wallace. May have been an eye witness to the stripping of the car, but that is not the case you have before you today. What the stripping of the car involving Mr. Colvin and this defendant goes to is to show that he was connected with the car. To show that the police got a lead. A few days after this happened the victim’s car is being stripped. They caught him, one guy. After they caught him they learn information about another guy and they follow up the lead.”

These remarks, in conjunction with the officers’ testimony, rendered it impossible for the jury to avoid the conclusion that Colvin’s out-of-court declaration identifying defendant as his accomplice in stripping the car was offered as substantive proof of that fact. This was prejudicial to defendant because Colvin did not testify and therefore was not subject to cross-examination.

The State argues that the statements of Maslanka and Phillips were admissible “not to prove the truth of their contents but to show the investigatory procedures that were entirely within the knowledge of the officer [s].” The above-quoted comments from the prosecution’s opening statement and closing argument clearly show, however, that Colvin’s hearsay identification was explicitly offered as substantive evidence.

The State argues as an alternative that, even if it improperly used the hearsay statements as substantive evidence, the verdict should not be disturbed absent a showing of substantial prejudice to defendant. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) We find, however, that it was substantially prejudicial to have two police officers testify that they were informed of defendant’s identity by defendant’s accomplice during the stripping of the victim’s car. The State’s identification evidence consisted of Wallace, who saw defendant very briefly under traumatic circumstances; and Phillips, who identified defendant as the man stripping the car, when that identification has been challenged where Phillips failed to include it in a police report and where Phillips did not offer himself as an identification witness until after the police spoke with Colvin. Under these circumstances, the State’s evidence was not so overwhelming as to avoid the prejudicial impact resulting from the State’s elicitation of inadmissible hearsay identification from the alleged accomplice. See People v. Burns (1988), 171 Ill. App. 3d 178, 524 N.E.2d 1164 (reversible error to admit officer’s testimony that nontestifying codefendant identified defendant as his accomplice); People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642.

Defendant next contends it was error to permit the victim to testify that prior to identifying defendant in a lineup she had viewed another lineup (which included Colvin but not defendant) and did not identify anyone. Officer Maslanka testified that the victim viewed more than one lineup. The victim testified similarly:

“[PROSECUTOR]: And, did you view more than one lineup?
A. Yes.
Q. Can you tell us approximately when the first lineup was that you viewed?
A. The first lineup was maybe a few days after the incident.
Q. And at the time you viewed the first lineup were you able to make an identification of either [of] the persons that you saw?
[DEFENSE COUNSEL]: Objection.
THE COURT: She may answer.
[DEFENSE COUNSEL]: Side bar, please.
THE COURT: All right.”

In the side bar, the court found the prior lineup was relevant “[o]nly for the purpose of allowing it, not going into it” with names or other dptails. The victim then testified: “I was not able to identify anyone at that time.”

On redirect examination, Wallace testified similarly:

“[PROSECUTOR]: Miss Wallace you saw more than one lineup, is that right?
A. Yes, I did.
Q. And—
[DEFENSE COUNSEL]: Objection.
THE COURT: She can answer the question.
[PROSECUTOR]: Counsel asked you whether or not in a lineup in which you saw this defendant you expected to see the offender, is that what she asked you earlier?
A. Yes, she did.
Q. But you had seen a lineup prior to that, is that right?
A. Yes.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: May I approach the bench, please? Side bar.”

During the side bar, the court stated: “We have touched that one point before and I am going to let it lie like it is. I’ll sustain the objection and so let’s go on to another question.”

Evidence that a witness previously failed to identify someone other than the defendant is not relevant or admissible. (People v. McGee (1987), 160 Ill. App. 3d 807, 513 N.E.2d 885; People v. Trass (1985), 136 Ill. App. 3d 455, 483 N.E.2d 567.) This is because the failure to identify another person in one lineup does not make it more likely that she correctly identified defendant in the subsequent lineup. (People v. Trass (1985), 136 Ill. App. 3d 455, 483 N.E.2d 567.) Here, the State’s case turned on the testimony of the single eyewitness to the armed robbery. The State improperly used Wallace’s failure to identify anyone in a lineup including Colvin, but not defendant, as evidence to bolster her subsequent identification of defendant.

The impropriety of the evidence was further highlighted by the State’s closing argument focusing on the failure to identify anyone in the first lineup:

“[PROSECUTOR]: Now, we have a line-up on the 8th and defense counsel suggested that when Miss Wallace went to the police department to look at a line-up — You knew that they were going to have someone there for you ***. Well, you heard from Miss Wallace that there was a line-up on the 8th and she didn’t identify—
[DEFENSE COUNSEL]: Objection.
THE COURT: Jury has heard the testimony and the evidence.
[PROSECUTOR]: That was the testimony. If she was so hell bent to point a finger which is what, somehow, I think they are trying to show, for the simple reason, when she saw the line-up on the 8th, that wasn’t the person that did it.”

In its rebuttal argument, the State argued the point farther:

“[PROSECUTOR]: After they caught [Colvin] they learn information about another guy and they follow up the lead. They hold one line-up. She said she saw one line-up a few days after.
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: Overruled.
* * *
[PROSECUTOR]: If Miss Wallace had wanted so badly to catch these guys which we are sure she does, but, if she wanted so badly that, she would have pointed out anybody at all.
* * *
Now, if she was just identifying Willie Nillie, she had a couple of opportunities to identify not one, but two people, but, she didn’t. Counsel would have you think she would put any other black young man up there and she’d identify him. Obviously, to Miss Wallace all black, young, men don’t look alike, and she wasn’t going to pick just anybody. She picked the person who did it.”

We are not persuaded by the State’s argument that Wallace’s non-identification during the first lineup was relevant to rebut an inference made by defense counsel while cross-examining Wallace, that Wallace expected to see an offender when she saw the second lineup containing defendant. With respect to Maslanka, the State elicited the testimony from Maslanka before Wallace was even cross-examined by defense counsel.

In addition, with respect to both Maslanka and Phillips, the State’s argument is inconsistent with what the State itself considered to be the function of this evidence, as indicated in its opening statement. The prosecutor told the jury during the opening statement:

“[PROSECUTOR]: In fact you will hear the police officer, several lineups including the one with Frederick [Colvin], and the victim viewed those lineups. She didn’t identify Fredrick [Colvin] until [sic] initial lineup.
[DEFENSE COUNSEL]: Obieetion.
THE COURT: Overruled.”

We conclude that this error would have alone sufficed to require reversal under the circumstances of this case, where Wallace was the only-eyewitness to the armed robbery itself, and where Phillips’ identification testimony of defendant during the stripping of the car was seriously challenged. See People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347 (error requires reversal where erroneously admitted statement was used to bolster credibility of crucial witness’ testimony).

Defendant next contends that he was denied a fair trial where the State failed to disclose in pretrial discovery information regarding Officer Phillips’ identification of defendant.

At trial, Phillips testified that the man who ran away from the car being stripped was defendant. “I believe that’s the young man.” Defendant’s objection based on the State’s failure to provide this information in discovery was overruled. On cross-examination, defense counsel brought out that Phillips’ report did not state that he could identify defendant as the person who ran away from that car. Defense counsel asked, “So, this is the first time anyone has heard, when the case comes to trial, that you could identify that person who ran away from the car, is that right?” Phillips replied, “Right.” Phillips also testified that he had told his superiors he could identify the second person found stripping the car. He did not know if his superiors included that fact in a report. He never viewed a lineup in connection with this case.

Defendant’s motion for discovery requested:

“2. A List of Witnesses of persons [sic] whom the prosecution may or may not call as witnesses and their addresses, including production of the following: a) Any written or recorded statements by these witnesses, including those written or recorded statements of police officers; b) Any memoranda reporting or summarizing oral statements by such witnesses.
3. A List of Witnesses that the State may or may not call who were occurrence witnesses at the scene of the alleged offense or who were present at the time of the arrest of the defendant, together with their last known addresses and telephone numbers.
* * *
13. *** [T]he names and addresses of the witnesses they intend to call at the time of trial for identification of the defendant as the perpetrator of the crime:
a) Time, date and place of identification;
b) If photographic identification was used, production of any photo used, whether of defendant or of other persons;
c) All persons present at such viewing;
d) Any pictures taken of line-up, etc.;
e) Names and addresses of any individuals who confronted accused and made no identification or identified him for other crimes.”

The State’s answer to discovery did not respond to the defendant’s request by each item number, and instead offered only a general reply:

“1. State may call as witnesses any persons named in police reports, transcripts, medical reports and other documents attached to and incorporated as part of this answer.
* * *
3. Statement of persons State may call as witnesses; statements made by defendant or co-defendant and list of witnesses to the making; date, time and place of occurrence, process used to seize evidence and identification procedure are in above said documents.”

If the police reports did not mention Phillips’ name at all, there would be a clear violation of the discovery rule. (See 134 Ill. 2d R. 412.) Defendant apparently concedes, however, that Phillips’ name appears somewhere in a police report. Defendant correctly maintains that the “mere listing of Phillips’ name” on a police report, with no specification on either the report or the State’s answer to discovery that Phillips was an identification witness, constituted a failure to disclose crucial information requested by defendant’s discovery motion. Supreme Court Rule 412 makes the State’s compliance with defendant’s discovery request mandatory. 134 Ill. 2d R. 412; People v. Burns (1979), 75 Ill. 2d 282, 388 N.E.2d 394.

In People v. Wilken (1980), 89 Ill. App. 3d 1124, 412 N.E.2d 1071, police officer Quinn testified that while on patrol he observed defendant at the scene of the burglary. Defense counsel objected on the basis that the identification testimony of the officer was a complete surprise because the police reports indicated the only evidence against defendant was the identification testimony of the two codefendants. Defendant had not been provided with. Quinn’s report. However, Quinn testified similarly at a preliminary hearing where defendant was represented by different counsel. Defense counsel argued at trial that he would have altered his cross-examination of the State’s witnesses, and that knowledge that Quinn would identify defendant would have prompted further investigation.

The court in Wilken found the failure to provide the information about the officer’s ability to identify defendant reversible error, as it could not be considered harmless beyond a reasonable doubt. “There is no question but that the report should have been disclosed. Officer Quinn was the only non-codefendant witness to place the defendant at the scene of the crime, and the jury *** could have placed great weight on [his] testimony.” People v. Wilken, 89 Ill. App. 3d at 1129, 412 N.E.2d at 1071. See also People v. Orr (1986), 149 Ill. App. 3d 348, 500 N.E.2d 665 (tendering police report insufficient where defendant’s statement to third person not disclosed in that report); People v. Miles (1980), 82 Ill. App. 3d 922, 403 N.E.2d 587 (prejudicial error where police officer’s testimony radically different from any information contained in his police report).

In the present case, the error was even more egregious than in Wilken in light of the State’s repeated references to Phillips’ identification during the trial and the closing argument.

The identification of defendant by a police officer played a key role in the trial, and thus the State’s failure to disclose Phillips as an identification witness constituted prejudicial surprise and deprived defendant of his right to a fair trial. See generally United States v. Bagley (1985), 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375.

In view of our holding, we need not address the sentencing issues raised by defendant.

For the foregoing reasons, individually and cumulatively, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

MURRAY and McNULTY, JJ., concur.

      In its opening statement and the initial questioning at trial, the State erroneously referred to Fredrick “Coleman,” where the record clearly reflects his name was Fredrick “Colvin.”


source: Caselaw Access Project

author: JUSTICE LINN PRESIDING JUSTICE JIGANTI,

license: Public Domain

text:
    PERKINS AND WILL et al., Plaintiffs and Counterdefendants-Appellees, v. SECURITY INSURANCE COMPANY OF HARTFORD, Defendant and Counterplaintiff-Appellant.
    First District (4th Division)
    No. 1—90—1044
    Opinion filed September 19, 1991.
    JIGANTI, P.J., dissenting.
    Rooks, Pitts & Poust, of Chicago (John J. Blasi, of counsel), for appellant.

      Sonnenschein, Nath & Rosenthal, of Chicago (C. Barker Rhodes, Jr., and Alan M. Posner, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs are several business entities, which we will refer to as Perkins & Will, an architectural and engineering firm. Defendant is the Security Insurance Company of Hartford, Inc. (Security). Perkins & Will bought a professional liability insurance policy from Security. The firm was named as a defendant in a lawsuit. Perkins & Will settled, and Security advanced a portion of the settlement.

Perkins & Will then brought this declaratory judgment action in the circuit court of Cook County against Security. The firm sought a declaration that Security was obliged to indemnify it. Security counterclaimed, seeking: (1) a declaration that the insurance policy did not cover the firm in the lawsuit, and (2) the recovery of its advance.

On cross-motions for summary judgment, the trial court granted summary judgment for Perkins & Will. Security appeals, contending the trial court erred in granting summary judgment for Perkins & Will.

We affirm the judgment of the trial court.

Background

A

The record contains the following pertinent facts. In July 1969, Perkins & Will and another architecture firm, Edward Durell Stone and Associates, formed a joint venture to design and provide architectural services for the Amoco Building in Chicago. The joint venture then entered into a contract with the Standard Oil Company, which was subsequently replaced by Amoco Properties, Inc.

In 1972, Perkins & Will bought a professional liability insurance policy from the CNA Insurance Companies (CNA). The managing underwriter for CNA was the Design Professionals Financial Corporation, now doing business as the Design Professionals Insurance Company (DPIC). The coverage extended from April 1972 through March 1987. The policy specifically covered the joint venture and the joint venturers for the Amoco Building project.

In June 1984, Perkins & Will notified CNA of a “potential claim” arising from the Amoco Building project. Marble panels covered the building. Apparently some of these panels bowed outwards from the surface of the structure. The concern was that these panels could become loose and fall off the building. In August 1984, the firm notified DPIC of the potential claim.

In July 1987, Perkins & Will bought a professional liability insurance policy from Security. The firm paid a premium of $414,217. DPIC was also Security’s managing underwriter. The coverage extended from July 2, 1987, to July 2, 1988.

Since the 1987-88 Security policy is the heart of this appeal, we must describe its pertinent parts in detail. On the face of its initial “Declarations” page, the policy designates Security as the insurer “(herein called the Company).” The policy states in pertinent part:

“This policy is provided on a claims-made basis. It applies only to those claims that are first reported to the Company during the policy period. ***
I. INSURING AGREEMENTS
The Insurance Company designated on the Declarations Page and hereafter referred to as ‘we,’ ‘us,’ or ‘our,’ makes the following agreements with the Named Insured, hereafter called ‘you,’ ‘your,’ ‘the Named Insured,’ or ‘the Insured’:
A. What We Insure
We will pay those sums in excess of the deductible that you become legally obligated to pay as damages because of ‘claims’ to which this insurance applies arising from conduct of your professional practice. ***
* * *
D. Where and When We Insure
This insurance applies:
* * *
3. To ‘claims made’ during the policy period if:
a. The claim arises during the policy period; or
b. The error, omission, or negligent act giving rise to the claim took place prior to the policy period but after the retroactive date specified in the declarations, if applicable, provided that:
(1) you had no knowledge of the claim prior to the beginning of this policy; and
(2) you had no knowledge of any situation that resulted in the claim; and
(3) there is no other valid insurance for the claim.
* * *
III. DEFINITIONS USED IN THIS POLICY
* * *
C. ‘claim’ means:
1. a demand for money or services, or the filing of a suit *** naming any Insured and alleging an actual or alleged error, omission or negligent act arising out of the conduct of your professional practice; or
2. an actual event or alleged event which has resulted in damages and of which any Insured has knowledge; or
3. an actual event or alleged event which may cause damage and of which any Insured has knowledge.
D. ‘claims made’ means a claim that is reported to us during the policy period.
* * *
IV. CONDITIONS AFFECTING THIS INSURANCE A. Duties in the Event of Claim or Suit
1. You must see to it that we are notified promptly of any claim. Notice should include:
a. How, when and where the alleged error, omission or negligent act arising out of the conduct of your professional services took place; and
b. The names and addresses of any injured persons and witnesses.
2. If a claim is made or suit is brought against any Insured, you must provide us prompt written notice of the claim or suit.
3. You and any other involved Insured must:
a. immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or suit;
* * *
c. cooperate with us in the investigation, settlement or defense of the claim or suit; ***.
* * *
E. Other Insurance
If other valid or collectible insurance is available to any Insured for any claim we cover, our obligations are limited as follows:
1. Primary Insurance
This insurance is primary except when 2. below applies. * * *
2. Excess Insurance
This insurance is excess over any other insurance, *** but specific exclusions in the policy shall apply. When this insurance is excess, we will not defend any claim or suit that any other insurer has a duty to defend.”

The policy was amended by endorsement 32, effective January 22, 1988. The endorsement, labelled “Limited Joint Venture Coverage,” provides in pertinent part:

“This policy will apply to all Joint Ventures entered into by you with other Architectural Engineering, Landscape Architectural, or Land Surveying firms arising from the conduct of your professional practice.
If you become legally obligated to pay damages due to participation in a Joint Venture, this policy will apply solely to your errors, omissions or negligent acts, if the claims meets [sic] all other policy conditions.”

On May 16, 1988, Amoco filed an amended complaint in the trial court, which added Perkins & Will as defendants. Other defendants included Edward Durell Stone and Associates, and the joint venture. Amoco subsequently filed a second amended complaint. Amoco alleged, inter alia, that Perkins & Will and the joint venture breached the contract with Amoco, committed negligence and malpractice, and also committed fraudulent and deceptive business practices.

Perkins & Will subsequently tendered its defense to CNA. The insurer accepted the defense and coverage, but reserved its rights and defenses.

In' letters dated May 24 and June 17, 1988, Perkins & Will called upon DPIC, as managing underwriter for Security, to defend and indemnify the firm. On June 23, DPIC, on behalf of Security, denied coverage and declined to defend and indemnify the firm.

B

On October 3, 1988, Perkins & Will filed its complaint in the case at bar against Security. Perkins & Will sought a declaration that Security was obliged to indemnify the firm for any liability in excess of CNA’s coverage. Further, if CNA ever successfully disclaimed coverage, Security would be obliged to defend and indemnify the firm for all amounts in excess of the policy’s deductible up to the policy limit. Security answered and counterclaimed. Security sought a declaration that the policy did not cover Perkins & Will if it became liable to Amoco.

On January 23, 1990, Perkins & Will and the other architect-defendants in the Amoco litigation settled with Amoco. Perkins & Will and Security both contributed toward the settlement. Further, Perkins & Will and Security agreed that Security would advance an additional $400,000 toward the settlement. However, pursuant to the agreement, Security reserved the right to recover its advance from Perkins & Will if Security prevailed in the declaratory judgment action.

Both sides amended their pleadings to conform to the settlement. Perkins & Will sought a declaration that Security was obliged to indemnify the firm for the $400,000 and that the firm was not obliged to return the advance. In its counterclaim, Security alleged that it was not obliged to pay the advance and sought its recovery.

Both sides moved for summary judgment. On March 15, 1990, the trial court granted summary judgment in favor of Perkins & Will, and declared that the 1987-88 Security policy covered Perkins & Will for the settlement advance. Security appeals.

Opinion

In reviewing a trial court’s entry of summary judgment, the only issue on appeal is whether “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).) Summary judgment is an appropriate remedy where only the construction and legal effect of an insurance policy are at issue. State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1063, 419 N.E.2d 601, 602.

In the case at bar, Security contends that the 1987-88 insurance policy did not cover Perkins & Will in the Amoco litigation. Insurance policies are contracts. The general rules of construction that apply to other contracts also apply to insurance policies. Where the language of the policy is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense, and the intent of the parties must be determined solely from the language used. Whether the policy contains an ambiguity is a question of law for the court to determine. Accordingly, we must examine the entire policy and interpret its pertinent parts in light of the whole document, to determine whether any ambiguity or uncertainty exists in the language at issue. Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 412, 407 N.E.2d 77, 79; Dawe’s Laboratories v. Commercial Insurance Co. (1974), 19 Ill. App. 3d 1039, 1048, 313 N.E.2d 218, 224.

In its counterclaim, Security pointed to several sections in the policy to support its contention. On appeal, however, Security focuses its argument on policy section 1(D)(3). As we quoted earlier, section 1(D)(3) provides that the insurance covers “claims made” during the policy period. Security argues that subsections 3a and 3b essentially form a single qualifying clause containing the requirements of subsections 3b(l) through (3). Security argues that Perkins & Will did not meet subsections b(l) and b(2) because the firm had knowledge of the bowing marble, which resulted in the claim, and that the firm had this knowledge prior to the beginning of the policy.

Security conceded in its appellate briefs and during oral argument that its interpretation of policy section 1(D)(3) can be reached only by replacing the word “or,” which follows subsection 3a, with the word “and.” Under certain circumstances, a court can construe the word “or” in an insurance contract so as to read “and,” and vice versa. The word “or” will not be given its literal meaning when such meaning would do violence to the evident intent and purpose of the contracting parties, and the nonliteral meaning would give effect to such intent. (2 G. Couch, Cyclopedia of Ins. L. 2d §15.23, at 204 (rev. 1984); 13 J. Appleman, Ins. L. & Prac. §7387, at 183 (rev. 1976).) This general principle is found in Illinois law. 12A Ill. L. & Prac. Contracts §238, at 57 (1983).

However, it is quite clear in Illinois that, ordinarily, the words “and” and “or” are not interchangeable terms. On the contrary, those words are used in the structure of the English language for entirely different purposes; “and” is strictly of a conjunctive nature and “or” is strictly of a disjunctive nature. Thus, Illinois courts do not treat the words “and” and “or” as interchangeable when their accurate and literal meaning does not render the meaning of the policy dubious. (Chicago Land Clearance Comm’n v. Jones (1957), 13 Ill. App. 2d 554, 559, 142 N.E.2d 800, 803, cited in Manor Healthcare Corp. v. Soiltest, Inc. (1989), 192 Ill. App. 3d 934, 941-42, 549 N.E.2d 719, 725; accord 12A Ill. L. & Prac. Contracts §239, at 57 (1983); 13 J. Appleman, Ins. L. & Prac. §7387, at 183 (rev. 1976).) The substitution of these words “is never resorted to except for strong reasons, and the words should never be so construed unless the context favors the substitution.” Chicago Land Clearance Comm’n, 13 Ill. App. 2d at 559, 142 N.E.2d at 803.

Applying these principles to the case at bar, we conclude that the trial court correctly interpreted the Security policy. The trial court construed subsections 3a and 3b as forming two sets of alternative conditions separated by the disjunctive “or.” The disjunctive “or” signifies an alternative; when the word separates parts of a sentence, the various parts are to be taken separately. (Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill. App. 2d 310, 317, 252 N.E.2d 123, 126; Kosick v. Hospital Service Corp. (1956), 12 Ill. App. 2d 291, 296-97, 139 N.E.2d 619, 621-22.) Since policy section 111(C)(1) defined “claim” as “the filing of a suit,” and since it was undisputed that the “claim,” i.e., the Amoco lawsuit that named Perkins & Will as a defendant, arose during the policy period, the policy, therefore, covered Perkins & Will.

Security argues that the policy, when read as a whole, does not support the trial court’s interpretation of policy section 1(D)(3). We disagree. First, we note that Security wrote the policy. Throughout the document, Security uses the terms “or” and “and.” The insurer knew which term to use and when to use 4t. Thus, Security’s use of the disjunctive “or” in section 1(D)(3) must be taken for what the word commonly means — “or.”

Second, section 1(D)(3) essentially distinguishes between several of the policy’s definitions of the term “claim.” As we previously mentioned, policy section 111(C)(1) defines “claim” as, inter alia, “the filing of a suit.” We note the use of the disjunctive “or” to indicate alternative definitions. Indeed, policy section IV specifically distinguishes an insured being named in a lawsuit, from an insured having knowledge of an event which has resulted in, or may cause, damage, as described in section III(C). We hold that the Security policy, when read as a whole, supports the trial court’s construction of policy section 1(D)(3).

Security also contends that the trial court’s interpretation of the policy is “unreasonable and inequitable.” Security argues that no insurer would cover an insured, who had knowledge of a claim when he sought coverage, simply by virtue of the insured being named in a lawsuit. However, the following maxim answers this argument:

“The courts cannot make a contract for the parties; nor can they change or modify the terms of the contract deliberately entered into by the parties even though by so doing they might improve it. A contract cannot be construed for the purpose of supplying an intention not otherwise shown.” Chicago Land Clearance Comm’n, 13 Ill. App. 2d at 560, 142 N.E.2d at 803.

Security received $414,217 from Perkins & Will for insurance coverage. Subsequently, Security paid $400,000 pursuant to the policy that it wrote. Security would now have this court rewrite policy section 1(D)(3). This we may not do. As noted above, the pertinent facts are undisputed. Based on these facts, we hold that Perkins & Will is entitled to a judgment as a matter of law. Accordingly, we uphold the trial court’s grant of summary judgment for Perkins & Will.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McMORROW, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

The majority correctly states the applicable law. Insurance policies are contracts. The general rules of construction that apply to other contracts also apply to insurance policies. In apparent deference to the proposition that a policy should be construed as a whole with the goal of best effectuating the intentions of the parties (see J G Industries, Inc. v. National Union Fire Insurance Co. (1991), 218 Ill. App. 3d 1061), the majority acknowledges that “[t]he word ‘or’ will not be given its literal meaning when such meaning would do violence to the evident intent and purpose of the contracting parties, and the nonliteral meaning would give effect to such intent.” (219 Ill. App. 3d at 813.) The majority then proceeds to engage in a tedious grammatical exercise which leads to a result not only clearly unintended by the parties, but also flagrantly at odds with basic principles of insurance law.

The policy in the case at bar is a “claims made” policy. As we stated in Graman v. Continental Casualty Co. (1980), 87 Ill. App. 3d 896, 899, 409 N.E.2d 387, 390, “[i]t is well established that the ‘claims made’ or ‘discovery’ policy is characterized by coverage for negligent acts or omissions only if such are discovered during and brought to the attention of the insurer within the policy term.” (Emphasis added.) The policy here provides that:

“This insurance applies:
* * *
3. To ‘claims made’ during the policy period if:
a. The claim arises during the policy period; or
b. The error, omission, or negligent act giving rise to the claim took place prior to the policy period but after the retroactive date specified in the declarations, if applicable, provided that:
(1) you had no knowledge of the claim prior to the beginning of this policy; and
(2) you had no knowledge of any situation that resulted in the claim; and
(3) there is no other valid insurance for the claim.”

Although inartfully drawn, a reasonable construction of this language would be that the policy covers negligence actually committed during the policy period as well as negligent acts which were committed prior to the policy period but remained undiscovered by the insured until the time covered by the policy. The majority instead seizes upon the fact that another section of the policy includes the “filing of a suit” as one of its alternate definitions of the term “claim.” It then concludes that because the instant lawsuit “arose” during the policy period, coverage was provided under section 3(a) of the policy despite the fact that the insured knew of the alleged negligence giving rise to the suit long before the effective date of the policy.

The majority’s interpretation leads to absurd results. Under its interpretation, an insured could be notified of an event resulting in damages and then obtain an insurance policy with the knowledge that a lawsuit was forthcoming. In my opinion, this result undercuts the fundamental nature of an insurance contract and renders the policy in question an absolute performance bond. It defies logic to hold, as does the majority, that Security bargained for the opportunity to expose itself to liability in excess of $50 million in exchange for a $400,000 premium. As noted by Security in its brief, an insurance company is not in the business of insuring events which have already occurred and which are known to the insured.

For the foregoing reasons, I respectfully dissent from the majority opinion.


author: JUSTICE HAASE

text:
    ALFRED KLASS, Plaintiff-Appellee and Cross-Appellant, v. WINSTEIN, KAVENSKY, WALLACE AND DOUGHTY et al., Defendants-Appellants and Cross-Appellees.
    Third District
    No. 3—90—0473
    Opinion filed July 16, 1991.
    Modified on denial of rehearing October 1, 1991.

      D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, and David E. Jones, of Thomas & Hinshaw, Culbertson, of Peoria (Bruce L. Carmen, of counsel), for appellants.
    Vonachen, Lawless, Trager & Slevin, of Peoria (John A. Slevin, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Alfred Klass, sued the defendants, Stewart Winstein and the law firm of Winstein, Kavensky, Wallace & Doughty. According to the plaintiff, he advanced funds to one of his closely held corporations and in return sought to become a secured creditor. The plaintiff employed the defendants to prepare and file the necessary documents. When the corporation ultimately filed bankruptcy, the plaintiff was not treated as a secured creditor. The defendants admit they failed to properly prepare and file the necessary security agreements, but claim that their negligence did not injure the plaintiff. According to the defendants, a Federal bankruptcy court would not have treated the plaintiff as a secured creditor even if the necessary documents had been properly prepared and filed.

Following a bench trial, the court held that a bankruptcy court would have treated only part of the plaintiff’s claim as secured. The court entered judgment against the defendants in the amount of $142,991.45. The defendants appeal. They reassert their belief that the plaintiff suffered no injury as a result of their negligence. The plaintiff cross-appeals. He claims the trial court miscalculated the award of damages by erroneously finding that A1 Klass had been paid $84,500 of accrued salary as a preferential transfer. We affirm the trial court’s award of damages as modified herein.

Klass was the longtime owner of several hotels and restaurants in the Quad Cities area. He also owned a wholesale food distribution business. The wholesale corporation, Little Alfie’s, Inc., hereinafter referred to as LA, would distribute meat and other supplies to three restaurants which were each closely held corporations of Klass. From time to time, Klass advanced money to LA. On January 26, 1983, LA executed a note payable to Klass for $306,706 reflecting the current indebtedness LA owed Klass. At the same time, LA executed a blanket security agreement and a mortgage which were intended to have transferred security interests to Klass in all of LA’s assets. Klass employed the defendants to prepare these documents. The defendants negligently prepared the documents and, as a result, the plaintiff did not obtain the secured status he sought.

In December of 1984, Meatland Industries and other parties who had sold LA large amounts of inventory on credit filed an involuntary bankruptcy petition in the United States Bankruptcy Court for the Northern District. Meatland took this action because it felt LA was purchasing large amounts of inventory in anticipation of bankruptcy. LA was adjudicated bankrupt, and the case was transferred to the Central District Bankruptcy Court on January 28, 1985. LA ultimately filed for voluntary bankruptcy in the Central District of Illinois.

Klass claimed in the bankruptcy proceedings that he individually had a security interest in LA’s real estate, vehicles, equipment, inventory and accounts receivable. Also, Klass claimed LA possessed a security interest in his closely held restaurants in the amount of $467,000 for goods sold and services rendered to them by LA.

The bankruptcy trustee began proceedings to disallow Klass’ secured claims. Klass and the trustee ultimately entered into a settlement agreement. Under the agreement, the trustee waived any challenge to Klass’ status as a secured creditor. In exchange, Klass was awarded $30,000 and all of LA’s real estate, valued at $100,000. Klass then sued the defendants for legal malpractice, alleging that as a direct and proximate result of defendants’ negligence, Klass’ advances to LA were partially unsecured.

In support of his claim, the plaintiff called several expert witnesses. Steven Harris, a professor of law at the University of Illinois, Terry Chapman, a bankruptcy trustee, and John Sherrick, an accountant, all testified on behalf of the plaintiff. Harris and Chapman both opined that if the defendants had properly prepared and filed the necessary documents, the plaintiff would have been treated as a secured creditor with priority status by the bankruptcy trustee. According to Sherrick, the plaintiff’s bankruptcy claim would have been worth $426,099.55 as a secured creditor.

The defendants called two attorneys as expert witnesses, William Christison and Andrew Covey. They opined that even if the defendants had filed the proper documents, a Federal bankruptcy court would not have treated the plaintiff’s claim as secured. According to Christison and Covey, the doctrine of equitable subordination (11 U.S.C. §502(a) (1988)) allows a bankruptcy court to employ principles of equity in determining whether the claim of an insider is secured. The purpose of this doctrine is to prevent insiders from converting their equity into secured debt in anticipation of bankruptcy. (Kham & Nate’s Shoes No. 2, Inc. v. First Bank (7th Cir. 1990), 908 F.2d 1351, 1356.) They opined that a Federal bankruptcy court would have employed this doctrine to prevent the plaintiff from acting as a secured creditor.

The trial court found in favor of the plaintiff. The court ruled that if the defendants had not been negligent, the plaintiff’s claim in bankruptcy would have been worth $426,099.55. The court further found that Klass was paid $101,100 in salary, which constituted a disallow-able preference. Due to a slight mathematical error, the court ruled this reduced the claim to $325,999.55. In fact, the figure should have been $324,999.55.

The court then equitably subordinated $99,800 of the claim. The court ruled that equitable subordination is not an all or nothing proposition. The court found that it could properly subordinate part but not all of the claim. This position is supported in the Federal cases of In re De Feo Fruit Co. (W.D. Mo. 1982), 24 Bankr. 220, and In re Delta Smelting & Refining Alaska, Inc. (Alaska 1985), 53 Bankr. 877. The court ruled that the plaintiff engaged in inequitable conduct by selling $99,800 worth of meat and other inventory to his current subsidiary corporations which ultimately went unpaid. This reduced Klass’ claim to $225,199.55. The trial court added $47,501 to the claim for interest. Then the court deducted $130,000 for the funds Klass received in the bankruptcy settlement. The ultimate judgment was rendered in the amount of $142,991.55. The figure should have been $141,991.55.

Although the plaintiff and the defendants have posed the question in several ways, the true issue on appeal is whether the trial court’s award of damages was manifestly erroneous.

The trial court in this case was required to act as a hypothetical bankruptcy court. The trial court was placed in the difficult and unenviable position of having to apply Federal bankruptcy law to the facts of the case as if they had actually been presented to a United States Bankruptcy Court judge.

Fixing the amount of damages is preeminently the function of the fact finder, and its determination will not be disturbed on appeal unless it is manifestly erroneous. (King v. City of Chicago (1978), 66 Ill. App. 3d 356, 384 N.E.2d 22; Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 321 N.E.2d 1.) Even where the reviewing court would be better satisfied with different findings as to damages, it will not interfere with the trial court’s award where the evidence is conflicting or where there is evidence in support of the verdict and there is no indication that the award was the result of passion, prejudice or corruption. Pioneer Trust & Savings Bank v. Zonta (1981), 96 Ill. App. 3d 339, 421 N.E.2d 239; Landolt v. Stratmann (1967), 87 Ill. App. 2d 81, 230 N.E.2d 498.

Nothing in the record suggested that passion, prejudice or corruption precipitated the trial court’s award. In fact, the trial court’s award was reflective of a balanced attempt to deal with a very unusual role which the court was required to play. The testimony of the plaintiff’s expert witnesses conflicted with the testimony of the defendants’ experts. The trial court, as the finder of fact, was in the best position to evaluate the testimony of the various expert witnesses. Where the testimony conflicted, it was within the province of the trial court to determine the credibility of the expert witnesses. (Presswood v. Morris (1979), 70 Ill. App. 3d 513, 388 N.E.2d 844.) In the case at bar, the court decided the truth lay somewhere between the respective testimony of the parties’ expert witnesses. The court obviously was of the opinion that a bankruptcy court would have subordinated part, but not all, of the plaintiff’s claim. We cannot say, based on a review of this record, that the trial court acted in error. Nor can we say that the trial court’s ruling was unsupported by the evidence.

Plaintiff cross-appealed and claimed that the trial court erred by deducting $84,500 of accrued salary as a preferential transfer. Plaintiff contended that while the books of LA showed the sum of $84,500 as accrued salary, in fact this money was never paid to A1 Klass and should not have been deducted from his loan claim. At trial plaintiff testified that he did not take $84,500 from LA in salary on August 31, 1984. However, on cross-examination he admitted that he had testified in his discovery deposition that he recalled receiving “something to that effect.” There were also entries on the books of the corporation which reflected expenses for salaries to Mr. Klass in the sum of $84,500 on August 31, 1984. The question of whether or not the money was actually paid to Klass was a disputed question of fact. The trial judge, as the trier of fact, was in the best position to evaluate the credibility of the witnesses and to consider all the testimony in the case. From the record before us, we cannot conclude that the court manifestly erred in its factual determination that the $84,500 had been paid to plaintiff.

Defendant further argues that an award of damages in this case is barred by Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, and its progeny. In Moorman, the Illinois Supreme Court held that recovery generally cannot be had in tort for what is termed purely economic loss. In Collins v. Reynard (1990), 195 Ill. App. 3d 1015, 553 N.E.2d 69, the fourth district applied the Moorman doctrine to a legal malpractice claim. The court ruled that Illinois law precludes the recovery of economic losses in tort cases, including legal malpractice, which are based on claims of negligence. The defendant urges this court to adopt the Collins view of economic losses occasioned by legal malpractice. We decline to do so.

In 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 555 N.E.2d 346, the Illinois Supreme Court further explained the scope of its Moorman decision. In Lincoln Park West, the plaintiff sued the defendant, an architectural firm, for professional malpractice. The trial court certified, for purposes of permissive interlocutory appeal, a question concerning the availability of such a cause of action. (See 107 Ill. 2d R. 308.) The appellate court denied the defendant’s application for review of the certified question. Pursuant to Supreme Court Rule 315(a) (107 Ill. 2d R. 315(a)), the Illinois Supreme Court allowed the defendant leave to appeal. The question certified was whether there should be an exception to the Moorman decision that would allow plaintiffs to recover in tort for purely economic losses resulting from architectural or engineering malpractice. The court answered this question in the negative.

The court ruled that the defeated expectations of a commercial bargain are more appropriately governed by contract law rather than by tort law. The court did not, however, signal an end to recovery in tort for all types of professional malpractice.

“[W]e believe that other professional relationships are readily distinguishable from the present case. For example, since Moorman, malpractice actions against attorneys have gone forward, without any suggestion that the form of recovery traditionally recognized in such actions would no longer be allowed. [Citations.] Moreover, those cases recognize an extracontractual duty not only to the client but also to the group of persons the client intended to benefit. Such a duty arises from a consideration of the nature of the undertaking and the lawyer’s traditional responsibilities. The same cannot be said with respect to the defendant architect in the present case.” 136 Ill. 2d at 317-18.

The court in Lincoln Park West clearly indicated that legal malpractice claims are not akin to the types of commercial transactions to which the Moorman doctrine was meant to apply. Lincoln Park West recognizes that the nature and scope of the duties performed by the legal profession differ from other economic transactions. We, therefore, decline to follow Collins v. Reynard, infra. To follow Collins and to apply the test of Moorman to lawyers’ malpractice cases would do away with legal malpractice actions for all intents and purposes. While it may be possible for the mind of man to conjure up a situation where a lawyer’s malpractice results in physical injury or damage to property, it is certainly very unusual. If we were to follow Collins and apply Moorman in this situation, we would be giving lawyers a free pass for all sorts of negligent conduct. It seems clear to us that the supreme court of this State did not intend that result. It also seems to us that our supreme court, in its dicta in Lincoln Park West, was making sure that the appellate courts of this State and the trial courts of this State understand that lawyers are not to be covered by the Moorman rule.

Because the decision of the trial court is not against the manifest weight of the evidence, and because we are of the opinion that the record amply supports the decision of the trial judge, we hereby affirm the decision of the circuit court of Peoria County as modified to reflect the correction of the mathematical mistake. The judgment in favor of the plaintiff, as modified, is in the amount of $141,991.55 plus costs.

Affirmed as modified.

GORMAN and SLATER, JJ., concur.


author: JUSTICE INGLIS

text:
    MICHELLE STEVENS, a Minor, by John Stevens, her Father and Next Friend, et al., Plaintiffs-Appellants, v. ROBERT RILEY et al., Defendants-Appellees.
    Second District
    No. 2—90—1438
    Opinion filed September 19, 1991.
    Rehearing denied November 4, 1991.

      Paul B. Episcope, John C. Erb, and Lynne Plum Duffey, all of Paul B. Episcope, Ltd., of Chicago, for appellants.
    Jon Yambert, of Lindner, Speers & Reuland, P.C., of Aurora, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Michelle Stevens, a minor, by John Stevens her father and next friend, and John Stevens and Elizabeth Stevens, individually, filed an action against defendants, Robert and Brenda Riley, along with other defendants, alleging that the Rileys’ negligent maintenance of their residential property resulted in severe injury to Michelle Stevens when she fell into a body of water located on their property. The trial court granted the Rileys’ motion for summary judgment and dismissed all claims against them; the other defendants to the action are not parties to this appeal. Plaintiffs timely appeal, contending that the trial court erred in granting summary judgment. We affirm.

On May 20, 1987, plaintiffs filed suit naming the Rileys as defendants in counts III and IV of the complaint. Those counts were amended several times. Plaintiffs alleged that on May 20, 1985, Michelle was injured when she fell into a man-made retention pond behind defendants’ home (this body of water is also referred to as a creek). Michelle, who was then Ylxk months old, suffered severe and permanent brain injury.

At the time of the incident, plaintiffs lived in the same subdivision as the Riley defendants. Brenda Riley ran a licensed day-care center in her home which Michelle Stevens attended Monday through Friday. In addition, the Rileys’ 14-year-old daughter, Janet, watched Michelle on Saturdays at the plaintiffs’ home. On the day of Michelle’s injury, Brenda Riley cared for Michelle in the earlier part of the day, until John Stevens returned from a dentist’s appointment and picked up his daughter.

Later that day, at about 7 p.m., John Stevens brought Michelle with him to the Rileys’ house for a social visit. Robert Riley was washing his car, and the two men conversed while Michelle played in the driveway by the car. About 10 minutes later, Elizabeth Stevens arrived home from work and crossed the street to join her family in front of the Riley home. Brenda Riley then came out of the house and talked with Elizabeth.

The Rileys’ daughter, Janet, arrived home with a friend, Diana, and went in the front door. The Rileys’ son, Bob, was already inside the house along with the family dog, Mandy. According to Elizabeth, Michelle followed the girls into the house; however, Brenda claims that she did not see Michelle go into the house and claims that nobody inside the house had seen her either. Plaintiffs contend that John Stevens subsequently asked where Michelle was and, according to Elizabeth, Brenda Riley replied that Michelle was in the house. Brenda claims that it was she who asked where Michelle was and that it was Elizabeth who stated that she went into the house with Janet. Brenda then went into the house and reported that Michelle was not inside.

Everyone began searching for Michelle. Plaintiffs claim that they searched the inside of the house again. John claimed that, while he was in the house, he noticed that the sliding glass doors leading out onto the deck were opened. John went out onto the deck, down the stairs, and into the backyard. Elizabeth stated that she saw John come down the stairs. However, according to Brenda, the sliding glass doors were closed when she checked the house and the deck had no stairs leading to the backyard because it was in the process of being rebuilt.

In any event, both couples then ran to the water behind the house. The water, which was either stagnant or slow moving, ran through the Rileys’ backyard and through the yards of their neighbors on both sides. The edge of the water on the Rileys’ property was surrounded by at least 10 to 15 feet of thick prairie grass or weeds which, at the time of the incident, stood approximately 18 inches to three feet high. The neighboring property to the east of defendants’ also had prairie grass bordering the water; however, the neighbors to the west had mowed their grass down to the bank and had fenced their property off from defendants’ property. The fence was a rail fence with chicken wire on the bottom of it. According to John, a 17-month-old child could not have negotiated her way through the fence. None of the property owners, including defendants, had fenced off the water from their property. It was alleged that the drop-off on defendants’ property to the water was steep and sudden.

John claimed that, when he did not find Michelle in the house, he ran straight back from the stairs of the deck to the creek and noticed that some of the weeds were irregular in that there were “places where it looked like somebody could have went [sic] through the weeds.” John then spotted Michelle, who was a little to his left and floating facedown in the water. He went into the water to retrieve her as did Elizabeth and Robert. The paramedics were subsequently called.

Brenda stated that after they found Michelle, she noticed that Mandy, the dog, was running around the backyard barking wildly and she was wet. Brenda claimed that Mandy hates water and did not recall Mandy ever going into the creek. However, Robert Riley stated that the dog would go into the creek “a few times off and on.” In addition, Elizabeth Stevens testified that, at the hospital, the Rileys’ daughter, Janet, told her that before Michelle was found, the dog came in the house through the sliding glass doors, barking, jumped up on the couch and was all wet. It was generally agreed that Mandy played with the children at the day-care center, including Michelle.

The day-care center was licensed by the State of Illinois in January 1984. In May 1985, Michelle was the youngest child at the center. She was HVz months old, and the other children ranged in ages from 21/s to hVz. According to Brenda Riley, the children in the daycare center did not play outside in May of 1985 because it was too cold. However, the children did play outside during the prior summer, and there was a swing set and sandbox located in the backyard approximately 25 feet to 45 feet from the creek. While the other children were allowed to play on the swing set, Michelle was not allowed to do so because of her age. Therefore, Brenda Riley would play with Michelle in the middle of the yard where she could still see the other children play.

Elizabeth Stevens testified that she occasionally visited Brenda while the day-care was in session. Sometimes she and Brenda would sit inside talking near the sliding glass doors when there were no adults outside with the children. Elizabeth admitted, however, that from the doors one could easily see the sandbox and the strip of weeds.

Other than when the day-care was in operation, children did not play on the Riley property back by the weeds. According to Brenda Riley, the children in the day-care were instructed not to step into the prairie grass. In addition, she claimed to have spoken with all the parents who enrolled their children in the day-care, warning them about the creek and asking them to talk to their children about it at home. Brenda did not recall any discussions with the plaintiffs about it. However, plaintiffs were made aware of the existence of the creek in the spring of 1981.

In their third amendment to counts III and IV of the complaint, plaintiffs allege that Michelle was lawfully upon the defendants’ property on May 20, 1985, as a licensee and with defendants’ actual knowledge and consent. Because of the operation of the day-care, it is argued that defendants were aware that children of very tender years frequented the premises, including Michelle. It is further argued that defendants permitted an unnatural accumulation of water to exist on their property which was obscured by weeds and had a sudden drop-off of between three to four feet in depth at its edge. Plaintiffs allege:

“The aforesaid conditions were likely to cause injury to children of very tender years who were known by the defendants to frequent the premises in close proximity to the water and who, by reason of their immaturity and the three-foot high weeds at the edge of the retention pond obscuring its view, were incapable of appreciating the danger involved, and would be incapable to escape from the said retention pond once having entered it due to the sudden drop-off.”

Plaintiffs allege that defendants failed to exercise ordinary care for the safety of Michelle by failing to fence or barricade the water, allowing the sudden drop-off to exist, allowing weeds and brush to obscure the water, and allowing the water to exist on their property. Plaintiffs allege that as a proximate result of defendants’ negligence Michelle was injured.

Defendants filed a motion for summary judgment on amended counts III and IV, which was granted by the trial court. The court held that there was no legal duty under the existing facts. The court considered plaintiffs’ argument under Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, and determined that the application of the Kahn doctrine under these facts would place an onerous burden on any social host in the defendants’ position. The trial court’s subsequent order included a finding that there was no just reason to delay enforcement or appeal. Plaintiffs timely appeal.

We note at the outset that summary judgment is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The motion should be granted only 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 determining the presence of a genuine issue of material fact, the court must construe the evidence strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill. 2d at 240.

Plaintiffs contend that defendants breached a duty owed to plaintiffs on the basis of the rule established by the Illinois Supreme Court in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. In Kahn, the court held that the possessor of land is liable for injuries sustained by children when the injury is caused by a dangerous condition on the property and the owner knew or should have known that young people habitually frequent the area. The Kahn decision and its progeny have created a four-pronged test for the imposition of liability. A defendant landowner may be liable for harm to children on his or her property if the plaintiff shows that (1) the landowner knew or should have known that young children habitually frequent the property; (2) a dangerous condition was present on the property; (3) the dangerous condition was one that was likely to cause injury to children because of their inability to appreciate the risk involved; and (4) the burden of remedying the condition was slight compared to the risk to the children. Kahn, 5 Ill. 2d at 625; see also Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326; Guenther v. G. Grant Dickson & Sons, Inc. (1988), 170 Ill. App. 3d 538, 541; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939.

To ascertain whether a duty exists, the threshold determination in any application of the Kahn test is whether the plaintiff has established the existence of a dangerous condition on the property. (Guenther, 170 Ill. App. 3d at 541; Fuller, 117 Ill. App. 3d at 939.) For purposes of this test, a dangerous condition is one which is likely to cause injury to children, who, by reason of their immaturity, might be incapable of appreciating the risk involved. (Guenther, 170 Ill. App. 3d at 541; Fuller, 117 Ill. App. 3d at 939.) If the condition involves an obvious risk which children would generally be expected to appreciate and avoid, the landowner is under no duty to remedy the condition. (Guenther, 170 Ill. App. 3d at 541.) Ordinarily, the dangers of fire, water, or falling from a height may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. (Cope v. Doe (1984), 102 Ill. 2d 278, 286-87.) Since children are expected to avoid dangers which are obvious, there is no reasonably foreseeable risk of harm. Cope, 102 Ill. 2d at 286; Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 400.

Plaintiffs contend that the body of water on defendants’ property was not an obvious danger because it was hidden by the prairie grass and the bordering edge suddenly dropped off into the water. Plaintiffs contend that these additional factors created a special risk that children would not be able to avoid the danger. In support, plaintiffs cite to Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, and Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806.

In Scarano, a minor child was injured when he fell from a slide located on the defendant’s property. The complaint alleged that the slide was dangerous in that it had worn smooth, slippery, and loose handrails. Plaintiff alleged that he unsuccessfully attempted to prevent his fall by grabbing the defective handrails. (Scarano, 166 Ill. App. 3d at 188-89.) The trial court granted defendant’s motion to dismiss, and the appellate court reversed, holding that, while a slide may not ordinarily be a dangerous condition, it becomes dangerous when it has defects in its condition that are likely to injure children generally who, because of their age and immaturity, would not be expected to comprehend and avoid the attendant risks. (Scarano, 166 Ill. App. 3d at 189.) In such situations, the risk is no longer obvious. The court held that a slide which has defective handrails becomes a greater risk than that which children are normally exposed to and can be expected to appreciate when they use a slide and, as such, children cannot be expected to comprehend and avoid the increased risk. Scarano, 166 Ill. App. 3d at 190.

We do not find that the risk at bar was similarly hidden. The prairie grass, which was arguably anywhere from 18 inches to three feet high, was clearly visible. A child old enough to be at large was likely to see the water either through the grass or over it. In addition, the neighbors to the west of defendants had mowed their prairie grass, thus making the water clearly visible on their land. It could be assumed that generally a child would appreciate the fact that the creek would continue through defendants’ yard even if it was not readily visible. (See Weber v. Village of Carol Stream (1984), 129 Ill. App. 3d 628, 632 (court assumed that the appreciation of the hazards associated with water also apply to the frozen form of water, ice).) Further, the fact that the bordering edge of the water may have suddenly dropped off three or four feet does not make the water dangerous as that type of a drop-off is common in creeks and the risks are obvious. See Corcoran, 73 Ill. 2d at 328; Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963, 966.

The fact that the creek was at least partially visible differentiates this case from Pasierb v. Hanover Park Park District. In Pasierb, a seven-year-old child drowned in a park creek that was covered by a thin layer of ice upon which snow had accumulated. The snow covered the creek and the ground so as to make it impossible to discern the location of the creek. The appellate court reversed the trial court’s dismissal of the complaint, finding that the risks involved in a completely concealed creek in a park are not the type which children generally would be expected to recognize and appreciate. (Pasierb, 103 Ill. App. 3d at 809.) The unsuspecting child in Pasierb could not avoid the ditch because it could not be seen. The court noted that the defendant need not make the creek “boy-proof”; rather, its duty was merely to make the existence and location of the creek known. Pasierb, 103 Ill. App. 3d at 810.

Here, the existence and location of the creek were known by Elizabeth and John Stevens. Plaintiffs argue, however, that the danger of drowning on defendants’ property was hidden from Michelle and that she could not be expected to avoid the danger. Therefore, according to plaintiffs, the Rileys had a duty to remedy that condition.

We agree with plaintiffs that Michelle, at 17V2 months old, may not be expected to avoid the danger of drowning; however, a child old enough to be out and about unattended could be expected to avoid it even here, where the water was partially obscured by weeds. Plaintiffs contend that defendants knew that children of very tender age were likely to roam unattended onto the premises and, therefore, they had a duty to protect such children, not just children in general. (Corcoran, 73 Ill. 2d at 327.) The evidence does not support plaintiffs’ contention, however, as all parties testified that outside of the daycare operation, children did not “roam unattended onto the premises.” Further, Elizabeth’s testimony that, at times during day-care hours, children were outside without an adult does not support plaintiffs’ claim that they were “unattended” as Elizabeth readily admitted that the children were easily within view from inside the house and she did not see anything wrong with this practice. See Keller v. Mols (1984), 129 Ill. App. 3d 208, 212 (court will not impose duty to warn of dangers which were not regarded as such by parents).

Our supreme court has observed:

“It is always unfortunate when a child gets injured while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” Driscoll v. Rasmussen Corp. (1966), 35 Ill. 2d 74, 79.

In Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, the appellate court affirmed the grant of summary judgment in favor of the defendant, holding that defendant did not have a duty to protect an eight-year-old mentally handicapped plaintiff from falling off a slide as the risk of falling off a slide was obvious and “if a child is too young, chronologically or mentally to be ‘at large,’ the duty to supervise that child as to obvious risks lies primarily with the accompanying parent.” Salinas, 189 Ill. App. 3d at 62.

We note that the mere allegation that a child was accompanied by his parents may not, by itself, relieve the landowner of his duty toward the child. (Strode v. Becker (1990), 206 Ill. App. 3d 398, 405-06.) In Strode, a 21/2-year-old child was injured when his fingers were caught in the rotating spokes of an “exercycle.” The complaint alleged that the child and his family were at the defendant’s home at the time the injury occurred. The trial court dismissed the complaint, and the appellate court reversed. The appellate court noted that small unsupervised children can suffer numerous foreseeable injuries from such appliances as lamps that can be pulled from tables and electrical sockets which can be penetrated with slender metal objects. (Strode, 206 Ill. App. 3d at 405.) While the primary responsibility for injury to very young children must be placed on the parents of the children, owners and occupiers of land are not absolved of all duty to very young children simply because of the parents’ responsibility. (Strode, 206 Ill. App. 3d at 405.) Landowners will be absolved, however, where it is shown that the child was injured as a result of an obvious danger while being supervised by his parents (see Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 118-20 (landowner operating a mowing machine had no duty to discontinue use of the machine while a small child accompanied by the child’s mother was playing in the yard)) or when the parents knew of the existence of the dangerous condition that caused the child’s injury. See Trotter v. Chicago Housing Authority (1987), 163 Ill. App. 3d 398, 401-02 (landlord had no duty to protect a very young child from an uninsulated steam pipe, which was near the child’s bed, when the mother was well aware of the condition of the pipe).

In Strode, the court stated, “[i]f, at subsequent proceedings, the evidence develops that a parent were with the child while it was playing near the exercycle or knew of the existence and condition of the exercycle, the holdings in Kay and Trotter should then be considered.” (Emphasis added.) (Strode, 206 Ill. App. 3d at 406.) Because Michelle’s parents were admittedly aware of the existence of the water, an obvious danger, and the weeds, which partially obscured the water, defendants were relieved of their duty to protect Michelle.

Plaintiffs argue that, despite a plaintiff’s knowledge of an obvious danger, owners and possessors of land may be held liable for injuries resulting from such dangers. Plaintiffs rely on Ward v. K mart Corp. (1990), 136 Ill. 2d 132, where the supreme court held that the “ ‘obviousness’ of a condition or the fact that the injured party may have been in some sense ‘aware’ of it may not always serve as adequate warning of the condition and of the consequences of encountering it.” (Ward, 136 Ill. 2d at 148-49.) The injured party in Ward was a customer who had walked into a concrete post located a few feet outside the exit door of a K mart store. The customer admitted that he had seen the post when entering the store, but testified that as he left the store his view of the post was blocked by the large mirror that he had purchased and was carrying out. The court found that, even though some conditions may be “known” or “obvious,” a defendant’s duty may extend to such situations where the defendant can anticipate that a plaintiff may, whether from distraction or forgetfulness, fail to avoid the risk posed. (Ward, 136 Ill. 2d at 156.) The court held that there was ample evidence to support a finding that the defendant store should have anticipated the risk that a customer carrying a large, bulky item would collide with the post upon exiting through the customer door. Ward, 136 Ill. 2d at 157.

While finding that a duty existed in Ward, the supreme court noted that a defendant need not anticipate the negligence of others. (Ward, 136 Ill. 2d at 152.) The court stated that the relevant inquiry is “whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted, as when carrying large bundles, or forgetful of the condition after having momentarily encountered it.” Ward, 136 Ill. 2d at 152.

We do not find that plaintiffs in the case at bar were “generally exercising reasonable care” for the safety of their daughter. Requiring defendants to anticipate the injury to Michelle would be requiring them to anticipate the negligence of her parents. One could not foresee that the Stevenses would forget about the existence and location of the water, which they had known about for several years, nor could one foresee that they would be “reasonably” distracted. The fact that Michelle was near the creek, was unattended by her parent, and nearly drowned as the result of her fall into the water will impose no duty on defendants which they otherwise did not have. Spencer v. City of Chicago (1989), 192 Ill. App. 3d 150, 157.

We find that no duty on the part of defendants existed, and summary judgment was properly granted. (Wingate, 193 Ill. App. 3d at 966.) While the trial court’s basis for granting summary judgment was apparently different than ours, we, as a reviewing court, may sustain the trial court’s judgment oh the basis of any ground warranted by the record even if the trial court did not rely upon that ground. (Halper v. Vayo (1991), 210 Ill. App. 3d 81, 90.) Because we find no duty on the part of defendants, we need not address the remaining arguments raised by the parties on appeal.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS KNELLER, Defendant-Appellant.
    Second District
    No. 2—89—0834
    Opinion filed October 3, 1991.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert C. Cooper, Michael J. Pelletier, and Ann Meyer, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendant, Dennis Kneller, was found guilty but mentally ill of the offenses of burglary and criminal damage to property. He was sentenced to concurrent terms of 10 years for burglary and 5 years for criminal damage to property. Defendant appeals, raising the following issues: whether he was denied a fair trial due to a comment by the prosecutor during closing arguments; and whether he was denied his constitutional right to due process because the guilty but mentally ill (GBMI) instruction was given to the jury. We affirm.

The evidence at trial revealed that on December 16, 1988, at approximately 3 a.m., Rockford police responded to a possible burglary in process call. Upon arriving at the scene, police discovered the defendant in his landlord’s garage, holding a crowbar. The windows of the landlord’s 1970 Cadillac automobile had been broken. According to one of the arresting officers, defendant appeared to be intoxicated at the time of his arrest. Defendant also acted strangely, i.e., he kept repeating himself, stating he had not been in the garage and made nonsensical statements which were unrelated to what was happening.

Dr. Donald Pearson, a registered psychologist, appointed by the court to examine defendant, testified on his behalf. He conducted an examination of the defendant in two sessions which lasted a total of five hours on March 16, 1989. The examination consisted of gathering information from the defendant as to his background and the administration of various tests. In addition, Dr. Pearson also reviewed records of defendant’s prior hospitalizations, as well as his criminal history.

According to Dr. Pearson, defendant related that he had been separated from his natural mother at an early age and was later adopted. Prior to the adoption, he had been in foster homes; between the ages of three and four, he had been sexually abused. Dr. Pearson described post-traumatic stress disorder, which is classified as a mental disorder or defect which can be triggered by sexual abuse. Among the symptoms of post-traumatic stress disorder are difficulty sleeping, problems with identity, proclivity to explosive reactions and detachment from other people. From a review of defendant’s history, Dr. Pearson believed that defendant was suffering from post-traumatic stress disorder at the time he committed the instant offenses.

Dr. Pearson then testified as to the various tests he administered to the defendant and the results of those tests. The doctor noted that defendant was able to communicate well but that that did not mean that he was not suffering from a severe medical disorder. Dr. Pearson concluded that the defendant was not malingering but showed some qualities indicating he was histrionic. He noted that, while he had found the defendant fit to stand trial although he was suffering from mental disorders, defendant could still have been legally insane at the time of the instant offense.

Dr. Pearson opined that at the time of the instant offense defendant was suffering from an alcoholic substance dependency, an organic effective disorder, as well as a mixed personality disorder, which in this case consisted of antisocial, histrionic and passive-aggressive traits. It was Dr. Pearson’s impression that there was a very strong likelihood that the defendant had undergone a post-traumatic stress disorder. One of the manifestations caused by defendant’s organic effective disorder was an amnesiac reaction. The organic effective disorder is characterized by a deterioration of behavior, or, as in defendant’s case, through the injection of a toxic substance, such as alcohol. Moreover, defendant’s use of alcohol aggravated his negative personality traits.

Dr. Pearson concluded that at the time he committed the instant offense defendant was not able to appreciate the consequences of his actions or the behavior he was displaying or to control them.

On cross-examination, Dr. Pearson testified that the best way to determine an organic disorder was through a physical examination or a lab test, none of which he performed on the defendant. The basis or foundation for his opinion was defendant’s alcohol use. There was no independent verification of defendant’s statements as to his use of alcohol. While defendant told Dr. Pearson he was never married, in fact, he was divorced and had several children both in and out of wedlock. According to Dr. Pearson, this would be a reflection of organic deterioration which is similar to what is seen in Alzheimer sufferers and reflects the organic disorder condition defendant suffered from when he committed the instant offenses. Dr. Pearson was of the opinion that, absent the organic disorder, defendant would not have reacted by damaging his landlord’s property. He admitted, however, that there were no physical or psychological test results corroborating his finding and that he was the first to make this diagnosis.

Dr. Fredrick McNelly, a registered clinical psychologist, testified in rebuttal for the State. He had conducted examinations of the defendant in December 1983, October 1985 and September 1987.

Dr. McNelly testified that in October 1985 he administered a Graham Kindell test to the defendant which was designed to determine the existence of an organic problem, i.e., some type of brain damage or disfunction. Defendant performed the test perfectly twice, and in conjunction with other tests given and other records, Dr. McNelly concluded that there were no signs of psychoneurological or neurological damage or disfunction.

Dr. McNelly again saw the defendant in September 1987. He conducted two lengthy clinical interviews and reviewed test records from defendant’s last hospitalization at Singer Zone Center in 1986. None of the tests indicated an organic problem. None of the reports from the various psychologists and psychiatrists indicated any organic problems in the defendant.

According to Dr. McNelly, consumption of alcohol over the length of time can cause an organic problem. However, it would take many years of very significant substance abuse beyond the years of tests with normal results before one could expect organic damage. Dr. McNelly found defendant to be suffering from substance abuse, primarily drugs but also alcohol. Even given the substance abuse evident in 1987, as of that time, Dr. McNelly could find no evidence of organic damage.

On cross-examination, Dr. McNelly testified that he noticed a marked decrease in defendant’s overall level of functioning between 1983 and 1985. He acknowledged that mental disorders “go up and down.” He also acknowledged that alcohol abuse can have a deteriorating function over the brain.

On redirect examination, Dr. McNelly testified that defendant’s episodes of disorientation had nothing to do with post-traumatic stress syndrome. Dr. McNelly did not believe that defendant was suffering from post-traumatic stress syndrome, nor did any of the reports he had reviewed so indicate.

During closing arguments, the following colloquy occurred:

“MR. LOWRY (assistant State’s Attorney): Heard from Dr. McNelly, 1987, He examined the defendant. And he did what’s called a Graham Kindell test to determine if there is an organic problem. No evidence according to Dr. McNelly. No evidence of an organic problem. And Dr. McNelly wasn’t alone.
If you’ll recall, Dr. McNelly, in making his ultimate determination of no evidence of organic problem, he reviewed reports. Reports from Singer in 1986 and other psychological reports. No evidence of an organic problem. None. And the interesting point I want to make is that Singer, ladies and gentlemen, 1986, there is [sic] medical doctors. They conducted—
MR. LIGHT (defense counsel): Judge, object. There is no testimony as to that. None.
MR. LOWRY: Judge, there was testimony from Dr. McNelly that doctors at Singer conducted physical examinations finding no organic problem.
THE COURT: Overruled.
MR. LOWRY: It’s an important point. I want you to remember, ladies and gentlemen, that Singer is where there are psychiatrists, medical doctors. They conducted a physical test—
MR. LIGHT: Object. Objection. No testimony as to that.
THE COURT: Mr. Lowry.
MR. LOWRY: Judge, there was. The jury can decide for themselves what the evidence was in the case. There was testimony to that.
THE COURT: Overruled. Jury will have to recall the evidence.
MR. LOWRY: Medical evidence. Medical doctors. Psychiatrists as well as psychologists found no evidence of an organic problem. And that’s an important point. Because they did a physical examination.
Now, Dr. Pearson had to admit on cross-examination, he had to, all of these doctors, all these doctors who examined the defendant over the years, he’s the first and only doctor to find an organic problem.”

Following closing arguments, the jury was instructed on the affirmative defense of insanity. Over defense counsel’s objection, the jury was also instructed on the law of guilty but mentally ill. The jury returned verdicts finding defendant guilty but mentally ill of burglary and criminal damage to property over $300. Defendant was sentenced as stated above, and this appeal followed.

Defendant contends that he was deprived of a fair trial when the prosecutor urged the jury to consider substantive diagnoses of non-testifying doctors, which were admissible for the limited purpose of explaining Dr. McNelly’s opinion.

The State points out and defendant concedes that defendant failed to raise this error in his post-trial motion and, therefore, it should be waived. (See People v. Enoch (1988), 122 Ill. 2d 176.) Defendant urges this court to review the error under an exception to the rule in Enoch, namely, the existence of plain error since the evidence on the issue of defendant’s sanity was closely balanced. (People v. Enoch (1988), 122 Ill. 2d 176; 134 Ill. 2d R. 615(a).) While we agree that the evidence was closely balanced on the insanity issue, we nevertheless conclude that no reversible error occurred for the reasons set forth below.

In People v. Eckhardt (1987), 156 Ill. App. 3d 1077, this court held that assessments of a defendant’s mental condition which are not supported .by testimony are inadmissible for the truth of such assessments and may be considered only to the extent they formed the basis for the opinion of the testifying doctors. (Eckhardt, 156 Ill. App. 3d at 1091.) In People v. Anderson (1986), 113 Ill. 2d 1, our supreme court explained that such assessments were not hearsay since they were admitted for the limited purpose of explaining the basis for the expert opinion. The supreme court then stated:

“It is true that an uninformed jury could misuse this type of information as substantive proof of insanity. We do not believe that this possibility is a sufficient reason to deny the jury an adequate basis for assessing the weight and credibility of expert opinion. A limiting instruction, advising the jury to consider the underlying statements only to evaluate the basis of the expert’s opinion, should forestall any such misuse.” Anderson, 113 Ill. 2d at 12.

At no time did defense counsel request a limiting instruction. Moreover, at the time of the complained-of comment, defense counsel objected on the basis that there was no testimony to that effect. When the basis for an objection was not raised at trial but for the first time on appeal, it is waived. (People v. Rogers (1989), 178 Ill. App. 3d 650, 660.) It is true that in closing argument the prosecutor did argue the medical evidence substantially which evidence was, in effect, hearsay. Where hearsay evidence is admitted without objection it is to be considered and given its natural probative effect. People v. Akis (1976), 63 Ill. 2d 296, 299.

Even without the complained-of comment by the prosecutor, there was sufficient evidence in the record to support the jury’s decision to find the testimony of Dr. McNelly, who had examined defendant over a period of years, more credible than that of Dr. Pearson, who had seen the defendant on only one occasion, albeit for five hours.

We conclude, therefore, that any error in connection with the prosecutor’s argument was waived or, at worst, was harmless error.

Defendant also contends that he was denied his constitutional right to due process of law because the guilty but mentally ill verdict injected irrelevant issues into the determination of guilt or innocence. Defendant correctly notes that in People v. Fierer (1988), 124 Ill. 2d 176, our supreme court when faced with the identical question found it unnecessary to resolve the question in light of errors committed with regard to the jury instruction on GBMI and insanity verdicts. The State maintains that the fact that the Fierer court did not address the issue implies that the court was not persuaded by the assertions of unconstitutionality.

Although the Fierer court did not decide this issue, other Illinois courts have addressed the identical issue and decided it contrary to the defendant’s position. In People v. Seaman (1990), 203 Ill. App. 3d 871, the Appellate Court, Fifth District, stated:

“Defendant argues that the GBMI verdict, on its face, is an unconstitutional denial of due process because it interjects irrelevant and misleading elements of thought into the determination of guilt or innocence, and in its application detracts from logical, reasoned, and fair determination on the basic issue of guilt or innocence. These same arguments were made by the defendant and rejected by the court in People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742. As the court noted in DeWit, ‘[w]e are not persuaded that the possibility of a compromise verdict is a constitutional infirmity where the jury still must make a determination in the first instance between whether a defendant is guilty or legally insane based upon the evidence at trial.’ [Citation.] The court further found that section 115 — 4(j) [GBMI provision] expresses its requirements in simple and clear language and that the definition of mental illness provides meaningful standards for the jury to make the required findings.” Seaman, 203 Ill. App. 3d at 887.

Defendant relies on several out-of-State cases, as well as secondary source material. One district of the appellate court is not in all instances bound to follow the decisions of other districts. However, there are compelling reasons to do so unless a district has made a determination of its own contrary to that of another district or there is a split of authority among the districts. (People v. Ward (1989), 192 Ill. App. 3d 544, 554.) This court has not determined that the GBMI verdict is unconstitutional, and, therefore, we choose to be guided by the prior appellate decisions in People v. Seaman and People v. DeWit.

We conclude, therefore, that the GBMI verdict is not unconstitutional on the basis that it interjects irrelevant issues into the determination of guilt or innocence.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS and GEIGER, JJ., concur.