author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL RAY JOHNSON, Defendant-Appellant.
    Fourth District
    No. 4—90—0078
    Opinion filed December 12, 1990.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant Michael Ray Johnson was found guilty of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—1(a)) and sentenced to seven years’ imprisonment. He appeals, contending (1) the circuit court erred in refusing to instruct the jury on theft as an included offense of burglary, (2) the’ circuit court improperly permitted the prosecutor to cross-examine him as to his prior convictions, and (3) the circuit court should have granted him a new trial because one of the jurors was not a resident of the county where the burglary with which he was charged was committed.

Because defendant does not assert he was not proved guilty beyond a reasonable doubt, only a brief recitation of the evidence is necessary. At about 11 p.m. on August 29, 1989, two Decatur police officers, who were on routine patrol, observed defendant about 10 feet from the front entrance of Peerless Cleaners carrying clothes wrapped in cleaning bags over- his shoulder. The officers stopped defendant and determined that the cleaning bags he was carrying had the name and logo of Peerless Cleaners on them. Both the bags and the clothing were clean. Subsequent investigation revealed that the Peerless Cleaners building had been burglarized sometime between 5:30 p.m. on that date and the time of defendant’s apprehension, and that the only items missing from the building were the clothes the police officers saw defendant carrying.

Defendant presented the testimony of two female acquaintances in an apparent effort to establish that he was intoxicated at the time of his apprehension. Testifying on his own behalf, defendant stated that as he was walking past the Peerless Cleaners building, he noticed the clothes laying on the ground, that he picked them up, and that he then began to walk toward the home of a niece. He denied burglarizing the Peerless Cleaners building.

I

Defendant first contends the circuit court improperly refused to instruct the jury as to the lesser offense of theft. Defendant’s bases for this argument are that the information charging him with burglary also alleged the specific intent to commit theft and the evidence established commission of that offense.

In support of his contention that the jury should have been instructed concerning the offense of theft, defendant relies principally on People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993. In Dace, the defendant was charged with residential burglary with intent to commit a theft, and the evidence established that the defendant committed a theft. The supreme court held that under these circumstances, the circuit court erred in refusing to instruct the jury as to the offense of theft.

In People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898, however, the supreme court implicitly overruled Dace. The Schmidt court premised its decision on the "fundamental principle that one charged with a single offense cannot be found guilty of an uncharged offense unless it is an included offense of the charged offense. Observing that theft is not an included offense of burglary, the court held that when a defendant is charged only with burglary, there must not be a verdict regarding a theft offense.

The sole charge against the defendant in the present case was burglary. Thus,-under Schmidt, it would have been improper for the jury to return a verdict on the offense of theft. It follows that the circuit court did not err in refusing to instruct the jury as to that offense.

II

At the beginning of his testimony on direct examination, defendant acknowledged three prior theft convictions. With respect to the third theft conviction, defendant stated, “[i]t's — it wasn’t where — well, it wasn’t where I was actually caught stealing anything. But *** it’s theft.” During the State’s cross-examination of defendant, the following occurred:

“Q. *** Mr. Johnson, you are as your counsel has pointed out a convicted thief; correct?
A. No.
Q. You’re not a convicted thief?
A. No. I have theft convictions. I’m not a thief.
Q. Mr. Johnson, is someone who is convicted of theft, is that a thief?
A. I already answered your question once. I already know what you’re trying to imply.
Q. So, in 85 — CF—404, you were convicted...
[Defense counsel]: Your Honor, I object. He admits that he has these theft convictions.
A. Anyway...
[Defense counsel]: Wait a minute. Object to him going...
THE COURT: Overruled.
Q. You were convicted on October the 29th of 1985 of theft of property with a prior theft conviction, correct?
[Defense counsel]: Your Honor, once again...
A. True.
[Defense counsel]: ...I object to these.
THE COURT: He may answer.
A. True.
Q. So, you were convicted of theft?
A. Yeah. This is ’89, what have you got since then?
Q. Since ’85, what have I got; well, 88 — CF—436, on August the 31st of 1988, you were convicted of theft of property; correct?
A. August the 31st?
Q. Of 1988.
A. Yeah. Yeah, I was.
Q. Okay. So, there is something since 1985; isn’t there?
A. Yes, sir.
Q. And, of course, 85 — CM—337, on April the 24th of 1985, you were convicted of theft; correct?
A. I don’t know about all that. You would get anybody to plead guilty to these charges if you keep them up in jail long enough regardless if they’re innocent or guilty.
Q. Your Honor, I’d object to that remark.
THE COURT: Sustained.
Q. I’d ask the jury be instructed to disregard it.
THE COURT: Motion granted.”

Defendant asserts the cross-examination as to his prior convictions was improper because (1) a defendant generally may not be cross-examined concerning prior convictions, and (2) the proper method of impeaching a defendant testifying on his own behalf with prior convictions is to introduce into evidence the record of the prior convictions or an authenticated copy thereof. Defendant suggests that this procedure should be followed even when, for tactical reasons, a defendant anticipates the introduction by the prosecution of records of his prior convictions by acknowledging the convictions in his direct testimony. Defendant contends that cross-examination as to prior convictions should be permitted only where a defendant testifies falsely on direct examination concerning his prior convictions.

As noted by both defendant and the State, it is generally improper to cross-examine a defendant concerning his prior convictions. The State may impeach the credibility of a defendant who testifies on his own behalf with evidence of prior convictions only by introducing into evidence records of the prior convictions or authenticated copies thereof. (People v. Flynn (1956), 8 Ill. 2d 116, 133 N.E.2d 257.) When, however, a defendant testifies on direct examination concerning his prior convictions, the State may cross-examine him as to the convictions. The rationale for this exception to the general rule is that a defendant' cannot complain if, on cross-examination, the State pursues a line of questioning which the defendant initiated. People v. Seider (1981), 98 Ill. App. 3d 175, 423 N.E.2d 1217.

We cannot agree with defendant’s contention that the State may cross-examine a defendant as to prior convictions only when the defendant testified falsely concerning prior offenses. Such a holding would prevent the State from cross-examining as to prior-offense testimony which, although not patently false, might have a tendency to leave the trier of fact with an inaccurate understanding of the prior offenses. In the present case, for instance, one of the defendant’s statements on direct examination, at least arguably, was intended to minimize the gravity of one of his prior offenses. In this type of situation, the State should be accorded an opportunity, through cross-examination, to dispel the impression the defendant made concerning the seriousness of his prior offenses.

As defendant points out, the State did not introduce into evidence the records of his prior convictions or authenticated copies thereof. We agree that the better practice is to follow this procedure in order to establish a defendant’s prior convictions. (Flynn, 8 Ill. 2d 116, 133 N.E.2d 257.) In the present case, however, the defendant informed the jury of all of his prior convictions on direct examination, and therefore, introduction of the records of these convictions or authenticated copies thereof would have been a useless formality. (See generally People v. Bey (1969), 42 Ill. 2d 139, 246 N.E.2d 287.) We conclude that no reversible error occurred with respect to the presentation of evidence concerning defendant’s prior convictions.

Ill

One of the members of the jury which found defendant guilty of burglary was Mayóla Phillips. During the jury selection process, no one questioned Phillips concerning her residence.

In support of defendant’s motion for a new trial, defendant’s trial attorney submitted an affidavit in which he stated he had conversed with juror Phillips, and that she told him (1) she lived in Champaign and had lived there since August 1989, (2) she last voted in Macon County in 1988 and had not changed her voter registration, (3) she is employed and is attending a community college in Champaign, (4) “she moved to Champaign to move out of her parents [sic] home in Mt. Zion [in Macon County],” and (5) she “did not tell the election judges of her change of address.” In his post-trial motion, defendant contended that the verdict finding him guilty of burglary is void because Phillips was not a Macon County resident at the time of his November 1989 trial. The circuit court rejected this argument for the reasons that (1) students often maintain a “dual residence” and retain their parents’ residence as their permanent residence for voting purposes, (2) defendant did not exhaust his peremptory challenges, and (3) there was no showing of prejudice which affected the verdict.

On appeal, defendant contends that Phillips was legally disqualified from serving as a juror at his trial by virtue of both constitutional and statutory provisions. He asserts the prejudice resulting from a legaily disqualified individual serving on the jury which found him guilty is self-evident, and that this matter takes on heightened significance because Phillips’ serving on the jury violated a provision of the Illinois Constitution. Defendant states that “issues involving the constitutional right to a fair trial by a panel of selected impartial jurors cannot be disposed of by the harmless error rule,” and that there is no requirement that peremptory challenges be exhausted where there was error in the manner in which the jurors were selected and qualified. For these reasons, defendant requests reversal of his conviction and remandment for a new trial or, alternatively, remandment for a hearing on Phillips’ residency status.

The State contends that not previously having inquired into Phillips’ residency status, defendant should be barred from contending subsequent to trial that it was error for Phillips to serve on the jury. The State further maintains Phillips’ not being a resident of Macon County could not have impaired her ability to impartially and intelligently perform her duties as a juror, and could not have resulted in any conceivable prejudice to defendant. The State asserts the fact the residency requirement for jurors has a constitutional foundation should not be deemed a basis for automatically granting defendants a new trial in cases such as this. Finally, the State argues that even if the nonresidency of a single juror automatically entitles a defendant to a new trial, there is no evidence that Phillips has severed her ties with Macon County and thus permanently relinquished her status as a resident of that county.

The Illinois Constitution provides:

“In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation and have a copy thereof; to meet the witnesses face to face and to have process to compel the attendance of witnesses in his behalf; and to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” (Ill. Const. 1970, art. I, §8.)

Jurors must meet the following statutory qualifications:

“First — Inhabitants of the town or precinct.
Second — Of the age of 18 years or upwards.
Third — Free from all legal exception, of fair character, of approved integrity, of sound judgment, well informed, and able to understand the English language.” (Ill. Rev. Stat. 1989, ch. 78, par. 2.)

Furthermore, jury lists must be compiled from “the latest voter registration or drivers license holders lists of all the towns or precincts in the county.” Ill. Rev. Stat. 1989, ch. 78, par. 1 (eff. Jan. 1, 1981).

None of the cases on which defendant relies require that he automatically be granted a new trial because of juror Phillips’ possible status as a nonresident of Macon County. In People ex rel. Wellman v. Washburn (1951), 410 Ill. 322, 102 N.E.2d 124, no jury trial was involved. In the course of its opinion, the court merely referred to the abstract principle that the constitutional right to a jury trial requires a jury of the county where the charged offense is alleged to have been committed. In People v. Lembke (1926), 320 Ill. 553, 151 N.E. 535, and Buckrice v. People (1884), 110 111. 29, objections to the composition and selection of jury panels were made during or before trial, and it was held that improprieties as to these matters entitled the defendants to reversal of their convictions or reversal and remandment for a new trial. In People v. Mitchell (1984), 121 Ill. App. 3d 193, 459 N.E.2d 351, and People v. Oliver (1977), 50 Ill. App. 3d 665, 365 N.E .2d 618, new trials were granted on the basis of possible bias or prejudice on the part of a juror. In Mitchell, the possible bias or prejudice of a juror was brought to the circuit court’s attention before the conclusion of voir dire. Finally, the defendant cites People v. Cole (1973), 54 Ill. 2d 401, 298 N.E .2d 705, for the proposition that “issues involving the constitutional right to a fair trial by a panel of selected impartial jurors cannot be disposed of by the harmless error rule.” The Cole court held that the harmless error rule is inapplicable to a contention that the circuit court improperly denied a challenge to a juror for cause. In that case, the challenged juror was thoroughly examined before trial in an effort to discover possible bias, but the supreme court held that the circuit court did not err in rejecting the defendant’s challenge to that juror.

In the early case of Chase v. People (1866), 40 Ill. 352, the Illinois Supreme Court was confronted with a contention that a conviction should be set aside because one of the members of the jury which found a criminal defendant guilty was an alien. This matter was not brought to the attention of the trial court during the jury selection process. The court stated that prima facie, a person such as an alien, who is, by statute, exempt from jury duty, is nevertheless a qualified juror. The court held that in view of the defendant’s failure to exercise diligence in discovering the juror’s status as a noncitizen and his consequent failure to challenge the juror on that ground, the jury’s verdict was not to be disturbed on the basis of the alien’s alleged incompetency to serve as a juror.

The Chase decision is premised on the supreme court’s interpretation of statutory provisions setting forth the qualifications for jurors; the Chase court did not consider the effect of constitutional provisions relating to jury trials. In other jurisdictions, however, courts have held that despite constitutional provisions requiring that juries be composed of residents of the county or district where the offense with which a defendant is charged allegedly occurred, inclusion of a nonresident in a jury panel does not require reversal of a conviction unless actual prejudice is shown. (Kingsbury v. United States (D.C. App. 1987), 520 A.2d 686; State v. Wyss (1985), 124 Wis. 2d 681, 370 N.W.2d 745.) This is particularly true where the juror’s nonresidency could have been discovered before trial and the defendant did not challenge the juror during jury selection. (Wyss, 124 Wis. 2d at 719-20, 370 N.W.2d at 763.) These decisions from other jurisdictions are consistent with the general principle which applies in Illinois courts, that constitutional rights, like all other, rights, may. be waived. (People v. Lykins (1979), 77 Ill. 2d 35, 394 N.E.2d 1182.) We therefore conclude that failure to bring the nonresidency of a juror to the attention of the circuit court before trial begins results in waiver of both the defendant’s constitutional and statutory rights to be tried by a jury composed of residents of the county in which the offense was committed.

• 5 We further conclude that section 114 — 3(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114— 3(d)), upon which defendant relies, does not automatically entitle a defendant to a new trial whenever a nonresident is inadvertently included in a jury panel. Section 114 — 3(d) provides:

“If the court finds that the jury panel was improperly selected or drawn the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.” (111. Rev. Stat. 1989, ch. 38, par. 114 — 3(d).)

In order to be entitled to relief under this section, a defendant must show that irregularities in jury selection prejudiced him or resulted in substantial injustice. People v. Whitlock (1988), 174 Ill. App. 3d 749, 528 N.E.2d 1371.

In the present case, defendant did not bring Phillips’ possible nonresidency to the attention of the circuit court before trial began, although voir dire examination of Phillips almost certainly would have revealed that Phillips lived and attended college in Champaign County. Therefore, defendant waived his objections to Phillips’ jury service based on her possible nonresidency.

The record contains nothing, which would suggest Phillips was in any way biased or that defendant was otherwise prejudiced as a result of Phillips serving on the jury. For this reason, Phillips’ serving on the jury was not plain error which would entitle defendant to relief despite his waiver of the issue of Phillips’ possible ineligibility for jury duty in Macon County. See People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369; People v. Hudson (1985), 137 Ill. App. 3d 606, 484 N.E.2d 1246.

The defendant’s burglary conviction is affirmed.

Affirmed.

SPITZ and KNECHT, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    REID L. MOORE, Petitioner, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—89—0913
    Opinion filed December 6, 1990.

      Herman G. Bodewes, of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.

      Richard J. Tupper, of Cornfield & Feldman, of Chicago, for respondent American Federation of State, County and Municipal Employees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner, Reid L. Moore, brought three unfair labor practice allegations contending the American Federation of State, County and Municipal Employees (AFSCME), his exclusive bargaining representative, breached its duty of fair representation toward him. The allegations were based upon AFSCME’s handling of another employee’s grievance, which resulted in Moore’s loss of a promotion, and AFSCME’s treatment of Moore’s subsequent grievances.

The Illinois State Labor Relations Board (ISLRB) found one of the allegations untimely and found AFSCME had not committed an unfair labor practice by failing to pursue Moore’s grievances to arbitration. However, the ISLRB found AFSCME had committed an unfair labor practice by deceiving Moore about the status of his grievances. AFSCME (Moore), 5 Pub. Employee Rep. (I;ll.) par. 2042, No. S — CB—88—20 (Illinois State Labor Relations Board, Oct. 25,1989).

Moore appeals, arguing (1) the ISLRB erred in finding the unfair labor practice charge related to the Judith Schmidt settlement and Moore’s demotion untimely; (2) AFSCME violated its duty of fair representation by failing to process his grievances to the arbitration stage; and (3) make-whole relief is appropriate.

We affirm.

Because we find the unfair labor practice allegation as it related to the Schmidt settlement was untimely, only a brief presentation of the facts is necessary. On March 22, 1988, Moore, a correctional officer at the Springfield work camp of the Illinois Department of Corrections (DOC), filed an unfair labor practice charge against AFSCME, his bargaining representative. AFSCME admitted Moore applied for a sergeant’s position in May 1985. In July 1985, he assumed the duties of a correctional sergeant and was certified by the Department of Personnel on October 1, 1985. In July 1985, Schmidt, a more senior correctional officer, filed a grievance concerning Moore’s promotion. In March 1986, AFSCME and DOC agreed to settle the Schmidt grievance in her favor. The settlement included replacing Moore with Schmidt. On May 14, 1986, DOC notified Moore that effective June 1, 1986, his promotion would be rescinded. On May 14, 1986, Moore met with Carol Patton, his union representative, to initiate a grievance concerning his removal from the sergeant’s position.

On May 26, 1986, Patton filed three grievances on Moore’s behalf.

The grievances were denied after a third-step hearing. On June 21, 1987, Moore was notified of the denial. In December 1987, an AFSCME representative told Moore that AFSCME had not taken his grievances to fourth step. This representative, Steve Borbely, suggested Moore file a “continuing” grievance over the matter. Moore did so, but the grievance was denied.

The instant unfair labor practice charges were filed on March 22, 1988. Moore alleged AFSCME breached its duty of fair representation by not fairly representing him in the settlement of the Schmidt grievance, which caused his demotion; that AFSCME breached its duty of fair representation by not pursuing his grievances to arbitration; and, finally, Moore alleged AFSCME deceived him about the status of his grievances, thus violating its duty of fair representation.

The hearing officer found the unfair labor practice allegation involving the settlement of the Schmidt grievance was untimely. He did not reach the merits of the charge. The hearing officer specifically found the grievances did not toll the statute of limitations with regard to the unfair labor practice. The hearing officer found AFSCME’s failure to process the grievances to the fourth step was not in bad faith or arbitrary. The hearing officer noted the decision was based on the merits of the grievances. The hearing officer further found AFSCME’s misrepresentation about the status of Moore’s grievances did violate section 10(b)(1) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1610(b)(1)). The hearing officer concluded a cease and desist order was appropriate to remedy this violation. AFSCME (Moore), 5 Pub. Employee Rep. (Ill.) par. 2042, No. S — CB—88—20 (Illinois State Labor Relations Board, June 27, 1989, Hearing Officer’s Recommended Decision and Order, appended to ISLRB’s Decision).

In his exceptions from the hearing officer’s recommended order and decision, Moore argued the statute of limitations was tolled by the union’s conduct in causing him to delay filing the unfair labor practice charge related to the Schmidt settlement. Moore also argued the union’s duty of fair representation started with the Schmidt grievance and its breach of the duty was a continuing process, which was not concluded until December 2, 1987, the date Moore’s continuing conduct grievance was denied. Moore then argued that on the facts of the case AFSCME breached its duty of fair representation with respect to the Schmidt settlement.

On October 25, 1989, the ISLRB accepted the recommended order and decision of its hearing officer; and on November 2, 1989, the ISLRB issued its written decision. (.AFSCME (Moore), 5 Pub. Employee Rep. (Ill.) par. 2042, No. S — CB—88—20 (Illinois State Labor Relations Board, Oct. 25, 1989).) The ISLRB did not review the merits of the time-barred allegation. William Brogan, the chairman of the ISLRB, concurred in the finding that AFSCME had breached its duty by failing to inform Moore about the status of his grievances. However, Brogan stated he would not have found the allegations pertaining to the settlement of the Schmidt grievance time barred.

I. ANALYSIS

A duty of fair representation exists between a bargaining representative and its members. The rulings of the National Labor Relations Board and Federal courts are persuasive authority for construction of similar portions of the State Act. (American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board (1989), 190 Ill. App. 3d 259, 264, 546 N.E.2d 687, 690-91; East Richland Education Association v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 878, 902, 528 N.E.2d 751, 765.) In Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903, the United States Supreme Court stated that it was well established that, as an exclusive bargaining representative of employees, the union had a duty to fairly represent all of its employees, both in collective bargaining and in enforcement of a resultant bargaining agreement. Violation of the duty was an unfair labor practice pursuant to section 158(b) of the National Labor Relations Act (NLRA). 29 U.S.C. § 158(b) (1988).

The Vaca Court found a union breached its duty to fairly represent its members when its conduct toward a member was arbitrary, discriminatory, or in bad faith. The Court noted the union may not arbitrarily ignore a meritorious grievance or perform its duty in a perfunctory fashion. However, an employee does not have an absolute right to arbitrate all grievances. Vaca, 386 U.S. at 190-91, 17 L. Ed. 2d at 857-58, 87 S. Ct. at 916-17; see also International Brotherhood of Electrical Workers v. Foust (1979), 442 U.S. 42, 60 L. Ed. 2d 698, 99 S. Ct. 2121.

In the Seventh Circuit, a union’s breach of its duty of fair representation under the NLRA must be the result of intentional misconduct. (Mason v. Southeastern Illinois Electric Cooperative, Inc. (7th Cir. 1987), 815 F.2d 38, 41; Hoffman v. Lonza, Inc. (7th Cir. 1981), 658 F.2d 519, 520 (failing to give a timely notice of intent to carry a grievance to arbitration did not violate the duty of fair representation because there was no showing the conduct was intentional, invidious, or directed at the employee); Dober v. Roadway Express, Inc. (7th Cir. 1983), 707 F.2d 292, 294 (duty not violated by lackluster, inept, or careless union actions).) In other Federal circuits, a breach of the duty under the NLRA could occur from gross negligence if it extinguished an employee’s right to seek alternative relief. (Dutrisac v. Caterpillar Tractor Co. (9th Cir. 1983), 749 F.2d 1270.) The duty could also be breached by perfunctory handling of a meritorious grievance, if no explanation is provided for the action. Poole v. Budd Co. (6th Cir. 1983), 706 F.2d 181.

However, the duty of fair representation is not automatically breached when a union takes a position contrary to the interest of some of its members. In Bowen v. Lockheed-Georgia Co. (N.D. Ga. 1970), 309 F. Supp. 1210, the court found a settlement of a grievance which affected seniority rights of other members did not constitute a breach of the union’s duty to fairly represent all of its members. The court stated:

“Finally, it is also well recognized that there is no breach of the duty of fair representation where a union in good faith takes a position contrary to that of some individuals whom it represents, or supports the position of one group of members against that of another, or agrees to action having adverse repercussions on a particular group of its members.” (Emphasis in original.) Bowen, 309 F. Supp. at 1213.

In the Illinois case of AFSCME (Mathis), 4 Pub. Employee Rep. (Ill.) par. 2049, No. S — CB—87—35 (Illinois State Labor Relations Board, Nov. 17, 1988) (Mathis), the ISLRB recognized that a duty of fair representation existed under the Illinois bargaining acts. The ISLRB stated it would find a violation of the duty when the union, through inadvertence or gross negligence, virtually ignored a member’s rights. Mathis, 4 Pub. Employee Rep. (Ill.) par. 2049, at X — 342 through X — 343.

The Mathis decision indicates that the Illinois State Labor Relations agency took the position taken by circuits, other than the Seventh Circuit, which had considered when actions by a union would breach its duty of fair representation. After Mathis, the legislature amended section 10(b)(1) of the Act to state specifically that a labor organization, or its agent, commits an unfair labor practice in a duty-of-fair-representation case only by intentional misconduct. (Ill. Rev. Stat. 1989, ch. 48, par. 1610(b)(1).) This amendment indicates that an unfair labor practice under the Act occurs only through the intentional misconduct of the labor organization.

Moore argues the “secret agreement” to settle the Schmidt grievance, which necessitated a recalculation of the scores on the serge ant’s test and ultimately disadvantaged Moore, was a violation of AFSCME’s duty of fair representation. Moore contends AFSCME had a duty, at minimum, to notify him and to permit him the opportunity to represent himself. Moore argues that the amendment of section 10(b)(1) should be given prospective effect. However, we need not decide the merits of Moore’s contention as we find his unfair labor practice charge, as it pertained to the Schmidt settlement, was untimely.

Section 11(a) of the Act provides that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of a charge with the Board *** unless the person aggrieved thereby did not reasonably have knowledge of the alleged unfair labor practice.” (Ill. Rev. Stat. 1989, ch. 48, par. 1611(a).) Before addressing the merits of whether the Schmidt grievance in any way was a violation of AFSCME’s duty to fairly represent Moore, the agency and this court must consider whether the unfair labor practice charge was filed in a timely fashion. We find the ISLRB correctly determined the charge was untimely.

Moore filed his unfair labor practice charge on March 22, 1988. The unfair labor practice complained of, therefore, must have occurred on or after September 22,1987.

The facts presented below clearly indicate Moore was notified of the “rescission of his promotion” due to the Schmidt settlement on May 14, 1986. Moore testified he contacted Patton to file a grievance on that date. Patton explained briefly the content of the Schmidt settlement and the nature of the grievance. Patton also procured a copy of the Schmidt settlement for Moore. Moore stated that a few weeks prior to the third-step hearing on his grievances, he received a copy of the Schmidt grievance settlement. Moore was disgusted, believed he had been treated unfairly by his union, and believed he had been treated unfairly by management. Moore believed he had not been represented by his union during the Schmidt settlement. The third-step hearing on Moore’s grievances occurred on May 6, 1987.

From Moore’s own testimony, he knew of the details of the acts which constituted the unfair labor practice and believed his union had not fairly represented him a few weeks prior to May 6, 1987. Even if we take the May 6, 1987, date, rather than the date Moore was notified of his demotion, May 14, 1986, it must be concluded that Moore had notice of the actions constituting the unfair labor practice related to the Schmidt settlement more than six months prior to the filing of his charge.

Moore argues he did not know of the “unfair labor practice” until after he discovered AFSCME failed to take his grievances to fourth step. Moore contends that knowledge of the individual actions relating to the settlement is not knowledge that an unfair labor practice exists. Moore argues the limitation period is tolled because AFSCME deceived him. Moore also argues AFSCME’s conduct with regard to the Schmidt grievance is a continuing unfair labor practice as demonstrated by its failure to process his grievances and its failure to notify him of the status of his grievances.

We find the six-month filing period begins to run when the employee learns of the actions which constitute the alleged unfair labor practice. In Illinois Department of Central Management Services & Rehabilitation Services, 4 Pub. Employee Rep. (Ill.) par. 2024, Nos. S — CA—88—21, S — CB—88—1 (Illinois State Labor Relations Board, Mar. 22, 1988), the ISLRB found several unfair labor practice charges against an employer were untimely. The employer and the union entered a settlement with regard to closing of a school on certain holidays. The settlement covered several years. Grievances related to the closings were not filed until after the closings in the various years. The ISLRB found the limitation period stated in section 11(a) of the Act started running when the parties learned of the settlement. Similar results were reached in Illinois Departments of Central Management Services & Agriculture, 6 Pub. Employee Rep. (Ill.) par. 2012, No. S — CA—89—118 (Illinois State Labor Relations Board, Feb. 5, 1990) (failure to recall an employee occurred more than six months prior to the filing of his charge); and Public Service Employees Union, Local 16 (Brown), 2 Pub. Employee Rep. (Ill.) par. 3029, No. L— CB — 87—122 (Illinois Local Labor Relations Board, Nov. 13, 1986) (charge must be filed within six months of union’s notice to worker that it will not further process a grievance).

In Wapella Education Association v. Illinois Educational Labor Relations Board (1988), 177 Ill. App. 3d 153, 531 N.E.2d 1371, this court interpreted the limitations period in the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1985, ch. 48, par. 1715). The Wapella court found that the limitations period started when the employees had notice of the actions which they alleged constituted a violation of the IELRA.

A similar interpretation applies in the instant case. Here, Moore had actual notice of the Schmidt settlement as early as May 14, 1986. Moore testified he believed his union unfairly represented him in the Schmidt settlement. A few weeks prior to May 6, 1987, his third-step hearing, Moore had an opportunity to review the Schmidt settlement. Regardless of which date is used to start the limitations period, the charge as it related to the Schmidt settlement is untimely. Moore contends, in essence, that although he knew the acts complained of, he did not understand that the actions of his union could constitute an unfair labor practice. However, in his testimony, Moore stated that he believed his union had treated him unfairly. At this point in time, Moore had a duty to investigate any unfair labor practice which might have occurred. Additionally, it was the action of the union in settling Schmidt’s grievance which harmed Moore. Allowing extension of the limitations period until an aggrieved person learns the legal significance of actions would extend the period indefinitely.

This analysis is also consistent with Federal cases. In Local Lodge No. 1424 v. NLRB (1960), 362 U.S. 411, 416-17, 4 L. Ed. 2d 832, 838, 80 S. Ct. 822, 826-27, the Supreme Court found two complaints time barred. In interpreting the limitations period set out in section 160(b) of the National Labor Relations Act (29 U.S.C. § 160(b) (1988)), the Court held the unfair labor practice must occur within six months of the charge. The Court stated two situations exist where events which occur outside the six-month period may be utilized:

“The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely ‘evidentiary,’ since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.” Local Lodge No. 1424, 362 U.S. at 416-17, 4 L. Ed. 2d at 838, 80 S. Ct. at 826-27.

Here, the situation is similar to that presented in Local Lodge No. 1424. The allegations regarding the Schmidt grievance could be used as evidence shedding light on the allegations alleging a breach of the duty of fair representation by a failure to process Moore’s grievance and by misrepresenting the status of his grievance to him. However, the Schmidt settlement should not be the source of an independent unfair labor practice.

Although we do not reach the question of whether the six-month period stated in section 11(a) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1611(a)) is jurisdictional and not subject to tolling like a statute of limitations, we note that, ordinarily, pursuit of the grievance procedure does not toll the running of the filing period even when the filing period is not jurisdictional. In the case law that has evolved under Federal labor laws, the filing of a grievance concerning an alleged unfair labor practice does not toll the statute of limitations when resort to the grievance procedure is a parallel remedy to the unfair labor practice. (See, e.g., Kolomick v. United Steelworkers of America, District 8, AFL-CIO (4th Cir. 1985), 762 F.2d 354, 356.) Here, nothing in the Act or the contract provides that the grievance procedure must be completed before an aggrieved union member may file an unfair labor practice charge against his union.

Other courts, in addressing the tolling question, have reached a similar conclusion when the grievance procedure does not preclude bringing another separate action. (See International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc. (1976), 429 U.S. 229, 50 L. Ed. 2d 427, 97 S. Ct. 441 (contract grievance procedure did not toll statute of limitations for an Equal Employment Opportunity Commission action); Mt. Hood Stages, Inc. v. Greyhound Corp. (9th Cir. 1980), 616 F.2d 394.) In Johnson v. Ry. Express Agency, Inc. (1975), 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716, the Court noted tolling did not occur when the remedies, although related, were separate, distinct, and independent.

In this court, Moore argues AFSCME’s actions concerning the processing of his grievances were a fraudulent concealment of his unfair labor practice relating to the Schmidt settlement. Moore did not raise this argument below. Therefore, it is waived. (Faculty Association of District 205 v. Illinois Educational Labor Relations Board (1988), 175 Ill. App. 3d 880, 530 N.E.2d 548.) On the merits, no fraudulent concealment occurred. AFSCME’s actions in failing to process Moore’s grievances did not conceal the facts related to the Schmidt settlement from him. Therefore, he knew of the actions which he now alleges are an unfair labor practice. We note Moore’s cited authority is inapplicable.

Finally, Moore argues that the unfair labor practice with regard to the Schmidt settlement was part of a continuing breach of AFSCME’s duty of fair representation. Moore connects the settlement allegations with an argument that the ISLRB erred in finding no violation with respect to AFSCME’s decision to not further process his grievances. Moore does not refer to any cases in support of his assertion that entry of the Schmidt settlement was part of a continuous process which violated the union’s duty of fair representation toward him. Therefore, this court need not consider the argument. However, the settlement of the Schmidt grievance caused a singular rescission of Moore’s promotion. The situation is similar to that presented in Local Lodge No. 1424, i.e., the Schmidt settlement may be used to shed light on the union’s later practice, but may not constitute an independent unfair labor practice. The ISLRB correctly found the unfair labor practice charge, as it related to the Schmidt grievance, untimely.

Moore argues the ISLRB erred in finding AFSCME did not breach its duty of fair representation when it refused to take Moore’s grievances to arbitration. The ISLRB argues its determination was correct and no breach of the duty of fair representation occurs when a union in good faith decides not to pursue a grievance. We question whether this issue is properly before the court. Moore did not “except” from the hearing officer’s findings on this matter. In his “exceptions,” Moore argued the hearing officer’s finding that the unfair labor practice related to the settlement was time barred was wrong. Moore argued AFSCME’s breach of its duty should be viewed as a continuing course of conduct.

Section 1220.60, effective March 27, 1987, of the ISLRB’s rules provides:

“[PJarties may file exceptions to the hearing officer’s recommendation and briefs in support of those exceptions. A party not filing timely exceptions waives its right to object to the hearing officer’s recommended decision and order. Unless overturned by the Board, the parties shall comply with the recommended decision and order. ***
(2)
A) Each exception
* * *
iii) shall state the grounds for the exceptions and shall include the citation of authorities unless set forth in a supporting brief. Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived.”
(Emphasis added.) 80 Ill. Adm. Code §1220.60, at 2626 (Supp. 1988).

Since the exceptions here challenged only the statute of limitations question, this court need not consider the allegations with regard to AFSCME's failure to process the grievances. This practice is consistent with the approach taken in the Federal labor law cases, where a failure to except from an adverse finding by an administrative agency constitutes a waiver of review of the issue. See II C. Morris, The Developing Labor Law, 1710-11 (2d ed. 1983).

On the merits of the issue, the ISLRB is affirmed. A union may settle or abandon a grievance if it acts in good faith. (Razarte v. United, Transportation Union (3d Cir. 1970), 429 F.2d 868, 872.) If a union has a rational basis for withdrawing a grievance, even withdrawal of a meritorious grievance would not constitute a violation of the duty of fair representation. (Poole v. Budd Co. (6th Cir. 1983), 706 F.2d 181.) Illinois administrative decisions are consistent with Federal decisions. In ATU, Division 900 (Deimler), 4 Pub. Employee Rep. (Ill.) par. 2044, No. S — CB—88—25 (Illinois State Labor Relations Board, Oct. 20, 1988), the ISLRB found a union’s failure to pursue a discharge grievance was not a violation of its duty of fair representation. See also Public Service Employees Union, Local 46 (Brown), 2 Pub. Employee Rep. (Ill.) par. 3029, No. L — CB—87—122 (Illinois Local Labor Relations Board, Nov. 13,1986).

The ISLRB has adopted the Federal standard for determining when a labor organization breaches its duty of fair representation. (See AFSCME (Mathis), 4 Pub. Employee Rep. (Ill.) par. 2049, No. S — CB—87—35 (Illinois State Labor Relations Board, Nov. 17, 1988).) Under this standard, the unintentional actions of a union could breach the duty of fair representation. Section 10(b)(1) of the Act was amended by Public Act 86 — 412, section 1, effective August 30, 1989, to state that only intentional actions of the union could breach its duty of fair representation. (Ill. Rev. Stat. 1989, ch. 48, par. 1610(b)(1).) The parties respectively argue that the amendment should be applied prospectively or retroactively. However, this court need not decide the application issue. Here, under the less strict standard, the ISLRB found no violation of the duty of fair representation occurred. This finding was supported by the local union president’s and State representative’s testimonies that they honestly believed the grievance did not have merit after investigating the question. Thus, the ISLRB’s decision is supported by the evidence.

Finally, Moore urges this court to find he is entitled to make-whole relief. He contends a violation of the Act was found and make-whole relief is appropriate. He also contends that if this court decides the ISLRB erred on the timeliness question, make-whole relief is necessary. We note that Moore did not except from the hearing officer’s determination regarding the remedy for the unfair labor practice Moore established. Additionally, Moore does not cite any authority in support of his proposition. Thus, we will not redetermine the propriety of the cease and desist order.

For the above reasons, we affirm the order of the ISLRB.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


text:
    LARRY T. DURBIN, Plaintiff-Appellee, v. ST. LOUIS SLAG PRODUCTS COMPANY, INC., Defendant-Appellant and Third-Party Plaintiff-Appellant (M-R Construction Company, Inc., Third-Party Defendant-Appellee).
    Fourth District
    No. 4—90—0292
    Opinion filed December 12, 1990.

      Kehart, Shatter & Hughes, P.C., of Decatur (Michael J. Kehart and Albert G. Webber, of counsel), for appellant.
    Frank H. Byers II, of Byers & Byers, Ltd., of Decatur, for appellee Larry Durbin.
    Deborah L. Rose, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee M-R Construction Company.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Larry T. Durbin recovered an $82,875 judgment against the defendant, St. Louis Slag Products Company, Inc. (St. Louis Slag), in a personal injury action stemming from a tractor-trailer accident at a construction site in Pana. In a contribution action filed by St. Louis Slag against M-R Construction Company (M-R), the jury determined M-R was 15% negligent in causing the accident. St. Louis Slag raises the following issues on appeal: (1) plaintiff failed to prove that St. Louis Slag owed a duty to plaintiff and failed to prove St. Louis Slag breached that duty; (2) the jury verdict is against the manifest weight of the evidence; (3) plaintiff’s actions prior to the accident constituted an independent, superseding cause of plaintiff’s injuries; (4) the contribution verdict is against the manifest weight of the evidence; (5) the conduct of jurors was prejudicial to St. Louis Slag; and (6) the trial court erred in finding St. Louis Slag waived an issue on the jury instructions. We affirm.

Plaintiff testified that in 1983 he was a coowner of a semitrailer truck with a dump trailer. Plaintiff principally used his truck to haul crushed rock. The dump trailer was a 20-foot-long Fruehauf which was bathtub shaped. It was 11 feet high and 8 feet wide with a capacity to hold 22 V2 tons. There was a tailgate at the back of the trailer which was operated by a switch located on the left side of the tailgate. The dump trailer was connected to the tractor by means of a device known as a fifth wheel. A fifth wheel is a horseshoe-shaped plate located behind the tractor cab and above the tractor’s rear axle. The trailer is attached to the fifth wheel by inserting the kingpin on the trailer into a slot in the center of the fifth wheel. The surface of the fifth wheel is greased to allow for a pivoting motion. The pivoting motion allows a tractor trailer truck to turn corners. There is also a forward and backward motion in the fifth-wheel assembly.

Plaintiff testified his dump trailer had a dump pump and was raised by a power takeoff unit which included a single hydraulic mast or cylinder in the front of the trailer. The mast was controlled by a lever inside the tractor cab. The mast extended up in a telescope fashion and, when fully extended, stood approximately 28 feet high.

On August 26, 1983, plaintiff was hauling crushed rock known as CA6 from Specification Stone, a quarry located outside of Pana and owned by St. Louis Slag, to a construction site in Pana where a Walmart store was under construction. The CA6 was to be used as a base for the parking lot for Walmart, which was being constructed by M-R. CA6 is an aggregate substance containing rocks approximately 1 to IV4 inches in size and dirt. CA6 is also called road pack and is used as a base for concrete and asphalt in road construction because it packs very hard and makes a good surface. Plaintiff testified he followed the customary procedure for receiving a load at the quarry when he arrived at Specification Stone. He drove into the quarry, obtained an empty weight for his whole rig, backed up to a pile of rock, and waited for an end loader to fill his trailer. The end loader is a tractor which digs CA6 out of a large pile. While being loaded with rock, plaintiff remained in his truck.

At 6 a.m. on August 26, 1983, plaintiff arrived at Specification Stone to receive his first load of CA6. Plaintiff recalled the weather on August 26 was warm, with a calm wind. Plaintiff stated it took approximately IV2 buckets from the end loader to fill his trailer with 22½ tons of rock. After receiving the load, plaintiff proceeded to the scale house at the quarry to get weighed. After receiving a weight ticket, plaintiff traveled on several back roads to the Walmart construction site. Plaintiff stated it was not usual or customary for drivers to get out of their cab to check their load before leaving the quarry. Plaintiff stated that often a truck driver on the road may see the unbalanced load of another driver and advise him by radio of the problem. Plaintiff stated it was customary for truck drivers to rely on the person operating the end loader to get the load in the center of the trailer.

Plaintiff received four to five separate loads of CA6 from Specification Stone on August 26, 1983. Each load was loaded by the same person, Walter “Putt” Scott, and was delivered to the Walmart site. Plaintiff testified he unloaded the first four loads at the site using a method known as tailgating. When a load is tailgated, the truck driver gradually raises his dump trailer while he drives along a specified path, spreading out the material as it falls from the back of the trailer. Plaintiff testified tailgating a load is very common if the area where you are unloading is graded and level for a distance and there are no holes which could cause shifting in the trailer. Plaintiff stated that since there is a concern when tailgating that the truck may tip over, he often had a supervisor watch the trailer while dumping to make sure it was straight and not rocking. Plaintiff also stated he usually visually inspected the area to make sure it was level before tailgating a load. Plaintiff stated he was directed by M-R’s site supervisor, Ernest Mountjoy, to tailgate dump the first four loads of CA6 he delivered to the site. Mountjoy watched plaintiff’s truck while he tailgated his first four loads. Plaintiff had no problems unloading the first four loads of CA6.

Plaintiff stated his last load of CA6 was also loaded by Scott. Plaintiff stated a load of CA6 does not shift in the trailer en route to the ultimate location, although it may settle somewhat. Plaintiff stated his last load was loaded from the right side. Plaintiff recalled the first bucket of this load went into the trailer very hard and fast and shook his whole rig violently. Plaintiff stated his whole rig has air-ride suspension, which levels the ride within 30 seconds after a load of rock is received. Plaintiff left the quarry after receiving the last load and drove the same route to the Walmart site. En route, plaintiff stated nothing unusual occurred and, because of his air-ride suspension, plaintiff could not tell whether the load was off center.

When he arrived at the site, Mountjoy told plaintiff he did not need any more CA6 tailgated. Mountjoy told plaintiff to dump his last load on the west side of the Walmart building near where a pile of rock had previously been dumped. Plaintiff stated there were a lot of utility vehicles parked on the west side of the building so he backed his trailer up to the rock pile at an angle. Plaintiff testified that since many construction sites do not allow enough room for the dumping of rock from a trailer parked in a straight line, he often dumped a load of CA6 at an angle or in a jackknife position. When dumping at an angle, plaintiff testified there is often a supervisor to watch the dumping. Plaintiff further testified it was common to unload a trailer at an angle so long as the surface was level and hard.

Plaintiff testified the area on the west side of the building was graded and he got out of his cab and checked the ground to make sure it was level. Plaintiff then released the tailgate and got back into the cab to begin raising the trailer bed by the power-takeoff unit inside the cab. As the trailer bed began to rise, plaintiff watched the trailer from his driver’s side mirror. The trailer was at a 40-degree angle with the tractor cab. The trailer was going up very slowly when plaintiff felt the trailer start to lean to the driver’s side very rapidly. Plaintiff estimated the trailer was only at the second stage in the lifting process and approximately 8 to 10 feet off the trailer frame when the trailer tipped over onto the driver’s side. Because of the angle between the trailer and the tractor cab, the trailer fell and crushed the tractor cab. Plaintiff stated the fifth wheel was not damaged in the accident. Plaintiff suffered multiple injuries in the accident.

On cross-examination by St. Louis Slag, plaintiff stated he never took any truck-driving classes or courses but gained his experience as a truck driver by following and watching other experienced truck drivers. At the time of the accident, plaintiff had been driving a truck for two to three years. Plaintiff stated that experienced drivers told him that if he ever dumped a load in a jackknife position, he had to use extra caution. Plaintiff stated the trailer had a caution sign attached to the front of it which stated that the frame rails had to be in a straight line when the trailer bed was raised to dump a load. Plaintiff admitted that when dumping in a jackknife position, a driver had to be more cautious and make sure the tractor and trailer were on flat, level and hard ground. Plaintiff further stated that if a tractor and trailer are not on a level surface, the trailer could tip over. Also, when a load is loaded off-center, that could cause a trailer to tip over.

Plaintiff stated he did not get out of the cab to check the last load received at the quarry, although he could have and had done so in the past at least two to three times a month. Plaintiff stated that to the best of his knowledge and based on his experience in the trucking business, loads received at quarries are always centered. The load may be placed a little forward or backward in the trailer but from side-to-side it is centered. Plaintiff stated it is not unusual to receive a load that was not centered from side-to-side and a driver could reject an off-centered load at the quarry and ask that it be reloaded. Plaintiff also stated it was not normal procedure to reject a load at the quarry.

Plaintiff stated he was directed by Mountjoy to dump the last load on the west side of the building but he could have refused to dump there or asked that some of the trucks and materials on the west side be moved. Plaintiff stated he was paid on a percentage basis and the more loads he hauled the more money he made. Plaintiff stated the way he unloaded the last load was the fastest way to unload it. Plaintiff did not recall how wet or dry the loads of CA6 were on August 26, 1983, because he did not check the loads. Plaintiff stated no one was watching him dump his last load and, had someone been watching, he would have known sooner that the trailer was going to tip over.

On cross-examination by M-R, plaintiff stated the accident occurred within 5 to 10 seconds after he began raising the trailer bed. Plaintiff stated someone watching on the ground would have seen the problem in time to prevent it. Plaintiff stated that because the Walmart site was a union job, someone should have been supervising his load while he was unloading. Plaintiff also stated he could have asked for someone to supervise the unloading but he recalled everyone was busy that day laying concrete for the parking lot. Plaintiff stated that he knew unloading in a jackknife position was unstable, but if the ground was hard and level, unloading was not a problem.

Walter “Putt” Scott testified as an adverse witness for plaintiff. Scott stated he loaded plaintiff’s dump trailer with CA6 rock each time he came into the Specification Stone quarry on August 26, 1983. Scott stated the CA6 was wet that day because it had been raining for a couple of days. Scott stated the last load started to roll out of the bucket but then broke loose and slipped into plaintiff’s trailer. Because the CA6 was wet on August 26, it was sticking to the bucket and it fell hard into the plaintiff’s trailer. Scott stated he tries to put a load in the center of a trailer and watches the material coming out of a bucket so he can adjust the load to center it. Scott tells a driver when he gets a load off-center, which occurs about once a month.

When cross-examined by St. Louis Slag, Scott stated drivers tell him when a load is off-center and when they want it reloaded. Scott also stated drivers check their loads sometimes before leaving the quarry. On cross-examination by M-R, Scott stated it was customary at Specification Stone for drivers to check their load before leaving the quarry.

H. Bolter Kelsey, a mechanical engineer, testified for plaintiff. Kelsey stated the cause of plaintiff’s accident was an off-center load which shifted as the trailer bed was elevated. The shift in the load twisted the trailer frame, which caused plaintiff’s truck to tip over. Kelsey explained that the hydraulic mast is mounted to the trailer, not to the tractor. The twisting force due to the off-center load originated in the mast and was then transmitted to the rear of the trailer where there are two pivot points which absorb most of the twisting force. Whatever twisting force is not absorbed by these pivot points is then transmitted first to the rear of the trailer frame, then up the frame to the front of the trailer frame and the fifth wheel. Kelsey stated the pictures of the overturned truck showed that the trailer bed was elevated to 10 feet when it fell over, indicating the imbalance in the load was significant. Kelsey stated the angle of plaintiff’s tractor and trailer was of no particular significance to the tip-over of the trailer. Kelsey stated plaintiff’s whole rig would have tipped over if he had been parked in a straight line. According to Kelsey, plaintiff’s load of CA6 was wet on August 26, 1983, and it was loaded more to the left of the trailer bed at the quarry. Because plaintiff testified the load fell in “hard” on August 26, Kelsey opined it remained on the left side of the trailer bed and nothing was loaded by the bucket on the right side to balance the load. If the operator of the end loader was watching at the quarry, he would have seen where the load ended up in the trailer bed.

Kelsey stated the “caution” sticker on plaintiff’s trailer directs that the trailer should be level from one side to the other and has nothing to do with the angle between the tractor and the trailer. Kelsey admitted that it was more stable to have a tractor and trailer in a straight line while dumping and that dumping while jackknifed was not the best practice. Kelsey stated that if plaintiff had checked his load before leaving the quarry on August 26, he would not have been able to tell whether it was level because the top layer of CA6 would not reflect how uneven the bottom layer of CA6 was.

On cross-examination, Kelsey stated he never worked as a truck driver but only drove trucks for testing purposes. Kelsey also stated he had only seen plaintiff’s truck in the pictures introduced at trial. Kelsey also had never been involved in a case like plaintiff’s before. Kelsey did not visit the Specification Stone quarry and had never worked in a quarry. Kelsey admitted that perfect balance can never be achieved in loading CA6 and stated that the drivers he was familiar with did not check their loads but relied on the operator of the end loader to center and balance the load at the quarry. Kelsey stated the pictures of plaintiff’s truck indicated the rear of the trailer moved sideways during the fall. Kelsey stated if the tractor trailer was parked in a straight line, the trailer would not have crushed the tractor when it fell. Kelsey stated there were only two reasons why plaintiff’s rig fell over: the load was unbalanced or the ground under the rig was not level. Kelsey opined the angle between the trailer and the tractor before the accident was approximately 40 to 45 degrees. Kelsey admitted there is more stability when a load is dumped with a tractor and trailer in a straight line. Kelsey stated plaintiff’s load was loaded more to the left and the front of the trailer. While there was no direct evidence of an unbalanced load, Kelsey maintained the physics of the situation indicated that plaintiff’s trailer tipped over because the load was unbalanced.

With regard to the fifth-wheel assembly, Kelsey stated that if the trailer and tractor were at a 90-degree angle, the fifth wheel still had 90% of its ability to resist the twisting force in the trailer. Further, if there was enough twisting force and the angle was great enough, there would have been some movement in the fifth wheel which contributed a little to the instability of the load. According to Kelsey, the fifth wheel had little to do with dumping a load; it moves front to back and there is little movement from side to side. Kelsey disagreed ■with the opinion of defendant’s expert that the angle at which plaintiff was parked to dump caused the movement in the fifth wheel.

With regard to the use of a dump master, Kelsey stated this person guides a trailer and watches the load to see if there is any movement in the trailer. In this case, a dump master would have seen movement in the rear of the trailer before plaintiff did and could have told plaintiff to stop raising the trailer bed. Kelsey stated the obligation to provide a dump master is with the person or company in charge of the jobsite. Kelsey testified that if a dump master had been used in this case, it was highly unlikely the accident would have happened.

On cross-examination by M-R, Kelsey admitted that dump masters are not used at all dump sites and that a dump master should be someone who knows what to watch for, “not some kid off the street.” Kelsey also stated that independent drivers like plaintiff do not always know whether a supervisor or dump master will be present at a dump site. Kelsey testified that someone like plaintiff with experience dumping his rig would be helpless without a dump master, given the unbalanced load. While neither a driver nor a dump master would know when a load was unbalanced by looking at it, a dump master would be in a position to observe the shifting of the trailer as the bed was raised due to an unbalanced load. Kelsey stated it was his experience that a dump master was only used when there was a contract between the parties calling for one.

On redirect, Kelsey stated that because CA6 was wet on August 26, it stuck to the trailer bed, and this supported his conclusion that the load was unbalanced and the imbalance caused the rig to tip over. Kelsey stated the majority of the ability of a tractor trailer to resist a tip-over is contained in the trailer itself. After placing the tractor at a 40-degree angle with the trailer, the fifth wheel still had 96% of its ability to resist the twisting in the trailer.

Scott was called as a witness for St. Louis Slag. Scott had been working as an operator of an end loader for Specification Stone for 20 years at the time of trial. Scott stated he tries to position a load based on the axle load limit and tries to center a load, although it is impossible to perfectly center and balance a load. Scott stated it is common practice for a driver to be allowed to have a load redone if he wanted to. Scott stated he does not know a driver’s destination with a load unless the driver tells him. Also, he does not know how a driver is going to dump a load from his quarry. Scott did not know the plaintiff’s destination or how plaintiff was to dump his load of CA6.

Scott stated the CA6 was wet on August 26. This was not uncommon and all truckers knew CA6 is often wet. Scott stated plaintiff’s last load dropped into his trailer hard because it was wet. Scott stated that when CA6 drops into the trailer hard, it drops into the middle of the trailer. Scott stated the last load from plaintiff looked good and was as balanced as any other load would be. Scott stated plaintiff did not ask him to reload after receiving the load but went to the scales to get weighed.

On cross-examination by plaintiff, Scott stated his job was to try to get a load centered and balanced and he has to watch a load as it comes out of the bucket to see if it is centered. On redirect, Scott stated he watches every load and he recalled plaintiff’s load was a good load. On re-cross-examination, Scott admitted that in a pretrial deposition, he stated that he did not recall whether plaintiff’s last load slid out or rolled out of the bucket of the end loader. On further redirect, Scott testified that whether the load slid or rolled out of the bucket did not affect his opinion that plaintiff’s last load was a good load.

Ernest Mountjoy testified as an adverse witness for St. Louis Slag. Mountjoy stated he was the supervisor for M-R at the Walmart site. M-R had a contract with the owner of the Walmart site to put in a parking lot. Mountjoy had been in the concrete construction business for 40 years. Mountjoy testified he asked that all the loads of CA6 on August 26, 1983, be pile-dumped, not tailgated. Mountjoy had never seen tailgate dumping done on any parking lot he had worked on. Mountjoy stated the parking lot at the site was graded before any CA6 was delivered that day but it had some slope to it to allow for drainage.

Mountjoy stated plaintiff’s truck could not have been level where he positioned it to dump the last load. Mountjoy stated the grade lines for the Walmart site indicated there was a two-foot drop downhill in the area where plaintiff was parked to dump the last load. The slope was there for drainage and would have caused a side-to-side slant in plaintiff’s trailer. Mountjoy stated the photographs depicting the accident showed plaintiff’s tractor was uphill and the trailer was downhill and the trailer fell downhill when it fell over. Mountjoy recalled plaintiff’s tractor was at a 90-degree angle with the trailer before the accident. Mountjoy did not recall anyone assisting plaintiff with the unloading of the last load and did not recall having anyone under contract to help with the unloading of CA6. Mountjoy considered plaintiff’s jackknife position on an incline to be hazardous because, in this position, a driver does not have the needed stability when the dump trailer is raised up. The position gave plaintiff less control at the fifth wheel. Mountjoy stated he had experience dumping loads from a tractor trailer like plaintiff’s and he would have refused to dump in a jackknife position. Mountjoy opined plaintiff’s positioning of his tractor and trailer in a jackknife position and the slope in the ground caused the accident and the trailer would probably have tipped over without any load in the trailer bed. Mountjoy stated it is accepted in the trucking industry that every load will have some variance in it because a load cannot be perfectly balanced. Mountjoy stated it was plaintiff’s decision to dump his load as he did and the trailer tipped over because of the position it was in. Mountjoy also stated an unbalanced load could have contributed to the tipping over.

When examined by M-R, Mountjoy stated that M-R’s union contract concerning laborers at the site provided for three classifications of laborers: common, semiskilled, and skilled. Mountjoy stated a dumpman is a common laborer used on certain jobs such as dams or hazardous jobs involving dumping over a hill or a bank. Common laborers are not trained. Mountjoy stated he did not believe plaintiff needed a supervisor to watch the unloading of his last load but, had plaintiff asked for one, Mountjoy would have gone himself to supervise the unloading.

On further examination by St. Louis Slag, Mountjoy stated he would not have sent a dumpman because, as a common laborer, a dumpman does not have the skill to help with the unloading of CA6. Mountjoy stated the provision in M-R’s union contract requiring one laborer to assist in the unloading of service trucks did not apply to drivers unloading CA6. Further, Mountjoy stated the same provision did not require a dump supervisor at every dump site. Mountjoy testified he had never heard the term “dump master.”

Jack Bone testified for St. Louis Slag. Bone had been employed in the trucking business since 1959 and had operated many tractor trailers with a fifth wheel. Bone had also hauled many loads of CA6 and stated, when dumping such a load, a driver had to make sure the trailer was level and in a straight line with the tractor. If parked at an angle to dump, Bone stated the angle should not be more than 1 to 5 degrees and “1 to 2 degrees would be very maximum.” Bone stated a load should not be dumped in a jackknife position because “the fifth wheel could hinge,” causing the trailer to tip over. On cross-examination, Bone stated he owned a frameless dump trailer.

Richard Bishop also testified for St. Louis Slag. At the time of trial, Bishop had been in the trucking business for over 40 years since his graduation from high school. Bishop had worked for a quarry loading dump trucks and estimated he had hauled and dumped loads of CA6 over 1,000 times. Bishop stated he understood how dump trailers worked mechanically and had investigated approximately one dozen trailer turnovers in the past. Bishop testified one of the turnovers he investigated was caused by an uneven load of material. Bishop stated it was the truck driver’s responsibility, after getting a load at the quarry, to inspect a load to insure' it was loaded properly. Bishop also stated most good truck drivers check their load. Bishop stated the weight tickets for the loads plaintiff received on August 26, 1983, indicated three out of four of the loads were over the State-set maximum-weight limit.

Bishop testified an end loader operator tries to get a load distributed between the truck axles and tries to balance the load. When CA6 is wet, it falls into a dump trailer instead of flowing in freely. The angle of repose for dry CA6 is one to one; that is, if a pile of CA6 rock is five feet high, then the pile will be five feet wide. When CA6 is wet, the angle of repose is not as consistent. However, Bishop stated that whether CA6 is dry or wet has little to do with whether the trailer is evenly balanced. Bishop stated there was no way to determine whether plaintiff’s last load was unevenly balanced. Further, Bishop could not see how the last load could have been loaded so unevenly as to cause the trailer to turn over. Bishop stated uneven ground causes trailers to turn over.

Bishop testified the fifth wheel does not move side to side but only forward and backward and when a tractor trailer is parked in a jackknife position, the trailer gets no support from the fifth wheel. Bishop stated it was not customary for truck drivers to dump their loads in a jackknife position and plaintiff’s truck-owner’s manual warned that his trailer and tractor should be parked in a straight line when dumping a load. Bishop stated he did not allow his employees to dump while jackknifed because a driver loses all stability and the jackknife position was similar to “standing on a tightrope.” Bishop stated that in a jackknife position at a 75- to 85-degree angle, the fifth wheel remains in balance as long as the trailer and tractor are parked on level ground. Where one wheel is lower than the other, the balance is thrown off. Once a load starts to shift off-center, the fifth wheel falls forward as it did in this case, causing the trailer to fall forward.

Bishop stated that when pile-dumping a load, a driver wants to dump the whole load as fast as possible. As the material comes out of the tailgate, a driver often has to pull forward a few feet to unblock the load to allow the rest of the material to fall out of the trailer. In a jackknife position, a driver cannot pull forward to facilitate the dumping. In Bishop’s opinion, the cause of the accident was not any imbalance in the load, but the jackknife position plaintiff put his tractor and trailer in to dump. Bishop stated plaintiff’s tractor was headed downhill at a slight angle but that was all that was needed to tip over the jackknifed rig. Bishop stated the downslope could have caused plaintiff’s load to move while the trailer bed was being raised. As the mast pushed the trailer up, the fifth wheel tilted over on the frame, causing the trailer to tip over rapidly. Bishop stated that if plaintiff had been parked in a straight line,' he would not have tipped over. However, had it tipped for some reason, the trailer would not have fallen on the tractor cab and caused plaintiff’s injuries. Bishop also testified the end loader operator exercised skill and care in loading plaintiff’s trailer and an imbalance in the load did not contribute to or cause plaintiff’s accident.

On cross-examination, Bishop admitted he had testified for defendant’s counsel’s firm in other cases. On redirect, Bishop stated that he was a witness several years previously in some cases for the law firm representing defendant, but none involved personal injury claims.

Plaintiff testified as an adverse witness for defendant. Plaintiff stated the hydraulic mast extends up in sections and he can feel the trailer move as the mast reaches each succeeding section. When dumping his last load on August 26, 1983, plaintiff stated he felt the trailer move just before it tipped over. Plaintiff stated the mast had probably reached only the second section when it tipped over.

In rebuttal, plaintiff testified the fifth wheel on his tractor is unlike the fifth wheel shown by videotape to the jury. Plaintiff’s fifth wheel had blocks welded in front of it to stop the pivot movement from moving as much as the fifth wheel moved in the videotape. Plaintiff stated he was familiar with frameless dump trailers, which have no frame underneath the trailer bed. They are not used at construction sites because they often turn over.

On cross-examination by St. Louis Slag, plaintiff stated the pictures of his whole rig after it turned over showed the fifth wheel was in a pitched-forward position.

In his complaint, plaintiff alleged St. Louis Slag was negligent because (1) it loaded the CA6 into his trailer so that it was sloped to one side, creating an unbalanced load in the trailer; and (2) it failed to warn plaintiff that the load had been loaded unevenly. St. Louis Slag alleged plaintiff was contributorily negligent. The jury returned a verdict in the total amount of $127,500 for plaintiff and determined plaintiff was 35% negligent in causing the accident. The verdict was thereby reduced to $82,875. The jury further determined M-R was 15% negligent in causing plaintiff’s injuries.

St. Louis Slag first argues plaintiff wholly failed to prove the allegations in his complaint. Specifically, defendant argues plaintiff failed to prove that St. Louis Slag was negligent in not balancing the last load of CA6 it loaded for plaintiff on August 26, 1983. Defendant argues the evidence showed (1) plaintiff never looked at his load so he had no way of knowing whether it was unevenly loaded; (2) Kelsey never saw the load and stated there was no direct evidence that the load was not balanced; (3) the end loader operator concluded the last load was a good load; and (4) an unbalanced load was common in the industry. St. Louis Slag also argues plaintiff failed to produce evidence that it had a duty to warn plaintiff of an unbalanced load.

Plaintiff argues the evidence established (1) it was custom and practice in the trucking industry for loaders of CA6 to center a load of rock in the trailer; (2) it was custom and practice in the industry for drivers to rely on loaders to center a load of rock and drivers did not always check each load; and (3) loaders watched each load they loaded to make sure it was centered and they would tell a driver when the load was off-center. Taken as a whole, plaintiff contends he presented sufficient evidence to support a jury verdict.

In its reply brief, St. Louis Slag maintains plaintiff is relying principally on Kelsey’s testimony wherein he stated, inter alia, that there was no explanation for the accident other than an unbalanced load. Defendant argues the fact that the accident occurred is not proof that it was negligent and, therefore, the jury verdict cannot stand.

A jury verdict is entitled to great weight. (Callahan v. L.G. Balfour (1989), 179 Ill. App. 3d 372, 379, 534 N.E.2d 565, 570.) Findings of a jury cannot be disturbed by a reviewing court unless they are clearly erroneous or against the manifest weight of the evidence. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 529, 504 N.E.2d 772, 775.) When considering whether a verdict is contrary to the manifest weight of the evidence, the reviewing court must view the evidence in the light most favorable to the appellee. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.

To succeed in an action for negligence, a plaintiff must prove the existence of a duty owed by the defendant to the plaintiff, breach of that duty, and an injury proximately resulting from the breach. (Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 538 N.E.2d 707.) A duty is an obligation imposed by law upon a person which requires him to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834, 838, 496 N.E.2d 1219, 1222.) A duty to warn against injury exists when there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm may or can occur. (Baylie v. Swift & Co. (1975), 27 Ill. App. 3d 1031, 1042, 327 N.E.2d 438, 447.) The existence of a duty is a question of law to be determined by the trial court. (Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 514 N.E.2d 552.) Whether a duty has been breached is a question for the trier of fact to decide. (Dunn v. Baltimore & Ohio R.R. Co. (1987), 162 Ill. App. 3d 97, 515 N.E.2d 1027, aff’d in relevant part (1989), 127 Ill. 2d 350, 537 N.E.2d 738.) A plaintiff may establish negligence using either direct or circumstantial evidence. (Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18, 21.) Circumstantial evidence will support a negligence finding whenever an inference may be reasonably drawn from it. Mort, 98 Ill. 2d at 396, 457 N.E.2d at 21.

We find there was sufficient evidence presented to establish St. Louis Slag breached a duty to plaintiff. Plaintiff presented evidence that an end loader operator’s job is to center a load. Defendant’s witnesses did not contradict this testimony. While it was established that no load of stone is ever perfectly balanced, the issue in this case is whether plaintiff’s last load was so unbalanced as to cause his whole trailer to tip over. Plaintiff’s evidence also established drivers rely on an end loader operator to tell them when a load is unbalanced and drivers cannot always tell by checking their load themselves whether it is unbalanced. This evidence supports plaintiff’s allegation that St. Louis Slag failed to warn him of an unbalanced load. Further, we reject St. Louis Slag’s argument that the plaintiff’s proof of its negligence is premised solely on the fact that the accident occurred. We agree that the fact that an accident occurred is insufficient to raise an inference of negligence. (Mort, 98 Ill. 2d 391, 457 N.E.2d 18.) Here, however, plaintiff has presented other circumstantial evidence through expert testimony from which the jury could reasonably infer that an unbalanced load caused the accident to occur. The jury verdict is supported by the reasonable inferences that could be drawn from the evidence and not on speculation.

St. Louis Slag next argues the jury verdict is against the manifest weight of the evidence. Specifically, the defendant points out that the premise of plaintiff’s case was that an unbalanced load caused his trailer to tip over. Defendant maintains the evidence established that no load of CA6 is ever perfectly balanced. While plaintiff testified to the contrary, defendant contends his testimony is equivocal and contradictory. Defendant maintains that if the evidence in this case supports a finding that it was negligent in loading plaintiff’s load, then every truckload of CA6 is actionable because no load is perfectly balanced. The defendant argues every witness testified that the cause of the accident was the jackknife position plaintiff’s rig was in when plaintiff began to unload, except Kelsey, and his testimony was not credible. Defendant maintains the manifest weight of the evidence supports a conclusion that the position of plaintiff’s rig when dumping caused the accident and not an imbalance in the load.

A jury verdict is against the manifest weight of the evidence only if it is wholly unwarranted by the evidence, clearly the result of passion or prejudice (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 473 N.E.2d 1322) or where an opposite conclusion is clearly evident or the jury’s findings are unreasonable, arbitrary, and not based on the evidence. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348.) A jury verdict cannot be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony or because the reviewing court would have reached a different conclusion if it had been the trier of fact. (Steinberg v. Petta (1985), 139 Ill. App. 3d 503, 487 N.E.2d 1064.) A court of review should consider not only the verdict of the jury but the fact that the trial judge also saw and heard the witnesses, heard the arguments of counsel, and then denied a post-trial motion seeking set aside of the verdict. Berner v. Kielnik (1983), 117 Ill. App. 3d 419, 453 N.E.2d 729.

Our review of the evidence in this case is in the light most favorable to the verdict (Norvell v. Fancy Creek Township (1985), 130 Ill. App. 3d 275, 474 N.E.2d 53), and we conclude the verdict is not contrary to the manifest weight of the evidence. Plaintiff’s expert concluded the accident was likely caused by an unbalanced load. Defendant’s expert stated the accident was caused by the jackknife position of the tractor and trailer and the lack of a level surface under the trailer. It was for the jury to determine the credibility of the witnesses, weigh their testimony, and resolve any conflicts in the testimony. We conclude the verdict is supported by the evidence.

St. Louis Slag next argues plaintiff’s actions in dumping in a jackknife position constituted an independent, superseding cause of his injury. Plaintiff contends the physical forces which brought about his injury were placed in motion by St. Louis Slag and the dumping in a jackknife position was foreseeable and did not break the causal connection between St. Louis Slag’s actions and his injuries. In its reply brief, St. Louis Slag points to plaintiff’s testimony at trial where he admitted he could have refused to dump his load where, how, and when he did. St. Louis Slag contends this evidence shows conclusively that plaintiff’s own actions were the sole proximate cause of his injuries.

Before liability for negligence can attach, a plaintiff must prove his injury was proximately caused by the defendant’s breach of a duty owed to the plaintiff. (Powell v. Star Fireworks Manufacturing Co. (1987), 162 Ill. App. 3d 647, 515 N.E.2d 1280; Taylor v. Gerry’s Ridgewood Inc. (1986), 141 Ill. App. 3d 780, 490 N.E.2d 987.) Proximate cause is defined as that cause which produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 493 N.E.2d 372.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81, 50 N.E.2d 497, 503-04.) An intervening independent action will not, however, break a causal connection between the original wrong and an injury if the intervention of the independent cause was itself reasonably foreseeable. (Neering, 383 Ill. at 381, 50 N.E.2d at 504; Kirk v. Michael Reese Hospital & Medical Center (1985), 136 Ill. App. 3d 945, 483 N.E.2d 906.) There can be more than one proximate cause of an injury. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242; Merlo v. Public Service Co. (1942), 381 Ill. 300, 317, 45 N.E.2d 665, 675.) To escape liability, a defendant must demonstrate that the intervening event was unforeseeable as a matter of law. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) What constitutes the proximate cause of an injury in a particular case is ordinarily a question of fact to be determined by a jury from a consideration of all the evidence. (Neering, 383 Ill. at 381, 50 N.E.2d at 504.) It only becomes a question of law when the facts are not only undisputed but are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. Merlo, 381 Ill. at 318, 45 N.E.2d at 675, citing Phillabaum v. Lake Erie & Western R.R. Co. (1924), 315 Ill. 131, 145 N.E. 806.

Viewing the evidence in a light most favorable to the plaintiff, we cannot conclude plaintiffs actions were unforeseeable as a matter of law. There was testimony that while dumping in a jackknife position was not preferable, it was done on occasion. There was also evidence that plaintiff’s trailer may have tipped over due to the unbalanced load even if it had been in a straight line with the tractor. We disagree with St. Louis Slag’s assertion that because plaintiff testified he could have refused to dump where, when, and how he did, this establishes plaintiff’s actions were the sole cause of his injuries. Plaintiff stated he often had to dump in a jackknife position at a construction site and stated he dumped his load on this occasion after he checked the ground to make sure it was level. The jury could have found that plaintiff’s injuries were proximately caused by the actions of St. Louis Slag at the quarry and by plaintiff’s own actions at the Walmart site.

Next, St. Louis Slag contends the contribution verdict against M-R is against the manifest weight of the evidence and requests that it be reversed or that this court order additur. M-R first argues St. Louis Slag waived any issue on this contribution verdict because it failed to raise this issue in its post-trial motion. On the merits, M-R contends the 15% verdict is supported by the evidence which established that while a dump master may have been able to prevent the accident, the dump master would have to be skilled enough to know what to look for. Also, the evidence that plaintiff could have refused to dump where he did supports the 15% verdict.

In its reply brief, St. Louis Slag argues the waiver rule is not applicable because it properly raised the issue in its post-trial motion.

We first address the waiver issue. The record shows St. Louis Slag filed a motion for judgment notwithstanding the verdict or, alternatively, a motion for a new trial. At a hearing on this motion, counsel for St. Louis Slag’s arguments for a new trial included claims that the contribution verdict against M-R should be reconsidered. We find St. Louis Slag preserved any issue on the contribution verdict in its motion for a new trial. Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill. App. 3d 652, 656, 522 N.E.2d 856, 858.

A verdict is against the manifest weight of the evidence only when an opposite conclusion is clearly apparent or when the finding of the jury appears arbitrary and unsubstantiated by the evidence. (Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666, 674, 475 N.E.2d 1383, 1389.) Evidence was presented from which the jury could have found M-R was responsible in part for plaintiff’s injuries. The precise allocation of fault among two tortfeasors is a matter upon which reasonable persons could disagree. (Holmes, 131 Ill. App. 3d at 674, 475 N.E.2d at 1389.) We do not find the 15% contribution verdict is contrary to the manifest weight of the evidence. In light of our conclusion, the merits of St. Louis Slag’s request for additur relief will not be addressed. We point out, however, that additur, which has traditionally been limited in Illinois to rectifying the omission of a liquidated or easily calculated item of damage (Fraher v. Inocencio (1984), 121 Ill. App. 3d 12, 459 N.E.2d 11), would be inappropriate relief in this case.

St. Louis Slag next contends the conduct of two jurors who examined the fifth wheel of the tractor trailer outside the courtroom during a lunch break on one day of the trial was prejudicial to St. Louis Slag and the trial court erred in finding to the contrary. St. Louis Slag also argues the trial court erred in requiring it to prove prejudice when the law places the burden on the prevailing party to prove lack of prejudice from juror misconduct. Given, the fact that the operation of the fifth wheel was a crucial issue in this case, St. Louis Slag asserts the jurors’ actions require that a new trial be ordered.

Initially, plaintiff argues the defendant waived any claim of prejudice due to the conduct of the two jurors by failing to bring the jurors’ misconduct to the trial court’s attention immediately. On the merits, plaintiff maintains the trial court was correct in finding the defendant was not prejudiced by the jurors’ conduct.

We first consider the waiver argument. Following the filing of its post-trial motion, St. Louis Slag filed a supplemental post-trial motion, alleging juror misconduct during the trial prejudiced the defendant and required reversal of the jury verdict for plaintiff. Attached to the supplemental motion was an affidavit of an associate attorney with the law firm representing defendant, who was not assigned to defendant’s trial. The associate stated he observed two jurors during a break in the trial on September 29, 1989, looking at the underside of a tractor trailer parked in the area outside the courtroom. The associate had been admitted to the practice of law less than one year and stated he did not realize the significance of what he saw and, therefore, did not tell anyone in his firm about the incident until two months later when he was casually discussing the matter with the defendant’s trial counsel. Defendant’s supplemental post-trial motion was filed two days after the juror misconduct was brought to the attention of defendant’s trial counsel. At a court hearing on the supplemental post-trial motion, the trial judge concluded the defendant timely brought the misconduct issue to the court’s attention and denied plaintiff’s motion to dismiss the supplemental post-trial motion as untimely. We find no error in the trial court’s ruling on the waiver issue and conclude Considine v. Hill (1959), 22 Ill. App. 2d 83, 159 N.E.2d 15, relied upon by the plaintiff, is distinguishable.

We next consider St. Louis Slag’s claim that the trial court required it to prove it was prejudiced by the jurors’ conduct. Where jurors’ conduct relates to a key issue in the case, prejudice to the losing party is presumed. (Brown v. Johnson (1981), 92 Ill. App. 3d 1095, 416 N.E.2d 799; Heaver v. Ward (1979), 68 Ill. App. 3d 236, 386 N.E.2d 134.) The burden is then placed on the prevailing party to demonstrate that no injury or prejudice resulted. Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 409, 487 N.E.2d 798, 807, citing Heaver, 68 Ill. App. 3d at 242, 386 N.E.2d at 139.

We find the trial court correctly determined which party had the burden of proof. The record shows that at the hearing on the supplemental post-trial motion, the trial judge concluded the affidavit submitted by St. Louis Slag with its supplemental post-trial motion showed “presumptive prejudice” to St. Louis Slag and M-R. Therefore, the trial judge ordered the two jurors to appear in court to answer questions on the matter posed by all counsel. The trial judge also stated the burden was shifted to plaintiff as prevailing party to show no prejudice was suffered by defendant as a result of the jurors’ actions.

St. Louis Slag argues the trial court erred in finding the jurors’ conduct was not prejudicial. We disagree. Juror David Holm testified he looked at a tractor trailer during a lunch recess during the trial because he did not know what a fifth wheel was. Holm stated he and juror L. Clark Sedrick paused to look at the fifth wheel on the tractor trailer in a jackknife position outside the courtroom but he did not learn anything new from looking at it and did not talk to any of the jurors about what he saw. Holm stated the jury had not yet heard any testimony about how the fifth wheel operated. Holm stated his out-of-court observation was not significant in the later jury deliberations. Holm further testified he was not sure he even thought about his observations when the jury was deliberating. L. Clark Sedrick testified similarly. He stated he and Holm did not take notes when looking at the fifth wheel, did not talk to other jurors about what they saw, did not use anything from their observations in later deliberations, and the verdict was based solely on the evidence presented at trial. Sedrick also stated he did not see that the fifth wheel on the tractor trailer outside the courtroom was any different from the one shown to the jury by video during the trial. We agree with the trial judge that the observations by the two jurors were not prejudicial.

Finally, St. Louis Slag contends the trial court erred in finding it waived an issue relating to jury instructions. St. Louis Slag argues the issue it raised in its post-trial motion concerned plaintiff’s failure to prove St. Louis Slag owed a duty to plaintiff, not the adequacy of the jury instructions on the duty issue. St. Louis Slag argues the trial court’s finding of waiver constitutes plain error.

In its post-trial motion, St. Louis Slag argued plaintiff failed to present any evidence on the duty St. Louis Slag owed to plaintiff. No issue was raised on the adequacy of the jury instructions. In his reply to St. Louis Slag’s post-trial motion, plaintiff alleged, inter alia, that since St. Louis Slag did not object to plaintiff’s instruction No. 11, which set forth the duty St. Louis Slag owed to plaintiff, St. Louis Slag waived any claim that plaintiff failed to prove the duty element of his cause of action. In the order denying the defendant’s post-trial motion, the trial judge found, inter alia, as follows:

“A. Plaintiff presented sufficient evidence to establish the duty owed by the Defendant to the Plaintiff;
B. There were instructions tendered by the Plaintiff as to duty and not objected to by the Defendant, and the issue of failure to establish a duty was waived by the Defendant for failure to object to that instruction ***.”

The record establishes the issues St. Louis Slag raised in its post-trial motion concerned a lack of evidence and not a deficient jury instruction. Consequently, the trial court’s finding of waiver based on failure to object to jury instructions failed to address defendant’s claim of error. We have already determined that plaintiff presented sufficient evidence to establish the duty St. Louis Slag owed to plaintiff. Thus, the determination of the trial court on this issue is correct. If the judgment of the trial court is correct, the reasons given in support of the judgment or findings upon which it was based are not material. (Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217, 220.) We conclude the trial court properly exercised its discretion in denying St. Louis Slag’s request for a new trial. Smith v. Perlmutter (1986), 145 Ill. App. 3d 783, 785-86, 496 N.E.2d 358, 359.

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

Affirmed.

LUND, P.J., and SPITZ, J., concur.