author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY LYNN RIDGEWAY, Defendant-Appellant.
    Fourth District
    No. 4—89—0218
    Opinion filed February 28, 1990.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyel, Robert J. Biderman, and James W. Ackerman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, Terry Ridgeway, defendant, was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(c)(1)). He was sentenced to eight years’ imprisonment on each assault count, and to five years’ imprisonment on the abuse count, all to run concurrently.

The alleged -victim, E.H., was five years old at the time of the alleged offense. E.H. was living in a trailer with his mother and his brother, J.H. The defendant was staying in the trailer with E.H.’s mother. The alleged criminal violations involved defendant’s putting his mouth on E.H.’s penis and putting his penis in E.H.’s mouth.

The evidence which led to the convictions consisted of: (1) E.H., at age seven, testifying to the event; (2) J.H., at age nine, testifying E.H. had told him of the events on two occasions, and J.H. telling his mother in front of defendant of E.H.’s complaint; (3) E.H.’s natural father testifying as to E.H.’s abnormal sexual conduct; (4) an employee of the Illinois Department of Children and Family Services (DCFS), who was trained to deal with sexual abuse cases, testifying as an expert that E.H.’s abnormal actions were consistent with an analysis of child sexual abuse or molestation; and (5) the testimony of a law officer, who used anatomically correct dolls in questioning E.H. about the alleged offense.

Defendant appeals, contending three reversible errors occurred: (1) the trial court abused its discretion in ruling that E.H. was competent to testify; (2) the trial court continually allowed leading questions of E.H. and J.H.; and (3) the evidence of E.H.’s behavior several months after the alleged incidents and the testimony of the investigator for DCFS was irrelevant.

Our examination of the record indicates there was uncertainty by E.H., at times, when he was being examined for the purposes of qualification. At times, he expressed ignorance as to the meaning of truth. Several pages of testimony involved the qualification. Finally, the trial judge examined E.H. as to the meaning of truth and, during this examination, it appeared that E.H. knew the value of truth, as contrasted to lying. He understood that he could be punished if he did not tell the truth.

Our supreme court has set forth a test for determining competency of a child witness as follows:

“It is the degree of a child’s intelligence, rather than mere chronological age, that determines a child’s competence, and ‘[i]f the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent.’ (People v. Davis (1957), 10 Ill. 2d 430, 436, cert. denied (1957), 355 U.S. 820, 2 L. Ed. 2d 35, 78 S. Ct. 25. See also People v. Edwards (1973), 55 Ill. 2d 25, 33, cert. denied (1974), 415 U.S. 928, 39 L. Ed. 2d 486, 94 S. Ct. 1438; People v. Brown (1972), 52 Ill. 2d 94, 104-05; People v. Ballinger (1967), 36 Ill. 2d 620, 622, cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.) There is no rigid formula which is applicable to a determination of competency, and the record reflects that the trial court was satisfied by Denise’s responses to his questions that she was competent to testify. Decisions as to the competency of a witness are reviewable, but in light of the trial court’s opportunity to take into account the demeanor of the witness, this court has held that such determinations will be overturned only when it appears that the trial judge has abused his discretion. (People v. Brown (1972), 52 Ill. 2d 94, 105; People v. Ballinger (1967), 36 Ill. 2d 620, 622; People v. Davis (1957), 10 Ill. 2d 430, 437.) This court has approved findings of competency based upon much weaker evidence than we have here (see, e.g., People v. Ballinger (1967), 36 Ill. 2d 620), and in our judgment, the trial judge did not err in permitting Denise to testify.” People v. Garcia (1983), 97 Ill. 2d 58, 75, 454 N.E.2d 274, 280.

The record in the present case indicates the great difficulty in dealing with young children as witnesses. Children are necessary witnesses in most cases involving sexual abuse of youngsters. Such wrongful conduct takes place in secrecy and the evidence, other than the child’s complaints, is often limited. The child witness is placed in front of strange faces and required to relate unpleasant encounters. The court appearance itself is a traumatic experience. Previous decisions of the appellate and supreme courts are little help in deciding the issue now presented to us. Each case rests on its own facts, and each child is different. In this case, the trial judge finally cut through the contradictions created by the examination by the State and the defense. He observed the seven-year-old boy, heard his responses, and decided that his testimony on the crucial issue would be competent. We cannot say his decision was an abuse of discretion. We are fully aware of the value of the actual observation of the child in the courtroom in making competency decisions of this kind.

As to the issue of leading questions, the record indicates that the State was allowed to elicit necessary details of the offenses by the use of leading questions in examining both E.H. and his older brother, J.H. The leading of J.H., the older brother of E.H., became necessary because J.H. refused to use specific terms in describing the male sexual organ and the sexual act. His testimony was corroborating in nature, as he was relating that E.H. had complained to him about what the defendant had done. J.H. also testified he relayed the complaint to his mother, in defendant’s presence. The leading of J.H. consisted mainly of including the explicit terminology, which J.H. refused to use.

Allowing leading questions, when examining children of tender years, is clearly within the discretion of the trial court. (People v. Server (1986), 148 Ill. App. 3d 888, 895, 499 N.E.2d 1019, 1024, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131; People v. Smith (1957), 11 Ill. 2d 280, 285, 143 N.E.2d 50, 52; People v. Luigs (1981), 96 Ill. App. 3d 700, 707, 421 N.E.2d 961, 967.) For reasons already set forth in this opinion, we will not unduly limit the trial court’s discretion in allowing children to be questioned. Such action on our part would interfere with the truth-serving process and would interfere with the enforcement of the laws concerning sexual abuse of children. The defense was not limited as to cross-examination, or as to argument relating to the issue of leading witnesses.

We have carefully examined the trial record. E.H. related the family living arrangements, the facts surrounding the offense- and, though he was led as to the specific details, his answers were definite. J.H.’s testimony was definite. It was obvious that relating sexual terminology was an emotional experience. The trial court did not abuse its discretion in allowing the leading questions.

The father of E.H. testified that E.H.’s conduct changed after the time of the alleged offense, in that he yelled at a male jogger that he wanted to get into his pants, he played with his own penis, and played with the sex organ of a male dog. Eric Crook, an investigator for DCFS, when asked a hypothetical question relating to the actions of E.H., testified the conduct was consistent with an analysis of child sexual abuse and molestation. There was no objection to the hypothetical question or the answer. The objections relating to Crook’s testimony concerned the issue of whether the State had adequately furnished discovery information.

Crook has a master’s degree in social work from the University of Illinois, and has been in child welfare work for 19 years. He has investigated, according to his testimony, approximately 300 allegations of child sexual abuse, and has been qualified as an expert regarding instances of child molestation and abuse at least 100 times. He testified he has special training in the dynamics of sexually abusing families and the behavior of sexually abused children. Even though defendant did not question Crook’s qualifications, we determine that an adequate foundation was presented by the State to establish his expertise. The defense contends that the conduct of E.H. at a later date was not relevant and Crook’s testimony was also not relevant. We disagree.

As stated in People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355, 1365, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618:

“Relevant evidence is that having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without such evidence.”

Neither the State nor defendant has cited authorities specifically holding that a bizarre acting out in a sexually related manner by a young boy can be used as evidence of the child’s being sexually molested. However, we have recently held that the evidence of rape-trauma syndrome can be used in the State’s case in chief. (People v. Douglas (1989), 183 Ill. App. 3d 241, 256-57, 538 N.E.2d 1335, 1344.) The battered-woman syndrome was recognized admissible as evidence in People v. Minnis (1983), 118 Ill. App. 3d 345, 357, 455 N.E.2d 209, 217. In Server, the expert witness was allowed to describe the rape-trauma syndrome. The Server witness was asked if the behavior of the child victim was consistent with the model normally known as the victim of child sexual assault. She testified that the child exhibited no behavior inconsistent with that model. (See Server, 148 Ill. App. 3d at 897, 499 N.E.2d at 1025.) Other legal studies are recognizing that certain conduct indicates the sexually abused child syndrome. (See Comment, The Admissibility of Expert Testimony in Intrafamily Child Sexual Abuse Cases, 34 UCLA L. Rev. 175 (1986) (authored by Elaine R. Cacciola.) The expert witness testifying in Server stated behavioral disorders indicating sexual abuse, among other things, “may include problems at school, and writing things that may not have been appropriate for that child previously.” Server, 148 Ill. 3d at 896, 499 N.E.2d at 1025.

We conclude, in the absence of any objection to Eric Crook’s qualifications or objections to the hypothetical question, that the evidence of E.H.’s bizarre conduct and the opinion by Crook were properly introduced and were relevant to the issue of whether E.H. had been sexually abused.

Where the testimony of a victim of a crime of child sexual abuse is not clear and convincing, it must be substantially corroborated by some other factual evidence or circumstances. (Server, 148 Ill. App. 3d at 895, 499 N.E.2d at 1024; People v. Leamons (1984), 127 Ill. App. 3d 1056, 1067, 469 N.E.2d 1137, 1145.) We find the evidence by J.H. relating his brother’s complaints, the existence of the defendant being alone with the victim, and the evidence of E.H.’s bizarre conduct, taken with Crook’s expert opinion, provided sufficient corroborating evidence to sustain the conviction. The defendant’s conviction should be affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    MILLERS MUTUAL INSURANCE ASSOCIATION OF ILLINOIS, Plaintiff-Appellant, v. AINSWORTH SEED COMPANY, INC., et al., Defendants-Appellees (Cigna Companies et al., Defendants).
    Fourth District
    No. 4—89—0087
    Opinion filed September 28, 1989.
    Modified on denial of rehearing March 28, 1990.
    William F. Costigan, of Costigan & Wollrab, RC., of Bloomington, for appellant.

      William L. Hatch and Arnold F. Blockman, both of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal is from a summary declaratory judgment determining a liability insurer has a duty to both defend and indemnify its insureds in regard to pending litigation. The principal legal question involved concerns the matters which may be considered in determining whether a duty to defend is shown, i.e., whether the question of that duty should be determined entirely upon the basis of the terms of the insureds’ policy and the allegations of the complaint in the pending litigation. We conclude that extrinsic facts may be considered as long as they do not bear upon issues in the underlying litigation. After considering such extrinsic information as was before the trial court at the time of the hearing on the summary judgment issue, we reverse the judgment on appeal.

On August 3, 1987, plaintiff Millers Mutual Insurance Association filed a complaint in the circuit court of Champaign County against others seeking a declaration as to its obligations under a policy of liability insurance it issued insuring defendants Ainsworth Seed Company, Inc. (ASC), R. Clayton Ainsworth, and their employees, in regard to litigation brought against those defendants and others in the circuit court of Mason County by defendant Sophia Cross. Plaintiff filed a motion seeking a summary judgment declaring it had no duty to defend or indemnify defendants ASC, Edmund Nunn, R. Clayton Ainsworth, or Frank Short. Later, the foregoing defendants filed a countermotion for a summary judgment declaring plaintiff was required to defend and indemnify them. On December 30, 1988, the court granted defendants’ motion and denied plaintiff’s motion. Plaintiff has appealed.

No dispute exists that plaintiff issued a policy of general liability insurance covering a period from July 1, 1985, to July 1, 1986, with ASC and R. Clayton Ainsworth as named insureds and with employees of ASC and R. Clayton Ainsworth also covered. Nor do the parties dispute that Nunn and Short are such employees. The complaint and amended complaint in the Mason County case brought by Cross allege she was injured on September 27, 1985, a date within the time frame of the policy which covers liability for personal injury or property damage occurring within those dates. Plaintiff maintains, however, that the “completed operations hazards” and “products hazards” exclusions of the policy prevent coverage here. On this basis, plaintiff maintains the circuit court erred in declaring plaintiff was required to defend and indemnify the various defendants and should have declared plaintiff had no such duties.

Copies of the complaint and amended complaint of Cross in the Mason County case are attached to both motions for summary judgment. As to ASC, the complaint alleges (1) prior to September 27, 1985, ASC was in the business of designing, manufacturing, installing, and servicing various machinery and equipment; (2) prior to that date ASC “designed, manufactured, sold, and installed” certain equipment “at the premises of De Kalb Pfizer Company (Pfizer) or its predecessor” on “Highway 10” in Mason County; (3) on or about the above date, Cross was employed by Pfizer and was using the aforesaid equipment when she was injured; (4) ASC was negligent in the design, installation, and construction of the foregoing equipment; and (5) that negligence was a proximate cause of the injuries to Cross.

The counts against Ainsworth, Nunn, and Short differ from those against ASC in that those counts charged those three defendants with negligently “designing, assembling, installing, or constructing” equipment for “Ainsworth Seed Company or its successors” with the “premises” involved being those “located at Highway 10, Mason County, Illinois.” Otherwise, the same negligence with resulting injury to Cross while she was working there for Pfizer was alleged.

The confusion in the pleadings in the Mason County case is explained, to some extent, by the undisputed affidavit of R. Clayton Ainsworth which was presented to the court at the time of the hearing on the motion for summary judgment. In that document, he stated (1) a corn-sorting system was the equipment Cross was using when she was injured; (2) in 1969, when that system was installed, he, Nunn, and Short were employed by a firm also known as Ainsworth Seed Company and the system was installed in a “sorting building” owned by that firm; (3) through various name changes and mergers, that Ainsworth Seed Company became known as Pfizer Genetics, Inc., which has joined with De Kalb Corporation to form a partnership called De Kalb Pfizer Genetics; (4) it owns the building where the sorting system was being used and the “business” which was operating the system; and (5) the present defendant ASC was not begun until 1972 and has never owned or operated the sorting system or the premises upon which it sits. Ironically, plaintiff now relies upon the facts set forth in that affidavit to show the existence of facts establishing the completed-operations exclusion of the policy.

We first consider whether plaintiff owed a duty to defend. A general rule is recognized that the obligation of an insurer to defend an action brought against its insured must be decided by comparing the allegations of the complaint against the insured with the terms of the policy. (Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) In some jurisdictions, this rule has not been followed when actual facts known to exist negate the duty to defend. (44 Am. Jur. 2d Insurance §1410, at 353-55 (1982).) In Thornton, the court stated the duty to defend was determined by the allegations of the complaint even if it were shown those allegations were not true, but drew an exception to the rule when the evidence showed collusion between the insured and the party suing the insured.

Plaintiff called our attention to the case of Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301, 461 N.E.2d 471. There, in a carefully drafted opinion, the Appellate Court for the First District held that in determining the duty of a liability carrier to defend an insured, a court may look beyond the allegations of the complaint in the underlying suit. However, that court held no consideration could be given to factual matters which might be relevant to issues in the underlying litigation. The Envirodyne court explained it had been unable to find any other Illinois case holding that matters outside the allegations of the underlying complaint could be so considered. The court then noted that in Mid America Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App. 3d 1121, 441 N.E.2d 949, matters not set forth in a complaint in an underlying suit had been considered in a similar declaratory judgment action to determine the questions of obligation to defend without the propriety of that consideration being raised. The Envirodyne opinion also noted Thornton had permitted consideration of facts not set forth in the underlying complaint under the special circumstances of that case.

In Envirodyne, an engineering firm was sued under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) for personal injuries received by a workman on a construction project. The engineering firm performed work on the project. The firm’s insurer sought a declaratory judgment relieving it of liability to defend the action based upon a provision of the policy which excluded coverage for liability arising from consulting services. The appellate court held the trial court could properly consider extrinsic evidence of the nature of services performed by the engineering firm and could properly determine these services were entirely of a consulting nature. That court deemed the nature of those services to be immaterial in the underlying case where the possibility of liability of the engineering firm would depend upon the question of ‘whether it was in charge of the work.

We find the Envirodyne opinion persuasive. Accordingly, we examine the allegations of the underlying complaint, the Ainsworth affidavit and the terms of the policy issued by plaintiff in the light of the theory of that case.

The instant policy defines the “completed operations hazards” in these words:

“ ‘Completed operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.
The completed operations hazard does not include bodily injury or property damage arising out of
(a) operations in connection with the transportation of property, unless the bodily injury or property damage arises out of a condition in or on a vehicle created by the loading or unloading thereof,
(b) the existence of tools, uninstalled equipment or abandoned or unused materials, or
(c) operations for which the classification stated in the policy or in the company’s manual specifies ‘including completed operations.’ ” (Emphasis added.)

In the underlying suit, the heart of the complaint is the allegation charging ASC and its employees with designing, manufacturing, selling, and installing the “sorting system” to Pfizer or its successor and being negligent in the process. Absent other factors, this allegation would clearly show a duty on plaintiff to defend. However, the Ainsworth affidavit sets forth that prior to the injury to Cross, ASC had merged with another firm and, then, a partnership was formed which then owned the land, building, and fixtures which included the “sorting system” and continued that operation. Thus, the affidavit conclusively set forth that at the time of the injury to Cross, (1) “all operations to be performed by or on behalf of the named insured [ASC] at the site of the operation [had] been completed”; and (2) the injury occurred “away from premises owned by or rented to the named insured.” As any alleged liability of ASC and its employees is based on conduct which ended with the installation of the “sorting system,” subsequent occurrences covered by the Ainsworth affidavit would have no bearing on the liability of ASC and its employees. Accordingly, the foregoing matters, extraneous to the underlying complaint, constituted information to be considered in determining plaintiffs duties under the policy.

The Ainsworth affidavit also stated ASC, a defendant in the underlying suit, is not the same corporation as that of the same name which designed, manufactured, sold or installed the sorting equipment involved here. If that is correct, ASC cannot be held liable in the underlying case. However, if ASC is liable under the stated charges, such liability could only arise under circumstances whereby the “completed operations hazards” exception excludes coverage by plaintiff. Accordingly, we hold that exception is in effect here and relieves plaintiff of the obligation to defend under the policy in question here.

No necessity exists to determine whether an insurer has the duty to indemnify unless and until a judgment is obtained against the insured. Nevertheless, where, as here, the record indisputably shows any recovery against the insured would arise under circumstances whereby coverage is negated by the “completed operations hazard” exclusion of the policy, the insurer can never be under a duty to indemnify unless the allegations of the underlying complaint are changed. Plaintiff should also be released from the liability to defend.

If, at any time, plaintiff in the underlying case is ever permitted to amend her complaint in such a way as to (1) make her alleged cause of action subject to coverage under the instant policy, or (2) to put in issue in the underlying case, matters which are borne upon by allegations of the Ainsworth affidavit used to show the “completed operations” exclusion is applicable here, ASC and its employees will be entitled to new consideration of the question as to whether plaintiff has a duty to defend or indemnify. But, based on the present underlying allegation, the summary judgment appealed must be set aside.

The summary judgment against plaintiff is set aside and the cause is remanded to the circuit court of Champaign County with directions to enter summary judgment in favor of plaintiff finding it under no duty to defend or indemnify ASC, R. Clayton Ainsworth, or employees of ASC.

Reversed and remanded with directions.

LUND and KNECHT, JJ., concur.


author: JUSTICE McCULLOUGH JUSTICE GREEN,

text:
    RAYMOND WAYNE HALLOCK et al., Plaintiffs-Appellants, v. ROBERT W. WEAR et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0361
    Opinion filed February 22, 1990.
    Rehearing denied April 4, 1990.

      Thomas H. Piper and L.K. Hubbard, both of White Hall, for appellants.
    Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., of Jacksonville, and James W. Day, of Carrollton (Forrest G. Keaton, of counsel), for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs Raymond Wayne Hallock and Freda E. Hallock brought an action against the defendants Robert W. Wear and James R. Wear, seeking a declaratory judgment for an easement by implication on defendants’ property and damages for its destruction by defendants. Defendants filed a third-party action against Lillian E. Hamilton and Sterling M. Shafer, executors of the estate of Nellie Pearl Shafer (hereinafter estate), the previous owner of the parcels now owned by plaintiffs and defendants. Following a bench trial on count I, the trial court entered judgment for the defendants, finding plaintiffs failed to prove an easement by implication was intended by the estate. Plaintiffs appeal the judgment entered for defendants on count I, and allege the trial court erred (1) in finding an easement for water would be highly convenient and beneficial but not necessary, and (2) in considering the intent of the estate as expressed after the sale of the property to plaintiffs and defendants. Defendants filed a motion in this court to dismiss this appeal, alleging this court lacks jurisdiction to hear the appeal. This motion was ordered taken with the case. For the reasons that follow, we affirm the trial court.

Plaintiffs and defendants are owners of two parcels of land in Greene County, Illinois. Both parcels were formerly owned by Nellie Shafer, who died in 1984. The executors of her estate, Sterling Shafer and Lillian Hamilton, sold the parcels to plaintiffs and defendants at public auction on February 1, 1985. The notice of auction sale stated the parcels were offered for sale “subject to all private and public roadways and easements.” Plaintiffs acquired the parcel situated to the east of defendants’ parcel. The parcels are separated by a road known as Bluff Blacktop Road. Defendants’ parcel (west) is mostly flat and contains a silo and a “sandpoint.” Plaintiffs’ parcel (east) has a hilly terrain and includes a residence.

On October 4, 1985, plaintiffs filed a three-count complaint against defendants, seeking a declaratory judgment and damages. Plaintiffs alleged that at the time of the sale and for 25 years prior thereto, a sandpoint with a pressure tank, pump and motor was situated on a portion of defendants’ property; that an underground waterline, along with electrical connections, extended from defendants’ property beneath the road dividing the two tracts and was attached to a water hydrant and other water outlets on plaintiffs’ property; and the sandpoint and related equipment had, for many years prior to the sale, provided a source of water for plaintiffs’ parcel. Plaintiffs alleged defendants knew, at the time of the sale, or immediately subsequent thereto, that the sandpoint provided a source and supply of water for plaintiffs’ parcel. Plaintiffs further alleged defendants removed the sandpoint, pump, and electrical connections subsequent to the sale without plaintiffs’ approval or consent. In count I, plaintiffs requested a declaratory judgment that they acquired an easement by implication on defendants’ parcel at the time of the sale, and that defendants be required to replace the sandpoint and all equipment removed after the sale. In count II, plaintiffs requested $10,000 in compensatory damages. In count III, plaintiffs requested $10,000 in punitive damages'.

Sterling Shafer testified in a discovery deposition and at trial. Shafer owned both parcels from 1948 until 1952, when he sold the parcels to his parents. While Shafer owned the parcels, he put a sand-point in on the west parcel to wet down a silo on the west parcel. Shafer testified at trial that a waterline from the sandpoint to the east parcel was installed after he sold the parcels to his parents. Sha-fer had earlier testified in his deposition that he installed the waterline from the sandpoint to the hydrants on the east parcel. Shafer stated there were a well and springs on the east parcel which adequately supplied water for the east parcel. Shafer stated he did not mention the sandpoint and its tie to the east parcel to the plaintiffs, defendants, or auctioneer prior to the sale on February 1, 1985. Sha-fer stated the waterlines running from the sandpoint to the east parcel were “strictly for standby” and the sandpoint was never used to supply water for the east parcel while he lived there from 1948 to 1952.

Lillian Hamilton also testified in a discovery deposition that she never discussed the sandpoint with the plaintiffs or defendants prior to the sale. She stated she did not remember discussing the sandpoint at the first closing on March 19, 1985. Hamilton further testified the springs in the hills on the east side provided plenty of water for the cattle her husband raised on the east parcel in the 1950’s.

Hugh Strickland, attorney for the estate, testified at trial he was unaware of the sandpoint at the time the advertisement for the auction sale was prepared. The advertisement did not indicate the east parcel would receive water from the west parcel. Strickland stated the estate’s intent regarding the water from the sandpoint was raised for the first time at the closing on defendants’ parcel on March 19, 1985. Strickland testified defendants asked about the sandpoint on March 19, and he responded his title search did not reveal any easements of record.

The defendants testified as adverse witnesses for the plaintiffs. Defendants testified that because the electrical lines running from the pump over the sandpoint to the east parcel were noticeable, no discussion of the sandpoint was raised at the auction. Robert Wear testified he and his brother James were told two weeks prior to the sale that whoever bought the east parcel had to make arrangements for water. Both Robert and James Wear testified they did not speak to the executors of the estate prior to the sale. James Wear stated he talked to Robert Shafer, brother of the executors, about the sandpoint prior to the sale.

James Wear testified the plaintiffs telephoned him regarding the sandpoint after the sale and prior to the closing on March 19, 1985. James testified he told plaintiffs the issue would be discussed at the closing. James stated the sandpoint issue was discussed for the first time at the March 19 closing for defendants’ parcel. Plaintiffs were not present at this closing. James stated the sandpoint was removed within one week following the March 19 closing, after Strickland and Sterling Shafer told defendants there was no easement of record for water to the east parcel. James Wear testified Sterling Shafer told him there was plenty of water on the east parcel and, therefore, he could pull out the sandpoint. James also testified the electrical poles supporting the electricity for the pump over the sandpoint were removed prior to the sandpoint’s removal.

Helen R. Martin, former wife of Sterling Shafer, testified she and Shafer purchased both parcels at the same time in 1948 and lived in the house on the east parcel from 1948 to 1953. Martin testified because there was not enough water for the house on the east parcel during this time, a sandpoint was installed in 1950 on the west parcel. After the sandpoint was installed, Martin testified there was plenty of water for everything, the house and livestock. Prior to the installation of the sandpoint, Martin testified the spring west of the house on the east parcel dried up. After the sandpoint was installed, hydrants were installed on the east parcel.

Robert Wear, Sr., testified he participated with his sons in the bidding at the auction for the west parcel. He testified water rights for the east parcel were mentioned for the first time one week before the closing on March 19, 1985. He testified the pump for the sandpoint was taken out on February 12, 1985, the day Robert Shafer sold some of his equipment on the west parcel. Robert Shafer lived on the west parcel from 1961 to 1985. The electricity for the pump on the sand-point came from the house on the east parcel. Robert Wear, Sr., also stated Strickland told the defendants they did not have to supply water for the plaintiffs’ parcel. He also stated plaintiffs complained to him that they could not get any water at their house for their cows.

Wayne Hallock testified defendant Robert Wear told him after the equipment sale on February 12, 1985, that he (Robert Wear) would remove the sandpoint in two to three years and then Hallock would have to find another source of water. At that time, Hallock testified Robert Wear did not mention he had already removed the pump for the sandpoint. Hallock tested his water supply on the east parcel, which comes from a spring, and determined the pump generates about 60 gallons of water per hour. He stated the pump stops once or twice when it is pumping continuously. In the space of IW to 5 hours, Hallock was able to pump 250 gallons into a 1,000-gallon tank. Hal-lock reported that due to the pump stopping and starting, when using the shower in the house, “you could get scalded with hot water.”

Hallock testified that, other than the spring, he occasionally gets some water from a stream after it has rained. Hallock stated he trucked in water for the 10 to 15 head of cattle he raised instead of using the pump at the house because, when using the house water, he could not water the cattle all at once. Hallock stated he did not raise the sandpoint issue at the auction because he presumed there would be plenty of water for the east parcel with the spring and the sand-point. Hallock stated his pump in the basement of the house on the east parcel is connected to the hydrant at the cattle pen on his parcel and to the waterline running east to the sandpoint. Hallock further testified the sandpoint line is a source of drinking water for his house.

Robert Shafer testified water from the east parcel is supplied by springs. He stated the sandpoint was used for livestock, but never for the house because that water was not fit for human consumption. He stated he raised 50 to 60 head of cattle while he lived on the property from 1961 to 1985. He also stated the springs on the east parcel were sufficient to supply water for the cattle. One spring is located behind the house and two other springs are located in the bluffs behind the house. The cattle drink from the spring bluffs when pasturing there and get water from the sandpoint when pasturing near the house. Robert Shafer testified he and his parents tried to pump the spring dry in 1953 but could not. He had not checked the spring since then because there had not been a problem in getting enough water for the east parcel.

Robert Shafer testified his cattle pastured on the west parcel in the winter and it was then when the sandpoint was used for the livestock. Robert Shafer testified he talked to the plaintiffs and defendants before the sale on February 12, and told all of them that whoever bought the east parcel would have to make arrangements to use the sandpoint water. Robert Shafer also told plaintiffs they really did not need water from the sandpoint. He also testified the sandpoint pipe had been replaced several times since it was first installed in 1950.

The deeds for plaintiffs’ and defendants’ parcels included general language for easements of record, but made no mention of the sand-point or water rights for the east parcel.

On August 5, 1988, the trial court entered judgment for the defendants on count I. Plaintiffs’ post-trial motion was denied on March 31, 1989. On May 23, 1989, the trial court amended its March 31 order nunc ‘pro tunc to include findings under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

We first address defendant’s motion to dismiss this appeal. Defendants maintain this court is without jurisdiction to hear the appeal for lack of a final and appealable order. Defendants argue the March 31, 1989, order was not final and not appealable because no Rule 304(a) findings were then entered. Defendants argue Supreme Court Rule 304(a) applies to this case because plaintiffs sought multiple claims for relief and the March 31, 1989, order concerned only one claim and left open motions and a third-party complaint in the trial court. Defendants contend the trial court’s actions on May 23, 1989, to amend the March 31, 1989, order nunc pro tunc were ineffective to provide this court with jurisdiction over this appeal filed April 28, 1989.

Plaintiffs argue this is not a Rule 304 case because the July 1988 and March 1989 decisions were final and appealable when entered. Alternatively, plaintiffs contend that the trial court’s nunc pro tunc action on May 23, 1989, corrected any mistake or omission in the March 31, 1989, order and, thus, this appeal is properly before this court.

Supreme Court Rule 304 governs appeals in cases involving multiple parties or claims for relief. It provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (107 Ill. 2d R. 304(a).)

A “claim” for Supreme Court Rule 304(a) purposes has been defined as a matter involved in the action which determines a possible right of one party or liability of the other. (Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372.) The supreme court has held that Rule 304(a) findings are not necessary in cases involving multiple claims where a claim is severed from other claims and tried separately. (Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill. 2d 296, 518 N.E.2d 1031.) In Carter, the court stressed severance, for purposes of determining whether Rule 304(a) findings are required before an appeal may be taken, should be accomplished under section 2 — 1006 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1006).

The supreme court stated:

“The use of Rule 304(a) certification shall be the rule in cases involving judgments as to fewer than all parties or claims. The perfecting of an appeal under Rule 303(a)(1) in such cases must be the exception.” (Emphasis added.) Carter, 119 Ill. 2d at 308, 518 N.E.2d at 1037.

A judgment as to a separately tried issue is not appealable “unless the trial court, in its severance order, clearly and unequivocally states that the claim, counterclaim or the party has indeed been severed.” (Emphasis in original.) Carter, 119 Ill. 2d at 307-08, 518 N.E.2d at 1037.

Plaintiffs contend there was only one claim upon which their action was based and the ruling on count I is final because it terminates the litigation between these parties.

The matters pending in the trial court in this case involve (1) plaintiffs’ claim for damages from defendants for destruction of the easement (counts II and III); (2) plaintiffs’ claim for costs (counts II and III); and (3) a third-party action wherein defendants seek (a) indemnification from the estate for any damages defendants must pay to plaintiffs, (b) reimbursement for attorney fees and costs expended by defendants in defending plaintiffs’ action, and (c) rescission of the sale.

Defendants’ third-party action seeking attorney fees and rescission claims concern the defendants’ own losses and cannot be contained in a third-party action. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 1021, 473 N.E.2d 421, 429.) After eliminating the erroneously pleaded claims from the third-party action, it is clear the third-party action concerns the same issue raised in counts I through III of the plaintiff’s action. In Carter, no issue was raised as to whether the case involved a single or multiple claims. Carter was a multiclaim and multiparty action and thus, came within Rule 304(a).

If a case involves a single claim, Rule 304(a) does not apply. Here, counts II and III of plaintiffs’ complaint are entirely dependent on count I, for if plaintiffs have no implied easement, they are not entitled to damages from defendants. Likewise, the only claim validly raised in defendants’ third-party action — indemnity for damages defendants must pay plaintiffs — is dependent on plaintiffs prevailing on count I. A claim for Rule 304(a) purposes has been defined as a matter in an action which determines the possible right of one party or the liability of the other. (Hise, 116 Ill. App. 3d 681, 452 N.E.2d 372.) In this case, the claim is the implied easement plaintiffs ask for in count I. The trial court determined there is no easement, hence there is no other claim in the trial court. Carter is not violated because there is but one claim.

Finding this is a single-claim case does not run afoul of Supreme Court Rule 301, which governs appeals from final judgments. A judgment is final for appeal purposes if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483.) It has also been stated that in order to determine whether an order is “final,” the substance and effect of the adjudication are determinative. (Altschuler v. Altschuler (1948), 399 Ill. 559, 570, 78 N.E.2d 225, 231.) “A decree *** may so completely adjudicate the rights of the parties as to constitute a final and appealable order.” (Altschuler, 399 Ill. at 570, 78 N.E.2d at 231.) The judgment entered on March 31, 1989, was final and immediately appealable. The notice of appeal dated April 28, 1989, vested this court with jurisdiction to hear the appeal. Accordingly, we deny defendant’s motion to dismiss this appeal and now consider the merits of the appeal.

The trial court found plaintiffs did not meet their burden of proof in establishing, by clear and convincing evidence, the existence of an implied easement. The trial court stated the evidence established the sandpoint water would have been convenient and beneficial but did not rise to a level necessary for an implied easement. Specifically, since the evidence established the east tract had other sources of water, the sandpoint was not necessary for the east parcel.

Easements by implication relate to a prior or existing use of land by a landowner. They arise when the owner of one tract of land or of two or more adjoining parcels sells a portion and, prior thereto, one portion derived a benefit or advantage from the other portion, which benefit was of an apparent, continuous, and permanent nature. (Granite Properties Ltd. Partnership v. Manns (1987), 117 Ill. 2d 425, 437, 512 N.E.2d 1230, 1236.) The doctrine of implied easements is based on the principle that a conveyance of property, in the absence of an express grant, imparts all the benefits and burdens which exist at the time of the sale and is designed to give effect to the actual intent of the parties as shown by the facts and circumstances of the particular case. Frantz v. Collins (1961), 21 Ill. 2d 446, 449, 173 N.E.2d 437, 439.

The essential elements for an implied easement from a preexisting use are: (1) common ownership of the dominant and ser-vient parcels followed by a separation of title; (2) before the separation, the common owner used part of the united parcel for the benefit of another part and this use was continuous, obvious, and permanent; and (3) the claimed easement is beneficial and necessary to the enjoyment of the parcel conveyed or retained. (Granite, 117 Ill. 2d at 437, 512 N.E.2d at 1236; Sheehan v. Sagona (1958), 13 Ill. 2d 341, 345, 148 N.E.2d 795, 797.) Plaintiffs seeking an easement by implication must establish by clear and convincing evidence that at the time of the severance of title, the easement was in existence and was intended to be permanent. (Seiber v. Lee (1987), 158 Ill. App. 3d 361, 369, 511 N.E.2d 1296, 1301.) On review, a court will not disturb the findings of a trial court as to proof of the conditions of an implied easement unless they are against the manifest weight of the evidence. Seiber, 158 Ill. App. 3d at 369, 511 N.E.2d at 1301-02.

Plaintiffs argue they sufficiently proved the three elements of an implied easement. Plaintiffs agree with defendants that easements will not be implied where the evidence established that the parties did not intend it. However, plaintiffs strenuously disagree with defendants as to when in time the parties’ intent to create an implied easement must exist. Plaintiffs submit that point is when the rights and obligations of the purchasers and sellers become fixed so that neither party by unilateral action could alter or modify them. Plaintiffs rely on Walters v. Gadde (1945), 390 Ill. 518, 62 N.E.2d 439, Carter v. Michel (1949), 403 Ill. 610, 87 N.E.2d 759, and Sheehan, where the supreme court stated such easements are created at the time of sale. Plaintiffs maintain that time was February 1, 1985, the day of the auction.

Defendants argue the correct point in time is when the severance of ownership occurs due to a conveyance. The first conveyance occurred in this case on March 19, 1985, and according to the defendants, the estate’s expressions of intent at that time are important.

The time between the auction and the first conveyance by deed in this case is important because it was after the auction that plaintiffs and defendants first discussed the sandpoint among themselves. The issue was raised with the executors for the first time at the March 19 closing. Then, the executors stated they did not intend for an easement for plaintiffs and, therefore, defendants did not have to supply water for plaintiffs’ parcel.

The supreme court cases discussing easements by implication appear to use the terms “sale” and “conveyance” interchangeably. In Sheehan, the supreme court stated the purchaser from a common owner of a portion of a tract of land “takes the portion sold with all the benefits and burdens which appear, at the time of sale, to belong to it.” (Emphasis added.) (Sheehan, 13 Ill. 2d at 345, 148 N.E.2d at 797.) Similarly, in Walters, the court stated that the moment a severance occurs by sale of a part, easements are created which correspond to the benefits and burdens mutually existing at the time of the sale. (Walters, 390 Ill. at 521, 62 N.E.2d at 441.) Further, the court stated:

“ ‘The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right by altering arrangements then openly existing, to change materially the relative value of the respective parts. [Citation.]’ ” Walters, 390 Ill. at 521, 62 N.E.2d at 441, quoting Bihss v. Sabolis (1926), 322 Ill. 350, 153 N.E. 684.

Accord Carter, 403 Ill. 610, 87 N.E.2d 759.

The supreme court in Granite stated the inference for implied easements “is drawn from the circumstances surrounding the conveyance alone.” (Emphasis added.) (Granite, 117 Ill. 2d at 437, 512 N.E.2d at 1237.) The supreme court in Granite cited to the Restatement of Property, where the term “a conveyance” is also used. Granite, 117 Ill. 2d at 438, 512 N.E.2d at 1237, citing Restatement of Property §474 (1944).

“Conveyance” is defined as an instrument by which some estate or interest in land is transferred from one person to another, such as a deed, mortgage, et cetera (Black’s Law Dictionary 301 (5th ed. 1979)). “Sale” is defined as “[a] contract between two parties *** by which the [seller], in consideration of the payment or promise of payment of a certain price *** transfers to the [buyer] the title and the possession of property.” (Black’s Law Dictionary 1200 (5th ed. 1979).) In the present case, no written document appears to have been prepared after the auction and before the first conveyance by deed.

We conclude plaintiffs’ argument ignores the essence of implied easements. Such easements arise as an inference of the intention of parties to a conveyance of land. As noted by the supreme court in Granite, the inference comes about in those cases where the parties “had not thought or had not bothered to put the intention into words, or to parties who actually had formed no intention conscious to themselves.” (Granite, 117 Ill. 2d at 437, 512 N.E.2d at 1237.) Here, the evidence established the parties engaged in several discussions after the auction and before the first conveyance on the subject of the sandpoint. Further, there is no dispute that until the conveyance on March 19, the unity of ownership for these two parcels remained with the executors, who expressly disavowed any intent to create an easement in plaintiffs’ favor. We find plaintiffs’ attempt to separate the circumstances which occurred up to the time of auction from what occurred thereafter unsupportable.

We conclude the circumstances of the entire transaction must be examined to determine the parties’ intent. The evidence established that prior to February 1, 1985, the east parcel used the sandpoint for watering livestock. However, Sterling Shafer testified he installed the sandpoint as only standby water for the east side. Both he and Robert Shafer testified that when they lived in the house, there was plenty of water for the household and livestock without the sandpoint. These statements were contradicted by Helen Martin, who also lived in the house some 40 years previous to 1985 and who remembered the supply of water in the house was insufficient.

The evidence also established the sandpoint was connected by underground waterlines to two or three hydrants on the east parcel and the sandpoint pump was powered by electricity from the house on the east parcel. Other sources of water exist on the east parcel, and plaintiffs testified they do receive water from these sources for their livestock and house.

The supreme court in Granite stated the level of “necessity” required for implied easements, where prior use supports an inference of the parties’ intent, is known as reasonable necessity. As stated in the treatise, American Law of Property, quoted with approval by the Granite court:

“ ‘[A] use is reasonably necessary when it is reasonably convenient to the use of the land benefited. *** The more pronounced a continuous and apparent use is, the less the degree of convenience of use necessary to the creation of an easement by implication.’ ” Granite, 117 Ill. 2d at 440-41, 512 N.E.2d at 1238, quoting 2 American Law of Property §8.43 (A.J. Casner ed.) (1952).

Plaintiffs rely on the Frantz case for their proposition that the sandpoint is necessary for the east parcel. There, the common grantor dug a well on the property line between his two adjoining parcels and inserted a “T” valve in order to supply water to both parcels. Later, after one parcel was sold, it was discovered the well was located entirely on defendant’s parcel. Defendant in Frantz then disconnected the water supply from plaintiffs’ parcel. The Frantz court affirmed the trial court’s finding of an implied easement in view of the evidence of the intent of the common grantor and the fact that the plaintiffs’ parcel had no alternate water supply. Thus, the use of the well by plaintiffs in Frantz was highly convenient, beneficial and necessary.

Frantz is inapposite to this case because, here, plaintiffs have an alternate source of water on the east parcel. Moreover, in Frantz, the common grantor’s expressed intent at the time of digging the well to benefit both parcels supported the implied easement. Here, the estate’s expressed intent prior to the conveyance by deed negates the existence of implied easement. This distinction between the Frantz case and the present case was noted by the trial court in its decision.

There is no dispute the sandpoint benefitted the east parcel from 1950 to 1985. The trial court, however, found the evidence did not clearly and convincingly support the plaintiffs’ claim the sandpoint was necessary. We believe the express statements of the executors support the nonexistence of an implied easement. The necessity evidence is closely balanced. As a reviewing court, the conclusion of the trial court will not be reversed unless it is against the manifest weight of the evidence. We conclude it was not and, therefore, affirm the trial court.

Affirmed.

KNECHT, P.J., concurs.

JUSTICE GREEN,

dissenting:

Although the question of our jurisdiction is a technical one and presents a somewhat close question, I cannot agree we have jurisdiction of this appeal. As the majority has explained, the problem arises because the circuit court entered judgment only as to count I, which sought a declaration of the existence of an easement, and did not rule (a) upon counts II and III, which sought compensatory and punitive damages respectively for a violation of the easement, or (b) upon the third-party complaint.

If we could treat the judgment of the circuit court as to count I as a judgment disposing of the other counts and the third-party complaint, we would have no problem. I am unable to construe the judgment in that way, however, as the court’s order of May 24, 1989, expressly stated entering judgments on those counts was unnecessary. Thus, even assuming counts II and III would be barred under the doctrine of res judicata, which includes collateral estoppel, and assuming the third-party complaint was improperly joined, those counts and the third-party complaint are still pending. A judgment, though erroneously entered on any of them, might not be subject to collateral attack. The heart of my disagreement with the majority is that I do not agree we can disregard those counts and the third-party complaint because they should be dismissed.

If we deem the case to be one for a single claim, the pendency of the two counts and the third-party complaint prevents the order from which appeal is sought from being an order final as to the entire case and thus appealable pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301). The treatment given by the circuit court to count I does not meet the requirement of Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill. 2d 296, 518 N.E.2d 1031, to be treated as a case separate from counts II and III and the third-party complaint. In order for such a situation to exist, an order of the circuit court would have to have been entered “clearly and unequivocally [stating] that the claim, counterclaim or the party [here, count I] [had] indeed been severed (in the narrow sense of that word) and that the severed claim, counterclaim or party shall proceed thereafter separate” from the rest of the case. (Emphasis in original.) (Carter, 119 Ill. 2d at 307-08, 518 N.E.2d at 1037.) No such order was entered here.

If the case is to be treated as a multiclaim case, clearly a timely finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) is necessary to make the order which was final only as to count I ap-pealable. Plaintiffs seek to supply that requirement by the circuit court order entered on May 23, 1989, purporting to be nunc pro tunc as of March 31, 1989, a date less than 30 days prior to the filing of the notice of appeal on April 28, 1989. Under Supreme Court Rule 329 (107 Ill. 2d R. 329), a trial court record may be amended to properly show the existence of an order, intended to have been entered at an earlier date, without the formalities traditionally required for entry of a nunc fro tunc order. However, the order, to be entered, must be one intended to be entered at the date shown on the record. (People v. Chitwood, (1977), 67 Ill. 2d 443, 367 N.E.2d 1331; People ex rel. Willett Motor Coach Co. v. Board of Education (1988), 171 Ill. App. 3d 166, 524 N.E.2d 1155.) The circuit court’s order of May 23, 1989, makes clear that the Rule 304(a) finding contained in that order had not been intended to be entered upon March 31, 1989, or any prior date. Rather, the May 23 order indicates the Rule 304(a) finding had not been made previously, but was designated as being entered on March 31, 1989, in an attempt to solve the existing procedural maze by giving appealability to the order dismissing count I.

In Carter, the supreme court was very careful to adhere to strict rules in permitting appeals in cases where some matters were left undecided. The court emphasized the necessity of discouraging piecemeal appeals. The opinion pointed out that, where uncertainty exists as to whether appeal is required at a stage where matters are left undecided, counsel will often attempt unnecessary appeals to be sure to preserve issues. The situation here is one where allowance of appeal would appear to be fair. However, the majority is creating a rule disregarding pending counts on the basis they have no merit after the decision from which appeal is sought and disregarding a pending third-party complaint on the theory it is improperly joined. Such a rule may create undue confusion.

As I deem the order from which appeal is sought failed to qualify for appeal under either Supreme Court Rule 301 or Rule 304(a), I would dismiss the appeal.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL GUSTAFSON, Defendant-Appellant.
    Second District
    No. 2—88—0994
    Opinion filed March 6, 1990.
    Rehearing denied April 3, 1990.

      Carl M. Walsh and Martin S. Gerber, both of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Michael Gustafson, appeals from his conviction of operating a motor vehicle with a breath-alcohol concentration in excess of .10 in violation of section 11 — 501(a)(1) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(1)). Defendant raises three issues on appeal. Defendant first argues that his second trial and ultimate conviction were barred by the double jeopardy clauses contained in both the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). Defendant also argues that sections 11 — 501.2(a)(5) and 11 — 501(a)(1) of the Code are unconstitutional because they are based on a faulty scientific premise and therefore are not rationally related to the legislative purpose underlying the drunk-driving statutes. With regard to the latter Code section, defendant further asserts its unconstitutionality, claiming that it violates constitutional guarantees of due process and proportionality of punishment because persons who are convicted of driving with a breath-alcohol concentration of .10 are subjected to the same punishment as persons who are convicted of “driving under the influence” in violation of section 11 — 501(a)(2) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(2)). Lastly, defendant argues that he was not proved guilty of driving with a breath-alcohol concentration in excess of .10 beyond a reasonable doubt. We reject defendant’s constitutional challenges and affirm his conviction.

Prior to trial, defendant made a motion in limine to preclude the State from presenting evidence and testimony about the horizontal gaze nystagmus test. The court granted defendant’s motion, and the trial commenced on May 11, 1988. The State’s first witness, Officer Kevin Sullivan, took the stand and testified to the events surrounding defendant’s arrest for drunk driving on February 14, 1987. He stated that the first test he administered to defendant was the horizontal gaze nystagmus test. Defendant immediately moved for a mistrial, which the court denied; however, in chambers the court admonished the prosecutor that such testimony had already been excluded pursuant to defendant’s motion in limine and that it was the prosecutor’s responsibility to prepare his witnesses properly so as to avoid any mention of the excluded evidence. Counsel returned to the courtroom, and the trial resumed in the jury’s presence as follows:

“[PROSECUTOR]: Officer, after that test was administered to the Defendant, what was the second test that you administered?
[DEFENSE COUNSEL]: I will object, Judge, and again make the same motion [for a mistrial].”

Following additional discussion in chambers, the court announced that it would grant defendant’s motion for a mistrial, and the jury was discharged. Defendant’s new trial commenced July 26, 1988, and the testimony presented is summarized below.

On February 14, 1987, at approximately 9:30 p.m., Officer Kevin Sullivan of the Burr Ridge police department observed defendant operating a beige Cadillac southbound on 1-55. Officer Sullivan noted that the vehicle drifted from the right to the center lane and failed to signal its movement. He then pulled the car over and approached to observe defendant, who was exiting his automobile. Officer Sullivan testified that defendant stumbled and almost fell. He also observed that defendant’s eyes were bloodshot, he appeared sleepy and his speech was somewhat slurred. Officer Sullivan obtained defendant's driver’s license, asked him whether he had been drinking and requested him to take field sobriety tests. Defendant admitted he had had a couple beers. Officer Sullivan conducted field sobriety tests with defendant on the shoulder of the road. He testified that the area was well lit and the shoulder surface was straight and level. He stated that defendant was unable to complete the one-foot-balance test successfully and did not perform satisfactorily on the heel-to-toe walking test. Officer Sullivan admitted that defendant told him that he had metal rods in his legs. At this point, Officer Sullivan testified that he formed the opinion that defendant was under the influence of alcohol and proceeded to escort defendant to the Burr Ridge police department for a breath analysis.

Officer Sullivan testified to his training and qualification as a breath analysis machine operator and stated that he was certified to operate the Breathalyzer 1000, the breath analysis machine on which he conducted defendant’s breath test. Officer Sullivan explained each step of the testing procedure, including the operational checklist, the 20-minute observation period, the motorist’s warning, etc., and testified that he followed each step. He also testified to the testing and certification of the machine and stated that the machine had been certified as accurate approximately 10 days prior to defendant’s arrest. Officer Sullivan then described in minute detail the certification procedures, the prebreath analysis test warm-up procedures and the pre-parational steps he took to obtain an accurate test of defendant’s breath. He stated that defendant’s test result was .17. Sullivan charged defendant with driving under the influence of alcohol and with driving with a breath-alcohol concentration of .10 or more (Ill. Rev. Stat. 1987, ch. pars. 11 — 501(a)(2), (a)(1)).

On cross-examination, Officer Sullivan admitted that, prior to conducting defendant’s breath analysis test, he had conducted only one previous test between November and February. He also testified to his knowledge that the Department of Public Health allowed a margin of error of .01 in its certification of breath analysis testing machines. He stated that the machine operates on the theory of photoelectric colorimetry. He testified that the test result indicates the equivalent amount of alcohol contained in defendant’s blood. He further stated that to his knowledge the machine relied upon a ratio of 2,100 cubic centimeters of deep lung air to one cubic centimeter of whole blood. The witness stated that his knowledge concerning the operation of the machine came from his 40-hour instruction course in its operation.

Sergeant Albert Zellers of the Burr Ridge police department also testified for the State. He said that he arrived upon the scene of defendant’s arrest and observed defendant’s performance of the field sobriety tests. He corroborated Officer Sullivan’s testimony in this regard and concurred in Sullivan’s opinion that defendant was under the influence of alcohol.

At the close of the State’s evidence, defendant presented his own testimony as well as that of Norman W. Scholes, who qualified as an expert in pharmacology. In his own behalf, defendant rebutted each of Officer Sullivan’s observations concerning his personal appearance and his performance of the field sobriety tests with alternative explanations. He testified that he was a builder and carpenter by trade, and on the date of his arrest, he had put in a long work day which commenced at 7 a.m. and ended at approximately 5 p.m. Thereafter, he had pizza and two beers with co-workers and then returned to his shop to load up a crane for the next work day. On his way home, he recalled changing lanes on 1-55 because he knew his exit ramp came up quickly. Defendant testified that he was pulled over by Officer Sullivan and was asked to perform roadside tests. Defendant stated he attempted to perform the tests but had medical conditions which made such performance difficult for him. These medical conditions included metal rods and screws in his left leg and serious muscle damage in his right leg. Defendant stated that he told Officer Sullivan about these conditions.

Defendant also testified that he wears contact lenses and, after a full day of wearing them, his eyes were irritated and bloodshot. Defendant stated that he was not under the influence of alcohol at the time he was driving his car on 1-55.

Defendant’s expert, Norman Scholes, presented lengthy and detailed testimony concerning his qualifications as an expert in the areas of pharmacology and the effect of toxic chemicals, including alcohol, on human beings. He testified to his familiarity with various breath analysis machines and the technology and theory underlying their operation. He admitted that he had no personal experience with the Breathalyzer 1000. Scholes stated that breath analysis machines do not measure blood alcohol in humans; rather, such machines measure breath alcohol only. Scholes further stated that breath alcohol does not indicate an individual’s intoxication or impairment due to alcohol.

Scholes described the absorption of alcohol in an individual from the stomach and small intestines to the bloodstream and ultimately to the brain cells, where the alcohol acts as an anesthetizing agent. He stated that the greater the concentration of alcohol in the brain cells, the greater the anesthetic level. He then went on to describe the manner in which a human body metabolizes alcohol. According to Scholes, breath analyzing machines throughout the United States operate on a presumption that alcohol in a human being is distributed between liquid (blood) and air (breath) at a given rate. He testified that the ratio of this distribution was determined by forensic toxicologists and scientists at a conference in 1956. He stated that the ratio selected was 2,100:1. This ratio is variously called the distribution ratio, the partition ratio or the coefficient of partition. Scholes opined that the 2,100:1 ratio was no longer considered a valid average for the human population.

Scholes testified to his knowledge and review of various recent studies in current scientific literature which indicate that an appropriate average distribution ratio for human beings is perhaps closer to 2,400:1. He also stated that the studies and literature with which he was familiar indicated that human beings have a range of distribution ratios which vary as widely as 1,100:1 to 3,400:1. He testified that the ratio 2,100:1, relied upon by all breath analysis machines to equate an individual’s breath-alcohol concentration to his blood-alcohol concentration, would lead to readings too high for approximately 8% of the population. He further opined that because breath analysis machines rely on a ratio which does not take into account the variability of the human population, a machine could render a test result up to 53% in error.

The State rebutted Scholes’ expert testimony with the testimony of Daniel J. Brown, then the chief forensic toxicologist for the State of Illinois. Like Scholes, Brown testified to his educational background, his familiarity with breath analysis machines and their underlying theory, and his familiarity and knowledge of scientific studies and literature concerning the distribution ratio of breath-alcohol concentration to blood-alcohol concentration in human beings. He refuted Scholes’ opinion that the 2,100:1 distribution ratio relied upon currently is an inaccurate figure as it relates to the general population. He admitted, however, that the ratio was very much dependent on body temperature and that current scientific literature indicated that the more accurate ratio was probably closer to 2,300:1 or 2,400:1. He pointed out that the ratio 2,100:1, because it is apparently somewhat low, generally provides slightly low readings in terms of a test subject’s true blood-alcohol concentration, thus giving the subject “the benefit of the doubt.”

Brown stated that he had actual hands-on experience with the Breathalyzer 1000 and refuted Scholes’ opinion that it and all breath analysis machines were unreliable. He opined that there was a high degree of correlation between the actual result of breath analysis and subsequent blood analysis in test subjects. Brown stated that he believed the 2,100:1 ratio was applicable to at least 95% of the population.

Both experts testified to their knowledge and familiarity with the studies published by Dr. Kurt Dubowski, and both recognized Dr. Du-bowski as a leading authority in the field of breath analysis in the United States. They further testified to various aspects of Dr. Du-bowski’s studies and gave their own versions of Dr. Dubowski’s opinions concerning the scientific validity of extrapolating blood-alcohol concentration in individuals from their breath-alcohol concentrations and the applicability of the distribution ratio of 2,100:1 to the human population.

Following the close of evidence and the reading of instructions, the jury found defendant not guilty of driving under the influence of alcohol in violation of section 11 — 501(a)(2) but found defendant guilty of operating a motor vehicle with a breath-alcohol concentration of .10 or more in violation of section 11 — 501(a)(1) of the Code. Defendant’s timely appeal ensued.

The issues presented on appeal are: (1) whether the retrial of defendant was barred by double jeopardy; (2) whether section 11— 501.2(a)(5) of the Illinois Vehicle Code is unconstitutional because it is not rationally related to a legislative purpose; (3) whether section 11— 501(a)(1) of the Code is unconstitutional because it lacks a similar rational relationship to a legislative purpose and further violates constitutional guarantees of due process and proportionality of punishment; and (4) whether defendant was proved guilty of operating a motor vehicle with a breath-alcohol concentration of .10 or more beyond a reasonable doubt.

A. DOUBLE JEOPARDY

Defendant asserts that the prosecutor’s second reference to the horizontal gaze nystagmus test, despite the trial court’s clear admonition to the contrary, was intended to goad defendant into moving for a mistrial. Thus, defendant concludes that the prosecutor’s actions constituted deliberate prosecutorial overreaching and double jeopardy barred a second trial. Generally, a defendant’s motion for a mistrial obviates the application of double jeopardy and entitles the State to retry a defendant even though the basis for the mistrial is an error attributable to the State. (See People v. Williams (1984), 130 Ill. App. 3d 11, 14-15, citing Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083.) In Kennedy, the United States Supreme Court stated:

“[W]e do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 679, 72 L. Ed. 2d at 427, 102 S. Ct. at 2091.

Although we do not condone the prosecutor’s failure to prepare his witness properly so as to avoid any mention of the excluded evidence, we do not believe his actions were intended to goad defendant into moving for a mistrial. To the contrary, the prosecutor’s actions appear to be the result of simple inadvertence. We hold that defendant’s retrial was not barred by double jeopardy.

B. CONSTITUTIONALITY OF SECTION 11 — 501.2(a)(5) OF THE CODE

Secondly, defendant contends that there is no rational basis for the definition of breath-alcohol concentration as provided in section 11 — 501.2(a)(5) of the Code, thus making that provision unconstitutional and the results of the breath test inadmissible.

Defendant correctly identifies the constitutional standard applicable to his challenge: statutes not involving fundamental rights will pass constitutional muster if they bear a rational relationship to a legitimate legislative purpose and are neither arbitrary nor discriminatory. (People v. Kohrig (1986), 113 Ill. 2d 384, 397; see also Illinois Norml, Inc. v. Scott (1978), 66 Ill. App. 3d 633, 639.) Further, it is well established that legislative enactments enjoy a strong presumption of constitutionality, and the burden of establishing their irrationality lies squarely on the challenger. People v. Orth (1988), 124 Ill. 2d 326, 334; People v. Inghram (1987), 118 Ill. 2d 140, 146.

The legislative purpose underlying the entire drunk-driving statutory scheme is the promotion of highway safety (see People v. Eckhardt (1989), 127 Ill. 2d 146, 152 (the purpose underlying the statutory definition of “first offender” and the related sentencing statute)), and the specific purpose behind section 11 — 501(a)(1) and the definitional section, section 11 — 501.2(a)(5), is the imposition of strict liability on motorists impaired by alcohol concentrations of .10 or more (People v. Ziltz (1983), 98 Ill. 2d 38, 42). In Ziltz, our supreme court stated that the legislature has determined that an alcohol concentration of .10 constitutes driver impairment, and thus the court concluded that the statute was a rational means to achieve a permissible legislative purpose: curbing the incidence of drunk drivers on Illinois’ highways. Ziltz, 98 Ill. 2d at 43.

The appellate court has previously held section 11 — 501.2(a)(5) to be constitutional in People v. Capporelli (1986), 148 Ill. App. 3d 1048. Section 11 — 501.2(a)(5) provides “[a]lcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11— 501.2(a)(5).) This definition is incorporated by reference in section 11 — 501(a)(1), which makes it an offense for an individual to drive or be in physical control of a motor vehicle while the individual’s blood- or breath-alcohol concentration is .10 or more. The Capporelli court noted that the alcohol partition ratio between deep lung air and blood, while the subject of some scientific debate, has been accepted by the Illinois legislature at a value of 2,100:1. Without discussion, the court indicated that the ratio enjoyed substantial support in the scientific community and provided a rational basis for the statute, even though scientific support was not unanimous. (Capporelli, 148 Ill. App. 3d at 1054-55.) Thus, the court held section 11 — 501.2(a)(5) to be constitutional. 148 Ill. App. 3d at 1055.

Defendant challenges this legislative assumption in his appeal. He presented lengthy and detailed expert testimony concerning the alleged flaws in the 2,100:1 ratio and cited extensive case authority from other jurisdictions to support his expert’s conclusion that because the 2,100:1 ratio is inaccurate, it does not provide a reliable means of determining an individual’s impairment from alcohol. In none of the cases cited by defendant did the court determine the constitutionality of a drunk-driving statute. Rather, the court in each case was concerned with the admissibility and applicability of expert testimony concerning the variability of the partition ratio in the human population and the part such testimony should play in the prosecution of drunk-driving cases.

In People v. McDonald (1988), 206 Cal. App. 3d 877, 254 Cal. Rptr. 384, the California appellate court held that to instruct a jury that a defendant is presumed to have a distribution ratio of 2,100:1, unless he himself can establish otherwise, is error. The basis for the court’s ruling was twofold: first, the exonerating fact (the defendant’s own partition ratio) was not peculiarly within his knowledge; and, second, the effect of the instruction was to nullify impermissibly the defendant’s expert testimony. The court explained:

“The fact presumed by the instruction — constancy of one’s par; tition ratio — was in doubt. The resolution of that doubt was a factual question for the jury. Yet the court’s instruction effectively took the question from the jury and cast in stone a fact not proven.” (McDonald, 206 Cal. App. 3d at 844, 254 Cal. Rptr. at 389.)

The California appellate court essentially affirmed the McDonald holding in People v. Lepine (1989), 215 Cal. App. 3d 91, 263 Cal. Rptr. 543, in which the court noted that the dispute concerning the breath-alcohol to blood-alcohol partition ratio was not unique to California and cited several recent cases from six other jurisdictions, noting:

“These courts have uniformly accepted the fact of partition ratio variability and have almost uniformly concluded the fact of variability goes to the weight to be given breath test evidence rather than its admissibility.” (Lepine, 215 Cal. App. 3d at _, 263 Cal. Rptr. at 548.)

(See also People v. Reding (1989), 191 Ill. App. 3d 424, 436-37.) The Lepine court thus declined to “arbitrate scientific disputes” and held that juries must be allowed to consider the question of individual humans’ partition ratios. 215 Cal. App. 3d at _, 263 Cal. Rptr. at 549.

The Nebraska Supreme Court faced a similar question in State v. Burling (1987), 224 Neb. 725, 400 N.W.2d 872. Nebraska’s drunk-driving statute, similar to the Illinois statute, prohibits actual physical control of a motor vehicle while under the influence of alcohol or when one has 10/100 of one gram or more by weight of alcohol in one milliliter of one’s blood or urine, or 210 liters of one’s breath. (Neb. Rev. Stat. §§39 — 669.07 (1) through (4) (1988).) The defendant was convicted of driving under the influence and appealed on the'ground that the breath test results should not have been considered by the trial court because such tests do not reliably measure blood-alcohol levels. The defendant presented expert testimony regarding the mechanism, operation and accuracy of the Intoxilyzer Model 4011AS. His expert opined that the machine did not reliably measure blood-alcohol level because its built-in ratio (2,100:1) had been abandoned by forensic toxicologists. The expert also indicated that many other factors can affect such a machine’s ability to function. The State offered no contradictory evidence.

The Burling court concluded that the breath-test result was admissible but subject to a margin of error of approximately 53%; the court further determined that the defendant was entitled to the benefit of the margin of error, and thus his breath-test result of .164 had to be reduced by approximately 53%. When reduced, the test result plainly failed to prove the defendant had operated an automobile when he had 10/100 of 1% of alcohol in his body fluids as measured by analysis of his breath. (Burling, 224 Neb. at 730-31, 400 N.W.2d at 877.) However, as the State correctly points out, Burling was later limited to its facts by State v. Babcock (1988), 227 Neb. 649, 419 N.W.2d 527, in which the Nebraska Supreme Court declared that breath-test results are not to be adjusted automatically as a matter of law. It stated, “[wjhether an adjustment is required is dependent upon the credible evidence in each case.” Babcock, 227 Neb. at 653, 419 N.W.2d at 530.

In State v. McGinley (1988), 229 N.J. Super. 191, 550 A.2d 1305, a New Jersey law division court considered whether a defendant may challenge breath-test results on the basis of scientific opinion which concludes such tests are subject to up to 50% error. This case involved the consolidation of several appeals. In one, the court concluded that the trial court should have considered expert testimony concerning the accuracy of breath testing to establish an individual’s blood-alcohol level and returned the cause to the trial court for such determination. However, in two other appeals, the court reversed outright two guilty verdicts because the State failed to provide any evidence of the defendants’ blood-to-breath ratios, among other things, so the test results should have been excluded altogether or reduced by a margin of error. McGinley, 229 N.J. Super, at 206, 550 A.2d at 1312-13.

As the State correctly observes, McGinley was expressly overruled two months later on procedural grounds by State v. Downie (1988), 229 N.J. Super. 207, 550 A.2d 1313, in which the appellate division rejected a similar challenge on the ground that the New Jersey Supreme Court had previously declared that all New Jersey courts were to take judicial notice of the scientific reliability of brealh analysis machines. Thus lower courts had no authority to allow a challenge to the machines’ reliability. (Downie, 229 N.J. Super, at 210-11, 550 A.2d at 1315, citing Romano v. Kimmelman (1984), 96 N.J. 66, 72, 474 A.2d 1, 4.) The appellate court did, however, take the merits of the McGinley challenge seriously and urged the New Jersey Supreme Court to consider the matter immediately. Downie is currently on appeal. See State v. Downie (1989), 114 N.J. 498, 555 A.2d 618.

In our research, we have uncovered State v. Brayman (1988), 110 Wash. 2d 183, 751 P.2d 294, in which the Washington Supreme Court considered the constitutionality of a per se drunk-driving statute similar to the Illinois statutes. Applying the rational basis test, the court held the statute constitutional. It stated:

“Here, the parties do not dispute that the purpose of the 1986 amendments is to reduce the drunk-driver hazard on the public highways. [Citations.] Respondents contend, however, that the chosen means of furthering this goal — breath alcohol content — is too indirectly related to impairment to justify the statute. Respondents argue that the State has not established any evidence that directly links breath alcohol to impairment.
*** While the record may establish that breath is a less direct measure of blood alcohol levels, it does not establish a lack of a reasonable and substantial relationship between breath alcohol and impairment. We conclude that the 1986 amendments are a valid exercise of police power.” Brayman, 110 Wash. 2d at 193-95, 751 P.2d at 300-01.

It is clear that scientific debate on the ratio between breath-alco-hoi concentration and blood-alcohol concentration in human beings will continue and probably intensify as more States adopt per se statutes to curb drunk driving (see Annot., 54 A.L.R.4th 149 (1987)), and drunk-driving defendants attempt to convince juries of the fallibility of the breath-testing machine. However, it is not this court’s function to rewrite the statute. If some of the experts are correct that breath analysis is nothing more than a crude and imprecise measure of an individual’s blood-alcohol level, which is itself an indirect indicator of a person’s impairment due to alcohol, it would appear that breath analysis does little to promote highway safety. In fact, in the instant cause, the State concedes that the 2,100:1 ratio built into every breath analysis machine is somewhat low and benefits drunk-driving defendants. Some persons, those with individual partition ratios exceeding 2,100:1, will not be charged with the per se drunk-driving offense because they will not produce the requisite breath-test result even though they may have a blood concentration of .10 or more had it been checked. In short, the per se statute subjects motorists with low individual partition ratios to drunk-driving penalties while allowing impaired motorists with high individual partition ratios to go free. Nevertheless, whether the legislature’s chosen course is wise or the best method to achieve the underlying purpose of highway safety is not a proper subject for judicial inquiry. (People v. Inghram (1987), 118 Ill. 2d 140, 150.) Whether the measures adopted by the legislature actually further highway safety is an appropriate topic for legislative discussion and not for the courts (People v. Kohrig (1986), 113 Ill. 2d 384, 397); our only function in this debate is to determine the constitutionality of the challenged statutes (People v. J.S. (1984), 103 Ill. 2d 395, 407).

Although defendant contends that breath-analysis machines are based on a faulty premise, the 2,100:1 ratio, and therefore do not provide reliable indications of motorists’ blood-alcohol levels, it would appear that “[t]he consensus of leading researchers is that 86-95% of the entire population are reliably within that ratio” (People v. Nieves (1989), 143 Misc. 2d 734, _, 541 N.Y.S.2d 1008, 1011). Because there appears to be substantial scientific evidence to support the usefulness of the 2,100:1 ratio embodied in the challenged statutory sections, we conclude that the sections are reasonably related to their underlying purpose of reducing drunk driving and thus are constitutional. People v. Capporelli (1986), 148 Ill. App. 3d 1048, 1054-55; State v. Brayman (1988), 110 Wash. 2d 183, 195-96, 751 P.2d 294, 301.

C. CONSTITUTIONALITY OF SECTION ll-501(a)(2)

Defendant next contends that “to subject [a] defendant [whose] breath alcohol concentration exceeds 0.10, to the same penalties as one who has proved to be actually impaired by alcohol is a denial of due process and a violation of the constitutional assurance of proportionate penalties.” Our supreme court has already addressed this point rather succinctly in People v. Ziltz (1983), 98 Ill. 2d 38, where it stated:

“The legislature has made the determination that driving with an alcohol concentrate of 0.10 or above does constitute impairment. The State has a rational basis for curbing the incidence of drunk driving, and the Illinois statute is a reasonable means of promoting that interest.” (Emphasis added.) (Ziltz, 98 Ill. 2d at 43.)

In short, a defendant whose breath-alcohol concentration exceeds .10 is “actually impaired by alcohol” by definition. The justification of defendant’s contention is primarily a rehash of his earlier arguments concerning the unreliability and inaccuracy of breath-analysis test results. In view of our foregoing conclusions, we reject defendant’s constitutional challenge and hold that section 11 — 501(a) of the Code does not operate as a denial of due process, nor does it violate the constitutional assurance of proportionate penalties.

D. DEFENDANT WAS PROVED GUILTY BEYOND A REASONABLE DOUBT

Defendant’s final contention is his assertion that the breath-test result, subject as it is to a wide margin for error, does not provide proof that he had a breath-alcohol concentration in excess of .10. This argument presumes the truth of the scientific testimony presented by defendant which the jury apparently rejected. We will not substitute our judgment on this issue for that of the fact finder; thus, we reject defendant’s final appellate contention.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    MARK A. McMASTER, Plaintiff-Appellant, v. DEBRA VERBOUT ZWICKER, Defendant-Appellee.
    Third District
    No. 3—89—0302
    Opinion filed January 24, 1990.
    Appleton & McHugh, of Aledo (Gregory J. McHugh, of counsel), for appellant.

      Bozeman, Neighbour, Patton & Noe, of Moline (James R. Patton, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiff, Mark McMaster (McMaster), was involved in a one-vehicle accident on May 21, 1987. McMaster was driving a Chevrolet Luv pickup truck owned by the defendant, Debra Verbout Zwicker (Zwicker), when the brakes failed, causing him to lose control of the vehicle. McMaster suffered injuries as a result of the accident. Mc-Master and Zwicker were dating at the time of the accident, but maintaining separate households. After the accident, they maintained a common residence. Prior to the accident, each party borrowed the other’s vehicle from time to time. On the date of the accident, Mc-Master had Zwicker’s permission to drive the truck, his own vehicle being inoperable at that time. He was using the truck to drive to work.

McMaster filed suit against Zwicker on October 20, 1987, alleging negligence based on Zwicker’s failure to maintain the brakes on the truck. Following discovery, both parties moved for summary judgment, and on December 5, 1988, the circuit court of Mercer County denied both motions. Both parties subsequently moved for reconsideration. On May 3, 1989, the trial court filed an order granting summary judgment in favor of defendant Zwicker, finding that no statutory duty could be violated absent actual prior knowledge of the brake defect. McMaster filed a timely appeal.

Plaintiff raises two arguments: first, that defendant breached her statutory duty to maintain her brakes in operating condition, and next, that defendant owed plaintiff a duty because of the principal-agent relationship created between the parties. We do not find either argument persuasive.

Plaintiff suggests that violation of the Illinois brake safety statute (Ill. Rev. Stat. 1987, ch. 951/2, par. 12 — 301) creates a prima facie case of negligence. However, Illinois case authority states only that evidence of violation of a statute is merely one factor to be used by a jury in determining a defendant’s negligence. (Heiser v. Chastain (1972), 6 Ill. App. 3d 552.) More importantly in this case, though, is the lack of evidence that defendant violated the Illinois brake safety statute.

Section 12 — 101 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 12 — 301) states as follows, in pertinent part:

“(a) Brake equipment required. 1. Every motor vehicle *** when operating upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle ***.
(b) Performance ability of brakes. 1. The service brakes upon any motor vehicle *** shall be adequate to stop such vehicle or vehicles when travelling 20 miles per hour within a distance of 30 feet ***.”

The trial court found no evidence to indicate that defendant’s truck was not equipped with an appropriate brake system. Nor was there evidence that the brake system was not adequate as literally required by subparagraph (b) of the statute. It is also important to read section 12 — 301 of the statute in conjunction with section 12 — 101, which reads, in pertinent part:

“(a) It is unlawful for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle *** which is in such unsafe condition as to endanger any person or property, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this Chapter 12 ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95V2, par. 12-101.)

Reading section 12 — 101 and section 12 — 301 together suggests that a person must know that the brakes do not function in order to be negligent. The record establishes no evidence that defendant knew that her brake line had rusted through. In fact, the record indicates that both parties had recently driven the vehicle and had experienced no problems. No statutory duty is created unless plaintiff introduces facts creating a question concerning defendant’s actual knowledge of the defective condition of her brakes.

The trial court also determined that the relationship created between the parties by plaintiff’s use of defendant’s vehicle was one of gratuitous bailment. Plaintiff contends that he and the defendant entered into a principal-agent relationship when he borrowed her truck to go to work. He attempts to analogize to the line of Illinois cases which state that interfamily borrowing of a car is subject to principal-agent analysis. Unfortunately for this analysis, plaintiff and defendant were not family. Plaintiff simply borrowed defendant’s vehicle, with defendant’s permission, for his own purpose, to wit, to drive to work.

The trial court was correct in determining that plaintiff’s use of defendant’s truck constituted a gratuitoús bailment. A gratuitous bailment is made only for the benefit of the bailor and provides no profit for the bailee. Black’s Law Dictionary 129 (5th ed. 1979).

As a gratuitous bailee, defendant’s only duty was to warn of defects of which she was aware. (8 Am. Jur. 2d Bailments §162 (1989); Rynders v. Sangamo Construction Co. (1982), 103 Ill. App. 3d 552.) The trial court correctly found that no facts were introduced by plaintiff to establish that defendant had actual knowledge of the inadequacy of her brakes prior to allowing plaintiff the use of her vehicle. Summary judgment was an appropriate manner of dispensing with this matter.

Accordingly, we affirm the decision of the circuit court of Mercer County.

Affirmed.

STOUDER and WOMBACHER, JJ., concur.