author: PRESIDING JUSTICE JIGANTI

text:
    JAMES E. McINTOSH, Plaintiff-Appellant, v. A & M INSULATION COMPANY et al., Defendants-Appellees (Owens-Corning Fiberglas Corporation et al., Defendants).
    First District (4th Division)
    No. 1—92—1584
    Opinion filed March 25, 1993.
    Rehearing denied April 22, 1993.

      Burke & Burke, Ltd., of Chicago (John M. Burke and Molly C. Mason, of counsel), for appellant.
    Haskell & Perrin, of Chicago (Edward J. Matushek III, of counsel), for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

On July 7, 1989, the plaintiff James E. McIntosh filed a negligence action against several defendants involved in the manufacture, sale and installation of asbestos-containing products used at the plaintiff’s jobsite in 1969 and 1970. The plaintiff alleged that exposure to those products caused him to develop asbestosis, which manifested itself in 1988. Three of the defendants, A & M Insulation Company (A & M), Luse-Stevenson Company (Luse-Stevenson) and Brand Insulations, Inc. (Brand), moved for summary judgment on the grounds that the action was time-barred by section 13 — 214(b) of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(b) (now 735 ILCS 5/13 — 214(b) (West 1992)) (construction statute of repose or statute of repose).) The court granted the motions and entered summary judgment in favor of those defendants and against the plaintiff. The plaintiff has appealed. The action remains pending in the trial court as to the remaining defendants, Owens-Corning Fiberglas Corporation (Owens-Corning), Illinois Insulation Contracting Company, Inc. (Insulation Contracting), Illinois Insulation Fabrication Company, Inc. (Insulation Fabrication), and Illinois Insulation Supply Company, Inc. (Insulation Supply).

The plaintiff raises three contentions on appeal. First, he argues that the trial court erred in granting summary judgment based on the construction statute of repose because the alleged negligent acts were not solely construction related. Second, he contends that the court erred in interpreting the statute of repose to apply to latent disease claims. Third, the plaintiff maintains that even if the statute of repose does apply, it should not have barred his claim because his injury occurred prior to the effective date of the statute.

The plaintiff alleged in his amended complaint that he worked as an insulator’s helper at a Union Oil jobsite in Lockport, Illinois, during 1969 and 1970. In the course of his employment, he handled a variety of asbestos-containing materials. All of the defendants named in the complaint were alleged to have “sold, distributed and/or installed asbestos-containing products during the years 1969 through 1970.” The complaint then specifically alleges that three defendants who are not parties to this appeal, Insulation Contracting, Insulation Fabrication and Insulation Supply, “sold, distributed and delivered asbestos-containing products to the plaintiff’s employer at the aforementioned jobsite.” Significantly, the complaint then makes the following specific allegation concerning the defendants which were granted summary judgment: “That defendants LUSE-STEVENSON COMPANY, BRAND INSULATIONS, INC., and A & M INSULATION COMPANY are insulation subcontractors whose employees installed asbestos-containing products in proximity to the plaintiff at the aforementioned jobsite.” The complaint alleges various acts of negligence, including that the defendants sold the products without warnings and installed them in a careless and dangerous manner.

The complaint states that in August of 1988, the plaintiff began to experience hoarseness and difficulty in speaking. This condition was later diagnosed as right true vocal cord paralysis. Subsequent tests revealed that the plaintiff suffered from extensive pleural plaque formation and asbestosis relating to his previous exposure to asbestos.

A & M filed a motion for summary judgment stating that the plaintiff’s complaint was predicated on A & M’s actions as an installer and that the construction statute of repose therefore applied. The statute provides in pertinent part that “[n]o action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the *** construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” (Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b) (now 735 ILCS 5/13—214(b) (West 1992)).) The plaintiff in his response to the motion stated that his amended complaint alleged that A & M “negligently sold, distributed and installed” the asbestos-containing materials used at the plaintiff’s jobsite. In his answers to interrogatories, the plaintiff included A & M among the suppliers and distributors of the products.

Following arguments on the motion, the trial court granted summary judgment in favor of A & M and against the plaintiff. LuseStevenson and Brand subsequently filed motions for summary judgment based on the statute of repose. These motions were similarly granted by the trial court.

The plaintiff first contends that the trial court erred in ruling that his cause of action against the defendants was time-barred because not all of the acts or omissions alleged in the complaint were construction related. He argues that he pleaded in the alternative by alleging that A & M, Luse-Stevenson and Brand negligently sold, distributed and/or installed asbestos-containing products at the plaintiff’s jobsite. He maintains that because the construction statute of repose does not apply to sellers, the court erred in determining that his entire cause of action was time-barred.

The plaintiff’s complaint reveals a conclusory allegation that all of the defendants, including A & M, Luse-Stevenson and Brand, “sold, distributed and/or installed asbestos-containing products during the years 1969 through 1970.” The complaint then contains factual allegations that the three defendants who are not parties to this appeal sold, distributed and delivered the products to the plaintiff’s jobsite and that A & M, Luse-Stevenson and Brand “are insulation subcontractors whose employees installed [the] asbestos-containing products.” A & M moved for summary judgment on the grounds that, as an installer, it came within the purview of the construction statute of repose. The plaintiff did not respond with any facts or additional allegations to support the theory that A & M, Luse-Stevenson and Brand acted as anything other than installers of the asbestos-containing materials. Nor did the plaintiff raise this theory during the arguments on A & M’s motion for summary judgment. Accordingly, we do not accept the plaintiff’s argument that he should have been allowed to proceed against A & M, Brand and Luse-Stevenson on the theory that they were sellers or distributors of the asbestos-containing products.

The plaintiff next contends that the trial court erred in determining that the construction statute of repose applies to claims predicated on latent diseases such as asbestosis. Specifically, the plaintiff argues that the legislative history does not mention application of the statute to occupational disease claims. Also, the plaintiff argues that application of the statute to latent diseases leads to illogical and absurd results.

The statute states in pertinent part:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(b) (now 735 ILCS 5/13-214(b) (West 1992)).)

Subsections (d) and (e) list exceptions for express warranty and fraudulent misrepresentation. Ill. Rev. Stat. 1989, ch. 110, pars. 13—214(d), (e) (now 735 ILCS 5/13-214(d), (e) (West 1992)).

The cardinal rule of statutory construction is to ascertain and give effect to the true intent and meaning of the legislature. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194, 595 N.E.2d 561.) Courts should first look to the statutory language as the best indication of the intent of the drafters. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174.) Where that language is unambiguous, a court must enforce the law as enacted without considering other aids. (County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076.) “ ‘There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’” County of DuPage, 109 Ill. 2d at 151-52, 485 N.E.2d at 1079, quoting People ex rel. Scott v. Schumlst Building Center, Inc. (1982), 89 Ill. 2d 365, 371, 432 N.E.2d 855, 858.

In the case at bar, the language of the statute unambiguously states that the 10-year repose period applies to all actions based on tort. The plaintiff argues that because the legislative debates do not contain a reference to latent disease claims, the legislature must not have intended the statute to apply to such claims. We cannot accept this argument. Where the language of the statute is clear and unambiguous, as it is here, the courts have no authority to carve out exceptions.

The plaintiff further argues that applying the language of the statute as it is written will lead to absurd and illogical results. He relies upon the principle of statutory construction which states that courts may presume that the legislature did not intend absurdity, inconvenience or injustice. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 363, 489 N.E.2d 1374.) Essentially, the plaintiff maintains that because asbestosis is a disease of long latency, it will almost always be barred by the statute of repose and that this is an unfair result. A similar argument was considered and rejected by this court in Olson v. Owens-Coming Fiberglas Corp. (1990), 198 Ill. App. 3d 1039, 556 N.E.2d 716, which determined that the product liability statute of repose applied to asbestos-related injuries. We agree with the statement in Olson that “we cannot simply carve out an exception to the applicability of [the] statute, despite the legitimate concern that the impact of the statute burdens some classes of plaintiffs more harshly than others.” (Olson, 198 Ill. App. 3d at 1043, 556 N.E.2d at 719.) We believe that the arguments made by the plaintiff in the instant cause are more appropriately addressed to the legislature.

The plaintiff’s final contention is that the statute of repose should not apply to his claim because his injury occurred prior to the effective date of the statute. Although the disease first manifested itself in 1988, the plaintiff asks this court to assume that his injury occurred sometime between 1969 and 1970 because that was the only time he was exposed to asbestos.

Illinois law provides that an asbestos-related claim accrues upon discovery. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864.) Unlike the plaintiff in Tsourmas v. K & K Heating & Air Conditioning, Inc. (1991), 209 Ill. App. 3d 617, 568 N.E.2d 342, cited by the plaintiff as support for his position, there is no indication that the plaintiff experienced any symptoms prior to January 1, 1979, the effective date of the statute.

Moreover, even if we were to accept the plaintiff’s assertion that his claim arose prior to the effective date of the statute, his claim would still be time-barred. The construction statute of repose formerly contained language stating that “[t]he limitations of this Section shall apply to all acts or omissions which occur on or after November 29, 1979.” (Ill. Rev. Stat. 1981, ch. 110, par. 13—214(e).) On September 16, 1981, the legislature amended this statute to omit subsection (e). This action indicated an intent to make the legislation retroactive in its application. (DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 800, 484 N.E.2d 1220; Matayka v. Melia (1983), 119 Ill. App. 3d 221, 224, 456 N.E.2d 353.) The statute therefore would have applied to the plaintiff’s claim even if the claim had arisen prior to the statute’s effective date.

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

Affirmed.

JOHNSON and CAHILL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    ELYSE ROBERTS, Plaintiff-Appellant, v. DOW CHEMICAL COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—92—0210
    Opinion filed March 26, 1993.
    Rehearing denied May 6, 1993.

      Dennis E. Carlson, of Chicago, for appellant.
    Michael W. Davis and Mark B. Blocker, both of Sidley & Austin, of Chicago, for appellee Dow Chemical Company.
    Richard G. Schultz and Steven H. Gistenson, both of Foran & Schultz, of Chicago, for appellees Matthew W. Cockrell and Rivkin Radler Dunne & Bayh.
    Thomas L. Browne and Thomas P. Sukowicz, both of Hinshaw & Culbertson, of Chicago, for appellee Coffield Ungaretti Harris & Slavin.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Elyse Roberts appeals the dismissal of her second amended complaint which alleged product liability, battery, wilful and wanton conduct and negligence (the second amended complaint also alleged a fraud count but plaintiff does not appeal the dismissal of this count) against defendants The Dow Chemical Company (Dow), Matthew W. Cockrell, Coffield Ungaretti Harris and Slavin, and Rivkin Radler Dunne and Bayh. Plaintiff alleges on appeal that the circuit court erred in dismissing her complaint and in denying her post-judgment motion.

In 1986, plaintiff sued Dow for injuries she received following the application of Dursban (Dursban is the trade name for chlorpyrifos, which is manufactured by The Dow Chemical Company and is used as an active ingredient in a large number of pesticide products formulated by Dow and other companies) to her Barrington, Illinois, home in 1984. Plaintiff claimed that as a result of that exposure, she had become permanently hypersensitive to the presence of Dursban and other commercial chemicals. In 1989, plaintiff and Dow executed a “Settlement Agreement and Release.” In exchange for the payment of $25,000, plaintiff agreed to release and discharge Dow, its officers, directors, employees, stockholders, agents, subsidiaries and successors from all claims, demands, actions, causes of action or suits at law including all matters, issues or causes relating to or arising out of plaintiff’s exposure to Dursban which occurred at her Barrington home in 1984.

In 1990, plaintiff filed the present action against Dow and the attorneys who had represented Dow in the 1986 lawsuit. In her second amended complaint, plaintiff alleged that during three deposition sessions for the 1986 lawsuit, defendants intentionally exposed plaintiff to Dursban, causing injury to plaintiff. Defendants filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), and the court granted the motion, based upon the release executed for the 1986 case.

Before reaching the merits of this case, we note that defendants have moved to dismiss this appeal based upon plaintiff’s failure to comply with the rules governing appellate briefs. Plaintiff admits that had her brief contained the proper margins, her brief would be longer than the 75 pages permitted by Rule 341(a). (134 Ill. 2d Rules 341(a), 344(b).) Rule 341 specifically provides that “[njeither narrow margins nor any other device shall be employed to evade the page limitation.” (134 Ill. 2d R. 341(a).) Plaintiff’s brief also violates Rule 341(e)(2) (134 Ill. 2d R. 341(e)(2)) in that it omits an introductory paragraph stating the nature of the case and Rule 341(eX6) (134 Ill. 2d R. 341(eX6)) because its statement of facts contains argument and comment. Indeed, plaintiff’s statement of facts is one of the most convoluted and incomprehensible that we have seen.

We note that plaintiff’s counsel, Mr. Carlson, has a continuing pattern of ignoring supreme court rules. See Bieles v. Abies (1992), 234 Ill. App. 3d 269, 599 N.E.2d 469; Dawson v. St. Francis Hospital (1988), 174 Ill. App. 3d 351, 528 N.E.2d 362; Lorentzen v. Anderson Pest Control (N.D. Ill. 1990), _F.2d_(wherein the court dismissed plaintiff’s action and sanctioned Mr. Carlson in light of Mr. Carlson’s failure to comply with the court rules and orders, his failure to provide adequate excuses for his noncompliance and his inadequate submissions to the court).

Although failure to comply with supreme court rules governing briefs can warrant dismissal of the appeal (Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 463 N.E.2d 216), the rules are not a limitation upon the jurisdiction of the court of review, but rather are admonishments to the parties. (Miller v. Miller (1988), 167 Ill. App. 3d 176, 521 N.E.2d 229.) We decline to punish plaintiff for the sins of her attorney by dismissing this appeal.

Turning to the merits, we first address plaintiff’s contention that the trial court erred in granting defendant’s section 2 — 619 motion. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(6).) If defendant’s motion to dismiss is based on a release, once defendant shows the existence of a facially valid release, the burden then shifts to the plaintiff to prove that a material issue of fact exists which would invalidate the agreement. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Clearly defendants satisfied their burden when they filed their motion to dismiss and attached the facially valid release. The release plainly states that plaintiff was paid $25,000 for a release “of and from all claims, demands, actions, causes of action or suits at law” resulting from her exposure to Dursban at her home in Barrington. Defendants have provided us with evidence that plaintiff’s injury alleged in the present case occurred prior to January 28, 1989, the date the release was signed, and was the result of her exposure to Dursban in her house in Barrington. When plaintiff was deposed in 1988 as part of her 1986 lawsuit, she stated that the reaction she suffered after she had left the previous deposition session was the result of the spraying of Dursban in her Barrington house.

Plaintiff, in turn, failed to provide any evidence that the claims asserted in the present case were not barred by the release signed by plaintiff in her 1986 case. In her second amended complaint, plaintiff alleged:

“For said three deposition exposures Plaintiff did not identify the specific chemical *** causing her subsequent occurring symptoms and disability *** until after December 22, 1989, nor the existence [of] said deposition exposures until after the fact of exposure was confirmed on September 28, 1990, by report then communicated to her that a Dow employee had previously stated and admitted that Dow had prior to 9/28/90 intentionally exposed a person in Chicago to Dow’s pesticidal agents in a deposition of the person exposed who had claimed prior toxic sensitivity or reaction to exposure to Dursban products of Dow, and plaintiff did not know for certain until 1/28/90 that she had been exposed in said depositions sessions.” (Emphasis added.)

These vague assertions do not, however, sufficiently demonstrate the existence of a material fact as to whether plaintiff became ill after she was intentionally exposed to Dursban timing her deposition sessions, as opposed to her initial exposure to Dursban in her Barrington home. Plaintiff filed no response at all to rebut defendants’ motion to dismiss, even though she was given ample opportunity to do so. Defendants filed their motion to dismiss on September 23, 1991. Despite having over three months to respond, including several extensions of time, plaintiff failed to respond to the motion. On December 17, 1991, the circuit court declined to rule on the motion to dismiss so as to allow plaintiff “to file any response.” Plaintiff attempted to submit to the court an affidavit of Elyse Roberts, but this affidavit was properly stricken by the circuit court since it was neither signed nor notarized. (See Kohls v. Maryland Casualty Co. (1986), 144 Ill. App. 3d 642, 494 N.E.2d 1174.) Even if the affidavit had been properly signed and notarized, it was inadequate to rebut the defendants’ assertions that plaintiff’s injury resulted from her exposure to Dursban in her home, since the affidavit did nothing more than reiterate the vague generalities set forth in the complaint. When plaintiff had still failed to respond by the hearing held on December 27, 1991, the court informed plaintiff’s counsel: “Now it is up to you. You have the burden of showing why the court should not dismiss this case ***. Now, whatever your defense is, I am asking you to do it.” In order to determine whether a material fact existed, the court asked plaintiff to name the individual who released the chemical at the deposition session, and the following exchange occurred:

“MR. CARLSON: The named defendants.
THE COURT: Who are they? All three of them released it or all four lawyers representing certain defendants here?
MR. CARLSON: Well, I don’t know who had the container and opened it up in the deposition.
THE COURT: There was a container in the room?
MR. CARLSON: Well you can’t bring in Dursban without putting it in something. I mean they must have had it in something.
THE COURT: Did they bring that to the deposition, Dursban?
MR. CARLSON: They brought — you know, you’re getting me to the point where I’m not certain that — . * * *
THE COURT: Nowhere have you named any person or that container who released the toxic substance. I’m asking you now. At least on the pleadings you should say that. Actually your pleadings are conclusion unless you name a person and what they did. You can allege it. Whether it’s provable or not is for the court to decide. It’s on the pleading, but the pleadings should be specific ***.
* * *
THE COURT: I want the record to show that at no time is this court informed, even in considering the release and everything she alleges, I don’t know. There’s [sic] no acts for this court to rule on as far as plaintiff’s complaint, plaintiff’s affidavits, plaintiff’s motions. You’re saying somebody released it. *** She has a right to make the allegation but she has to be specific. What did they release? Who released it? Where did they get this information that something was released?”

As this exchange reveals, plaintiff failed to substantiate any of her assertions that Dow’s attorneys intentionally exposed her to a toxic substance in the deposition sessions. Plaintiff has not provided this court with any information as to how the chemical was carried into the sessions, who brought the chemical to the depositions or where she received the information that Dursban was released during the deposition sessions. In oral argument before this court, the following exchange occurred:

“THE COURT: Did you get an affidavit from this employee who put your client on to this scheme or plot?
MR. CARLSON: Uh. I think we have a statement from him but I don’t know if it’s an affidavit.
THE COURT: Why wasn’t that proffered to the trial judge in opposition to the 619 [s-ic] motion?
MR. CARLSON: Because we weren’t proving a case ***.” Indeed, plaintiff need not prove her case in order to successfully oppose a section 2 — 619 motion, but she must show the existence of a material fact as to whether she was intentionally exposed to Dursban in her deposition sessions.

Plaintiff presented nothing more than conclusory and unsupported accusations in her pleadings and her oral arguments to the circuit court and appellate court. Such vague allegations do not raise an issue of material fact. (See Hill v. Chicago Housing Authority (1992), 233 Ill. App. 3d 923, 599 N.E.2d 1118; Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 442 N.E.2d 546.) Accordingly, the circuit court properly granted defendants’ motion to dismiss plaintiff’s second amended complaint.

Had plaintiff presented sufficient facts to indicate that she had been intentionally exposed to Dursban in her depositions, she could have survived defendants’ motion to dismiss since we are not persuaded by defendants’ argument that plaintiff released all injuries occurring from her exposure to Dursban including those separate and distinct from the exposure in her home in 1984.

Plaintiff next contends that the trial court erred when it denied her post-trial motion. We disagree. In her post-trial motion, plaintiff asked that the court reverse the judgment and grant leave to amend the complaint. The arguments presented by plaintiff in her motion seeking reversal could and should have been presented to the court long before the case was dismissed. Although plaintiff was given a number of extensions, it was not until the case was dismissed that plaintiff responded in writing to defendant’s motion to dismiss. Furthermore, the arguments presented in the post-trial motion and the information provided in the affidavit attached to the motion gave no information to indicate that the claims here were distinct from those released by plaintiff in her original suit.

We also find that plaintiff’s request to amend her complaint after entry of a final judgment was properly denied. After entry of a final judgment, a complaint may only be amended to conform pleadings to the proofs. (See Gomez v. Vitino’s Pizza (1989), 192 Ill. App. 3d 1046, 549 N.E.2d 896.) Instead, plaintiff sought to add entirely new causes of action.

Therefore, for the reasons set forth above, we affirm the circuit court’s dismissal of plaintiff’s second amended complaint and denial of plaintiff’s post-trial motion. In light of our disposition of this matter, it is not necessary to address the various motions concerning whether Charlotte Biblow, Stanley Pierce, Joseph Ortega, Peter Jennings and Daniel Alber have been made parties to this appeal.

Affirmed.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE GIANNIS

text:
    WAYNE EAVES, Plaintiff-Appellant, v. HYSTER COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—91—3327
    Opinion filed March 26, 1993.

      Bernard R. Nevoral & Associates, Ltd., of Chicago (Bernard R. Nevoral, David L. Cwik, and Michael E. Tabor, of counsel), for appellant.
    Pope & John, Ltd., of Chicago (John M. Christian, Jeffrey M. Rubin, and Michael K. Bartosz, of counsel), for appellee.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff, Wayne Eaves, sustained crushing injuries to both hands on August 8, 1983, while assisting in the repair of an industrial lift truck at his place of employment. At the time of the accident, plaintiff was attempting to replace a chain that had come off of its sheave. Plaintiff filed strict product liability and negligence claims against Hyster Company (defendant), the manufacturer of the vehicle. The strict liability counts were later found to be untimely and dismissed. In his first amended complaint at law, plaintiff alleged negligence on the part of defendant in defendant’s failure to: (1) offer in its parts manual a “replacement chain retaining device”; (2) give adequate directions and warnings as to how to repair the lift truck in the event the chain slipped from its sheave; (3) issue adequate directions and warnings directing maintenance personnel as to how to block the mast sections of the truck that ultimately fell and injured plaintiff; (4) prepare adequate directions and warnings with respect to the proper and safe removal of the “adapter plate”; and (5) place legible and adequate warnings on the lift truck.

Defendant subsequently filed a third-party complaint seeking contribution from plaintiff’s employer, Imperial Clevite. Imperial Clevite and defendant settled immediately prior to trial and Imperial Clevite was dismissed. Following trial, the jury rendered a verdict for defendant, and the trial court entered judgment in defendant’s favor. The trial court denied plaintiff's post-trial motion, and plaintiff has appealed.

Plaintiff first argues that the trial court improperly instructed the jury on the duty and standard of care owed by defendant to plaintiff because the instruction ultimately given to the jury held defendant to a lesser duty and standard than required by Illinois law. Plaintiff claims that because defendant is a manufacturer, and because defendant held itself out as an expert, defendant should be held to an expert standard of care.

In Illinois, Supreme Court Rule 239(a) governs jury instructions in civil cases. It states:

“Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given in that subject should be simple, brief, impartial, and free from argument.” (134 Ill. 2d R. 239(a).)

A trial court has the discretion to determine which instructions shall be given and, absent an abuse of discretion, its decision will not be disturbed. (Lee v. Calfa (1988), 174 Ill. App. 3d 101, 110.) The test is whether the instructions given, considered as a whole and read as a series, are sufficiently clear so as not to mislead the jury and whether they fairly and correctly state principles of law which pertain to the case. Lee, 174 Ill. App. 3d at Ill.

As plaintiff notes, Illinois law holds a manufacturer to the degree of skill and knowledge of an expert. (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364; Collins v. Interroyal Corp. (1984), 126 Ill. App. 3d 244.) Plaintiff also points out that defendant has admitted that it held itself out as an expert in the design and maintenance of lift trucks. Plaintiff’s first amended complaint at law states:

“6. That when preparing these manuals the defendant, HYSTER COMPANY, held itself out as an expert in the area of design and maintenance procedures of lift trucks, not limited to but including a certain lift truck known as model S70BCS, serial number B4L6015M, manufactured by this defendant.” Defendant responded, “Hyster Company admits the allegations of paragraph 6.”

Plaintiff argued to the trial court that because Illinois Pattern Jury Instructions, Civil (3d ed. 1992) (hereinafter IPI Civil 3d), provides no instruction indicating that a manufacturer is held to the degree of skill and knowledge of an expert, and because defendant itself has admitted its expert status with regard to lift trucks, plaintiff was entitled to submit to the jury a modification of IPI Civil 3d No. 10.04. IPI Civil 3d No. 10.04 provides:

“It was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff. That means it was the duty of the defendant to be free from negligence.”

Plaintiff’s modification of this instruction provided:

“The defendant held itself out to be an expert in the design promulgation of instructions for the repair of lift trucks. Therefore, it was the duty of the defendant, before and at the time of the occurrence, to exercise that degree of care commensurate with that of a reasonably prudent expert engineer for the safety of the plaintiff. That means it was the duty of the defendant to be free from negligence.”

The trial court refused plaintiff’s modified instruction and, over plaintiff’s objection, tendered to the jury the following:

“It was the duty of the defendant, HYSTER COMPANY, before and at the time it produced the subject forklift truck and manuals, to use ordinary care for the safety of the plaintiff. That means it was the duty of HYSTER COMPANY to be free from negligence.”

Plaintiff complains that the trial use of IPI Civil 3d No. 10.04 without his suggested modifications improperly instructed the jury on Illinois law.

Contrary to plaintiff’s assertion, the instruction tendered to the jury in this case is not inconsistent with the law regarding the imputed knowledge and skill of manufacturers. Plaintiff’s position confuses the duty of care required of manufacturers with the level of knowledge and skill properly imputed to them. In Illinois a manufacturer has the same general duty of due care as any defendant. (Sanchez v. Bock Laundry Machine Co. (1982), 107 Ill. App. 3d 1024, 1028 (in product liability cause of action based on negligence, plaintiff must show defendant owed him a duty of reasonable care); Cornstub ble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 24-25 (manufacturer has a duty of due care to design and manufacture a product that will be reasonably safe for its intended use).) “Due care,” “reasonable care,” and “ordinary care” are convertible terms which denote that degree of care which ordinarily prudent persons would exercise under the same or similar circumstances. (Roberts v. Chicago City Ry. Co. (1914), 262 Ill. 228, 233.) While jurors may presume a manufacturer has an expert’s level of skill and knowledge with regard to a manufactured product, this is not the same as saying that a manufacturer has an elevated duty of care beyond that of “due care” as used by IPI Civil 3d.

Plaintiff next points to IPI Civil 3d Nos. 105.01 and 105.02 which set out jury instructions for use in “professional negligence” cases. While these instructions once applied only to health care workers, they have now been expanded to apply to all professional defendants and require all professionals to apply the same degree of knowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances. (See, e.g., Taake v. WH GK, Inc. (1992), 228 Ill. App. 3d 692 (architect); Horak v. Biris (1985), 130 Ill. App. 3d 140 (social worker); Brown v. Gitlin (1974), 19 Ill. App. 3d 1018 (attorney); Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153 (engineér).) Plaintiff asserts that these instructions demonstrate “unequivocally” Illinois’ public policy of holding expert defendants to a higher standard of care in negligence cases. He argues that this policy favors his proposed instruction. Defendant responds that plaintiff did not tender IPI Civil 3d No. 105.01 or IPI Civil 3d No. 105.02 to the trial court in this case and has, therefore, waived this argument on appeal. Gille v. Winnebago County Housing Authority (1970), 44 Ill. 2d 419, 427 (“one cannot complain that an instruction was not given where he does not show that the court was requested to give such instruction and refused to do so”).

As defendant suggests, plaintiff’s reliance on IPI Civil 3d No. 105.01 and IPI Civil 3d No. 105.02, at this stage of the proceedings at least, is misplaced. The only “unequivocal” conclusion that may be fairly drawn from the existence of IPI Civil 3d Nos. 105.01 and 105.02 is that “professionals” may be held to an elevated and objective standard of care. Plaintiff cites no authority for the proposition that admitted “experts” must also be held to such a standard. While plaintiff insists that he now raises IPI Civil 3d No. 105.01 and IPI Civil 3d No. 105.02 “by analogy only,” a careful review of the language of his proposed instruction indicates otherwise. In his proposed instruction plaintiff sought to hold defendant to that standard of care appropriate to an “expert engineer.” (Emphasis added.) While plaintiff might have chosen to have proceeded to trial alleging “professional negligence” against defendant as an engineer, he did not attempt to do so. It was not error, therefore, for the trial court to deny plaintiff’s tendered instruction.

In any case, and as discussed below, the jury in this case expressly found that plaintiff’s injuries were caused solely by the conduct of plaintiff’s employer, Imperial Clevite. Therefore, the failure of the trial court to give the disputed instruction cannot have prejudiced the jury’s ultimate decision, as a finding that Imperial Clevite was the sole proximate cause of plaintiff’s injuries is inconsistent with a finding against defendant.

Plaintiff next contends that the trial court’s submission to the jury of three special interrogatories improperly influenced the jury’s verdict in favor of defendant. Defendant tendered the following special interrogatories which were ultimately given to the jury:

“1. Was the failure of Imperial Clevite to maintain the subject forklift in a safe working condition and to instruct and train Wayne Eaves in the proper procedures for performing repairs on the subject forklift truck the sole proximate cause of plaintiff’s injuries?
2. Was the act of Wayne Eaves in undertaking to repair the upright assembly of the subject forklift truck when he knew that he was not qualified or trained to make such repairs the sole proximate cause of his injury?
4. Do you find that an absence of warnings and instructions in the Hyster Company Service Manual, the parts manual and on the forklift truck was a proximate cause of plaintiff’s injury?”

The jury answered “YES” to No. 1, and “NO” to Nos. 2 and 4 (the trial court refused to tender defendant’s special interrogatory No. 3, which is not at issue here).

Plaintiff first argues that special interrogatory No. 4 was improper. The function of the special interrogatory is to require the jury to make a determination as to one or more ultimate facts and the special interrogatory thereby serves to operate as a check upon the jury’s deliberations. (Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 38.) For a special interrogatory to be proper, a responsive answer thereto must be inconsistent with some general verdict which" the jury might return. (Gasbarra, 85 Ill. App. 3d at 38.) In assessing the propriety of special interrogatory No. 4, it is not necessary to determine whether both a positive and negative answer thereto could control all possible general verdicts. Rather, a special interrogatory is proper if some response to special interrogatory No. 4 could serve to test some general verdict returned by the jury. (See Gasbarra, 85 Ill. App. 3d at 38 (“[wjhether the interrogatory was answered affirmatively or negatively, it would not have been inconsistent with any general verdict”).) Plainly, an affirmative response to special interrogatory No. 4 would have been inconsistent with the general verdict returned by the jury in favor of Hyster Company. Special interrogatory No. 4 was therefore proper.

Plaintiff next faults special interrogatory No. 4 for its failure to include reference to his “chain retaining device” theory of the case. This omission does not change, however, the propriety of special interrogatory No. 4 under the Gasbarra standard. Moreover, it must be noted that plaintiff failed to request that special interrogatory No. 4 address the chain retaining device theory during the jury instruction conference with the trial court, nor did he tender an alternate special interrogatory than that tendered by defendant. Plaintiff has therefore waived this issue for appeal. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 387.) In addition, it should be noted that plaintiff has elected to prepare only limited portions of the transcript of proceedings below in pursuing the instant appeal. Because the record does not contain the trial transcripts, a review of the record fails to indicate that any instruction on plaintiff’s chain retaining device theory would have been supported by the evidence. See Continental Concrete Pipe Corp. v. Century Road Builders, Inc. (1990), 195 Ill. App. 3d 1, 10 (on appeal, appellant has burden of presenting sufficiently complete record, and absence of transcript may prevent reviewing court from finding trial court abused discretion); Yakstis v. William J. Diestelhorst Co. (1978), 61 Ill. App. 3d 833 (to justify giving of instruction, record must contain some evidence that theory set forth in instruction was presented to jury).

Finally, even if it is assumed arguendo that special interrogatory No. 4 was improperly submitted to the jury, such error would not require reversal in this case. See Bruske v. Arnold (1969), 44 Ill. 2d 132, 136-37; Gasbarra, 85 Ill. App. 3d at 38-39 (each finding submission of improper interrogatory not to require reversal absent showing of prejudice to plaintiff).

Plaintiff next argues that the trial court submission of the three special interrogatories, taken together, misled the jury on the issue of proximate cause. Plaintiff notes that special interrogatory No. 1 focused on the conduct of plaintiff’s employer, Imperial Clevite, and asked if Imperial Clevite was the “sole proximate cause” of plaintiff’s injuries. Special interrogatory No. 2 focused on the conduct of plaintiff and again queried the jury regarding “sole proximate cause.” Finally, special interrogatory No. 4 made inquiry regarding the conduct of defendant, but asked not about “sole proximate cause,” but rather, about “a proximate cause.” Plaintiff claims that the three special interrogatories together “conditioned” the jury to think in terms of “sole proximate cause,” rather than on the possibility that the conduct of plaintiff, plaintiff’s employer and defendant may together have caused plaintiff’s injury. Plaintiff also argues that special interrogatory No. 4’s use of “a proximate cause,” rather than “sole proximate cause,” improperly focused the jury’s attention away from the conduct of defendant.

Plaintiff’s arguments are without merit. In this case each special interrogatory directed the jury’s attention to all potential culpable entities: Imperial Clevite, plaintiff and defendant. Thus, the special interrogatories did not serve to emphasize defendant’s theory of the case above plaintiff’s, but presented a balanced set of questions regarding the ultimate facts of the case. While two of the three interrogatories used the words “sole proximate cause,” the jury was carefully instructed that there may have been more than one cause of plaintiff’s injury and that more than one party may be to blame for those injuries. It must be assumed, therefore, that the jury was capable of understanding and answering the special interrogatories in conformity with the law.

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

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILBERTO DIAZ, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—0552
    Opinion filed March 29,1993.
    Michael J. Pelletier and James E. Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michelle Katz, Neera Lall Walsh, and Hareena Meghani-Wakely, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Gilberto Diaz was charged by indictment with the offenses of armed violence, armed robbery, aggravated kidnapping, attempted aggravated criminal sexual assault and aggravated battery. Following a jury trial, defendant was acquitted of all charges except one count of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4). Defendant was subsequently sentenced to 3V2 years’ imprisonment.

Defendant raises the following issues on appeal: (1) the aggravated battery issue instruction violated his constitutional rights under the Illinois and Federal Constitutions where it allowed the jury to return a general verdict of guilt for aggravated battery even though the jury may have disagreed over which of the instruction’s two alternative courses of conduct defendant committed; (2) improper prosecutorial comments during closing argument denied him a fair trial; and (3) the order of sentence and commitment should be amended to reflect his conviction by the jury of one count of aggravated battery, not two.

The events giving rise to defendant’s indictment allegedly occurred in the early morning hours of Sunday, May 6, 1990, and continued through Wednesday morning, May 9,1990.

J.W., the victim, testified that she and defendant had been romantically involved until April 1990. In the early morning hours of May 6, 1990, she and defendant happened to be at the same late-night tavern in the Uptown neighborhood of Chicago. Defendant attempted to speak with her, but she refused. When she left the tavern, defendant followed her into an alley, grabbed her and began beating her. Defendant also threatened her with a knife. Defendant dragged her up to his apartment.

Inside the apartment, defendant struck J.W. again, tore off her shirt, and threw her beside the bed. Defendant told her to take off her clothes, but she could not. Defendant told her to take a shower, which she did. Defendant gave her a towel, and took J.W. back to bed. She eventually fell asleep.

When J.W. awoke, it was light. Defendant refused to turn over her clothes so she could leave. J.W. remained at defendant’s apartment until Wednesday morning, May 9, 1990, when she found her clothes and slipped out of the apartment.

J.W. went to her mother’s apartment, and the police were contacted that afternoon. Defendant was arrested outside his apartment a short while later.

Defendant testified to a different series of events. In the late hours of May 5 and into the early hours of May 6, he admits seeing J.W. at a

tavern, but left alone to return home. J.W. was very drunk and arguing with some of defendant’s friends. She and defendant were still romantically involved, but seeing less of each other.

While at home, someone rang defendant’s front door bell, but he did not answer. A short while later, J.W. arrived at defendant’s apartment by way of the back porch. She had two black eyes. Defendant brought her some ice, and she took a shower. Afterwards, the two engaged in consensual sex, falling asleep at approximately 6 a.m. Defendant denied striking J.W., and claimed she voluntarily remained at his apartment until Wednesday morning.

Defendant was subsequently acquitted of all charges, including armed violence, but convicted of one count of aggravated battery. Defendant brings this appeal.

Defendant’s first allegation of error concerns the aggravated battery issue instruction with which the jury deliberated. This instruction is a modified version of the aggravated battery issue instruction provided within the Illinois Pattern Jury Instructions (IPI). The instruction provided:

“To sustain the charge of aggravated battery, the State must prove one of the following propositions:
(1) That the defendant intentionally and knowingly caused great bodily harm to [J.W.] or
(2) That the defendant knowingly and intentionally caused bodily harm to [J.W.] and used a deadly weapon.
If you find from your consideration of all the evidence that either one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that neither one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

See Illinois Pattern Jury Instructions, Criminal, Nos. 11.08, 11.10 (2d ed. 1981).

Defendant asserts that the above instruction permitted the jury to return a general guilty verdict of aggravated battery even though one or more jurors disagreed as to which alternative course of conduct defendant committed. Defendant accordingly asserts that his Federal and State constitutional rights of due process, jury trial and conviction by a unanimous jury were violated.

The State correctly responds that defendant has waived this issue for review. Neither at trial nor in his post-trial motion did defendant raise this issue. Defendant also failed to tender an alternative instruction. We agree, therefore, that the issue has been waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Travis (1988), 170 Ill. App. 3d 873, 525 N.E.2d 1137, appeal denied (1988), 122 Ill. 2d 590, 530 N.E.2d 260, cert. denied (1988), 489 U.S. 1024, 103 L. Ed. 2d 209, 109 S. Ct. 1149.) However, given the closely balanced nature of the case (as evidenced by the jury’s verdict), and that the alleged error involves defendant’s substantial rights (the taking of his liberty based on an alleged erroneous instruction), we will address the merits of the argument.

In People v. Travis (1988), 170 Ill. App. 3d 873, 525 N.E.2d 1137, this court addressed a similar allegation of error within the context of a murder issue instruction. The instruction there allowed the defendant to be convicted of murder as a principal or under an accountability theory based on three different states of mind (intent, knowledge or knowledge plus strong probability) or by defendant’s commission of one of three felonies (residential burglary, home invasion or aggravated criminal sexual assault). (Travis, 170 Ill. App. 3d at 888-89.) Defendant there contended that, under the instruction, he could have been convicted of murder under a general verdict even though the jury may not have unanimously agreed as to whether guilt was direct or vicarious, whether defendant or his “agent” possessed one of the requisite states of mind, or whether defendant committed one of three different felonies.

Travis rejected the argument the defendant there presented. It believed the best rule to be “that the jury need only be unanimous with respect to the ultimate question of defendant’s guilt or innocence of the crime charged, and unanimity is not required concerning alternate ways in which the crime can be committed, and, accordingly, we so hold.” (Travis, 170 Ill. App. 3d at 890.) The court’s reasoning included the following passage:

“[T]o hold otherwise would create chaos with an already overburdened criminal justice system. A contrary ruling would require one of two things. Either the State would be required to select one specific theory to proceed under, which could allow a defendant who participated in the crime to escape justice if the State’s proof does not meet the required burden on the selected theory, or the court would be required to give verdict forms which detail all the possible combinations of factors and would insure the jury was unanimous on each factor. For example, if this approach was adopted in the present case, there would have had to have been 12 guilty verdict forms for the offense of murder to comply with all the possible combinations and permutations. In our view, this would unnecessarily hobble an already staggering court system.” Travis, 170 Ill. App. 3d at 892.

Schad v. Arizona (1991), 501 U.S. 624, 115 L. Ed. 2d 555, Ill S. Ct. 2491, a case upon which defendant relies, does not persuade us that Travis has been so limited that it cannot be extended to encompass the aggravated battery issue instruction involved in this appeal. In Schad, the defendant challenged an Arizona jury instruction which allowed the defendant to be convicted of murder based- on premeditation or during the commission of a felony (robbery). Four justices rejected defendant’s challenge, a fifth rejected it on different grounds, and four justices dissented.

In this appeal, defendant relies on language within the majority opinion which recognizes due process limitations on a “State’s capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant’s conviction without jury agreement as to which course [of conduct] or state [of mind] actually occurred.” (Schad, 501 U.S. at 632, 115 L. Ed. 2d at 566, 111 S. Ct. at 2497.) We do not believe, however, that this language encompasses the situation at bar. Rather, the type of limitations the court had in mind is suggested by another passage within the same paragraph: “nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.” (Schad, 501 U.S. at 633, 115 L. Ed. 2d at 566, 111 S. Ct. at 2497-98.) The concurring opinion similarly agreed that due process limitations exist, such as when a 6-6 jury verdict was returned relative to an umbrella felony which consisted of either robbery or failing to file a tax return. Schad, 501 U.S. at 650, 115 L. Ed. 2d at 577, 111 S. Ct. at 2506 (Scalia, J., concurring in part and concurring in the judgment).

While Schad may have had some limiting effect on this court’s opinion in Travis, we believe any such effect was minimal. The thrust of Travis remains sound.

In this case, the jury received two definitions of aggravated battery and one for simple battery. These definitions accurately reflected IPI Criminal 2d Nos. 11.05, 11.07 and 11.09. The jury was then instructed with the issue instruction in- question, which told them to convict defendant of aggravated battery if he either caused great bodily harm to J.W. (see Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)) or caused bodily harm to her while using a deadly weapon (see Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b¥l)). The jury was then given alternative, general verdict forms for aggravated battery, one finding him guilty, the other finding him not guilty.

The two aggravated battery alternatives contained within the issue instruction in question cannot reasonably be viewed as the types of combinations which Schad condemned as potentially violative of a defendant’s constitutional rights. Constitutional limitations on State instructional combinations, whatever they may be following Schad, were not crossed in this case.

In rejecting defendant’s instructional allegation, we are aware of the recent decision of the appellate court in People v. Scott (1993), 243 Ill. App. 3d 167. In Scott, defendant was charged by a three-count indictment which charged him with delivering controlled substances to undercover police officers on three different occasions. The State tendered six jury forms — one guilty and one not guilty for each of the three charges. The court sua sponte modified these instructions to one guilty and one not guilty form. Defendant failed to object, and the jury subsequently returned a guilty verdict of one count of delivery of a controlled substance. On appeal, in an analysis which did not address Travis or Schad, the court held that defendant was denied his constitutional right to a unanimous jury when the lower court submitted verdict forms for only one of the three counts charged in the indictment.

Having not discussed our previous holding in Travis nor the Supreme Court’s most recent discussion of the issue, we elect to not follow Scott. Scott is also distinguishable in that here, the conduct giving rise to the aggravated battery issue instruction arose from one transaction or series of connected acts, whereas in Scott, the defendant’s crimes were predicated on three different sales transactions.

Finally, confidence in our holding exists pursuant to a well-established principle applicable to general jury verdicts: “It is established that where the jury renders a general verdict, it is presumed to be based on any good charge to which the proof is applicable.” People v. Tanner (1986), 142 Ill. App. 3d 165, 170, 491 N.E.2d 776, cited in People v. Rodarte (1989), 190 Ill. App. 3d 992, 1003, 547 N.E.2d 1256 (dealing with aggravated battery).

People v. Kulpa (1981), 102 Ill. App. 3d 571, 430 N.E.2d 164, upon which the State relies in its motion to cite additional authority, also rejected an argument within the aggravated battery context based on this principle. There, the defendant was charged with multiple aggravated battery counts, yet the jury was instructed with an instruction which joined three counts of aggravated battery. All three counts arose from the same transaction. A general verdict form of guilty, not guilty, and not guilty by reasons of insanity was submitted to the jury, which returned one general verdict form of guilty for aggravated battery. The defendant there unsuccessfully argued on appeal that the jury should have been instructed separately on each count and received separate verdict forms for each count. Our holding in Kulpa is consistent with our holding in the instant case. Accord People v. Wheeler (1949), 403 Ill. 78, 84 N.E.2d 832; People v. Diekelmann (1937), 367 Ill. 372, 11 N.E.2d 420; People v. Wurhs (1976), 38 Ill. App. 3d 360, 347 N.E.2d 879.

Defendant next argues that he was denied a fair trial by improper prosecutorial comments. Defendant directs this court to two brief comments:

“I submit to you that that man has never made love in his life because he doesn’t have an ounce of love within him. He has violence in him. He’s a brute. He can pick on someone that’s weaker than him, physically weaker.”
I mean, I could see this guy being that kind of man, that would want to have sex with a woman even though she didn’t want to just because she broke up with him, and she wouldn’t give him the time of day anymore.”

The State responds that defendant has waived review of these comments. Defendant neither objected at trial nor particularized any closing argument as error in his post-trial motion. Defendant has accordingly waived review of these comments. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Even if we were to reach the merits of this issue, no new trial is warranted. Suffice it to say that the comments in question, if improper, were insufficiently prejudicial to warrant reversal.

Defendant finally asserts that the order of conviction and sentence should be amended to reflect his conviction of one count of aggravated battery, not two, in order to comport the order of conviction and sentence with the jury’s actual verdict. The State does not disagree, and the record reflects that defendant’s argument is well taken. The jury returned a guilty verdict on one count of aggravated battery, and defendant was sentenced based on one count of aggravated battery. Yet, for reasons not apparent in the record, the order of conviction and sentence states that he was convicted of two counts of aggravated battery. Accordingly, although we affirm defendant’s conviction and sentence, we amend the order of conviction and sentence to reflect defendant’s conviction of one count of aggravated battery, not two.

Affirmed as modified.

MANNING, EJ., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE TULLY

text:
    FRANCISZEK NEIMIEC, Plaintiff-Appellant, v. MARY R. ROELS, Defendant-Appellee.
    First District (3rd Division)
    No. 1—92—0300
    Opinion filed March 31,1993.
    Donald A. Kurasch, Ltd., of Chicago (Donald A. Kurasch and Jessica B. Tucker, of counsel), for appellant.
    Beverly, Pause, Duffy & O’Malley, of Chicago (Tracy L. Sloan and James R. Patterson, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This cause of action arises from an incident in which plaintiff, Franciszek Neimiec, sustained personal injuries as a result of being struck by an automobile driven by defendant, Mary R. Roels. The trial court granted defendant’s motion for summary judgment pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005). It is from the trial court’s entry of summary judgment in favor of defendant that plaintiff appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

On December 10, 1984, plaintiff’s automobile became inoperable and had to be towed to a service station in order to be repaired. Unable to drive to work that day, plaintiff telephoned his place of employment from the repair shop and arranged to be picked up at his home and transported to work.

In order to get to his home, plaintiff walked along Nichols Road in Palatine, Illinois. Nichols Road was a two-lane paved roadway with one lane running eastward and another lane running westward. Abutting each side of the road was a gravel shoulder. There was no sidewalk or other walkway running along either side of the road for pedestrian use.

Thus, at about 3:30 p.m., plaintiff was walking eastbound alongside Nichols Road on the gravel shoulder approximately 20 centimeters to one-half meter from the edge of the south side of the road. The next thing that plaintiff could remember was coming back to consciousness and attempting to lift himself off the ground but being unable to do so. Plaintiff could not remember anything about being actually hit by defendant’s car.

Defendant testified that she first noticed plaintiff prior to impact and that before impact she was travelling eastbound on Nichols Road at approximately 20 miles per hour. Defendant further stated that before the accident occurred, she had moved the vehicle closer to the center of the road. She could not remember whether plaintiff was walking in a wobbling manner or at a stable gait. However, defendant did state that she believed that plaintiff was standing still at the moment of impact.

Judith Messere, a witness to the accident, was travelling westbound on Nichols Road at the time of the accident. Ms. Messere testified that she saw plaintiff walking along Nichols Road for about 20 seconds prior to the occurrence and observed defendant’s vehicle for approximately 10 to 15 seconds before impact. According to Ms. Mes-sere, plaintiff had been walking in a normal manner prior to the accident, but immediately before impact, the plaintiff stumbled to his left onto Nichols Road and then the collision occurred.

After reviewing defendant’s motion for summary judgment, the trial court granted the motion. On appeal, plaintiff asserts that the trial court improperly granted summary judgment as a material issue of fact exists as to whether defendant breached her duty to use ordinary care when she struck plaintiff with her automobile. We are of the opinion that summary judgment was correctly entered and affirm.

The Illinois Supreme Court has long recognized that the granting of summary judgment is a drastic method of disposing of a case that should not be employed unless there is no issue of material fact and it is free from doubt that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) Nevertheless, our supreme court has also acknowledged that “summary judgment procedure is an important tool in the administration of justice, that its use in a proper case is to be encouraged and that its benefits inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.” (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) In determining whether there exists a genuine issue of material fact, a trial court must construe the pleadings, depositions, admissions and affidavits on file strictly against the movant and liberally in favor of the opposing party. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397; Dietz v. Spalla (1989), 186 Ill. App. 3d 742, 542 N.E.2d 855.) “[W]hen an appellate court is faced with an appeal involving only the propriety of summary judgment, the de novo standard of review should be applied — the appellate court, like the trial court, determines whether there is a genuine issue of material fact.” Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083.

It has long been the law in Illinois that a plaintiff, in a cause of action based on negligence, must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from a breach of that duty. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.) The determination of whether a duty exists is a question of law to be made by a court (McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499) and thus a motion for summary judgment properly addresses the issue of duty. Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 431, 495 N.E.2d 1259.

In the case sub judice, we agree with plaintiff that defendant had a duty to exercise ordinary care towards him in the operation of her vehicle. We further agree with the numerous cases that plaintiff cited for the proposition that a driver can be found negligent while driving under the speed limit by driving too fast for conditions in violation of sections 11—601(a) and 11—1003.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, pars. ll-601(a), 11-1003.1). (See, e.g., Masotti v. Console (1990), 195 Ill. App. 3d 838, 552 N.E.2d 1292.) However, we fail to see, after a careful review of the record in a light most favorable to plaintiff, how he can prove his case. In other words, we believe there exists no issue of disputed material fact upon which a fair-minded jury could reasonably enter a verdict in plaintiff’s favor.

The facts are that plaintiff has no memory of the accident, defendant’s memory of the incident is, at best, unclear, and the one uncontroverted witness to the occurrence testified that defendant stumbled into the roadway an instant before impact. Under such a scenario, defendant, in spite of plaintiff’s assertions to the contrary, could do nothing to prevent this tragic accident from occurring and thus did not breach her duty of care to plaintiff. Accordingly, we believe the trial court did not err in granting defendant’s motion for summary judgment.

In light of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE CERDA PRESIDING JUSTICE TULLY,

text:
    MARIAN FINN, Plaintiff-Appellant, v. DOMINICK’S FINER FOODS, INC., et al., Defendants (Kezios Properties Group, Defendant-Appellee).
    First District (3rd Division)
    No. 1—92—0160
    Opinion filed March 31,1993.

      TULLY, P.J., dissenting.
    Robert J. Quinn, of Robert J. Quinn, Ltd., of Chicago, for appellant.
    Peter J. Crowley, of Crowley, Ross & Demeo, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff Marian Finn appeals from the summary judgment entered in her claim against defendant Kezios Properties Group for injuries she sustained when she fell in a parking lot owned by defendant. According to plaintiff, summary judgment was inappropriate because there was a genuine issue of fact as to the presence of an unnatural accumulation of ice or water, and the defendant owed plaintiff a duty of ordinary care.

In her complaint, plaintiff alleged that she was in the Dominick’s parking lot located at Brementowne Mall in Tinley Park, Illinois, on October 25, 1988. Defendant was the landlord of that area of the mall. Around 8 a.m., plaintiff was walking on the public walkway near the entrance to Dominick’s when she fell. In count III of her complaint, plaintiff alleged that her fall and subsequent injuries were the direct result of defendant’s negligence. According to the complaint, defendant’s negligence was demonstrated by the following alleged omissions or acts:

“(A) [negligently and carelessly permitted, acquiesced or allowed the walkway at the aforesaid location to be and remain in a slippery and dangerous condition, when defendant knew or should have known, that such condition created a situation of imminent danger for store patrons, such as plaintiff, walking thereon;
(b) [negligently and carelessly failed to warn or alert store patrons to a potentially hazardous slippery condition, when it knew or should have known that such a condition created a situation of imminent danger for persons, such as plaintiff, walking thereon;
(c) [negligently and carelessly failed to take measures to inform or apprise HEINEMANN or DOMINICK’S of said potentially hazardous slippery condition, when it knew or should have known that such a condition created a situation of imminent danger for store patrons, such as plaintiff, walking thereon;
(d) [negligently and carelessly failed to remove or obviate said potentially hazardous slippery condition, when it knew or should have known, that such a condition created a situation of imminent danger for store patrons, such as plaintiff, walking thereon.”

Defendant filed a response and set forth plaintiff’s negligence as an affirmative defense.

Plaintiff’s discovery deposition was taken on January 12, 1990, and revealed that she exited the Dominick’s store and proceeded from the concrete to the asphalt ramp about 10 feet from the door. She then fell and landed on her leg. Plaintiff testified that the temperature was below freezing and she had to scrape the frost from her car windows that morning. When asked if she saw ice, plaintiff responded that there was frost in the parking lot. In response to questions concerning that condition of the area where she fell, plaintiff explained that it was frosty. She did not see a patch of ice or any water on the ground where she fell. Plaintiff further stated that she was unaware of anything which could have caused an unnatural accumulation of frost.

Discovery depositions were also taken from Louis Ballasch, a truck driver for Heinemann’s Bakery, and Gregory Coleman, general mall manager of Brementowne Mall for defendant. These depositions revealed that Ballasch sometimes rinsed his truck interior near the entrance to Dominick’s, using a five-gallon bucket of water he obtained from the bakery in Dominick’s. Ballasch denied that any of this water flowed onto the cart ramp area where plaintiff fell since it was uphill from the area where he parked the truck. Coleman had viewed this washing procedure about twice a week over a five-year period. He noted that usually about two gallons of water remained on the pavement where plaintiff fell, but stated that it did not appear to present an unsafe condition. Ballasch could not recall if this procedure occurred on the day that plaintiff fell. However, Coleman stated that he saw Ballasch rinsing out the truck at Dominick’s about one hour after Coleman learned of plaintiff’s fall. A month or so after plaintiff’s fall, Ballasch was told to stop his practice of rinsing out the Heinemann’s truck near the ramp.

Relying upon plaintiff’s deposition, defendant filed a motion for summary judgment. The motion was granted on December 9, 1991, based upon an absence of sufficient evidence of an unnatural accumulation.

Summary judgment is appropriate when the pleadings, admissions, depositions, and any affidavits demonstrate that no genuine issue of essential fact exists and that the movant is entitled to judgment by operation of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) When the court is presented a motion for summary judgment, it must construe the evidence strictly against the movant and liberally in favor of the opposing party. (Tersavich v. First National Bank & Trust Co. (1991), 143 Ill. 2d 74, 571 N.E.2d 733.) A trial court’s order granting summary judgment will not be reversed on appeal unless a material issue of fact is found to exist. Streams Club, Ltd. v. Thompson (1989), 180 Ill. App. 3d 830, 536 N.E.2d 459.

It is well established in Illinois that a plaintiff cannot recover for injuries sustained in a fall on ice, snow or water unless she establishes that the accumulation was not natural and was created directly or indirectly by the defendant. (Stypinski v. First Chicago Building Corp. (1991), 214 Ill. App. 3d 714, 571 N.E.2d 717.) In order to withstand a motion for summary judgment, a plaintiff must come forward with sufficient facts to allow a trier of fact to find that the defendant was responsible for the unnatural accumulation which caused plaintiff’s injuries. Crane v. Triangle Plaza, Inc. (1992), 228 Ill. App. 3d 325, 591 N.E.2d 936.

In the instant case, there was no evidence to support a finding of an unnatural accumulation of ice or water. Plaintiff stated in her deposition that she did not see any ice or water in the area where she fell and that the parking lot was “frosty.” There was no affirmative showing that an unnatural condition contributed to plaintiff’s fall. Our determination is not altered by deposition testimony which revealed that an unnatural accumulation of water occurred at times, such as when the bakery truck was rinsed. The issue is not whether an unnatural accumulation ever occurred but whether such an accumulation of water or ice caused plaintiff’s fall in this case. Since plaintiff presented nothing more than speculation concerning the cause of her fall, the trial court correctly granted summary judgment in this case.

The judgment of the circuit court is affirmed.

RIZZI, J., concurs.

PRESIDING JUSTICE TULLY,

dissenting:

I must respectfully dissent from the majority’s opinion as I believe the record contains sufficient evidence, when construed in a light most favorable to plaintiff, upon which a reasonable jury could conclude that defendant is liable to plaintiff.

The summary judgment procedure’s purpose is to determine if there are any genuine issues of triable fact. (Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 538, 221 N.E.2d 633.) “While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) “In determining whether a moving party is entitled to summary judgment, the trial court must consider the entire record and construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent.” (Emphasis added.) (Dietz v. Spalla (1989), 186 Ill. App. 3d 742, 745, 542 N.E.2d 855.) “If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable.” Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231, 450 N.E.2d 756.

Regarding falls on ice, snow or water, the court in Stypinski v. First Chicago Building Corp. (1991), 214 Ill. App. 3d 714, 571 N.E.2d 717, outlined a plaintiff’s burden as follows:

“In Illinois, in order to recover as a consequence of a fall on ice, snow or water, a plaintiff must establish that the accumulation was unnatural in origin and was created directly or indirectly by the landowner. [Citations.] In order to withstand a motion for summary judgment, a plaintiff must allege sufficient facts to permit a trier of fact to find that the defendant was responsible for an unnatural accumulation of water, ice or snow which caused the plaintiff’s injuries.” (214 Ill. App. 3d at 716.)

In the case sub judice, I believe plaintiff met this burden.

Here, there was Coleman’s testimony that on the date of plaintiff’s fall he noticed a Heinemann’s truck at or near the Dominick’s entrance where plaintiff fell. Coleman stated that the driver of the truck was washing out the inside of the trailer, leaving water on the pavement, causing the pavement and sidewalk to become slippery. On previous occasions, Coleman noticed that approximately two gallons of water would be left on the area of pavement where the sidewalk abutted the asphalt just west of the store entrance. Coleman stated that he witnessed this happen between 7 a.m. and 9 a.m. twice a week for five years prior to plaintiff’s fall. Coleman further testified that water, residue and asphalt, even in the absence of ice or snow, created a slippery condition.

Additionally, Ballasch testified that it was his usual practice to end his delivery route at the Dominick’s at Brementowne Mall, where he would deliver cabinets containing products. This procedure would end at about 7:45 a.m., whereupon Ballasch would go to lunch for one half-hour and then return to the store and pick up empty cabinets. Ballasch stated that he occasionally cleaned out the trailer with buckets containing four to five gallons of water which he obtained from the Heinemann’s bakery within the store. On occasion, Ballasch would clean out the trailer both before and after going to lunch. At those times when he washed out the truck, the right side of the trailer would be open, adjacent to the sidewalk where plaintiff fell.

The 7:45 a.m. time at which Ballasch regularly rinsed out the trailer was approximately 10 minutes before the time of plaintiff’s arrival at the store on the date of the accident. Thus, it is not unreasonable for the trier of fact to infer that defendant, through Coleman, had actual or constructive knowledge that Ballasch was creating a potentially dangerous condition by allowing the water, flowing from his trailer, to collect on the asphalt immediately in front of the store. Furthermore, it is equally reasonable to conclude that a jury could also infer that the slippery or “frosty” conditions which plaintiff testified were present on the day of the accident were attributable to Ballasch’s having washed out the trailer that day. Therefore, I believe that when construing the record liberally in favor of plaintiff it is possible for a fair-minded jury to find in favor of plaintiff. Consequently, the trial court was in error to have entered summary judgment against plaintiff.

For the foregoing reasons, I would reverse the circuit court’s order granting summary judgment in favor of defendant and remand this cause for further proceedings.

      Dominick’s Finer Foods, Inc., and Heinemann’s Bakeries were defendants in the suit filed by plaintiff. However, the appeal from the summary dismissal of the complaint as to Dominick’s and Heinemann’s was dismissed as untimely.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN C. HALASZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—3608
    Opinion filed March 31,1993.
    Edwin F. Mandel Legal Aid Clinic, of Chicago (Mark J. Heyrman, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Susan Schierl, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Defendant John C. Halasz was charged with two counts of home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12—11), one count of residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19—3 (now codified as 720 ILCS 5/19—3 (West 1992))), and one count of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A—2 (now codified as 720 ILCS 5/ 33A—2 (West 1992))). These charges arose from defendant’s having broken into the Glencoe home of his former psychiatrist, Dr. Nathan Birnberg, armed with a .357-magnum revolver, a sledge hammer, and a rope on October 17, 1984. It was defendant’s belief that Birnberg had somehow inflicted psychological damage on him during the course of his treatment. In turn for this perceived injury, defendant decided to break Birnberg’s knees with the sledge hammer. Fortunately, the Glencoe police arrived at the Birnberg residence prior to defendant’s implementation of this plan and placed him under arrest. On May 1, 1985, after a bench trial, the trial court found defendant not guilty by reason of insanity of all charges.

On July 17, 1985, pursuant to section 5—2—4 of the Unified Code of Corrections (section 5—2—4) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—2—4), the trial court adjudicated defendant subject to involuntary admission and in need of mental health services on an in-patient basis. Accordingly, defendant was remanded to the custody of the Department of Mental Health and Developmental Disabilities (DMHDD) and placed in the Elgin Mental Health Center (Elgin) for treatment.

Pursuant to section 5—2—4, the facility director at Elgin submitted a recommendation, dated March 23, 1990, to the trial court that defendant be conditionally released from the custody of the DMHDD and placed in an out-patient treatment program. On June 29, 1990, after a hearing on the matter, the trial court rejected the facility director’s recommendation and determined that defendant was still subject to involuntary admission. Consequently, defendant was ordered remanded to the custody of the DMHDD and returned to Elgin. It is from this order that defendant now appeals to this court.

During the pendency of this appeal, the Elgin facility director submitted another recommendation for defendant’s conditional release, dated April 19, 1991. After a hearing, the trial court, in its order of July 30, 1991, granted defendant conditional release, pursuant to the same conditions contained in the March 1990 recommendation at issue in this appeal. Thus, the State asserts that this appeal is now rendered moot because any decision we could reach will not provide defendant any relief as he has already obtained the relief sought in this appeal, conditional release, from the trial court. We agree.

It is a hoary principle of the common law that when a case is rendered moot, a court’s decision on the merits will not afford either party relief and any decision thus reached is merely an advisory opinion. (In re Marriage of Landfield (1987), 118 Ill. 2d 229, 514 N.E.2d 1005.) Illinois courts do not issue advisory opinions and should not indulge in the practice of rendering opinions simply for the sake of creating precedents to govern future cases. People v. Heim (1989), 182 Ill. App. 3d 1075, 538 N.E.2d 1259.

However, we note that our courts have generally not applied the mootness doctrine to mental health cases. (In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557.)

“This general rule was promulgated in recognition of two exceptions to the mootness doctrine: (1) when dismissal would eliminate an entire class of cases from appellate review, and (2) where there are collateral legal consequences which survive the expiration of the order under review.” In re Wathan (1982), 104 Ill. App. 3d 64, 65, 432 N.E.2d 670.

See also In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.

The judicial assessment pursuant to section 5—2—4 from which defendant appeals, unlike the civil commitments involved in the cases cited by defendant on this issue, does not involve the relatively short and strict time limits imposed upon the length of a civil commitment order. (See Ill. Rev. Stat. 1989, ch. 91½, par. 3—813 (initial order not to exceed 60 days; subsequent order not to exceed 180 days).) However, judicial reassessment of section 5—2—4 involuntary commitment orders occurs only upon petition of defendant or recommendation of a director of a mental health facility. Thus, while it is possible that a section 5 — 2—4 order could evade appellate review, it is not axiomatic that section 5 — 2—4 orders as a class will do so.

Moreover, in briefing this issue defendant did not cite any adverse collateral consequences that he would suffer as a result of an application of the mootness doctrine to the case at hand. “[Application of the mootness doctrine [is permitted] only where there are no possible future adverse collateral consequences.” (Wathan, 104 Ill. App. 3d at 66.) After a careful review of the record, we perceive no such collateral consequences to defendant and, thus, the mootness doctrine can be applied in this case. Consequently, we find this appeal to be moot and shall not reach the issues raised in the briefs.

In light of the foregoing, this appeal is dismissed.

Dismissed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE GREIMAN

text:
    MAURICE GOLDENBERG, Plaintiff-Appellant, v. JONATHAN ERIC SEIME et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—91—1583
    Opinion filed March 31,1993.
    Alan Kawitt, of Chicago, for appellant.
    No brief filed for appellees.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff Maurice Goldenberg filed a civil action for money not in excess of $2,500, procedures for which action are determined by Supreme Court Rules 281 through 288 relating to small claims (134 Ill. 2d Rules 281 through 288). The trial court entered judgment against plaintiff and he now appeals that order.

Defendant Jonathan Eric Seime was never served and is not a part of this action. Defendant Katharine M. Nielsen did not file an answer denying plaintiff’s allegations but did file a written response entitled “Affirmative Defenses” asserting two affirmative defenses.

At trial, plaintiff alleged that since the essential allegations of his complaint had not been denied by an answer, they were deemed to be admitted, and he did not offer evidence to support these essential allegations. Defendant, not being present at trial, offered no evidence on issues raised in her affirmative defenses.

Thereafter plaintiff’s motion for judgment on the pleadings was denied and the court entered a finding against plaintiff and in favor of defendant.

Plaintiff acknowledges that Supreme Court Rule 286(a) provides “[i]f the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded.” 134 Ill. 2d R. 286(a).

In small claims, an appearance by a defendant is considered a denial. (Blumeyer v. Tom Mighell Construction (1975), 27 Ill. App. 3d 833, 327 N.E.2d 22 (abstract of opinion).) Plaintiff acknowledges that the defendant need not have filed an answer or affirmative defense, but argues that upon the filing of affirmative defenses, defendant elected to file a written response and having failed to file an answer denying plaintiff's allegations, those allegations are deemed admitted.

Plaintiff further argues that the filing of the written affirmative defenses waives the provisions of Supreme Court Rule 286 which excuse him from filing an answer. Plaintiff notes that procedural matters are most often subject to waiver and submits that a defendant’s participation in a proceeding after the entry of a dismissal for want of prosecution is a waiver of that order of dismissal (Shankland v. Lang (1989), 179 Ill. App. 3d 899, 534 N.E.2d 1372) and a statute of limitations may be waived by a defendant (Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 525 N.E.2d 278).

These cases are not quite on point.

Considering the aims and goals of the rules that regulate small claims and the public policy in addressing such litigation, we must disagree with plaintiff.

Supreme Court Rule 286 makes it clear that no answer or responsive pleading is necessary except by order of court. Such pleadings as may be filed by a defendant are voluntary and do not affect the pleadings required. For example, normally if an affirmative defense is interposed in cases other than small claims, the plaintiff must deny the allegations of the affirmative defense lest they be deemed admitted.

However, under small claims proceedings, even if the defendant decides to file a written affirmative defense, the plaintiff need not file a reply in order to avoid admitting the defense. Peoria Housing Authority v. Roberson (1979), 74 Ill. App. 3d 326, 392 N.E.2d 1107.

A case similar to the case at bar is Ryan v. Bening (1978), 66 Ill. App. 3d 127, 383 N.E.2d 681, where the defendants filed an appearance and counterclaim, but no answer. In Bening, as in the case at bar, the plaintiff offered no evidence tending to prove his claim when the defendants did not appear. The court held that it was improper to enter a default judgment against the defendants based on their failure to appear at trial since they had previously made an appearance and filed a counterclaim and when no evidence was offered tending to prove the plaintiff’s allegations, the effect of the filing of a general appearance and counterclaim was to deny the plaintiff’s allegations.

Additionally, courts have some reasonable control as to the effect of pleadings or the failure to file pleadings. In Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318, where the defendant filed no pleadings and asserted its defense of nul tiel corporation, the plaintiff was not required to prove its corporate existence where it might not reasonably have been expected to anticipate and counter such a defense in its case in chief.

For the above reasons, the trial court is affirmed.

Judgment affirmed.

R1ZZI and CERDA, JJ., concur.


author: PER CURIAM:

text:
    VICKI UHR, Indiv. and as Adm’r of the Estate of Laura Uhr, Deceased, et al., Plaintiffs-Appellees, v. LUTHERAN GENERAL HOSPITAL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3524
    Opinion filed March 31,1993.

      Cassiday, Schade & Gloor, of Chicago (Rudolph G. Schade, Jr., Timothy J. Ashe, and Dale A. Diamond, of counsel), for appellant.
    A. Denison Weaver, Ltd., and William J. Harte, Ltd., both of Chicago, for appellees.
   PER CURIAM:

On February 26, 1992, we filed an opinion in this case affirming the judgment of the trial court; one justice dissented. (Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, 589 N.E.2d 723.) On March 9, 1993, the Illinois Supreme Court entered an order vacating the appellate court's opinion and directing that the appellate court allow the parties’ stipulated motion to dismiss the appeal filed December 5,1991.

Under the circumstances, the stipulated motion to dismiss the appeal is allowed and the appeal is dismissed. The reported opinion and dissenting opinion of the appellate court at 226 Ill. App. 3d 236, 589 N.E.2d 723, shall not be cited, and they shall have no precedential value.

Dismissed.

TULLY, P.J., and RIZZI and GREIMAN, JJ.