author: JUSTICE BARRY PRESIDING JUSTICE McCUSKEY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN WAYNE HOLMES, Defendant-Appellant.
    Third District
    No. 3 — 92—0052
    Opinion filed May 12, 1993.
    Modified on denial of rehearing July 28, 1993.
    McCUSKEY, P.J., dissenting.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court;

A jury convicted the defendant, Steven Wayne Holmes, of murder (720 ILCS 5/9 — 1(a)(2) (West 1992)). He was thereafter sentenced to 70 years’ imprisonment. He appeals, and we reverse and remand.

The record shows that the defendant shook his seven-month-old daughter Crystal, thereby causing her death. While the defendant admitted he shook his daughter, he testified that he did not intend to hurt her, and he did not know that shaking her could hurt her. The defendant also stated that he had a seventh-grade education.

The defendant’s wife, Janelle Holmes, also testified that the defendant shook Crystal but that he was not trying to hurt her. The record also shows that prior to the trial Janelle gave a statement to the police regarding the incident that was inconsistent with her trial testimony. However, in her statement to the police she never stated that the defendant intended to hurt Crystal.

Crystal’s treating doctors opined that Crystal had been vigorously shaken, which caused her brain to swell and inhibited blood flow to the brain. They both agreed that the brain injury and her death resulted from a one-time shaking incident.

Other evidence showed that Crystal had prior injuries which were indicative of a pattern of child abuse. However, the evidence presented does not prove that these prior injuries were caused by the defendant’s shaking. At trial, the defendant objected to the admission of these other incidents of abuse. He claimed that the State could not show that he inflicted these prior injuries.

The defendant reiterates that argument on appeal, and he also claims that his trial counsel was ineffective for failing to request a limiting instruction. That is, the jury should have been advised that it could not consider the prior incidents of abuse for any other purpose than the purpose for which they were admitted.

The jury found the defendant guilty of first degree murder. On appeal, the defendant first argues that he was not proved guilty of murder beyond a reasonable doubt. Specifically, he contends that the evidence was insufficient to show that the defendant knew that shaking Crystal would cause death or great bodily harm. As such, he asks this court to reverse his conviction, or, in the alternative, to reduce his conviction from first degree murder to involuntary manslaughter. He concedes that the evidence was sufficient to support a conviction for involuntary manslaughter.

A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm. (720 ILCS 5/9 — 1(a)(2) (West 1992).) Upon judicial review of a conviction, a reviewing court will preserve the trier of fact’s role as weigher of the evidence by viewing the evidence in the light most favorable to the prosecution. The relevant question is whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

After reviewing the evidence in light of the above principles, we conclude that a rational trier of fact could not have found the defendant guilty of first degree murder. Here, the evidence was insufficient to show that the defendant knew his actions could cause death or great bodily harm.

The evidence showed that the defendant had only a seventh-grade education and that the death was caused by a one-time shaking. The defendant testified that he did not know shaking a child could kill a child. In addition, the defendant and his wife both testified that he did not intend to harm Crystal. Furthermore, no evidence was introduced by the State which showed that the defendant knew his actions could cause Crystal’s death. As such, we find that the State’s evidence was insufficient to prove, beyond a reasonable doubt, that the defendant knew his actions could cause death or great bodily harm.

However, we are satisfied that the evidence in this case proved beyond a reasonable doubt that the defendant was guilty of involuntary manslaughter, a lesser included offense of murder. We therefore find that the defendant’s murder conviction should be reduced to involuntary manslaughter.

In support of our finding, we may reduce the degree of the offense of which the defendant was convicted. (134 Ill. 2d R. 615(b)(3).) This rule allows the appellate court to reduce the offense of which a defendant is convicted to a lesser offense where the evidence failed to prove beyond a reasonable doubt an element of the greater offense. People v. Kick (1991), 216 Ill. App. 3d 787, 576 N.E.2d 395.

A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts, whether lawful or unlawful, which cause the death are likely to cause death or great bodily harm to some individual, and he performs them recklessly. (720 ILCS 5/9 — 3 (West 1992).) The crux of the offense of involuntary manslaughter is recklessness. Unlike murder, involuntary manslaughter does not require felonious intent; rather, the only mental state required is the conscious disregard of a substantial and unjustifiable risk. People v. Hancock (1983), 113 Ill. App. 3d 564, 447 N.E.2d 994.

As previously noted, the evidence in this case does not establish, beyond a reasonable doubt, that the defendant knew, or intended, that his actions could or would cause death or serious harm. However, it does establish beyond a reasonable doubt that the defendant is guilty of involuntary manslaughter since the evidence shows that the defendant acted recklessly and with a conscious disregard of a substantial risk.

We note that the defendant raised two additional errors on appeal. However, due to our disposition of the first issue we find that these alleged errors, if they occurred, were harmless since the evidence overwhelmingly established the defendant’s guilt of involuntary manslaughter. See People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.

Accordingly, the judgment of the circuit court of Peoria County is reversed and the defendant’s conviction for first degree murder is reduced to involuntary manslaughter. The cause is remanded for re-sentencing.

Reversed and remanded.

STOUDER, J., concurs.

PRESIDING JUSTICE McCUSKEY,

dissenting:

I respectfully dissent. The appropriate standard of review in a criminal case was correctly set forth by the majority when it said: “Upon judicial review of a conviction, a reviewing court will preserve the trier of fact’s role as weigher of the evidence by viewing the evidence in the light most favorable to the prosecution. The relevant question is whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.” 246 Ill. App. 3d at 180.

However, after reviewing the record, it is clear the majority failed to review the evidence in the light most favorable to the prosecution. Also, the majority has ignored the fact that on the day of the incident, the defendant lied to the paramedics and the police. Furthermore, the defendant lied again when he testified in his own defense at trial.

Pursuant to the Collins standard, a criminal conviction will not be set aside unless the evidence presented at trial is so improbable or so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.

My review of the evidence indicates that the evidence presented at trial was neither improbable nor unsatisfactory. Instead, quite to the contrary, I believe that the evidence was sufficient to sustain the defendant’s conviction for first degree murder.

The defendant told paramedic Clark Anderson that the victim slipped from his hands and fell onto the bed, then to the bassinet before striking the floor. The defendant told other paramedics that the victim was crying and he went to pick her up. The defendant said he lost control of the child when she threw her arms up. The defendant told Officer Orlando Allen, on the date of the incident at the hospital, that the baby was crying and he picked her up when she jerked, fell out of his arms, hit the bassinet and the floor. The defendant denied that he was angry on the date of the incident or that he shook the victim hard.

The defendant changed his story during the trial. He took the stand and testified that the baby was in the bassinet when his wife left for work. He said he heard the baby crying and picked her up. The defendant said the child pushed away from him and fell backwards, bouncing between the bed and the bassinet. When he picked her up, she closed her eyes and looked like she was losing consciousness so he shook her. According to the defendant, he had no intent to injure the child when he shook her. He said he shook the child perhaps three times and then called 911.

After reviewing the extensive medical testimony presented during trial combined with the defendant’s wife’s statement, it is clearly evident that the defendant has never yet told the truth about his daughter’s death. The defendant’s wife gave the following statement to the police at the hospital on the day of the incident.

“Q. Do you have knowledge of this incident?
A. This morning we got up. I heard the baby crying this morning. He got up and took her out of bed. He said he changed her diaper, and I heard her crying; so I got out of bed and asked him what the hell was going on. I asked him if he fed her yet, and he said, ‘Fuck no I didn’t.’ I asked him why not. And he said because I was a bitch. So I went in, fixed her a bottle, and began to feed her. He snatched the bottle out of her mouth, and so I picked her up and tried to calm her down. And then I had to go downstairs to get my clothes out of the dryer. I took the baby with me down there. We came back upstairs, went into the bedroom. We got dressed. He came in there and snatched her out of my arms, said she wanted her dad instead of her mom. So I followed them out to the front room, tried to take her from him. He set her on the floor. I go sit in the chair. Then he called me a fuck’n bitch and slung the bottle at me. Then that’s when he kicked me in the gut. The baby’s food is still all over me. I didn’t have time to clean it up.
Q. Where was the baby at this time?
A. She was sitting on the floor crying.
Q. Did Steven do anything to Crystal at that time?
A. He just picked her up and shook her and told her she better stopped crying.
Q. How hard did he shake her?
A. Pretty hard, made her feel it. She stopped crying. It scared her more than anything.
Q. What was his exact words he stated to the baby?
A. Fuck’n shut up. Fuck’n shut up. Fuck’n shut up.
Q. While he was saying that, did he continue to shake the baby?
A. No. That’s when he put her down and I took her in my hands.
Q. Is this the only time you observed your husband, Steven, shake your daughter, Crystal?
A. No.
Q. What other time did he shake her?
A. Early this morning and last night too. You might as well put it all in there.
Q. Tell me what happened earlier this morning.
A. I got out of bed, and he had her out of bed already. I heard her screaming still, so I got up and asked him what the fuck was going on with my girl. He said he was changing her diaper, and I asked if he’s fed her yet. He said, ‘No, bitch.’ So I went in and fixed her bottle, and she was crying; and that’s when he started shaking her the first time. So I brung her the bottle into her and was going to feed her, and he snatched the bottle from me and squirted it all over her face. So I picked her up, took her in the kitchen, and washed her off. Then went downstairs to get my clothes out of the dryer, and then walked into my bedroom to get dressed. And he came in and yanked her out of my arms and said he wanted her. She wanted her dad instead of mom. So I followed them in the front room and him and her sat on the couch. I sat in the chair. She started crying again, so he kind of like tossed her on the floor and told me to leave her the fuck alone because I was the one that made her spoiled, and that’s why she always wants moni. And that’s when he began to shake her again and told her to fuck’n shut up, fuck’n shut up. We both ran out of cigarettes, and he asked me to go to the gas station. And I came back home, and she was still sitting there screaming. I asked him what happened, and he couldn’t tell me. Then I asked him to let me take her to the baby sitter, and he told me no. So I laid her down and made sure she was asleep, and he said he would take her over to the baby sitter; so I went to work. And about 15 minutes at work a cop came and got me saying my baby was in the hospital.
Q. Has Steven ever struck, shook, or thrown Crystal before this date?
A. Yeah.
Q. Can you tell me about those times?
A. It wasn’t as bad as it is now. He’d just like barely shake her and tell her to quiet, to be quiet and then hand her to me. He didn’t really get angry with her like he does now.
Q. When Steven grabbed and shook Crystal today, can you describe the way he grabbed and he shook her?
A. He picked her up and grabbed her tight and started shaking the piss right out of her.
Q. Where did he grab her?
A. At the arms.
Q. Did he shake her by holding just her arms?
A. He just took a big grip on her and grabbed her and started shaking her real hard. He was shaking also. That’s why I knew, that’s why I know he was really angry.
Q. Was Crystal being held by the arms alone when he shook her?
A. He was squeezing so hard her elbows were going into her ribs. She was screaming.
Q. Did you try to get Crystal from his grasp?
A. Yeah.
Q. Did he give her to you?
A. No. He said he’d kick my ass if I tried. When I did try, he hit me.
Q. How did you end up with her?
A. He finally got tired of hearing her scream, so he said, ‘Here. Take your spoiled fuck’n brat.’
Q. You stated you fed Crystal?
A. I fed her, burped her, put her down in the bassinet, and patted her until she went to sleep and told him she should sleep an hour. When she wakes up to take her right over to the baby sitter and call me when he got to the baby sitter’s. That’s when the cops came out and got me.”

Three doctors testified concerning the cause of the seven-month-old baby’s death. The doctors all considered the baby’s prior injuries as relevant in making their determination as to the cause of death.

Dr. William Hannigan, a neurosurgeon, testified that the baby died from shaking. Dr. Howard Cohen, a pediatrician, testified that the baby suffered from brain swelling and retinal hemorrhages. Dr. Cohen observed on the X rays older rib fractures and left forearm fractures which were in the process of healing. Dr. Cohen said the older injuries clearly established a pattern of abuse known as “shaken baby syndrome.” Dr. Cohen observed some bruises on the baby’s face. Dr. Cohen said that all of the baby’s injuries indicated a pattern of abuse over a long period of time.

The final doctor to testify was Dr. Mary Jumbelic, a forensic pathologist, who performed the autopsy on the child. Dr. Jumbelic observed that the seven-month-old infant was 27V2 inches in length and weighed only 12V2 pounds. She said the child was markedly underweight. Dr. Jumbelic observed fractures to the left ribs and radius and ulna of the left forearm. She also observed more subtle fractures in the right humerus, distal femur, and proximal tibia. Dr. Jumbelic testified that the fractures in the right shoulder and in both knees were a result of traction and shearing-type forces in the joint and not from a fall or banging the knee against something. Dr. Jumbelic concluded that these fractures were a result of the child being shaken.

The majority states, “Other evidence showed that Crystal had prior injuries which were indicative of a pattern of child abuse. However, none of these prior injuries were caused by shaking.” (246 Ill. App. 3d at 180.) Based on my review of Dr. Jumbelic’s testimony, I do not agree with the majority’s conclusion that none of the victim’s prior injuries were caused by shaking. I reach the opposite conclusion.

The testimony of many witnesses established that the defendant was responsible for a burn to the victim’s cheek and bruises to her face. The defendant’s wife said at the hospital that injuries to the child “happen all the time” when she left the child with the defendant. She also admitted in her statement to the police that the defendant had shaken the child on previous occasions. Based on this evidence, I believe the defendant was responsible for the old fractures, which were shearing bone injuries to the child’s shoulder and both knees. I reach this conclusion based on the fact that the evidence showed the defendant had shaken the child on prior occasions and because Dr. Jumbelic established that the injuries were caused by shaking.

The defendant said that he didn’t shake the child hard and didn’t intend to injure her. The evidence doesn’t support his testimony. Why then did he lie to the police and change his story at trial? The only logical conclusion is that the defendant was trying to cover up the murder of the child. The jury reached the same conclusion. Furthermore, the jury was in a far better position than this reviewing court to observe the manner and demeanor of the witnesses, weigh the evidence presented, and judge the credibility of the defendant.

After viewing the evidence in the light most favorable to the prosecution, I believe a rational trier of fact could have found the elements of first degree murder beyond a reasonable doubt. I would affirm the jury’s verdict.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    CATHERINE L. HAUK et al., Plaintiffs-Appellants, v. JESSE REYES, Defendant-Appellee.
    Third District
    Nos. 3-91-0771, 3-92-0038
    Opinion filed July 13, 1993.

      Raymond C. Rose (argued), of Kanoski, Rose & Associates, of Peoria, and Duane K. Bayer, of Kanoski & Associates, of Rushville, for appellants.
    Burrel Barash (argued), of Barash, Stoerzbach & Henson, of Galesburg, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs Catherine L. Hauk and Jeffrey Hauk appeal from summary judgment entered in favor of defendant Jesse Reyes in a medical malpractice action based on defendant’s alleged failure to diagnose correctly the fracture of Catherine’s spine which resulted in her permanent quadriplegia. The trial court ruled that plaintiffs’ action against defendant is barred by the medical malpractice statute of limitations.

On appeal, plaintiffs contend that the trial court erred in refusing to apply the five-year limitation for fraudulent concealment of the cause of action. We agree with plaintiffs.

On the morning of November 28, 1984, Catherine Hauk was seriously injured in an automobile accident and was taken by ambulance to the emergency room at Graham Hospital in Canton, Illinois, where she was received at 9:20 a.m. Plaintiff complained of severe lower back pain and pain in the right hip region. X rays of plaintiff’s chest, pelvis, and lumbosacral spine were ordered by Dr. John Day, plaintiff’s attending physician. The X rays were taken by Connie Schleich, radiology administrator and chief technologist at Graham Hospital, and were interpreted by Dr. Reyes.

The initial diagnosis given to Dr. Day and Dr. Harendra Gupta, the consulting orthopedist, was that the patient had a stable compression fracture of her spine (vertebra T-11) and had nondisplaced fractures of four ribs. Based on that information, Dr. Gupta recommended bed rest with a gradual increase in activity. Plaintiff was given pain medication and was not immobilized. In fact, she was allowed bathroom privileges with assistance.

By the morning of November 29, plaintiff had developed numbness in her lower extremities, and her treating physicians consulted a neurologist, who ordered an immediate CT (computerized tomography) scan. The scan showed a comminuted, bursting type fracture of L-l (first lumbar vertebra), a condition which should be treated by immobilizing the patient and undertaking immediate surgery. Plaintiff was transferred to Peoria for the surgery, which was not successful, and she became a quadriplegic.

Plaintiffs consulted an attorney, and Catherine’s medical records were obtained from Graham Hospital in October of 1986. In her file was found Dr. Reyes’ report interpreting the X rays, which stated in part:

“The body of L 1 is not well visualized on the lateral view, but on the AP projection, there is evidence of fracture of the right transverse process. On the lateral view, there is poor definition of the superior and inferior end plates as well as the anterior portion of the body which suggests the presence of a comminuted depressed bursting type fracture. There is also cortical irregularity at the anterior body of T 11 which is also probably a fracture. CT scan or tomograms suggested for further evaluation.”

This typed report was dated November 28, 1984, and was the only X-ray report in plaintiff’s permanent file. The outside of Catherine’s X-ray folder contained the following handwritten notation:

“11/28/84 — Attending physician notified about suspected Fx of LI & CT scan suggested.”

The source of this note is unknown.

On the basis of Dr. Reyes’ X-ray report, dated November 28, recommending a CT scan and the failure of the attending physicians to order a scan, counsel determined that Drs. Day and Gupta were negligent in their treatment of plaintiff. On November 19, 1986, plaintiffs filed a medical malpractice action naming Dr. Day and Dr. Gupta as defendants.

Due to a clerical oversight, the supporting affidavit of a medical doctor was not filed with the complaint but was filed late with leave of court after the two-year statute of limitations had expired. Defendants were allowed to take an interlocutory appeal from the court’s ruling. On appeal this court first reversed the trial court and then, after the intervening decision of the supreme court in McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293, we withdrew our opinion and instead affirmed. (Hauk v. Day (1988), 167 Ill. App. 3d 758, 521 N.E.2d 1243.) Our mandate was not issued until November 5, 1988, after the Illinois Supreme Court denied defendants’ petition for leave to appeal, nearly four years after the injury was incurred.

Plaintiff’s counsel then scheduled discovery depositions, and in the course of taking the deposition of Connie Schleich, the X-ray technologist who took plaintiff’s X rays and discussed them with defendant, learned for the first time on May 15, 1989, that defendant had prepared a report containing his initial interpretation of the X rays as disclosing no serious problem. Schleich stated that defendant did not diagnose a bursting type fracture until after the CT scan on November 29, and that he must have prepared a second version of his X-ray report on November 29, backdated to November 28.

In subsequent depositions, Dr. Day (September 15, 1989) and Dr. Gupta (October 18, 1989) testified that they were not informed by defendant on November 28, 1984, of any suspicion of a comminuted bursting type fracture and that neither doctor saw the final version of defendant’s X-ray report before plaintiff’s medical file was transported to Peoria with her on November 29. Dr. Day stated that he first saw the report when he prepared a discharge summary on December 9,1984.

Dr. Reyes’ account differed from that of Dr. Day and Dr. Gupta. He said that he sent a handwritten report to the emergency room with his first impression that plaintiff’s back injury was not serious, and then told Dr. Gupta on the phone that he had suspicions of a more serious pathology. When another radiologist, Dr. Zaheer, arrived at Graham Hospital about noon, defendant said that he consulted him and together they determined that plaintiff’s injury was a serious fracture. Defendant said he called Dr. Gupta to inform him of the revised finding and that he dictated his final report, incorporating the revised diagnosis, about 12:30 p.m. on November 28.

According to Connie Schleich, Dr. Zaheer did not arrive at the hospital until 4 p.m. on that day. Also, Dr. Gupta denied receiving a call from defendant revising his previous findings and denied that defendant ever suggested a CT scan.

Plaintiffs filed an amended complaint against defendant on November 6, 1989, alleging that he prepared a final X-ray report which he backdated to November 28, and that he destroyed his preliminary handwritten report, thereby fraudulently concealing plaintiffs’ cause of action for negligent diagnosis. Defendant’s motion to dismiss the amended complaint on grounds that the statute of limitations had expired was denied on the ground that the allegations of fraudulent concealment allow application of a five-year period of limitation regardless of diligence. The trial court noted that, with a motion to dismiss, the allegations of the complaint must be assumed to be true.

Defendant subsequently filed a motion for summary judgment, again on the ground that the statute of limitations had expired. The trial court granted summary judgment in favor of defendant. The court ruled that a question of fact exists as to whether defendant fraudulently concealed plaintiffs’ cause of action, but that summary judgment was not precluded thereby because plaintiffs, in the exercise of ordinary diligence, should have discovered the fraudulent concealment of the cause of action much earlier instead of more than four years after the injury. Furthermore, the court ruled that plaintiff did not allege any affirmative acts amounting to fraudulent concealment, but relied instead upon defendant’s silence. The court held that the five-year limitation period for fraudulent concealment could not be invoked.

On appeal, the issue is whether plaintiffs are entitled to the five-year period of limitation for an action based on fraudulent concealment under the circumstances of this case.

Looking first at the statutory provisions involved, section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 212) provides that a medical malpractice action must be brought no more than two years after the claimant knew or through the use of reasonable diligence should have known of the injury, but in no event more than four years after the date of the act, omission, or occurrence alleged to have been the cause of injury.

The statute of limitations for fraudulent concealment in section 13 — 215 of the Code is an exception to the general limitation period and provides:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.” Ill. Rev. Stat. 1991, ch. 110, par. 13 — 215.

In determining when a plaintiff should reasonably have discovered the possibly wrongful causation of an injury, the courts have distinguished between a sudden traumatic injury and an injury with an insidious onset, with the traumatic event prompting investigation by the injured party and triggering application of the discovery rule. In Lutes v. Farley (1983), 113 Ill. App. 3d 113, 446 N.E.2d 866, the stillbirth of a child was held to be such a sudden traumatic event. In an earlier case, Urchel v. Holy Cross Hospital (1980), 82 Ill. App. 3d 1050, 403 N.E.2d 545, the plaintiff who sustained injuries in a car-bus collision that resulted in permanent paralysis was held, from the date of the injury, to have constructive knowledge of the possibility that someone was at fault. The court ruled that the plaintiff should have thoroughly investigated the accident and subsequent events to determine what parties might have been at fault. Similarly, in the case before us Catherine’s injuries and resulting quadriplegia were sudden and traumatic events which made it incumbent upon plaintiff to investigate the cause of her injuries.

As the record indicates, plaintiffs did obtain Catherine’s medical record and consulted an attorney within the two-year period of limitations. The medical record disclosed that a CT scan was recommended on November 28, 1984, but was not performed until November 29. Plaintiffs filed suit within the two-year period against the doctors, Dr. Day and Dr. Gupta, who were apparently negligent in not ordering the CT scan on November 28 as recommended by defendant according to his report in the permanent file. Plaintiffs were obviously reasonably diligent in pursuing a legal remedy up to that point.

Once the complaint was filed, a 19-month lapse of time occurred in trial court proceedings due to the appeal taken by the defendant doctors. During that time plaintiffs did not incur the expense of further discovery while the possible termination of their cause was being weighed upon the scales of appellate justice.

In granting summary judgment, the trial court stated, inter alia, in its memorandum of opinion:

“It is, therefore, the conclusion of the Court that despite the fact that there are some issues of material fact that could otherwise be considered by a jury, Section 13 — 215 is not applicable and trial not available on those issues where the concealment could have been discovered during the initial limitation period or during the period of the discovery period.”

After the court’s summary judgment order was entered, plaintiffs filed a motion to reconsider supported by their counsel’s affidavit outlining his diligence in pretrial discovery. The trial court denied the motion to reconsider and, in a memorandum opinion, stated in part:

“The realities of the practice of law are not unknown to this Court. No implication regarding lack of diligence was intended in any way by reason of the Memorandum granting Summary Judgment.
In denying the Plaintiff’s Motion for Reconsideration, I am simply relying on the case law, the effect of which seems to preclude the application of the concealment limitation period in traumatic injury cases absent more than is present on this record. *** I can find no case of traumatic injury onset where interim appeals were involved. Granted, it is the general practice that discovery does not continue while a case is on appeal. However, I can find no case that precludes discovery during the appeal process.”

After reviewing the record on appeal, we agree with the trial court that there was no lack of diligence on the part of plaintiffs or their counsel in pursuing discovery in this cause. We do not agree that plaintiffs are nevertheless barred from invoking the fraudulent concealment five-year limitation. It would be unreasonable and unjust to require plaintiffs to incur the expense of continuing pretrial discovery while defendants are attempting to have the cause terminated in the appellate and supreme courts. The fact that this case involves a traumatic injury event does not alter the finding that plaintiffs were reasonably diligent in seeking to discover who was at fault.

Defendant contends that Urchel v. Holy Cross Hospital mandates a ruling that the five-year limitation of section 13 — 215 does not apply. There, plaintiff suffered a traumatic injury in September of 1973 in a car-bus collision, was treated at Holy Cross Hospital and was discharged a quadriplegic, filed suit against the Chicago Transit Authority (CTA) in 1973 which was settled in 1976, and discovered for the first time after settlement that another person injured in the same accident had seen plaintiff sitting up in the emergency room after the accident. Urchel filed suit against Holy Cross Hospital in March of 1977 alleging that defendants aggravated his initial injuries by failing to timely diagnose his injury, failing to immobilize him, and failing to treat his condition upon arrival. The court held that he was subject to the two-year statute of limitations, ruling that he should have thoroughly investigated the circumstances of the accident and subsequent events to determine not only the facts necessary to his suit against the CTA but also to determine whether any other parties might have been at fault. As to Urchel’s claim that the defendants fraudulently concealed their negligence, the court held that the complaint alleged nothing beyond silence on the part of defendants, and this was not sufficient to establish fraudulent concealment.

Our courts have been clear that section 13 — 215 is applicable only where the concealment of a cause of action consisted of affirmative acts or representations which prevent the discovery of the cause of action. (E.g., Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 518 N.E.2d 336.) Therefore, we must consider whether plaintiffs have adequately set forth an affirmative act of fraudulent concealment by their allegations that defendant backdated his final X-ray report to November 28 in order to conceal his failure to diagnose an unstable fracture and his failure to recommend further X rays, thereby intentionally misleading plaintiff into believing that his actions had been appropriate.

In addition to the allegations of the complaint, we note Connie Schleich in her deposition indicates that defendant took affirmative action in preparing a revised version of his initial X-ray interpretation after he learned on November 29 that his initial diagnosis was wrong and that he backdated the revision to November 28.

Defendant is thus accused of the affirmative act of preparing a revised version of his initial X-ray interpretation after he learned on November 29 that his initial diagnosis was wrong and backdating the revision to November 28. Certainly such an action would tend to cause plaintiffs to believe that Dr. Day and Dr. Gupta were negligent in not ordering a CT scan on November 28 and would conceal defendant’s failure to discover the comminuted, bursting type fracture before the CT scan was taken. In our view, these allegations establish an affirmative act of fraudulent concealment. In spite of plaintiffs’ reasonable diligence, as previously discussed, defendant’s potential culpability was not discovered until the fifth year after the injury. If the five-year limitation period for fraudulent concealment is ever to be applied, it must be applied here. Otherwise, section 13 — 215 is meaningless.

Defendant relies on cases which are readily distinguishable from the case before us. In Urchel v. Holy Cross Hospital and Smith v. Cook County Hospital, silence was held not to be an affirmative act of fraudulent concealment. Here we have not mere silence on the part of defendant but an act which misrepresented his initial diagnosis. In Greenock v. Rush Presbyterian St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266, 382 N.E.2d 321, the court held that the plaintiff was not reasonably diligent in failing to obtain hospital records before the two-year wrongful death limitation expired. Here we do have plaintiffs who pursued discovery with reasonable diligence both before and after the interlocutory appeal.

In another case relied upon by defendant, Cramsey v. Knoblock (1990), 191 Ill. App. 3d 756, 547 N.E.2d 1358, decedent suffered a head injury in an automobile accident in 1985 and died of a brain tumor in 1986. A wrongful death action was filed in 1986 against the person allegedly at fault in the accident, and in 1988, plaintiffs sought to add as defendants the doctors who treated decedent after the accident and allegedly failed to order a CT scan, thus failing to diagnose and treat the tumor from which she died. Plaintiffs claimed fraudulent concealment in that defendants’ medical reports failed to state any connection between the trauma and the tumor which killed her. The court ruled that the five-year limitation of section 13 — 215 did not apply because plaintiffs did not allege any affirmative acts or representations designed to prevent discovery of the cause of action. The court also noted that plaintiffs had sufficient time to file a complaint within the two-year limitation period, which began to run at the date of death. Unlike the instant case, in Cramsey there were no allegations of a deliberate action resulting in a concealment of defendant’s fault.

An issue of fact exists here as to whether defendant’s final report was intentionally backdated and, if so, whether it constituted fraudulent concealment. Those determinations are ultimately for the trier of fact. We conclude that summary judgment was improvidently granted. This cause is, therefore, reversed and remanded for further proceedings.

Reversed and remanded.

McCUSKEY, P.J., and SLATER, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN HARLOW, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0502
    Opinion filed April 15, 1993.
    Modified on denial of rehearing July 15, 1993.
    Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In February 1992, defendant, Kevin Harlow, pleaded guilty to controlled substance trafficking, in violation of section 401.1 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401.1), pursuant to the following plea agreement: (1) the State dismissed two counts of unlawful delivery of controlled substance (15 grams or more, but less than 100 grams of a substance containing cocaine) (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401(a)(2)(A)) and one other count of controlled substance trafficking; (2) defendant consented to the forfeiture of $5,745 and a 1989 Chevrolet pickup truck, both of which were seized from him at the time of his arrest, and defendant would pay a fine to be determined by the court at the sentencing hearing; and (3) if he had no prior felony convictions, the court would sentence him to 12 years in prison, the minimum sentence authorized under the Act. See Ill. Rev. Stat. 1991, ch. 561/2, pars. 1401.1(b), 1401(a)(2)(A).

In March 1992, the trial court conducted a sentencing hearing, sentenced defendant to 12 years in prison, ordered the forfeitures previously mentioned, fined defendant $3,000, and also imposed a “street-value” fine of $4,000. Defendant subsequently filed a motion for reduction of sentence, and in April 1992 the trial court heard and denied that motion. Defendant appeals, arguing that what he calls the “mandatory double Class X sentencing provision” of section 401.1(b) of the Act violates his State and Federal constitutional rights to be free from cruel and unusual punishment.

Section 401.1(a) of the Act defines controlled substance trafficking as occurring when any person “knowingly brings or causes to be brought into this State for the purpose of manufacture or delivery or with the intent to manufacture or deliver a controlled or counterfeit substance in this or any other state or country.” (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401.1(a).) Section 401.1(b) of the Act states that a person convicted of controlled substance trafficking “shall be sentenced to a term of imprisonment not less than twice the minimum term *** as authorized by Section 401 of this Act, based upon the amount of controlled *** substance brought *** into this State.” Ill. Rev. Stat. 1991, ch. 561/2, par. 1401.1(b).

Defendant pleaded guilty to bringing into this State more than 15 grams but less than 100 grams of a substance containing cocaine with the intent to deliver that substance. Thus, under section 401(a)(2)(A) of the Act defendant committed a Class X felony, requiring a prison sentence of not less than six years. (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401(a)(2)(A); Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-1(a)(3).) Accordingly, the trial court and both counsel correctly concluded that section 401.1(b) required the court to impose a mandatory minimum sentence upon defendant of 12 years in prison. Defendant argues that this mandatory minimal sentence “for a non-violent offense violates [his] Illinois and Federal constitutional rightfs] to be free of cruel and unusual punishment, [because he] has a substantial work history and a minimal criminal history.” In support of this argument defendant cites the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and article I, section 11, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §11).

The eighth amendment, which applies against the States by virtue of the fourteenth amendment (see Robinson v. California (1962), 370 U.S. 660, 666, 8 L. Ed. 2d 758, 763, 82 S. Ct. 1417, 1420), states the following: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., amend. VIII.) In Harmelin v. Michigan (1991), 501 U.S. 957, 1001, 115 L. Ed. 2d 836, 869, 111 S. Ct. 2680, 2705 (opinion of Kennedy, J., joined by O’Connor and Souter, JJ.), Justice Kennedy wrote a concurring opinion, in which Justices O’Connor and Souter joined, in which he stated that “the eighth amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”

We note that Justice Scalia wrote an opinion, concurred in by Chief Justice Rehnquist, concluding that the eighth amendment contained no proportionality guarantee at all. (Harmelin, 501 U.S. at 966, 115 L. Ed. 2d at 846, 111 S. Ct. at 2686 (opinion of Scalia, J., joined by Rehnquist, C.J.).) Thus, we believe that the eighth amendment, as currently interpreted by the Supreme Court, provides no greater protections to defendants than those stated by Justice Kennedy in his concurring opinion for a plurality of the Court. For the reasons we later explain, we conclude that the mandatory minimum sentence in this case of 12 years in prison is not “grossly disproportionate” to the crime.

Article I, section 11, of the Illinois Constitution of 1970 states in part the following: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) Citing this Illinois constitutional provision, defendant argues that the “mandatory double Class X sentence for controlled substance trafficking, a non-violent offense *** [violates] the Illinois constitutional requirement that the punishment be meted out according to the seriousness of the offense and with the objective of restoring the defendant to useful citizenship.” In support of his argument, defendant points out that this mandatory minimum sentence of 12 years is double the mandatory minimum sentence imposed upon offenders convicted of such Class X crimes of violence as aggravated criminal sexual assault (see Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 14(d), 1005 — 8—1(a)(3)), armed violence (see Ill. Rev. Stat. 1991, ch. 38, pars. 33A — 3(a), 1005 — 8—1(a)(3)), home invasion (see Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 11(c), 1005 — 8—1(a)(3)) and solicitation of murder (see Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 1.1(b), 1005 — 8—1(a)(3)).

In People v. St. Pierre (1992), 146 Ill. 2d 494, 513, 588 N.E.2d 1159, 1168, the Illinois Supreme Court construed article I, section 11, of the 1970 Constitution and wrote the following: “A sentence does not offend the requirement of proportionality if it is commensurate with the seriousness of the crime and gives adequate consideration to the rehabilitative potential of the defendant.” In People v. Simmons (1991), 145 Ill. 2d 264, 269-70, 583 N.E.2d 484, 486, the Illinois Supreme Court had previously construed that constitutional provision and wrote the following:

“The legislature has the power to declare and define conduct constituting a crime and to determine the nature and extent of punishment for it. [Citations.] While this court acknowledges that article I, section 11, of the State of Illinois Constitution places some restraint on the right of the legislature to establish penalties for crimes, we have been reluctant to invalidate penalties prescribed by the legislature. [Citation.] ‘The legislature, institutionally, is more aware than the courts of the evils confronting our society and, therefore, is more capable of gauging the seriousness of various offenses.’ [Citation.] Legislative classifications are presumed valid [citation], and this court will invalidate a penalty only when it is clearly irrational [citation]. More precisely, in evaluating a penalty prescribed by the legislature, this court:
‘indicated at an early date that the constitutional command that “penalties shall be proportioned to the nature of the offense” would justify interference with the legislative judgment only if the punishment was “cruel,” “degrading” or “so wholly disproportionate to the offense committed as to shock the moral sense of the community.” ’ [Citation.]”

In concluding that a mandatory minimum sentence of 12 years in prison for a person convicted of controlled substance trafficking is not “clearly irrational” or “wholly disproportionate to the offense committed,” we have considered the following authority. In People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147, the supreme court had to decide whether a rational basis existed for classifying cocaine with opiates instead of with amphetamines and barbiturates. In arguing that the legislature had correctly classified cocaine with the opiates, the State presented several justifications. The supreme court found that the State’s justifications provided a “rational basis to validate the legislature’s judgment” (McCarty, 86 Ill. 2d at 257, 427 N.E.2d at 152), and the court explained as follows:

“[T]he State argues that the enormous profit from illegal cocaine traffic has led to a great deal of crime, including violent crime, as major importers and dealers compete with each other. * * *
Cocaine and heroin are by far the most expensive and most profitable of the illicit drugs. As such, both heavily attract the criminal element of society. One kilogram of cocaine may cost a wholesaler from $12,000 to $20,000 but has a street value of over a million dollars. [Citation.] *** It must be noted that one of the primary purposes of the Act is to ‘penalize most heavily the illicit traffickers or profiteers of controlled substances.’ [Citation.]” McCarty, 86 Ill. 2d at 254-55, 427 N.E.2d at 151.

We further note the following commentary on the subject of drug trafficking from the United States Supreme Court:

“The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs *** may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.” United States v. Mendenhall (1980), 446 U.S. 544, 561-62, 64 L. Ed. 2d 497, 514, 100 S. Ct. 1870, 1881 (opinion of Powell, J., concurring, joined by Burger, C.J., and Blackmun, J.).

We also agree with the views expressed in United States v. Miranda (S.D. Fla. 1977), 442 F. Supp. 786, 795, as follows:

“[I]t is time for the merchants of misery, destruction and death to be put out of business. The hideous evil wrought by these criminals through their unlawful importation and distribution of narcotics and controlled substances is unforgivable. Engulfed by their greed, these individuals have shown no concern for the thousands of lives that they have ruined and the unimaginable sorrow that they have heaped upon the people of this community, this state and this nation.
Yet as destructive as these criminal ventures have been to the victims, they have been equally profitable to the criminals who have promoted them. ***
*** The saddest aspect of this national problem is that [in 1965], Chief Justice Burger, then sitting on the District of Columbia Court of Appeals, *** [wrote the following in Hansford v. United States (D.C. Cir. 1965), 353 F.2d 858, 860, about] a problem that has grown to epidemic proportions since that day. * * *
*** [‘]If narcotics traffic is a social and health hazard, then every narcotics dealer is a danger to society ***.[’]” (Emphasis omitted.)

Defendant also argues that he is entitled to a $5 credit against his $3,000 fine for the one day in jail he previously served. The State concedes this point, and we remand to the trial court with diretions to correct the fine portion of the sentencing order accordingly.

For the reasons stated, we affirm the defendant’s conviction and sentences, except as indicated with regard to the fine.

Affirmed and remanded with directions.

McCULLOUGH and GREEN, JJ., concur.


author: JUSTICE GOLDENHERSH CHAPMAN, P.J.,

text:
    JASON LAMKIN, a Minor, by his Mother and Next Friend, Carol A. Lamkin, et al., Plaintiffs-Appellants, v. STAN TOWNER et al., Defendants (Gallatin Aluminum Products, Inc., Defendant-Appellee). — DUSTIN TROY PACE, a Minor, by his Mother and Next Friend, Robin R. Pace, et al., Plaintiffs-Appellants, v. STAN TOWNER et al., Defendants (Gallatin Aluminum Products, Inc., Defendant-Appellee).
    Fifth District
    Nos. 5 — 91—0132, 5 — 91—0133 cons.
    Opinion filed June 16, 1993.
    Rehearing denied July 15, 1993.

      CHAPMAN, P.J., specially concurring.
    G. Edward Moorman, of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for appellants.
    Clark D. Smith, of Donovan, Rose, Nester & Szewczyk, P.C., of Belleville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Jason Lamkin, a minor, by his mother and next friend, Carol A. Lamkin (No. 5 — 91—0132), along with Dustin Troy Pace, a minor, by his mother and next friend, Robin R. Pace, and Robin R. Pace (No. 5 — 91—0133), appeal from summary judgments entered in favor of defendant manufacturer, Gallatin Aluminum Products, Inc. (hereinafter the manufacturer). Summary judgments were also entered in favor of the other named defendants, but plaintiffs contest only the summary judgments entered in favor of the manufacturer. In this cause, we are asked to consider whether the trial court erred in entering summary judgments in favor of the manufacturer. We reverse and remand.

The facts and procedural history relevant to the issue presented are as follows. On March 2, 1983, plaintiff, Jason Lamkin, two years old, lived with his mother in an apartment in Alton. On that date, Jason’s mother was vacuuming his bedroom on the second floor and moved the bed beneath a window in order to vacuum the area where Jason’s bed was usually positioned, approximately one foot beneath the window. Jason’s mother opened the window before vacuuming, but a screen was in place. As she reached to turn off the vacuum, she heard a grunting noise and turned to see Jason’s feet going out the window. Jason fell headfirst onto the pavement below. Jason suffered a cerebral contusion and a skull fracture. The record does not reveal the extent of Jason’s recovery.

On September 1, 1982, plaintiff, Dustin Pace, aged 18 months, lived with his mother in the same apartment building as Jason Lamkin. On that morning, Dustin’s mother left a window open in Dustin’s second-floor bedroom. The window was covered by a screen. Later in the day, Dustin’s mother was drying her hair. Upon completion, she turned off the hair dryer and heard something hit. She ran into Dustin’s bedroom and saw the screen was off the window. She ran downstairs and outside and found Dustin lying on the ground. The record does not reveal the extent of Dustin’s injuries.

On February 28, 1985, Jason Lamkin and his mother brought a negligence and products liability action in Madison County for injuries Jason sustained in his fall through the screen. On the same date, Dustin Pace and his mother also filed a negligence and products liability action in Madison County for injuries sustained from his fall from the same apartment building. Named as defendants in plaintiffs’ complaints were: the owner of the apartment building, Stan Towner; the renovator/builder of the building, Pat Dooling and Kenneth Vaneck, a partnership; the retailer of the windows and screens, Carroll Supply & Service; and the manufacturer of the windows and screens, Gallatin Aluminum Products, Inc. All defendants in both cases filed motions for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) based on the absence of any legal duty on their part on which liability could be predicated. The retailer also filed a motion to dismiss pursuant to section 2 — 621 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621). The trial court denied all defendants’ motions for summary judgments along with the retailer’s motion to dismiss. On December 18, 1987, the trial court granted defendants’ motions for a finding for interlocutory appeal in each case pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). This court granted leave to appeal in each case, the cases were consolidated, and we affirmed the trial court’s denial of defendants’ motions for summary judgment and the retailer’s motion to dismiss. (Lamkin v. Towner (1989), 190 Ill. App. 3d 631, 546 N.E.2d 1020.) Our supreme court granted defendants’ petitions for leave to appeal and ultimately reversed and remanded for further proceedings consistent with its opinion. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) On remand, the trial court entered summary judgment in favor of all defendants in both cases. Plaintiffs appeal the entry of summary judgment in favor of the manufacturer only. On this court’s own motion, we once again consolidate these cases.

Plaintiffs contend that the facts available to the trial court when it granted the manufacturer’s motions for summary judgment were not sufficient to support the entry of such judgment, and that our supreme court’s decision does not require the entry of summary judgment in favor of the manufacturer. (See Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) The manufacturer replies that the supreme court's decision required the trial court to enter summary judgment in favor of the manufacturer, and that the facts available to the trial court when it granted defendant’s motion for summary judgment were sufficient to support the entry of such judgment. After careful study of our supreme court’s decision in this matter, we do not believe that summary judgment in favor of the manufacturer was appropriate under these circumstances.

The standards governing whether summary judgment should be granted are set forth in section 2 — 1005(c) of the Code, which states in pertinent part:

“The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).)

Summary judgment is a drastic remedy. It must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 473 N.E.2d 531.) In passing on a summary judgment motion the trial court is, therefore, required to construe the pleadings, affidavits, depositions, and admissions on file strictly against the moving party and liberally in favor of the opponent. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) Only if these materials establish that the movant’s entitlement to summary judgment is free from doubt may such a motion be granted. Fremont Indemnity Co. v. Special Earth Equipment Corp. (1985), 131 Ill. App. 3d 108, 112, 474 N.E.2d 926, 930.

In Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449, our supreme court reversed the trial court’s denial of all defendants’ motions for summary judgment and remanded for further proceedings consistent with its opinion. Specifically, the supreme court found that the landlord did not have any duty to maintain a window screen sufficiently strong to support the weight of a minor child and that the landlord could not be held liable for plaintiffs’ injuries because there was no evidence that the landlord retained any control over the leased apartments. (Lamkin, 138 Ill. 2d at 519, 563 N.E.2d at 453.) The supreme court also held that the renovator/builder did not owe any common law duty to the apartment residents to install child-proof windows, even if such a screen was available, due to the overwhelming economic and social consequences which would be placed on every apartment renovator/builder by such a duty. (Lamkin, 138 Ill. 2d at 524, 563 N.E.2d at 455.) Specifically, the supreme court stated that potential consequences would be that renovators/builders would cease installing windows or, at a minimum, install windows that would not open. The opinion also noted that the costs of conforming with such a duty would be staggering. (Lamkin, 138 Ill. 2d at 524-25, 563 N.E.2d at 455.) As to the retailer, the supreme court found that it was a non-manufacturer entitled to dismissal of the products liability claim pursuant to section 2 — 621(c)(1) of the Code of Civil Procedure, because it had no knowledge of any defects in the window which allegedly caused plaintiffs’ injuries and did nothing that would have created the alleged defects. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(c)(1) through (c)(3); Lamkin, 138 Ill. 2d at 532, 563 N.E.2d at 459.) The retailer’s duty to sell a screen sufficiently strong to support the weight of a minor child was also discussed along with the manufacturer’s duty; however, the supreme court’s discussion of the section 2— 621 motion leaves no doubt that the retailer should not be a party to this action. With regard to the manufacturer’s duty, the supreme court stated:

“A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) .by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs. See generally Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 219-20, [412 N.E.2d 959,] citing Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 427-28, 573 P.2d 443, 452, 143 Cal. Rptr. 225, 234-35.
There has been no evidence presented in the form of affidavits, depositions, testimony or other evidentiary materials to support a finding on a motion for summary judgment that the window screens failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. ***
The window screens were simply serving the purpose for which they were created when the accidents occurred. Even assuming that ‘the ordinary [person]’ may recognize the potential for a screen to restrict a fall from a window, we cannot conclude that, in the event a window screen fails to prevent the fall of a minor leaning against it, ‘the ordinary [person]’ would consider the screen dangerous beyond his original contemplation of the product. A consumer may rightfully expect a product to safely do the job for which it was built or for a foreseeable similar use, but neither a retailer nor a manufacturer can be held strictly liable for injuries resulting from the misuse of its product.
Likewise, there has been no evidence presented in the form of affidavits, depositions, testimony or other evidentiary materials to support a finding on a motion for summary judgment that the window screens’ design proximately caused appellees’ injuries. Appellees allege in their complaints that:
‘(a) The screens readily popped out from the frames;
(b) The screens were not securely fastened within tracks on the windows;
(c) There are no secure latches, locks or other devices to fix the window screens to the frames.’
Appellees fail to provide evidence of how the window screens’ design could have been altered to create a safer screen, such as the one described by appellees, or any evidence of the form and feasibility of the alternative screen design. (See, e.g., Palmer, 82 Ill. 2d at 218, [412 N.E.2d at 963].) In light of appellees’ failure to provide any evidence to support their allegations, we cannot conclude that, as a matter of law, the window screens are ‘defective or unreasonably dangerous’ such as to serve as the basis for a products liability action against the retailer or manufacturer of such window frames and window screens.” (Emphasis in original.) (Lamkin, 138 Ill. 2d at 529-31, 563 N.E.2d at 457-58.)

The supreme court then reversed our decision and remanded the case for further proceedings consistent with its opinion. Lamkin, 138 Ill. 2d at 533, 563 N.E.2d at 459.

After a careful reading of our supreme court’s opinion in Lamkin, it is evident that there was no need for the supreme court to remand for further proceedings as to the landlord, the renovator/ builder, or the retailer. The opinion clearly indicates that as to the landlord and the renovator/builder summary judgment was proper. As to the retailer, the supreme court found it should have been dismissed as a party pursuant to section 2 — 621 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(c)(1) through (c)(3)). The supreme court did, however, leave open the question of liability as to the manufacturer on the products liability claim.

On remand, plaintiffs agreed that the supreme court’s decision necessitated that summary judgment be entered in favor of the landlord and the renovator/builder and that the retailer be dismissed from the action, but plaintiffs argued that unresolved factual issues as to the manufacturer still exist, thereby making summary judgment as to the manufacturer out of the question. Plaintiffs identified the unresolved factual issues as:

“(a). Factual issues involving design and testing which were answered ‘unknown’ or ‘to be furnished’ in Gallatin’s answers to interrogatories ***.
(b) . Factual matters concerning the advancement of technology in the window-screen industry resulting in the ready availability of stronger window screens than in prior years.
(c) . All of the matters which may be developed through discovery and the use of experts, none of which had been resolved at the time this court ruled on summary judgments.”

After reviewing the record, it is apparent that the manufacturer did give only cursory answers to plaintiffs’ interrogatories. For example, the manufacturer answered “unknown” or “to be furnished” to several questions. Most telling is the fact the manufacturer was not even aware what screens and windows were involved in the accidents in question.

After remand by our supreme court, in response to the manufacturer’s motion for summary judgment, plaintiffs submitted an affidavit, signed by Robert D. Larson, attorney at law, stating in pertinent part:

“The engineering and design of windows and screens has changed, developed, and improved in the last 20 years so that new forms of windows and screens are now being used which did not exist at the time the cases [relied upon by the manufacturer] were decided ***.”

The affidavit states that one such screen is sold by Alarm Screen of St. Louis and is made of a material so strong it is child resistant. Nevertheless, the trial court, after reviewing the supreme court’s decision, entered summary judgment in favor of the manufacturer and against plaintiffs.

The trial court’s orders of January 30, 1991, indicate that it felt obligated to enter summary judgment because of its interpretation of the supreme court decision. The orders entered by the trial court read as follows:

“The Court, having reviewed the decision of the Illinois Supreme Court pertaining to this matter, captioned Lamkin v. Stan Towner, et al, Docket Numbers 69498, 69499, 69506, 69519 consolidated — Agenda 25 — May, 1990, *** does hereby enter summary judgment in favor of Gallatin Aluminum Products Company, Inc. and against plaintiffs *** with respect to all causes of action set out in plaintiffs’ Complaint.
The Court further finds there is no just reason to delay enforcement or appeal of this Order.”

We note that these orders recite review of the supreme court’s opinion but do not refer to review of any affidavit, discovery, or argument by any party, although such was submitted to the court after remand. It is clear on this record that the trial court granted summary judgment based on its understanding of our supreme court’s opinion, not on the record before it.

No further discovery was conducted by the parties prior to summary judgment, but we believe it should have been. Plaintiffs should have been allowed the opportunity to fully present the factual basis of their case. The supreme court decision found that no evidence had been presented up to that point to support a finding on a motion for summary judgment “that the window screens failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner” (emphasis omitted) (Lamkin, 138 Ill. 2d at 529, 563 N.E.2d at 457) or “that the window screen’s design proximately caused [plaintiffs’] injuries” (emphasis omitted) (Lamkin, 138 Ill. 2d at 530, 563 N.E.2d at 458). We conclude the supreme court’s remand was to allow plaintiffs the opportunity to present such evidence.

The manufacturer maintains that plaintiffs should have requested a continuance to obtain affidavits or additional discovery in opposition to the motion for summary judgment. While that would have been prudent, we do not believe that plaintiffs’ failure to request a continuance waived the issue. Our interpretation of the supreme court’s decision is different from that of the trial court. We believe the supreme court decision requires plaintiffs be given the opportunity to present a factual basis for a products liability action against the manufacturer. Accordingly, the trial court should have given plaintiffs the opportunity to conduct further discovery, and the trial court’s entry of summary judgment was premature and constituted error. Plaintiffs’ affidavit from attorney Robert D. Larson is an attempt by plaintiffs to provide evidence of how the window screen’s design could have been altered to create a safer screen and that such an alternative screen design is feasible. (See, e.g., Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 218, 412 N.E.2d 959, 963.) The supreme court’s opinion mandates that plaintiffs be given further opportunity to support their claim that a child-proof window screen exists. At this time the manufacturer’s right to a judgment is not clear and free from doubt.

For the foregoing reasons, the orders of the circuit court of Madison County granting summary judgment are reversed, and the causes are remanded for further proceedings not inconsistent with this opinion.

No. 5 — 91—0132, Reversed and remanded.

No. 5 — 91—0133, Reversed and remanded.

RARICK, J., concurs.

CHAPMAN, P.J.,

specially concurring:

I concur in the result reached by the majority, but the reasons for my conclusion require me to write separately.

In my opinion the reason for the possible confusion on the trial court’s part is to be found in the treatment of this case in the original appeal. The trial court, the appellate court, and the supreme court all treated the motion by the manufacturer as a section 2 — 1005 motion for summary judgment when in fact it was a section 2 — 615 motion to dismiss for failure to state a cause of action, and in my opinion this treatment has had unfortunate results.

I acknowledge at the outset that the motion involved was clearly captioned a motion for summary judgment and that it may have been accompanied by a deposition transcript.

‘Motion For Summary Judgment * * *

1. That there are no genuine issues of material fact for resolutions by a jury.
2. That the discovery deposition of Robin R. Pace incontrovertibly establishes that a minor plaintiff fell from a second story window which had been opened and which opening was covered by a window screen.
3. That under Illinois law it is well established that a window screen is not required or intended to keep persons from falling out of the window in which is it placed. Crawford v. Orner & Shayne [Inc. (1947)], 331 Ill. App. 568, 73 N.E.2d 615, Gasquoine v. Bornstein [(1956)], 10 Ill. App. [2]d 423, 135 N.E.2d 121.
4. That the foregoing rule of law clearly establishes that a window and window screen cannot be defective or unreasonably dangerous because it does not prevent a person from falling through the window as this is not its intended purpose as a matter of law.
WHEREFORE, defendant prays that summary judgment be rendered for it and against plaintiffs.”

It is equally clear, however, that the motion is not based upon the “no genuine issue as to any material fact standard” of section 2 — 1005 (735 ILCS 5/2 — 1005 (West 1992)). Instead, the motion is premised upon a lack of duty, which is properly the subject of a section 2 — 615 motion to dismiss (735 ILCS 5/2 — 615 (West 1992)). Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215, recently reviewed dispositive pretrial motions and summarized its analysis as follows:

“(1) a defendant’s section 2 — 615 motion admits the truth of the facts alleged in support of the claim but denies the legal sufficiency of those facts;
(2) a defendant’s section 2 — 1005 motion admits the legal sufficiency of the claim but denies the truth of the facts alleged; and
(3) a section 2 — 619 motion admits both the truth of the facts alleged in support of the claim and the legal sufficiency of the claim, but it raises affirmative matters which it asserts defeat the claim, and as to those affirmative matters, there is no admission of either truth or sufficiency.
See Professor Michael’s excellent discussion of this issue in 4 Illinois Practice §41.2, at 296-98.” (Emphasis omitted.) Barber-Colman Co., 236 Ill. App. 3d at 1075, 603 N.E.2d at 1223.

The supreme court criticized a loose use of motions in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 405-06, 312 N.E.2d 605, 609:

“Decision of this case has been made unnecessarily difficult because the trial and appellate courts and the parties have not drawn a sufficiently sharp distinction between the proper inquiry on a motion to dismiss and a motion for summary judgment. Indeed, the motions filed by the savings and loan associations seem predicated on the assumption that there exists a hybrid procedure whereby a defendant may challenge the legal sufficiency of a complaint and, at the same time, answer it, file affidavits stating facts which would be admissible at trial, and demand judgment on the merits. *** To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court. If this sort of procedure were sanctioned, it would be left to the reviewing courts to sort matters out and to remand with directions to allow leave to amend the complaint, to require plaintiff to file counteraffidavits, or to provide other appropriate instructions. We therefore expressly disapprove the procedure followed in the trial court. The defendants in this case should have first challenged the legal sufficiency of the complaint. When, and only when, a legally sufficient cause of action had been stated should the court have entertained the motions for summary judgment and considered the affidavits filed in support thereof.”

The original confusion and the improper use of section 2 — 1005 is clearly shown by the defendant’s “Motion for Trial Court Statement Pursuant to Illinois Supreme Court Rule 308(a)”:

“5. That, in denying said motion, the Court essentially found that the allegations of Counts IX and X allege a legal, common-law duty on the part of the defendant-manufacturer, the violation of which can serve as the basis for a cause of action under the theory of. strict liability in tort against the manufacturer.
6. That the question of law involved is whether, under the allegations of Counts IX and X of the Complaint, a manufacturer is under any common-law duty to manufacture screens for aluminum windows sufficiently strong to support the weight of a small child leaning against such window screen and prevent that child from falling out of that window, where it is alleged that:
‘... [T]he windows and screens manufactured by the defendant, Gallatin Aluminum Products Company, Inc., were unreasonably dangerous and defective in that:
(a) The screens readily popped out from the frames:
(b) The screens were not securely fastened within tracks on the windows;
(c) There were no secure latches, locks, or other devices to affix the window screens to the frame.’
and that:
‘As a direct and proximate result of unreasonably dangerous and defective conditions described above, the screen gave way and the plaintiff, Dustin Troy Pace, was caused to fall from the second story onto a paved area.’
the violation of which duty can serve as the basis for a cause of action for strict liability and tort against the manufacturer.” (Emphasis added.)

Obviously the defendant, while proceeding under a summary judgment format, was actually attacking the legal sufficiency of the complaint on the duty issue and was not attacking the factual underpinnings of the case under section 2 — 1005.

The fact that the defendant was really attacking the legal sufficiency of the complaint is made even more clear by the question prepared by defendant and certified by the trial court for appeal under Supreme Court Rule 308.

“D. As to defendant, GALLATIN ALUMINUM PRODUCTS,
Whether, as a matter of law, under the allegations of Counts IX and X of the Amended Complaint, a window frame and window screen can be defective or unreasonably dangerous because they were not sufficiently strong to support the weight of a child leaning against the window screen so as to serve as the basis for a cause of action for products liability against the manufacturer of such window frames and window screens, where it is alleged that:
‘At that time and place, the windows and screens manufactured by the defendant, Gallatin Aluminum Products, were unreasonably dangerous and defective in that:
(a) The screens readily popped out from the frames;
(b) The screens were not securely fastened within tracks on the windows;
(c) There were no secure latches, locks, or other devices to fix the window screens to the frames.
‘As a direct and proximate result of one or more of the foregoing unreasonably dangerous and defective conditions, the screens would easily fall from the window frames.
On or about September 1, 1982, while the plaintiff, Dustin Troy Pace, was in an upstairs bedroom, he leaned or fell
against one of the screens manufactured by the defendant, Gallatin Aluminum Products.
As a direct and proximate result of the unreasonably dangerous and defective conditions described above, the screen gave way and the plaintiff, Dustin Troy Pace, was caused to fall from the second story onto a paved area.’ ” (Emphasis added.)

Clearly, the certified question deals with the issue of legal sufficiency as opposed to one of factual insufficiency.

Unfortunately, in the original appeal, both this court (Lamkin v. Towner (1989), 190 Ill. App. 3d 631, 546 N.E.2d 1020) and the supreme court (Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449) treated this case as if it had been resolved on a summary judgment basis.

The language of the supreme court on the count against the manufacturer is significant.

“Likewise, there has been no evidence presented in the form of affidavits, depositions, testimony or other evidentiary materials to support a finding on a motion for summary judgment that the window screens’ design proximately caused appellees’ injuries. Appellees allege in their complaints that:
‘(a) The screens readily popped out from the frames;
(b) The screens were not securely fastened within tracks on the windows;
(c) There are no secure latches, locks or other devices to fix the window screens to the frames.’
Appellees fail to provide evidence of how the window screens’ design could have been altered to create a safer screen, such as the one described by appellees, or any evidence of the form and feasibility of the alternative screen design. (See, e.g., Palmer, 82 Ill. 2d at 218[, 412 N.E.2d at 963].) In light of appellees’ failure to provide any evidence to support their allegations, we cannot conclude that, as a matter of law, the window screens are ‘defective or unreasonably dangerous’ such as to serve as the basis for a products liability action against the retailer or manufacturer of such window frames and window screens.” (Emphasis added and omitted.) (Lamkin, 138 Ill. 2d at 530-31, 563 N.E.2d at 458.)

Two problems are presented by viewing this pleading attack as if it were a summary judgment motion, and both are manifested in the last sentence of the quote:

“In light of appellees’ failure to provide any evidence ***, we cannot conclude that, as a matter of law, the window screens are ‘defective or unreasonably dangerous ***’.” (Emphasis added.) (Lamkin, 138 Ill. 2d at 530-31, 563 N.E.2d at 458.)

First, it was not the plaintiffs that were seeking a finding under section 2 — 1005 that the screens were unreasonably dangerous; it was the defendant that was seeking a finding that they were not. Actually, the defendant was not truly seeking such a finding on & factual basis. Instead, the defendant was seeking a ruling in its favor on a legal basis.

Second, the references to evidence, or the lack of it, are meaningful in a summary judgment context, but they are generally inappropriate in determining the existence of a duty. In deciding whether a duty exists in ruling on a section 2 — 615 motion, the court would not normally be concerned with evidence; the allegations of the complaint would be taken as true for the purpose of deciding the motion. This discussion on the type .of motion involved and the basis of the supreme court’s ruling is important because of the different treatment afforded different defendants in the supreme court’s decision.

The supreme court dismissed the count against the renovator/ builder on a legal basis. After discussing the factors involved in determining duty (foreseeability, likelihood of injury, magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant), the court stated:

“It would seem, therefore, that our review of the instant cases is halted at this point by necessity; remand of the causes to the trial court would appear to be required to hear evidence as to both the potential for the creation of a screen described by appellees as well as evidence of the added costs and time requirements on a renovator/builder. There is, however, one additional variable in the duty issue which we conclude answers the question without necessitating remand of the instant cases to the trial court for resolution of this issue. This variable is the consequences that would result if this court were to recognize a duty to install child-proof window screens.
* * *
While we decline in this instance to impose the duty requested by the appellees, we acknowledge that the concept of a duty in this area of the law is a ‘very involved, complex and indeed nebulous’ concept.” Lamkin, 138 Ill. 2d at 524-25, 563 N.E.2d at 455-56.

The conclusion of no duty as to the renovator/builder appears to me to be different than the basis of the supreme court’s ruling as to the manufacturer. The supreme court decided the duty question against the renovator/builder on the basis of the “overwhelming economic and social consequences” the imposition of such a duty would impose on that class of defendants. Immediately before reaching that conclusion, however, the court had stated:

“It would seem, therefore, that our review of the instant cases is halted at this point by necessity; remand *** would appear to be required to hear evidence as to both the potential for the creation of a screen described by appellees as well as evidence of the added costs and time requirements on a renovator/ builder.” (Emphasis added.) Lamkin, 138 Ill. 2d at 524, 563 N.E.2d at 455.

What would a remand mean under such circumstances? That the supreme court was unable to determine the duty question to its satisfaction based only upon the record before it and that it would have remanded for the presentation of evidence if it had not decided to relieve the renovator/builder of any possible liability for a different reason, the “overwhelming economic and social consequences.”

The fact that the supreme court did not relieve the manufacturer of liability on the same basis leads me to conclude that the supreme court wanted the trial court to examine evidence as to “both the potential for the creation of a screen *** as well as added cost *** requirements.” Therefore, the apparent failure of the trial court to review even the limited evidence presented on the issue requires reversal.

I would reverse and remand with instructions to the trial court to enter an order expediting discovery on the issues of concern to the supreme court. This case has been on file since at least 1985, and both the plaintiffs and the defendant are entitled to a reasonably prompt resolution of this issue.