text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. WHITE, Defendant-Appellant.
    Fourth District
    No. 4—92—0204
    Opinion filed December 23, 1992.
    Daniel D. Yuhas and Charles L. Jones, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

A Macon County information charged defendant James White with reckless homicide (Ill. Rev. Stat. 1991, ch. 38, pars. 9—3(a), (e)) and driving while his driver’s license was revoked (Ill. Rev. Stat. 1991, ch. 95½, par. 6—303). Defendant pleaded guilty to the latter charge and was sentenced to 364 days of imprisonment. After a bench trial, defendant was found guilty of reckless homicide and sentenced to 10 years of imprisonment, to run concurrently with the other sentence. Defendant appeals, alleging the 10-year sentence was excessive and the trial court abused its discretion in failing to adequately consider mitigating factors. We affirm defendant’s sentence and remand with instructions to amend the sentencing order to reflect one additional day of sentence credit.

On the evening of September 17, 1991, defendant was driving his pickup truck on Lake Shore Drive in Decatur and collided with Randall Albrecht’s car, killing Albrecht’s 18-month-old daughter Elizabeth. A passerby who stopped at the scene of the accident testified that defendant smelled strongly of alcohol. The police officer and the paramedic at the scene, as well as the emergency staff nurse at the hospital, all testified they smelled alcohol on defendant’s breath when they came in contact with him that evening. John Jessen, the emergency physician at the hospital on the evening of September 17, testified that defendant’s blood-alcohol level was .299. Allen Kramer, a friend of defendant, testified he met defendant at the Back Door Tavern in Decatur in the early evening of September 17 and that defendant consumed between 9 and 12 bottles of beer before leaving the tavern between 8 and 8:30 p.m. A waitress at the Back Door Tavern testified she served defendant six bottles of beer but that another waitress also served his table that evening. Defendant testified he did not remember anything that occurred on the day of the accident until he was being questioned at the police station later that night. The trial court found defendant guilty of reckless homicide.

At the sentencing hearing on January 16, 1992, defendant presented the testimony of his friend Stacey Statzer and his parents, who stated that defendant was a good person and had expressed great remorse over the death of the child. Defendant’s parents also spoke of defendant’s struggles to overcome alcohol and substance abuse. Defendant’s presentence investigation report indicated he had a 1978 conviction for delivery of controlled substance in Will County and a 1991 DUI conviction in Macon County. Defendant testified he quit drinking in 1986 after receiving a DUI supervision in Cook County, but that he subsequently relapsed and stopped going to Alcoholics Anonymous. He said he pleaded guilty to another DUI charge on June 11, 1991, in Macon County. Defendant admitted that at that time he provided incorrect information on the alcohol evaluation by falsely stating he had no prior convictions, supervisions, or drug and alcohol treatment in his history in order to get his driver’s license back. Defendant stated that he began drinking heavily about a year ago when he and his wife separated. Despite losing his license after his DUI conviction in 1991, defendant admitted he had frequently driven back and forth to work and to taverns since that time. He said he received help for his alcohol problem after the most recent DUI and has recently quit drinking.

The trial court determined that a sentence to the Department of Corrections (DOC) was necessary for the protection of the public because defendant was incapable of following the laws respecting drinking and driving and that probation would deprecate the seriousness of the offense.

Defendant alleges that his sentence is excessive and an abuse of the court’s discretion. While Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) allows a reviewing court to reduce the sentence imposed by the trial court, it is not our function to serve as a sentencing court and a sentence will not be disturbed on review absent an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547.) The trial court may exercise wide discretion in the source and type of evidence it will use to determine the appropriate sentence. (People v. LaPointe (1981), 88 Ill. 2d 482, 496, 431 N.E.2d 344, 350.) The judgment as to the proper sentence must be based upon the particular circumstances of each individual case and depends upon many factors, including defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, prior criminal history, and age. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.

Defendant correctly states that the Illinois Constitution requires that “[a]ll 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.) A proper balance must be struck between the protection of society and the rehabilitation of the defendant. (Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.) However, a court is not required to give the defendant’s rehabilitative potential more weight than the seriousness of the offense. (People v. Fort (1992), 229 Ill. App. 3d 336, 341-42, 592 N.E.2d 1205, 1210.) Although reckless homicide is a Class 3 felony (Ill. Rev. Stat. 1991, ch. 38, par. 9—3(d)(2)), in those cases where defendant was determined to have been under the influence of alcohol or any other drug “the penalty shall be a Class 2 felony, for which a person, if sentenced to a term of imprisonment, shall be sentenced to a term of not less than 3 years and not more than 14 years.” (Ill. Rev. Stat. 1991, ch. 38, par. 9—3(e).) The usual sentence for a Class 2 felony is not less than three years and not more than seven years. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—1(a)(5).) In the instant case, the trial court considered defendant’s rehabilitative potential and determined that defendant was not entitled to more lenient treatment. The court found that defendant’s prior offenses indicated he was an individual who could not abide by the rules of drinking and driving. Given defendant’s drug conviction, DUI convictions, and falsifications on his alcohol evaluation, the trial court could reasonably conclude that a 10-year sentence was appropriate.

Defendant alleges the trial court failed to consider his alcoholism and his remorse over causing the child’s death as mitigating factors. Defendant also emphasizes his strong work history and consistent payment of child support as evidence of his good character. In sentencing a defendant, the trial court must consider any evidence presented which relates to the statutory factors in mitigation and aggravation. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005—5—3.1, 1005-5-3.2; People v. Whealon (1989), 185 Ill. App. 3d 570, 573, 541 N.E.2d 865, 866.) A defendant’s demonstrated history of alcoholism is a factor to be considered in the trial court’s sentencing determination. (People v. Tannahill (1987), 152 Ill. App. 3d 882, 889, 504 N.E.2d 1283, 1288.) A defendant’s remorse, or lack thereof, is also a proper subject for the court to consider at sentencing. (People v. Albanese (1984), 102 Ill. 2d 54, 80-81, 464 N.E.2d 206, 219.) Defendant argues the trial court discussed the aggravating factors but failed to address the mitigating factors. However, a trial court setting forth the reasons for the sentence imposed need not recite and assign a value to each fact presented at the sentencing hearing. (People v. McCarthy (1991), 213 Ill. App. 3d 873, 887, 572 N.E.2d 1219, 1228.) Absent any indication in the record to the contrary, it is presumed that the trial court considered evidence presented in mitigation. (McCarthy, 213 Ill. App. 3d at 887-88, 572 N.E.2d at 1228.) We find the trial court considered all the relevant factors necessary and reasonably concluded a 10-year sentence was necessary as a deterrent and as a protective measure for society.

Defendant also alleges, and the State concedes, that he is entitled to an additional day of sentence credit for the time he served in custody prior to his sentencing. A defendant is entitled to credit against his sentence for every day while imprisoned on the offense for which he is sentenced. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—7; People v. Helton (1990), 195 Ill. App. 3d 410, 421, 552 N.E.2d 398, 406.) The record indicates defendant was in custody for 40 days from September 17, 1991, to September 20, 1991, and from December 12, 1991, to January 16, 1992, but was only granted 39 days of sentence credit. Therefore, we find defendant is entitled to one day of additional sentence credit.

For the foregoing reasons, we affirm defendant’s sentence and remand this cause with instructions to amend the sentencing order to reflect one additional day of sentence credit.

Affirmed as modified and remanded.

McCULLOUGH and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENNETH RAY TILLMAN, Defendant-Appellee.
    Fourth District
    No. 4—92—0501
    Opinion filed December 23, 1992.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Kenneth Tillman pleaded guilty to unlawful use of weapons by a felon. (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1.) He was sentenced by a Champaign County circuit court to 30 months’ probation. A month before his probation term was to expire, the State filed a petition to revoke, alleging defendant had been convicted of a felony for an offense committed in Rock Island County over 10 months earlier. The trial judge dismissed the petition based on inordinate delay by the State in seeking to revoke defendant’s probation. The State appeals, arguing dismissal of the petition was improper. We agree and reverse.

In the autumn of 1989, defendant was arrested and pleaded guilty to the unlawful use of weapons by a felon. He was sentenced to 30 months’ probation with certain terms, including the payment of $90 as court costs and an order that he not violate any criminal statute of any jurisdiction.

A probation violation report was filed June 20, 1991. It indicated defendant was arrested on May 19, 1991, for theft with a prior theft conviction (Ill. Rev. Stat. 1989, ch. 38, pars. 16—1(a)(1), (b)(2)), and a two-count information was filed in the circuit court of Rock Island County. On July 5, 1991, defendant pleaded guilty to the offense and was sentenced to two years’ imprisonment followed by one year’s mandatory supervised release.

Another probation violation report was filed July 18, 1991, indicating defendant owed $55 in court costs and had been found guilty of the offense of theft with a prior theft conviction. Defendant’s probation officer recommended defendant’s probation be revoked based on these reports.

Defendant served only a five-month term of his original two-year term for the theft with a prior theft conviction. He was apparently released in the later part of 1991. •

A third probation violation report was filed April 24, 1992, alleging the same violations and again recommending defendant’s probation be revoked. On April 30, 1992, the State filed a petition to revoke defendant’s probation based on defendant’s theft with a prior theft conviction offense and a warrant for defendant’s arrest was issued.

At defendant’s probation revocation hearing on June 2, 1992, defense counsel contended defendant’s due process rights were violated because of the State’s delay in filing a petition to revoke probation. Defense counsel argues that whether delay constitutes a due process violation must be decided on a case-by-case basis, citing People v. Crawford (1980), 85 Ill. App. 3d 366, 368, 406 N.E.2d 861, 862.

Defense counsel contended if the State had sought revocation earlier defendant may have obtained a negotiated plea for the theft with a prior theft offense which would have considered the effect of the conviction on his probation status. He also argued if defendant had known his probation would be revoked for the theft, he would not have established employment.

The State argued the petition was not filed untimely because it was filed only five months after defendant was released from prison on the theft with a prior theft conviction. The trial judge rejected the State’s arguments. He reasoned the operative time was not when defendant was released from prison, but rather when he was convicted of the offense for which the State seeks revocation of his probation. Based on his reliance on People v. Powell (1980), 89 Ill. App. 3d 801, 412 N.E.2d 47, the trial judge denied the State’s petition to revoke.

The trial judge reasoned the 10-month delay between defendant’s conviction and the filing of the probation revocation petition was similar to the 15-month delay between the conviction and the State’s filing of the petition to revoke defendant’s probation in Powell. The third district concluded this delay was unreasonable and violated defendant’s due process rights. Powell, 89 Ill. App. 3d at 802, 412 N.E.2d at 48.

Defendants serving a probationary term are guaranteed due process protections. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60.) This protection is more limited than the protection afforded a defendant during the litigation stage of his prosecution. Morrissey v. Brewer (1972), 408 U.S. 471, 481, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600; People v. Beard (1974), 59 Ill. 2d 220, 225, 319 N.E.2d 745, 747.

Procedural protections are afforded a probationer to ensure his liberty is not denied him unjustifiably. They are also provided to ensure the State does not unnecessarily thwart a successful effort at rehabilitation or imprudently prejudice the community’s safety. Gagnon, 411 U.S. at 785, 36 L. Ed. 2d at 663-64, 93 S. Ct. at 1761.

A defendant has a right to a probation revocation hearing within a reasonable time. (People v. Williams (1973), 10 Ill. App. 3d 428, 430, 294 N.E.2d 61, 63.) The trial judge concluded he must consider whether the 10-month period between defendant’s conviction and the petition to revoke his probation was reasonable. However, the reasonableness of the State’s delay in filing the petition must be evaluated on a case-by-case basis. (Powell, 89 Ill. App. 3d at 802, 412 N.E.2d at 48; People v. Malone (1976), 41 Ill. App. 3d 914, 918, 354 N.E.2d 911, 914.) An additional factor the trial judge should have considered was whether defendant was prejudiced by the delay. Defendant’s due process protections were not infringed.

The facts in defendant’s case are distinct from those in Powell. The defendant in Powell was not incarcerated between the time of his conviction for the offense he committed while on probation and the filing of the petition to revoke. (Powell, 89 Ill. App. 3d at 802, 412 N.E.2d at 48.) Defendant in this case was incarcerated for approximately 5 of the 10 months between his conviction and when the State filed the petition to revoke his petition. Unlike Powell, defendant was not free on probation and, therefore, under perhaps a misguided view his probation status had not changed.

Defendant was released from prison five months before the State filed the petition to revoke his probation. When he was released, the State had a duty to ensure the community was protected from defendant by seeking revocation of his probation. Because he was detained before this time, the State had no compelling reason to seek revocation of his probation. The Powell court ruling, upon which defendant relies, noted it would not view a four- to seven-month delay in filing a petition for revocation as a denial of a defendant’s due process protections. (Powell, 89 Ill. App. 3d at 803, 412 N.E.2d at 49.) The five-month period between defendant’s release for the commission of the theft offense while on probation and the State’s action,in filing the petition to revoke was not an inordinate delay.

Defendant also directs us to argument raised in the circuit court that the delay in seeking revocation of his probation prejudiced him because, had the petition been filed by the time the charges for which he was later convicted were negotiated, the potential revocation of his probation could have affected the agreement reached and the sentence he received for the offense of theft with a prior theft conviction. This argument is without merit. The prosecutor in Champaign County has no legal obligation to file a petition to revoke simply to assist the defendant and his counsel in reaching a plea agreement more satisfactory to them in some other county where defendant unwisely committed another offense.

Moreover, defendant was informed of the condition of his probation that he not violate any criminal statute while serving his probation term. He knew committing another offense while serving a probation term could result in revocation of his probation. He was not prejudiced by the five-month delay from his release on the conviction for which the State sought revocation of his probation until the State filed its petition.

Defendant also relies on the fifth district ruling in Cranford. The Crawford court found defendant’s due process protections were violated by a 17-month delay between the date of the alleged probation violation and the filing of the petition to revoke. The trial judge concluded there was no good reason for the delay and noted defendant had served the remainder of his probation without incident and had paid his fine before his probationary period terminated. Crawford, 85 Ill. App. 3d at 369, 406 N.E.2d at 863.

The record in this case indicates the probation office filed more than one report against defendant during his probation term. As indicated earlier, the State arguably had reason to delay filing the petition until after defendant was released from incarceration for the offense he committed while serving probation. In addition, in Crawford, the initial petition was filed only three days before defendant’s two-year term expired and the amended petition was filed nine days after defendant’s probation ended. (Crawford, 85 Ill. App. 3d at 367, 406 N.E.2d at 862.) The State in defendant’s case filed the petition a month before his probation expired. Defendant’s trial court assertion that he would not have secured employment had he known his probation was going to be revoked is not an appealing argument. It bespeaks a certain lack of comprehension of the purpose of both probation and employment. Defendant suffered no prejudice as a result.

Our ruling should not encourage delay by the State in filing revocation petitions. In most cases the State should swiftly seek revocation when a defendant’s conduct during his term of probation so warrants. The State in this case moved in a sufficiently timely manner when it filed its petition to revoke defendant’s probation. We reverse the trial judge’s ruling and remand for a hearing on the State’s petition.

Reversed and remanded.

McCULLOUGH and LUND, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN JUSTICE KNECHT,

text:
    THOMAS WATSON, Plaintiff-Appellant, v. J.C. PENNEY COMPANY, INC., Defendant-Appellee.
    Fourth District
    No. 4—92—0341
    Opinion filed December 23, 1992.
    KNECHT, J., dissenting.
    Jerome Mirza & Associates, Ltd., of Chicago (Jerome Mirza, of counsel), for appellant.
    Karen L. Kendall and Brad A. Elward, both of Heyl, Royster, Voelker & Allen, of Peoria, and Gary S. Schwab and Kurt M. Koepke, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In January 1990, plaintiff, Thomas Watson, slipped and fell on some ice as he exited the rear entrance of the J.C. Penney store in Lincoln. As a result, plaintiff brought this personal injury action against defendant, J.C. Penney Company, alleging that defendant negligently failed to remove ice and snow present at that entrance. Defendant made a motion for summary judgment, arguing that plaintiff slipped on a natural accumulation of snow and ice that it owed plaintiff no duty to remove. In April 1992, the trial court granted this motion. Plaintiff appeals, arguing that (1) we should overrule the long-standing natural accumulation rule in Illinois, and (2) the trial court erred in finding that no genuine issue of material fact existed.

We affirm. .

I. Facts

An icy snow fell late in the night on January 25 and in the early morning on January 26, 1990, in Lincoln, Illinois. The snow stopped that morning, but started again later during the day. This snow and ice caused slippery conditions on streets throughout the town. At about 9 a.m. that morning, Donald Jordan, the maintenance manager at the J.C. Penney store in Lincoln, shoveled snow away from the store’s rear entrance. After removing all the snow and ice, Jordan decided to not sprinkle salt because the snow had stopped and no ice remained on the entranceway.

Later that day, plaintiff and his wife went shopping at that J.C. Penney store. In her deposition, plaintiff’s wife testified that the snow had again started falling several hours before they went shopping. On their way out of the store, while plaintiff opened the door for his wife, plaintiff slipped and fell on some ice on the metal frame of the door opening. As a result, plaintiff broke his left clavicle and seriously injured his right knee.

During plaintiff’s deposition, he was questioned about the nature and source of the ice. He testified that ice was everywhere at the rear entrance to the store as he exited. In her deposition, plaintiff’s wife similarly described the rear entrance. Plaintiff also said that the entranceway appeared as if someone had shoveled it earlier in the day. He explained that he saw piles of snow on the side of the entrance-way and it appeared cleaner than the rest of the parking lot. He also said that “it appeared to me that somebody had taken a shovel or some other instrument and made an attempt to clean [the entrance-way] and the temperature had dropped again and that froze.” However, he admitted that he did not know whether the temperature had risen above freezing. He also testified that he had “no idea” how the ice had gotten there. He merely speculated that the ice resulted from thawing and freezing after shoveling.

Plaintiff described several patches of ice, which were in the form of footprints, as looking like they resulted from the customer traffic into the store. When specifically asked if the particular patch of ice on which he slipped appeared to be a refrozen film of ice, plaintiff replied that it did not, and instead looked like a footprint. Finally, when asked to clarify from where he thought the rest of the ice came, he said, “I would assume it came from the good [L]ord.”

II. Analysis

A. The Natural Accumulation Rule

The natural accumulation rule states that a business owner owes no duly to business invitees to remove natural accumulations of snow and ice; however, where the business owner does attempt to remove snow, he owes a duty not to leave or cause unnatural accumulations. (Wilson v. Gorski’s Food Fair (1990), 196 Ill. App. 3d 612, 615, 554 N.E.2d 412, 414; Kalata v. Anheuser-Busch Cos. (1990), 204 Ill. App. 3d 351, 354, 562 N.E.2d 320, 322-23.) Even when a person voluntarily removes snow, he does not owe a duty to remove natural accumulations of ice underneath the snow; the plaintiff must show that defendant created the unnatural accumulation of exposed ice. (Eichler v. Plitt Theatres, Inc. (1988), 167 Ill. App. 3d 685, 692, 521 N.E.2d 1196, 1201.) In Illinois, this rule dates back to 1931, and Illinois courts of review have consistently reaffirmed it. See Graham v. City of Chicago (1931), 346 Ill. 638, 643, 178 N.E. 911, 913; Strappelli v. City of Chicago (1939), 371 Ill. 72, 74-75, 20 N.E.2d 43, 44-45; Lansing v. County of McLean (1978), 69 Ill. 2d 562, 571, 372 N.E.2d 822, 826; Wilson, 196 Ill. App. 3d at 615, 554 N.E.2d at 414.

Plaintiff considers this rule antiquated and urges this court to overrule it, as the courts in several other States have done. (See Quinlivan v. Great Atlantic & Pacific Tea Co. (1975), 395 Mich. 244, 235 N.W.2d 732; Isaacson v. Husson College (Me. 1972), 297 A.2d 98; Kremer v. Carr’s Food Center, Inc. (Alaska 1969), 462 P.2d 747.) Put simply, plaintiff makes this request in the wrong forum. (See Melton v. Central Illinois Public Service Co. (1991), 220 Ill. App. 3d 1052, 1057, 581 N.E.2d 423, 426.) Plaintiff should address this matter to the legislature, which formulates the public policy of this State and which could change this “antiquated rule” if it wished. As one court recently noted in a different context:

“ ‘A change in the law which has the power to so deeply affect social and business relationships should only be made after a thorough analysis of all the relevant considerations. *** The type of analysis required is best conducted by the legislature using all of the methods it has available to it to invite public participation.’ ” Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 849-50, 572 N.E.2d 367, 369, quoting Olsen v. Copeland (1979), 90 Wis. 2d 483, 491, 280 N.W.2d 178, 181.

Indeed, 13 years ago, the legislature enacted the Snow and Ice Removal Act to grant immunity to residential owners or occupants from liability (absent willful or wanton misconduct) for injuries suffered as a result of snowy or icy conditions after the residential owner or occupant has removed or attempted to remove snow and ice from the sidewalk. (See Ill. Rev. Stat. 1991, ch. 70, pars. 200 through 202.) Further, six years ago, the legislature amended section 3—105(a) of the Local Governmental and Governmental Employees Tort Immunity Act to broaden the immunity that act provides to specifically include injuries caused “by the effect of weather conditions.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 85; par. 3—105(a), as amended by Pub. Act 84-1431, art. 1, §2, eff. Nov. 25, 1986 (1986 Ill. Laws 3740, 3744).

This recent legislative action regarding weather-related issues of tort law demonstrates that the legislature pays attention to this area of the law and does not hesitate to change or refine preexisting legal doctrine when the legislature deems such a change appropriate. Thus, we conclude that the legislature, by not amending the 60-year-old natural accumulation rule, has indicated its present satisfaction with that rule. This conclusion provides an additional reason for this court to be very hesitant before dabbling in matters involving such fundamental policy questions.

We also note that the Illinois Supreme Court created the natural accumulation rule as a matter of tort common law in this State (Graham, 346 Ill. at 643, 178 N.E. at 913), and, as noted, the supreme court has often reaffirmed that rule. In the absence of legislative action, any judicial modification of it should be made by the Illinois Supreme Court, not this court.

Plaintiff argues that the supreme court’s decision in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, indicates that the Illinois Supreme Court no longer would abide by the natural accumulation rule. In Ward, the supreme court adopted section 343 of the Restatement (Second) of Torts (see Restatement (Second) of Torts §343 (1965)), which adopts a general principle for a business owner’s duty toward business invitees. (Ward, 136 Ill. 2d at 145-46, 554 N.E.2d at 229.) Plaintiff argues that Ward tacitly rejects the natural accumulation rule in favor of this more general standard of liability, and that Ward thus implicitly authorizes us to abolish the natural accumulation rule.

We disagree that Ward had any impact on the natural accumulation rule. First, Ward did not address or even allude to the natural accumulation rule. Second, Ward merely restated that the supreme court had already adopted section 343 as standard of care for business owners in Genaust. v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472. (See Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229.) Indeed, in Genaust, the supreme court pointed out that section 343 “correctly states the settled law regarding the liability of possessors of land to invitees,” and cited its prior cases from 1955, 19.73, and 1975. (Emphasis added.) (Genaust, 62 Ill. 2d at 468, 343 N.E.2d at 472, citing Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 157, 125 N.E.2d 47, 50; Blue v. St. Clair Country Club (1955), 7 Ill. 2d 359, 363, 131 N.E.2d 31, 33; Nowicki v. Union Starch & Refining Co. (1973), 54 Ill. 2d 93, 98, 296 N.E.2d 321, 323; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 557, 328 N.E.2d 538, 541.) Thus, section 343 of the Restatement (Second) of Torts is no stranger to Illinois law and has coexisted with the natural accumulation rule for many years.

Finally, plaintiff requests that if we choose to follow the natural accumulation rule, we should at least certify this question pursuant to Supreme Court Rule 316 (134 Ill. 2d R. 316) so that the Illinois Supreme Court can again address the issue. Although this case does raise a significant issue that the supreme court has not recently revisited, we believe that appellate courts should use Rule 316 very sparingly. We conclude that this case is not one in which our use of a certificate of importance would be appropriate.

B. Summary Judgment

Plaintiff next argues that the trial court erred by granting defendant’s motion for summary judgment because (1) the jury should decide whether defendant should be held liable for any natural accumulation of snow and ice, and (2) a genuine issue of material fact existed regarding whether the ice on which defendant slipped was a natural or unnatural accumulation. We disagree.

A trial court should grant a motion for summary judgment only when no genuine issue of material fact exists. (Wright v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill. App. 3d 680, 682, 593 N.E.2d 1070, 1072.) Whether a duty exists presents a question of law for the court to decide. (Brown v. Kidd (1991), 217 Ill. App. 3d 860, 867, 578 N.E.2d 224, 230.) “If no duty exists, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper.” (Brown, 217 Ill. App. 3d at 868, 578 N.E.2d at 230.) The Illinois Supreme Court recently wrote the following regarding summary judgment:

“Although the use of a summary judgment procedure is encouraged as an aid in expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free of doubt. [Citation.] ‘In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent.’ (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177[, 483 N.E.2d 210, 215]; [see also] Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 71, 80-81[, 571 N.E.2d 733, 735-36].)” Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271-72, 586 N.E.2d 1211, 1215.

In his deposition, plaintiff did not testify that the ice resulted from thawed and refrozen puddles of water or from anything that would imply that defendant’s employee had left a dangerous condition when he shoveled the snow. Instead, plaintiff first testified that he did not know how the ice formed, then clarified that the ice on which he slipped resulted from customer traffic, and then testified that he assumed that the ice came from “the good [L]ord.” None of these assertions create a genuine issue of material fact upon which a jury could conclude that the ice resulted from an unnatural accumulation created by defendant. Instead, these statements indicate that the ice resulted from the natural accumulation and footprints from customer traffic from which defendant had no duty to protect plaintiff. See Stypinski v. First Chicago Building Corp. (1991), 214 Ill. App. 3d 714, 716, 574 N.E.2d 717, 718 (a landowner does not have a duty to remove tracks left by customers who have walked through natural accumulations of snow, slush and water).

III. Conclusion

Plaintiff’s complaint alleges that J.C. Penney negligently failed to remove these natural accumulations of ice. However, defendant owed no duty to do so, and the trial court properly granted summary judgment for defendant.

For the reasons stated, we affirm the trial court.

Affirmed.

GREEN, J., concurs.

JUSTICE KNECHT,

dissenting:

I disagree with the majority opinion. The trend of modem cases is to reject the natural accumulation of snow and ice rule. One reason may be no one understands the difference between a natural accumulation of ice and snow and an unnatural accumulation. Another reason may be business customers deserve better treatment from business owners.

The question presented is whether J.C. Penney’s duty of reasonable care to business invitees is to be ignored in favor of an archaic rule. I believe the Illinois Supreme Court answered that question in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. Justice Ryan’s scholarly review and analysis of section 343 of the Restatement (Second) of Torts (Restatement (Second) of Torts §343 (1965)) is fully applicable to the question presented in this case.

The majority suggests plaintiff is arguing his position in the wrong forum, and an intermediate court of review ought be particularly cautious in dabbling in such fundamental policy questions. I agree caution is appropriate, but logic suggests the Ward analysis no longer permits the peaceful coexistence of section 343 and the natural accumulation rule.

If the operator of a business owes a duty of reasonable care to his customers, then that duty should extend to the kind of risk encountered by plaintiff here. This would not impose any greater burden than already imposed on defendant as to other sorts of conditions. It would not make defendant absolutely liable because a customer slipped on ice or snow. It would simply leave it for a jury to decide whether the parties acted reasonably. Instead of a drastic change, this would simply be a return to traditional analysis no longer skewed by a special exception that has no meaningful basis in law or public policy.


author: JUSTICE LUND

text:
      In re MARRIAGE OF PHYLLIS VILLAROSA, Petitioner-Appellant, and GREGORY VILLAROSA, Respondent-Appellee.
    Fourth District
    No. 4—92—0477
    Opinion filed December 3, 1992.
    Marvin Gerstein, of Urbana, for appellant.
    John T. Phipps, of John T. Phipps Law Offices, P.C., of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner Phyllis Villarosa appeals from an order of the circuit court of Champaign County granting respondent Gregory Villarosa’s “Special and Limited Appearance and Motion to Quash Summons.” Petitioner’s contention on appeal is that by including paragraph No. 8 in respondent’s motion, it became a general appearance.

Respondent’s motion is based upon there being no personal jurisdiction in Illinois. It is a five-page motion, consisting of nine paragraphs and an attached two-page affidavit with eight paragraphs. All the various paragraphs relate to the lack of personal jurisdiction, with a possible exception of paragraph No. 8 of the motion, which provides:

“Further, in order to present a justiciable controversy for the court to have subject matter jurisdiction over the foreign orders, such orders must be registered in Illinois in the manner provided under either Ch. 40, Sections 1235—1242, Ill. Rev. Stat. or Section 12—602 of the Illinois Code of Civil Procedure. The record discloses that in this case neither statute has been followed. Because these orders are not properly registered, there is no justiciable controversy before this court. Consequently, if there is not justiciable controversy before the court, there can be no basis for personal jurisdiction over the Respondent, GREGORY VILLAROSA.”

With the exception of paragraph No. 8, respondent’s motion emphasizes several times that the motion is for the sole purpose of objecting according to sections 2—301(a) and (b) of the Code of Civil Procedure, which provide:

“Special appearance, (a) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.
(b) If the reasons for objection are not apparent from the papers on file in the case, the special appearance shall be supported by affidavit setting forth the reasons. In ruling upon the objection, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact. No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect thereof. A decision adverse to the objector does not preclude the objector from making any motion or defense which he or she might otherwise have made.” Ill. Rev. Stat. 1991, ch. 110, pars. 2—301(a), (b).

Any action taken by a litigant that recognizes a case as being in court will amount to a general appearance unless the action was for the sole purpose of objecting to jurisdiction over the person. (In re Estate of Zoglauer (1992), 229 Ill. App. 3d 394, 397, 593 N.E.2d 93, 95; Colletti v. Crudele (1988), 169 Ill. App. 3d 1068, 1075, 523 N.E.2d 1222, 1227; In re Marriage of Stafeil (1988), 169 Ill. App. 3d 630, 633-34, 523 N.E.2d 1003, 1005.) An accompanying, or second, motion to dismiss (on other grounds) is a general appearance and a submission to the court’s jurisdiction and waives the challenge to in personam jurisdiction. (Ahart v. Young (1990), 194 Ill. App. 3d 461, 464, 551 N.E.2d 685, 688; ETA Trust v. Recht (1991), 214 Ill. App. 3d 827, 831, 574 N.E.2d 4, 7.) A stipulation asking that a divorce proceeding be suspended to permit a trial reconciliation has been considered a general appearance (McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 639, 348 N.E.2d 500, 502), and participating as a witness in the proceedings is a waiver of the jurisdiction issues (Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 867-68, 445 N.E.2d 1337, 1341-42).

If respondent had invoked the court’s jurisdiction for purposes of hearing an objection to the registration in Illinois of the foreign orders, we recognize the possibility of waiver of the special appearance and the triggering of a general appearance. However, we need not decide this issue. We conclude the respondent’s motion was limited to the personal jurisdiction issue.

The first seven paragraphs of respondent’s motion related only to the personal jurisdiction question. The balance of the motion, after paragraph No. 8, provided as follows:

“9. JOHN T. PHIPPS states that his authority in this case is limited to appearing on behalf of Respondent, GREGORY VILLAROSA, on this motion to object to the jurisdiction of the court over the person of the Respondent and for no other purpose.
WHEREFORE, Respondent, GREGORY VILLAROSA, prays that this court will find it has no jurisdiction over Respondent and enter an order quashing the service of summons on him.”

We hold the trial court’s jurisdiction to hear the question of proper registration was not invoked. (See Davis v. Davis (1973), 9 Ill. App. 3d 922, 929, 293 N.E.2d 399, 405.) The motion was for no other purpose than the jurisdiction of the person issue and nothing else was presented to the court.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK DANIELS, Defendant-Appellant.
    Third District
    No. 3—92—0072
    Opinion filed December 2, 1992.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Mark Daniels, was charged with possession of a stolen motor vehicle (Ill. Rev. Stat. 1991, ch. 95½, par. 4—103). Following a jury trial, he was convicted and sentenced to 10 years’ imprisonment. The defendant appeals his conviction and his sentence.

The record reveals that on July 19, 1991, police officers Matthew Sottos and Rick Hodge were patrolling the Moline Riverside Park area. At approximately 4 p.m. they observed a blue Camaro with Pennsylvania license plate number PNA463. The officers followed the car to the Moline swimming pool. Once there, the defendant, who had been driving the car, and three passengers got out and went into the pool area. The officers ran a computer check on the Camaro and found out that it had been reported as stolen. Officers Sottos and Hodge observed that the steering column of the Camaro had been peeled back, and that a screwdriver and a pair of pliers were on the driver’s side floorboard. They then went to the swimming pool’s dressing room, where they arrested the defendant.

The defendant told the police that he did not know the other people who had been seen in the car. He also told police that he had traveled to the swimming pool by bus and not in the Camaro.

During cross-examination, Officer Sottos was asked why his arrest report was only one-page long. On redirect examination, the State asked whether such a brief report was unusual. In answering, Officer Sottos stated that the passengers had identified the defendant as “Devious.” The defendant objected and the jury was instructed to disregard that testimony. The State then asked whether the brevity of the report complied with standard operating procedure. In responding to that question, Officer Sottos indicated that he was not sure if the defendant was giving him an alias. The defendant objected and asked for a mistrial. The trial court denied the motion for a mistrial because it concluded that the State was entitled to clarify why the police report was not more detailed. The State then again asked Officer Sottos why his report was so short. Officer Sottos responded that it was because he was not sure of the defendant’s identification at the time. He noted that he had requested a record check on the defendant and had received nothing back.

The State also presented evidence to show that the Camaro was, in fact, a stolen vehicle. Additionally, the defendant’s fingerprints were found on the inside rearview mirror of the Camaro and on its trunk.

For the defense, Vanessa McBride testified that on the day in question she, the defendant, and some other people had been in the Camaro. A man named Monty Lewis had been driving the car and had dropped her off at her house. The rest of the group then went to the pool. McBride further testified that the defendant had been in the back seat. She also stated that at one point, the defendant reached to the front to adjust the rearview mirror.

The jury found the defendant guilty and a sentencing hearing was set. At that hearing, the defendant moved for a continuance because he had an appointment with Treatment Alternatives to Street Crime (TASC) personnel for an evaluation. The court granted the defendant’s motion and the cause was continued until December. At the December sentencing hearing, the trial court noted that section 5—5—3(c)(8) of the Unified Code of Corrections (the Code) applied, and that, therefore, the defendant was to be sentenced as a Class X offender. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3.) Defense counsel then stated that if section 5—5—3 of the Code was applicable, then the defendant would not be eligible for TASC. The trial court subsequently noted factors in aggravation and mitigation and sentenced the defendant to 10 years’ imprisonment. Among the factors in mitigation that the court noted were the defendant’s good health and his education.

On appeal, the defendant first argues that the testimony of Officer Sottos about the defendant’s use of an alias was improper because it suggested that he had committed prior crimes.

We begin by noting that evidence of offenses other than those for which the defendant is being tried is generally inadmissible. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) More specifically, where a defendant’s alias is indicative of prior criminal activity, it is improper for the State to use that information in a negative manner. (People v. Dukes (1957), 12 Ill. 2d 334, 146 N.E.2d 14; People v. Pumphrey (1977), 51 Ill. App. 3d 94, 366 N.E.2d 433.) However, where the references to the defendant’s alias were infrequent, offered for another purpose, and not made in a negative manner, such references do not constitute reversible error. People v. Howard (1991), 147 Ill. 2d 103, 588 N.E.2d 1044.

In the instant case, the references to the defendant’s possible use of an alias were only brought out on redirect examination to explain why Officer Sottos’ report was short. We additionally note that the State did not dwell on the subject, nor did it use that information to suggest prior criminal activity. Accordingly, we find that Officer Sottos’ references to the possible alias did not deny the defendant a fair trial.

The defendant next argues that this cause should be remanded for resentencing because the trial court failed to consider the defendant for drug-treatment probation. The defendant relies on People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49, wherein the supreme court held that a defendant ineligible for probation under section 5—5—3 of the Code was nevertheless eligible for probation under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91½, par. 120.8). The defendant suggests that in the instant case the trial court mistakenly believed that the defendant was ineligible for placement under the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1991, ch. 111½, par. 6360—1 et seq.), which has replaced the Dangerous Drug Act. See People v. Thomas (1990), 204 Ill. App. 3d 890, 562 N.E.2d 396.

Our review of the record does not support the defendant’s suggestion that the trial court misapprehended the law. A trial court is presumed to have understood the law and properly applied it. (People v. Baum (1991), 219 Ill. App. 3d 199, 579 N.E.2d 374.) Here, the only indication of any misapprehension of the law was made by defense counsel, not the trial court. It was defense counsel, not the trial court, that stated that if section 5—5—3 of the Code was applicable, then the defendant would not be eligible for TASC probation.

Further, the trial court specifically noted as a factor in mitigation that the defendant was in good health. Accordingly, we find that the reason the defendant was not considered for TASC was not because of a misapprehension of the law, but because the court did not believe that the defendant was an addict. (See People v. Barry (1987), 152 Ill. App. 3d 915, 504 N.E.2d 1381.) Accordingly, we cannot say that the trial court erred.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER and HAASE, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    RICHARD BOHANNON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mestan Plastering, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1—92—0410WC
    Opinion filed November 20, 1992.

      Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago (Stanford L. Lambert, of counsel), for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (James W. Stevenson, Jr., of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant Richard Bohannon sought administrative review of the Industrial Commission’s (Commission’s) decision in which he was awarded lid2/? weeks’ temporary total disability (TTD) benefits, $4,355.20 in medical expenses and a wage-differential award of $293.61 per week under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). He contends (1) no maximum limit applies to a wage-differential award pursuant to section 8(d)(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(1)) and (2), if a maximum rate does apply to a wage-differential award pursuant to that section of the Act, the proper maximum rate is the maximum TTD rate (see Ill. Rev. Stat. 1985, ch. 48, par. 138.8(b)(1)), here $453.33 per week, rather than the permanent partial disability (PPD) maximum rate (see Ill. Rev. Stat. 1985, ch. 48, pars. 138.8(d)(4), (b)(4)), here $293.61 per week, utilized by the Commission in its decision. We affirm.

Claimant is 49 years old and has been a journeyman carpenter for 15 years. On May 5, 1986, he fell off a scaffold and injured himself. Claimant suffered a fracture of the left lateral tibial plateau with joint effusion, and on May 13, 1986, he underwent surgery where three pins and a metal screw were placed in Ms knee to repair the fracture. Claimant filed Ms application for adjustment of claim on January 21,1987.

On September 7, 1987, claimant was admitted to Northwestern Community Hospital, where he had a second surgery on Ms knee. The three pins and the metal screw were removed from claimant’s knee. A CT scan was also performed on his back wMch revealed a small central and left herniation of a disc at level L4-L5.

Claimant began rehabilitation counseling with James Boyd on May 8, 1987. Boyd located a position for claimant at Gemini Display Company as an assembler of fluorescent light fixtures in October 1987. The pay rate for that position was $4.50 an hour. Claimant worked there for one week, but was unable to remain on the job as the pain and numbness in Ms left leg and back was getting worse. Claimant had one more appointment with Boyd on November 19, 1987, and then ceased contact with him.

Claimant began a job search on. Ms own and on July 26, 1988, secured a position at Thornton Oil Company, a gas station in Franklin Park, Illinois. Claimant was hired as a casMer at $4 an hour, and he worked between 32 and 40 hours per week. However, claimant was laid off from that position because the shift he worked was discontinued. Next, claimant obtained a position at Chelsa Motor Inn in Des Plaines, Illinois, in October 1988. Claimant was employed there as a desk clerk at an hourly rate of $4.25 and worked five days a week, eight hours per day. At the hearing before the Commission on April 13, 1989, claimant was still employed by Chelsa Motor Inn. As of June 1, 1987, the urnon scale for carpenters was raised from $17 per hour to $19 per hour. As of June 1, 1988, the scale rose to $19.75 per hour, and as of June 1, 1991, the scale was $21 per hour.

On November 30, 1988, the arbitrator issued a decision finding claimant was temporarily totally disabled for a period of 756/? weeks and was entitled to $453.33 per week for that period. The arbitrator further found claimant was entitled to the sum of $293.61 a week for a further period of 250 weeks pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(2)) because the injury sustained caused the complete and permanent disability equal to 50% loss of the man as a whole.

Respondent filed a petition for review before the Commission, wMch affirmed and modified the arbitrator’s decision. The Commission found claimant was temporarily totally disabled from May 6, 1986, to July 26, 1988, when he obtained employment as a gas station casMer, minus the one week between October 19, 1987, and October 26, 1987, when claimant was employed by Gemini Display Company. The Commission further found claimant should be compensated under section 8(d)(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(1)) because, as a result of his accidental injuries, he was incapacitated from pursuing his usual and customary line of employment as a journeyman carpenter. The Commission found claimant was entitled to receive a sum equal to 662/3% of the difference between the average amount he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount he is earning or able to earn in some suitable employment after the accident. However, the Commission concluded this sum was limited to the maximum weekly compensation rate which, pursuant to the Act, was $293.61.

The Commission further concluded that for the 113/7-week period between July ,26, 1988, and October 14, 1988, claimant earned $160 per week as a cashier. As a journeyman carpenter, he could have earned $790 per week. Sixty-six and two-thirds percent of the difference was $420, but as that sum was subject to the maximum rate (see Ill. Rev. Stat. 1985, ch. 48, par. 138.8(b)(4)), claimant was only entitled to $293.61 per week for that period. Likewise, between October 15, 1988, and the date of the review hearing, the claimant earned $170 per week at the Chelsa Motor Inn. As a journeyman carpenter he could have earned $840 per week. Sixty-six and two-thirds percent of the difference was $446.67 but again, that sum was limited to $293.61 per week for that period.

Accordingly, claimant was ordered to receive $453.33 a week for a period of 1142/7 weeks, that being the period of temporary total incapacity to work under section 8(b)(1) of the Act. Claimant was further ordered to receive $293.61 for a period of 373h weeks and, thereafter, a sum not to exceed $293.61 per week, or 662/s% of the difference between the amount he would be able to earn in the full performance of his duties in the occupation he was engaged in at the time of the accident and the average amount he is earning or is able to earn in some suitable employment after the accident pursuant to section 8(d)(1) of the Act, subject to the limitations of section 8(b) of the Act.

Claimant sought administrative review of the Commission’s decision, and on January 23, 1992, the circuit court issued its opinion confirming the decision of the Commission. This appeal followed.

Claimant first contends that no maximum limit should apply to a wage-differential award pursuant to section 8(d)(1) of the Act. He asserts the legislative intent of that section, its wording, and public policy consideration support his proposition.

Section 8(d)(1) of the Act provides, in pertinent part:

“If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 66%% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(1).)

(Subsection (e) of this section refers to the loss or use of loss of various body parts which does not apply to claimant.) By the very terms of this section, there are maximum limits of recovery. Moreover, this court has expressly recognized that there are maximum limits on awards under this section. In General Electric Co. v. Industrial Comm’n (1986), 144 Ill. App. 3d 1003, 1015, 495 N.E.2d 68, 76, this court stated: “We recognize that section 8(d)(1) wage-differential awards are subject to the limitations as to maximum amounts fixed in section 8(b).” This court further stated:

“After reviewing the provisions of section 8(b), we conclude that the limitations as to maximum amounts of wage-differential awards referred to in section 8(d)(1) are set forth in sections 8(b)(4) and 8(b)(5) [citation].” (General Electric, 144 Ill. App. 3d at 1017, 495 N.E.2d at 77.)

Accordingly, the specific wording of section 8(d)(1) of the Act and this court’s decision in General Electric require rejection of claimant’s argument that no maximum limitations apply to wage-differential awards.

Next, claimant contends that if a maximum rate applies to wage-differential awards, the proper maximum rate is the TTD rate rather than the PPD rate. As previously noted, this court has determined that section 8(b)(4) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b)(4)) sets forth the maximum limits applicable to wage-differential awards. That section provides:

“All weekly compensation rates provided under subparagraphs 1, 2 and 2.1 of this paragraph (b) of this Section shall be subject to the following limitations:
***
The maximum weekly compensation rate, for the period July 1, 1984, through June 30, 1987, except as hereinafter provided, shall be $293.61.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b)(4).)

The second sentence of the third paragraph of section 8(b)(4) provides that after July 1,1987, and every July 1 thereafter, if during the preceding 12-month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.), the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under that during such period. The date of injury, here May 5, 1986, controls the maximum rate applicable, and claimant does not argue that the second sentence of this third paragraph, rather than the first, governs his maximum weekly compensation rate.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent; in doing so, a court looks first to the statutory language itself; if the language is clear, the court must give it effect and should not look to extrinsic aids for construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167, 171.) Words used in a statute are to be given their plain and commonly understood meaning in the absence of an indication of legislative intent to the contrary. (In re Petition to Annex Certain Territory (1991), 144 Ill. 2d 353, 362, 579 N.E.2d 880, 884.) Where the language of statutory provisions is clear, the court must give it effect. West v. Kirkham (1992), 147 Ill. 2d 1, 6, 588 N.E.2d 1104, 1106.

Claimant’s argument that the TTD rate rather than PPD rate should apply is without merit. The proper maximum rates in determining permanent disability benefits are found in section 8(b)(4) of the Act. That section, which controls a section 8(d)(1) award, clearly specifies that the maximum weekly compensation rate shall be $293.61.

Moreover, the legislative history of this section evidences an intent to place a maximum limit on wage-differential awards. In discussing House Bill 2373, which added the quoted language to section 8(b)(4) of the Act (Pub. Act 83—1125, eff. June 30, 1984 (1984 Ill. Laws 212, 219)), Senator Lechowicz stated, “I believe it...in the amendment [House Bill 2373], it provides for the weekly compensation rates for a period from July 1 of 1984 through June 30th, 1987. Does that mean we’re going to have a cap on weekly benefits of two hundred ninety-three dollars and sixty-one cents for that period of time?” (83d Ill. Gen. Assem., Senate Proceedings, June 30, 1984, at 87 (statements of Senator Lechowicz).) In response, Senator Sangmeister replied, “Yes. *** What we’re doing is continuing the freeze that is presently in effect at the [$]293.61 rate and we would freeze that for another three years.” (83rd Ill. Gen. Assem., Senate Proceedings, June 30, 1984, at 87 (statements of Senator Sangmeister).) With respect to this bill, Senator McPike stated it “freezes, once again, for three years the rate on permanent partial disabilities. As you will recall, we froze those rates for three years. That freeze came off in January of ’84. This reimposes the freeze beginning tomorrow for three years.” (83d Ill. Gen. Assem., House Proceedings, June 30, 1984, at 149 (statements of Representative McPike).) Similarly, Senator Collins indicated it “freezes permanent/partial benefits until June 30th, 1987.” (83d Ill. Gen. Assem., Senate Proceedings, June 30, 1984, at 83 (statements of Senator Collins).) Thus, these statements establish that the legislature intended a cap or freeze on such wage-differential awards.

The Commission concluded that for the 113/7-week period between July 6, 1988, and October 14, 1988, claimant was entitled to $420 per week, which is 66 2/s% of the difference between what he earned as a cashier and what he could have earned as a journeyman carpenter. However, the Commission found that amount was limited to $293.61 pursuant to section 8(b) of the Act. Likewise, between October 15, 1988, and the date of the hearing, the Commission concluded claimant was entitled to $446 per week, representing 662/s% of the difference between what he earned at the Chelsa Motor Inn and what he could have earned as a journeyman carpenter. Again, however, the Commission found the amount of the award was limited by section 8(b)(4) of the Act to $293.61. Hence, since the statute is clear upon setting the maximum limit, claimant’s argument is without merit, and the Commission properly found the weekly compensation rate was limited to $293.61.

For the foregoing reasons, the circuit court’s judgment confirming the Commission’s decision limiting claimant’s wage-differential award is affirmed.

Affirmed.

RAKOWSKI, WOODWARD, STOUDER, and H. LEWIS, JJ., concur.


author: JUSTICE MANNING

text:
      In re MARRIAGE OF MELANIE PALMER SUNKO, Petitioner-Appellee, and GERALD CHESTER SUNKO, Respondent-Appellant.
    First District (1st Division)
    Nos. 1—89—3043, 1—90—0721 cons.
    Opinion filed May 18, 1992.
    Rehearing denied December 16, 1992.

      Paul R. Jenen, of Wheeling, and Richard Gigante, of Chicago, for appellant.
    Laser, Schostok, Kolman & Frank, of Chicago, for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Respondent, Gerald Chester Sunko, appeals from an order of the trial court wherein the court determined that: (1) the value of the marital residence was $220,000; (2) the fair rental value of the marital residence was $36,570; and (3) the petitioner was entitled to post-judgment interest of 9% per year on the marital property. On appeal respondent argues that the trial court abused its discretion in: (1) permitting further evidentiary proceedings in assessing the value of the marital residence; (2) in crediting petitioner with 100% of the fair rental value of the marital residence; and (3) in awarding petitioner post-judgment interest on her share of the marital property.

Respondent and petitioner Melanie Palmer Sunko were married on September 4, 1976. Respondent adopted petitioner’s son and the family lived together in their Glencoe home. In 1979 petitioner filed a petition for divorce in the circuit court of Cook County. The court denied the petition on September 11, 1980. Petitioner appealed that decision, and the appellate court affirmed the trial court’s order. Petitioner and the child subsequently relocated to the State of Texas, where she obtained a divorce from respondent on October 22, 1982. Respondent remained in the Glencoe residence and continued to pay the real estate taxes, insurance and mortgage. The Texas divorce decree awarded custody of the parties’ son to petitioner, divided the marital property and provided for child support and attorney fees.

Petitioner registered the foreign judgment in Cook County, but the trial court vacated that judgment as to the division of marital property, child support and attorney fees.

On April 1, 1985, a trial was held on these three issues. Respondent testified that he was employed as a physician and earned a salary of $88,896. He testified that after the petitioner left the marital residence in 1980 he continued to reside there, paid the mortgage, insurance and real estate taxes. He testified that based on his inquiry to a former employee and the examination of newspapers and figures for comparable sales of homes in his area, the value of the marital home in 1980 was $175,000. On cross-examination he stated that three weeks before the trial the home was appraised and he penciled in a figure of $250,000. Respondent explained that he wrote that amount without knowing what the actual appraised value was. Respondent testified that his interest in a Kemper profit sharing plan was $42,400 and that his interest in a pension plan was $16,478.

Petitioner testified that she left the Glencoe home in 1980 and that respondent continued to live there. She stated that she earned $20,000 annually as a research assistant at the University of Texas and had contributed $4,600 to the teacher’s retirement fund. The parties entered into a stipulation, subject to cross-examination, as to the fair market value of the home. The only competent evidence of the value of the home was the testimony of respondent. He testified that the value of the marital home was $175,000. The parties also stipulated that the fair rental value of the home between October 22, 1982, and April 1,1985, was $36,570.

Following a bench trial, the court determined that the marital home had a fair market value of $250,000 and equity of $101,809. The court awarded petitioner the 1962 Mercedes-Benz valued at $5,000 and awarded respondent the 1967 Mercedes-Benz valued at $2,000. The parties were each granted $9,382 from respondent’s pension plan, and $21,200 each from respondent’s profit sharing plan. The court granted respondent credit for his contribution of $74,724.27 towards the mortgage, real estate taxes and insurance of the marital residence. This amount was offset by 100% of the fair rental value of the home from October 22, 1982, through April 1, 1985, in the amount of $36,570. The court determined that petitioner’s pension plan had no value.

Both parties appealed the trial court’s decision. This court in a Rule 23 order (134 Ill. 2d R. 23) held that: (1) the trial court erred in determining that the value of the marital residence was $250,000; (2) there was no evidence in the record as to the fair rental value of the marital residence and that it was improper to offset respondent’s contribution against his “rent free” use of the premises; and (3) the trial court erred in determining that petitioner’s pension had no value. This court affirmed the trial court's decision in part and reversed and remanded the decision for further proceedings.

On remand the trial court allowed petitioner to introduce additional evidence establishing the value of the marital residence, as well as the fair rental value of the residence. The court then concluded that, based on the additional evidence, the marital residence had a value of $220,000 and a fair rental value of $36,570 for the period of October, 1982, through July, 1985. The parties also stipulated that the marital portion of Melanie’s pension had a value of $1,700. The court also awarded petitioner interest on the marital property she received.

Respondent first argues that the trial court abused its discretion by disregarding the Rule 23 order in this cause and permitting further evidentiary proceedings. Specifically, he contends that the court should not have allowed additional evidence of the value of the marital residence, nor offset his contributions in taxes, insurance and mortgage payments by the fair rental value of the home during the period from October 22,1982, through July 1985.

When a reviewing court remands a case with instructions that are general in nature, the trial court is required to examine the appellate court’s opinion and exercise its discretion in determining what further proceedings would be consistent with the opinion on remand. (In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119.) In this regard, the trial court has the discretion to hear new evidence and to make an appropriate disposition of the case. See, e.g., In re Marriage of Fuggiti (1985), 130 Ill. App. 3d 190, 474 N.E.2d 386.

In this case, the appellate court remanded the cause to the trial court on the issue of the value of the marital residence. The appellate court did not give specific directions in its remand order, nor did it restrict the trial court from allowing additional evidence as to the value of the home. The appellate court simply determined that based on the evidence introduced at trial, it was error for the trial court to determine the value of the home was $250,000.

It is true that when a court remands a case without specific instructions, the trial court is required to examine the appellate court’s opinion and exercise its discretion in determining what further proceedings would be consistent with the opinion on remand. (In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119.) However, an additional evidentiary hearing is only necessary where extraordinary circumstances are present.

In In re Marriage of Fuggiti (1985), 130 Ill. App. 3d 190, 474 N.E.2d 386, the appellate court held that the trial court did not abuse its discretion in hearing additional evidence on remand where extraordinary circumstances had arisen subsequent to the court’s entry of an earlier Rule 23 order. In that case, the appellate court determined that the trial court had not divided the marital property in “just proportions.” The court issued a Rule 23 order in which it stated that upon remandment the trial court should divide the property in equitable and fair proportions. Upon remandment, additional evidence that petitioner had been diagnosed as having cancer was allowed, and thus, the trial court awarded her maintenance of $758 per month. No maintenance had been awarded in the initial trial.

The instant case is distinguishable from Fuggiti. In this case, there was no determination by the appellate court that the initial distribution of the marital estate was inequitable. Further, there was uncontradicted testimony at the initial trial that the value of the marital residence was $175,000. In fact, petitioner’s attorney agreed that the value of the residence should have been $175,000. Thus, there were no extraordinary circumstances requiring the court to seek additional evidence as to the value of the marital residence. We therefore find that the trial court abused its discretion by allowing additional testimony as to the value of the marital residence.

Respondent next argues that the trial court abused its discretion in crediting petitioner with 100% of the fair rental value of the marital residence. He contends that under section 503(c) of the Illinois Marriage and Dissolution of Marriage Act, he was entitled to reimbursement of the mortgage, insurance and real estate tax payments he made toward the marital residence.

This court also addressed that issue in our Rule 23 order. We noted that because the record did not contain evidence of the fair rental value of the property, the trial court improperly reduced and negated any benefit that respondent received. On remand, the trial court found that the fair market rent for the marital residence from October 1982 through March 1985 was $36,570. The court then determined that respondent’s contribution to the marital residence of $41,608 should be reduced by the $36,570 because of his rent-free use of the marital residence.

We first note that the divorce occurred on October 22, 1982, and therefore, any payments which respondent made after that period were nonmarital funds to a nonmarital estate. Further, petitioner had co-equal right to tenancy during the period prior to her divorce and until October 22, 1982. She was not entitled to receive rent payments during this period and cannot claim that the initiation of the divorce triggered such a right. Moreover, petitioner has not cited and we have not found any authority for the proposition that the spouse who remains in possession of the marital residence prior to divorce is to be assessed a benefit equivalent to the fair rental value of the residence. Thus, the trial court abused its discretion in granting petitioner credit for the fair rental value of the marital domicile.

Respondent finally argues that the trial court abused its discretion in awarding petitioner interest on her share of the marital property. The trial court awarded petitioner interest in the amount of $2,750. Section 2—1303 of the Illinois Code of Civil Procedure provides in pertinent part:

“Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government ***. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.” Ill. Rev. Stat. 1987, ch. 110, par. 2—1303.

In In re Marriage of Morris (1989), 190 Ill. App. 3d 293, 546 N.E.2d 734, this court awarded interest computed at 9% on a supplemental dissolution of judgment order. The court stated that supplemental judgments are final judgments to which interest attaches as if they were any other final judgment. (190 Ill. App. 3d at 296.) Therefore, the trial court properly awarded petitioner interest on her portion of the marital estate.

We are satisfied that there was no abuse of discretion as to all remaining issues.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed and remanded in part.

Affirmed in part; reversed and remanded in part.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONATHAN RAMEY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—1580
    Opinion filed July 21, 1992.

      Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Michael Falagario, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Jonathan Ramey was convicted by a jury of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2)) and sentenced to 12 years in the custody of the Illinois Department of Corrections.

On appeal Ramey raises four issues, the first of which charges that he was denied his sixth amendment right to a public trial, requiring reversal and a remand for a new trial. During the trial, just prior to closing arguments, the trial judge, sua sponte, had the microphones of the public address system turned off in the courtroom. For security reasons, there was a substantial glass barrier between the working part of the courtroom and that part where spectators sit; thus, only through loud speakers installed in the section reserved for them could members of the public hear the proceedings. The entire record made at trial of this incident is as follows:

“THE COURT: We’ll have to cut the mike off. There are other jurors out there. I don’t want to taint the minds of the jury-
MS. FITZSIMMONS [defense co-counsel]: Can they sit in the back in the maximum cell?
MR. O’REILLY [defense co-counsel]: There’s a violation to the constitution of the open law [sic].
THE COURT: I’ve discussed it, I have thought about it. It’s unfortunate, but I cannot have other jurors who are going to be coming in on the next case to be tainted by hearing that evidence.
MS. FITZSIMMONS: Is there any way that they can go and come back?
THE COURT: If this is a violation, so be it. We’ll cut off the mike because there are some people that have to be accommodated. Across the hall there’s a trial, down the hall there’s a trial.
• MR. O’REILLY: We object. We feel that Mr. Ramey is being denied of a fair and open trial.
THE COURT: You have objected. Let’s bring in the jury. Let’s bring in the jury.”

Because of the inadequacy of the record, we ordered the trial judge, the State’s Attorney, and defendant’s counsel to inform this court whether or not members of the public were actually cleared from the courtroom, and all three agree that at least members of defendant’s family, besides the venirepersons, were excluded.

There is a presumption that all trials are to be open to the public. (Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 508, 78 L. Ed. 2d 629, 637, 104 S. Ct. 819, 823; People v. Holveck (1990), 141 Ill. 2d 84, 100.) While this presumption is not absolute, it need yield only to “an overriding interest that is specifically articulated.” (People v. Morgan (1987), 152 Ill. App. 3d 97, 102, appeal denied (1987), 115 Ill. 2d 547, cert. denied (1987), 484 U.S. 866, 98 L. Ed. 2d 141, 108 S. Ct. 189.) In United States v. Griffin (5th Cir. 1976), 527 F.2d 434, the court found that an impermissible closure implicitly occurred where the public address system in the courtroom was defective. However, because defendant did not object to the proceedings or request a continuance of the trial until the speaker system could be corrected, the court rejected his contention that he was denied his constitutional right to a public trial. In People v. Venters (1987), 124 A.D.2d 57, 511 N.Y.S.2d 283, the court held that an improper closure had occurred where the courtroom doors were locked during the charge to the jury.

Therefore, it cannot be successfully maintained that in the case at bar a closure, qua closure, did not occur, even though the microphones were turned off only during closing arguments. The issue, then, becomes one of whether the trial court abused its discretion (United States ex rel. Latimore v. Sielaff (7th Cir. 1977), 561 F.2d 691, 696, cert. denied (1978), 434 U.S. 1076, 55 L. Ed. 2d 782, 98 S. Ct. 1266; People v. Seyler (1986), 144 Ill. App. 3d 250, 252) in shutting off the auditory part of the proceedings to the public portion of the courtroom during closing arguments.

In Waller v. Georgia (1984), 467 U.S. 39, 48, 814 L. Ed. 2d 31, 39, 104 S. Ct. 2210, 2216, the United States Supreme Court adopted the four-part test of Press-Enterprise, which establishes when the “presumption of openness may be overcome”: “[1] an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” (Press-Enterprise, 464 U.S. at 510, 78 L. Ed. 2d at 638, 104 S. Ct. at 824.) Moreover, the doctrine of harmless error does not apply here. (Waller, 467 U.S. at 49 n.9, 81 L. Ed. 2d at 40 n.9, 104 S. Ct. at 2217 n.9.) More recently albeit in dicta, the Supreme Court was unanimous in declaring that violations of public trial rights are never subject to the harmless error analysis. Arizona v. Fulminante (1991), 499 U.S. 279, 294, 309, 113 L. Ed. 2d 302, 321, 331, 111 S. Ct. 1246, 1256-57, 1264-65.

We hold that the trial court here abused its discretion in failing to meet the elements set forth in Press-Enterprise, for, assuming, without deciding, that an overriding interest existed, namely, the tainting of a venire from which a jury would be picked to hear the next trial, the closure was broader than necessary to protect this interest. As the record now shows, not only the venirepersons, but also the members of defendant’s family were excluded from the courtroom and were thus prevented from hearing closing arguments. Accordingly, we conclude that on the facts of this case, the “presumption of openness” as set forth in Press-Enterprise was not overcome, and defendant was improperly denied his constitutional right to a public trial.

We also hold the proper remedy in this instance to be the granting of a new trial. As we have previously noted, Waller declares that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.” (Waller, 467 U.S. at 49, 81 L. Ed. 2d at 40, 104 S. Ct. at 2217.) The remedy under Waller is required to be one which is “appropriate to the violation.” (Waller, 467 U.S. at 50, 81 L. Ed. 2d at 41, 104 S. Ct. at 2217.) We find that even though the instant violation came during closing arguments, it is impossible to separate that part from the rest of the trial — the sixth amendment protects all of its component parts, and not simply the right to publicly present evidence and witnesses. (See Waller, 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (which involved a suppression hearing); Press-Enterprise, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (closure during voir dire).) If the sixth amendment is to have any vitality, we cannot selectively decree which portions of a trial are insignificant and are therefore eligible for closure. Thus, the remedy in this case is perforce a new trial.

Inasmuch as Ramey’s three remaining issues may reemerge in the retrial of this case, we shall treat with them as well.

In the first of these issues, Ramey maintains that he was denied his right to present a defense. He makes a two-pronged argument, in the first of which he contends that he was prejudiced when the trial court changed its initial ruling that it would allow the medical examiner’s testimony regarding D.S.’s (the victim’s) drug abuse. Although a judge’s alleged change of mind is not bound to reoccur in a new trial, a discussion of the first part of this issue is necessary to an understanding of the second part of the argument Ramey makes.

Prior to trial, the State filed a motion in limine to preclude Ramey from introducing evidence regarding the victim’s cause of death. On December 11, 1988, some five months after she was alleged to have been assaulted, the victim died of causes unrelated to the offense with which Ramey was charged. At the hearing on the motion, Ramey claimed that if the medical examiner, Dr. Kalelkar, were called to testify, she would state that (1) as a result of her physical examination of the body, there was evidence that indicated long-standing alcohol and drug abuse. Specifically, the evidence consisted of enlarged lymph glands which would have supported a finding that the victim was a drug abuser. The doctor would also testify, according to Ramey, that (2) the medical examiner’s investigator interviewed members of the victim’s family who said that the victim had been a “junkie” for several years, and (3) in Dr. Kalelkar’s opinion, the victim died as a result of alcohol, cocaine and opiate intoxication.

In ruling on the motion the court made the following holdings:

“THE COURT: I would allow the testimony regarding the [doctor’s] medical finding which supports that [the victim] was in fact a drug abuser during a several year period.
* * *
I am not going to allow [the doctor] to say my investigator talked to such and such and he said that she said that she was a drug abuser. That’s not necessary for the doctor’s opinion to come in.
* * *
I will allow as I have indicated the limited indication by the doctor that she did in fact perform a postmortem examination of the victim. I will not allow testimony as to the cause of death of the victim. But during the course of that postmortem examination, her findings along with her collection of data indicated that the victim was a long time drug abuser.”

Accordingly, in opening statements and throughout its examination of various witnesses, the defense brought out that the victim was a drug addict. However, at an offer of proof held before the doctor began to testify, it became clear that she could not testify to a reasonable degree of medical certainty that the victim was a drug addict because the autopsy alone did not reveal that the victim was a chronic cocaine or opiate abuser. Rather, the doctor could draw her conclusion that the victim was dependent on drugs only by relying upon her investigator’s reports, which noted that the victim was a habitual cocaine abuser, but as indicated above, these reports previously had been ruled inadmissible. Because the court felt that any testimony the doctor could give with regard to the narcotics would be “conjecture,” it held that she could testify only to the victim’s alcohol abuse, since her medical findings supported this conclusion.

Ramey argues that the right of a criminal accused to present a defense is a central tenet of due process (Washington v. Texas (1967), 388 U.S. 14, 18, 18 L. Ed. 2d 1019, 1022-23, 87 S. Ct. 1920, 1923; People v. Manion (1977), 67 Ill. 2d 564, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513) and that included in this right is that of presenting relevant evidence which supports the defense’s theory. (People v. Durr (1978), 58 Ill. App. 3d 525, 532.) The defense’s theory of the case was that:

“[D.S.] freely went to Mr. Ramey’s apartment and that she and Mr. Ramey had consensual intercourse. After intercourse, Ms. [S.] started acting irrationally and began throwing things. After Mr. Ramey attempted to calm her down and restrained her, he went to sleep. The next day, the victim jumped out a second story window not because she was trying to escape but because she was mentally imbalanced as a result of prolonged drug use and her drug addiction. The doctor’s testimony would have helped to establish this and bolster defendant’s theory of the case.”

Ramey errs when he argues that the trial court’s mid-stream shift in position prejudiced him, for we find that the court did no such thing. The judge’s ruling on the motion in limine was based on Ramey’s claim that the doctor, according to her medical findings, could testify to a reasonable degree of medical certainty that the victim was a drug abuser. At the subsequent offer of proof, however, it was discovered that the only basis upon which the doctor could make this determination was to rely on the investigator’s reports which previously had been ruled inadmissible. Consistent with its initial ruling, the trial court limited the scope of the doctor’s testimony to those conclusions reasonably based on her medical findings — namely, evidence of the victim’s alcohol abuse. Although the State’s brief does not challenge Ramey’s claim that the trial judge changed course on this issue, we may, of course, sustain the circuit court’s decision upon any ground supported by the record. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382.) We therefore uphold the determination of the trial court on this issue.

Since the issue involved in the second part of Ramey’s argument is also likely to resurface on remand, however, we shall proceed to address its merits. Ramey urges that the trial court’s reason for excluding the doctor’s testimony regarding the victim’s alleged drug abuse was improper because it prohibited Kalelkar from relying on information ordinarily relied upon by experts in their field. (Wilson v. Clark (1981), 84 Ill. 2d 186, 192-93.) Ramey’s argument is without foundation, however, because there is no indication in the record that these reports contain the type of information reasonably relied upon by experts in the field; it demonstrates only that the doctor relied on her investigator’s reports. Even if we were to conclude otherwise, Ramey sought to introduce not only the doctor’s testimony, but also, as substantive evidence, the family’s statements contained in these reports that the victim had been a drug addict, to prove that she was an addict, and to prove his theory of the case that the victim jumped out of the window because she was mentally imbalanced as a result of her drug addiction. This procedure, however, would result in the use of hearsay testimony. “Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” (People v. Carpenter (1963), 28 Ill. 2d 116, 121.) We therefore hold that the trial court was not in error in excluding the doctor’s testimony.

As to his third issue, Ramey alleges that the State’s failure to tender statements made by him constituted a denial of due process. Prior to trial, the defense filed a request for the discovery of all statements made by Ramey which the State might introduce. In response, the State tendered the following statement, given by Ramey to Detective Leja and Assistant State’s Attorney Needham, on July 25,1988:

“On the evening of July 18, 1988, Ramey met a girl named [D.S.]. This was the first time they met. After talking with her for a while and having some drinks, Mr. Ramey asked the girl to his apartment at 5528 South Morgan. The two walked there arriving sometime after midnight.
Mr. Ramey’s two roommates were in the apartment. Mr. Ramey took [D.S.] to his bedroom and shut the door. Ramey then asked would she have sex with him. Ramey had not been with a woman for a long time. Miss [S.] refused. Mr. Ramey very much wanted to have sex so he pushed the girl on the bed, got on top of her ***.
Mr. Ramey forced his penis into her vagina. The girl resisted. Ramey at first said after a while it did not seem that she was fighting. When Mr. Ramey was finished, Miss [S.] stated she had to use the bathroom. He took her into the bathroom and waited in there with her.
Mr. Ramey was afraid because the girl started to act crazy and said she wanted to kill him. After she went to the bathroom, she ran into the living room. Mr. Ramey followed her and grabbed her. Then he brought her back to his bedroom. At this point all of her clothes were off. *** She started to act crazy again. Ramey took some socks and a belt and tied the girl’s hands together, then he went to sleep.
*** [He] was asleep and woke after she had gone out of the window.”

The State also tendered its felony review notes to Ramey. In those notes, the following summary of Ramey’s statement appeared:

“Defendant AOR — after initially denying allegation of detective, defendant admitted to Assistant State’s Attorney that he raped the victim twice, then tied her up. Upon reading statements, defendant claimed he raped her only once.”

Needham, after a prolonged period of cross-examination as to exactly what Ramey had said, testified that Ramey had told him specificaUy that he “raped the girl.” Over Ramey’s objection, the court allowed Needham’s testimony to stand, noting that “although the words are not the same, the word ‘rape’ is not used, we all know that forcing someone’s penis into someone’s vagina is what people formally call rape.” Ramey argues that in a criminal prosecution, when a properly tendered motion for discovery is made, the State must disclose all statements made by the defendant (People v. Weaver (1982), 92 Ill. 2d 545, 559; Ill. Rev. Stat. 1987, ch. 38, par. 114-10; 134 Ill. 2d R. 412 (a)(ii)), and that such compliance is mandatory. (People v. Robinson (1989), 189 Ill. App. 3d 323, 330, appeal denied (1990), 129 Ill. 2d 570.) Ramey further contends that the State’s introduction of the disputed statement represents the use of evidence not disclosed during discovery.

Ramey posits that the trial court committed gross error when it equated the written summary statement, “Mr. Ramey then forced his penis into her vagina,”, with a direct quote allegedly made by Ramey, “I raped the girl,” which, he insists, confesses much more than the statement as prepared by the State’s Attorney. “Standing by itself,” he argues, “the statement that ‘Mr. „Ramey forced his penis into her vagina’ would be consistent with the fact that the victim was a virgin or that she was insufficiently lubricated. The statement of T raped the girl’ however leaves very little to the imagination and is very damaging,” he concludes. Ramey thus contends that he was prejudiced by Needham’s testimony.

According to well-settled law, the State is obligated to disclose to a defendant’s attorney all oral statements made by the defendant whether or not such statements have been reduced to writing. (Robinson, 189 Ill. App. 3d at 330; Ill. Rev. Stat. 1989, ch. 38, par. 114—10.) The object of this rule is to avoid giving the State the unwarranted trial advantage of surprise. (People v. Szabo (1977), 55 Ill. App. 3d 866, 871.) The prejudice resulting from “surprise, unfairness, and inadequate preparation, as well as [from the lack of] an opportunity to investigate the circumstances surrounding [an undisclosed alleged] statement” is so incalculable that it cannot be conjectured by the court. People v. Young (1978), 59 Ill. App. 3d 254, 257.

The circumstances which go to form this issue, however, do not suggest that the State was given any unwarranted trial advantage. All potentially harmful information — indeed, all of the material to which he was entitled — was given to Ramey, whether it be in the form of his signed statement or in the form of the felony review notes. To be sure, the latter apprised him that he had confessed to raping the victim at least once; moreover, Needham was subjected to intensive cross-examination thereon. In view thereof, we conclude that Ramey could not have been unfairly surprised by Needham’s testimony.

In his fourth and final assignment of error Ramey argues that he was not proven guilty of “aggravated” criminal sexual assault because the element used to aggravate the crime, the victim’s broken ankle, was caused by the victim when she jumped out of the window. However, paramedics were called to the scene, and upon being questioned by them, D.S. stated that she had been sexually assaulted and jumped out of the window to escape from her assailant. The victim was taken to a hospital where she was treated for a broken ankle and abrasions around her wrists; she also related to the hospital staff that she had been the victim of a sexual assault. Ramey was convicted of the “aggravated” charge because he inflicted “bodily harm” on the victim during the course of the sexual assault. His contention, however, that he cannot be guilty of having caused bodily harm to the victim was not raised at trial and appears nowhere in his motion for a new trial. In order to preserve an issue for appeal, an objection must be raised at trial and in a post-trial motion. People v. Turner (1989), 128 Ill. 2d 540, cert. denied (1989), 493 U.S. 939, 107 L. Ed. 2d 326, 110 S. Ct. 337; People v. Enoch (1988), 122 Ill. 2d 176, cert. denied (1988), 488 U.S. 917,102 L. Ed. 2d 263, 109 S. Ct. 274.

Since Ramey failed to raise this issue at trial and in his written post-trial motion, his allegation would ordinarily be waived and would not need to be considered by this court on appeal. (People v. Sargent (1989), 184 Ill. App. 3d 1016, 1021; Ill. Rev. Stat. 1987, ch. 38, par. 116—1(c).) However, since we have determined to remand the cause for a new trial, we have considered the issue at length and find it to be without merit. In People v. Smith (1974), 56 Ill. 2d 328, the defendant argued a theory similar to Ramey’s: that “the deceased, unprovoked by the defendant in the commission of a burglary, jumped to her death” in an attempt to escape. (Smith, 56 Ill. 2d at 333.) Referring to section 2—8 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 2—8), the court noted that

“ ‘[i]t is immaterial whether the killing in such a case is unintentional or accidental ***.’ *** Tt reasonably might be anticipated that an attempted robbery would meet with resistance, during which the victim might be shot either by himself or someone else in attempting to prevent the robbery, and those attempting to perpetrate the robbery would be guilty of murder.’ It is unimportant that the defendant did not anticipate the precise sequence of events that followed upon his entry into the apartment of [the victim]. His unlawful acts precipitated those events, and he is responsible for the consequences.” (Smith, 56 Ill. 2d at 334.)

Applying Smith to the facts in this case, it is immaterial that D.S.’s injury was unintentional on Ramey’s part, for it is reasonably foreseeable that a rape victim may attempt to escape and incur harm thereby, thus making her attacker responsible therefor, since his unlawful acts precipitated the escape and the consequent injury. Also, in People v. Parra (1975), 35 Ill. App. 3d 240, sentence vacated on other grounds (1976), 63 Ill. 2d 553, the defendant was convicted of reckless homicide for “operatpng] his car so that it passed over [the victim’s] body and left her lying in the middle of [the] street.” (Parra, 35 Ill. App. 3d at 265.) In affirming the defendant’s conviction, the court concluded that “[w]here *** the immediate cause of death is the human act of another which is a direct consequence of the defendant’s initial reckless conduct and it is reasonably foreseeable to the defendant,” the defendant’s act is regarded as the cause of death. (Parra, 35 Ill. App. 3d at 264.) Smith and Parra merely reflect well-established and well-defined law that appears to be universally followed and embodied in the precept that an actor is to be held liable for the natural and foreseeable consequences of his act, whether that act be civil or criminal. That D.S. might try to escape and that during her escape, she might become injured, was incontestably the natural and foreseeable consequence of Ramey’s criminal act, thus making that act an “aggravated” one.

For the above-stated reasons, the judgment of the circuit court is reversed and this cause is remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded.

DiVITO and McCORMICK, JJ., concur.