author: PRESIDING JUSTICE GOLDENHERSH

text:
    WAYNE MASCHHOFF, Plaintiff-Appellee, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.
    Fifth District
    No. 5—91—0155
    Opinion filed June 25,1992.

      Ann E. Hamilton, of St. Louis, Missouri, for appellant.
    Otto J. Faulbaum, of Waterloo, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, National Super Markets, Inc., appeals from a judgment of the circuit court of St. Clair County for plaintiff, Wayne Maschhoff, in the amount of $62,310. The jury returned a verdict assessing plaintiff’s damages at $93,000 and reduced the award by 33% for plaintiff’s contributory negligence. In this cause, defendant raises two issues: (1) whether the trial court erred in failing to grant defendant’s motion for directed verdict and/or judgment notwithstanding the verdict (j.n.o.v.), and (2) whether plaintiff proved with reasonable certainty that defendant’s acts or omissions were the proximate cause of plaintiff’s injuries. We affirm.

This case arises out of a slip and fall plaintiff experienced in defendant’s Carbondale store while delivering milk. On September 14, 1985, plaintiff was employed as a dairy delivery driver for Howard Huge, an independent Pevely dairy distributor. On that date, plaintiff arrived at defendant’s store in Carbondale between 7 and 8 a.m. Plaintiff cleared the loading dock so that he could unload his truck. Plaintiff then notified the dairy manager that he had arrived. It was the dairy manager’s duty to count the items plaintiff delivered to make sure the store was getting what it ordered. Normally, plaintiff delivered loads of four to six pallets of dairy products to this particular store. The pallets contained 16 to 20 stacks of crates, each five to six cases high. On this particular date, plaintiff used his pallet jack to take the pallets from the loading dock inside the store to just outside the dairy cooler. Plaintiff then had to wait for the dairy manager. When the dairy manager arrived, plaintiff started to put the milk in the cooler. In order to transfer the milk to the cooler, plaintiff used a “J” hook in his right hand to hook the bottom crate in a stack of milk and stabilize the stack by holding the top crate with his left hand. Plaintiff would then jerk the whole stack off the pallet and slide it across the store into the cooler. Plaintiff then backed away from the stack, pulling the crates toward him as he walked.

On September 14, 1985, plaintiff noticed a buildup on the floor prior to his placing the milk in the cooler. Plaintiff described the condition, stating, “It was dirty and had milk or water or grime, whatever you want to call it, on the floor.” Plaintiff later described it as “dirt and slime” that was slippery and also referred to it as a “buildup.” Plaintiff did not clean the floor nor did he ask any of defendant’s employees to clean the floor. Plaintiff had taken four or five stacks of milk to the back of the cooler prior to his fall. Plaintiff was not sure why he fell, but for some reason his foot slipped out from under him. The dairy manager was five feet in front of plaintiff when he fell. Plaintiff fell on his elbow, then his buttocks hit the floor, and ultimately, plaintiff landed on his back. When plaintiff fell, the milk crates fell on top of him. The dairy manager helped plaintiff get up and assisted plaintiff in putting the milk containers back in the crates. None of the cartons broke during the fall. Both plaintiff and the dairy manager then went to the front of the store and reported to the store manager that plaintiff had fallen in the dairy cooler. After they notified the manager, they went back and cleaned up the floor. The floor was mopped clean. Plaintiff testified that after the floor was mopped it was no longer slippery, and he finished filling the cooler without further incident. Plaintiff sustained injuries as a result of his fall.

On cross-examination, plaintiff agreed with defendant’s attorney that it was easier to pull the crates when the floor was damp. Plaintiff also agreed that the milk containers had a tendency to sweat if they were left outside a refrigerated area and some occasionally leaked. However, plaintiff expressly denied that he did anything to cause the slippery condition which existed on September 14, 1985.

The trial court overruled defendant’s motions for directed verdict, and the jury returned a verdict in plaintiff’s favor. The trial court refused to grant defendant’s motion for j.n.o.v. Defendant appeals.

The first issue we must consider is whether the trial court erred in failing to grant defendant’s motion for directed verdict and/or j.n.o.v. Defendant contends that it is not liable for plaintiff’s injuries because the condition of the floor was known and obvious to plaintiff prior to his fall and plaintiff must be responsible for his own conduct. Defendant also argues that it is not liable to plaintiff because plaintiff’s injuries were not foreseeable. Finally, defendant contends that plaintiff failed to make a submissible case of negligence against defendant since plaintiff failed to prove that defendant knew or should have known about the dangerous condition prior to plaintiff’s fall. Plaintiff responds that the verdict is supported by the evidence and the law. Plaintiff argues that his knowledge that the floor was dirty and slippery prior to his putting the milk in the cooler did not relieve defendant of its duty to him. We agree with plaintiff.

To succeed on a claim of negligence a plaintiff must prove a duty, a breach of that duty, and an injury proximately resulting from the breach. (Jones v. Chicago Transit Authority (1990), 206 Ill. App. 3d 736, 565 N.E.2d 46; Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 519 N.E.2d 10.) Whether defendant owes plaintiff a duty of care is a question of law for determination by the court. (Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 437-38, 566 N.E.2d 239, 243.) Factors relevant in determining whether a legal duty exists are reasonable foreseeability of injury, likelihood of injury, magnitude of burden of guarding against it, and consequences of placing that burden upon defendant. Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 156, 554 N.E.2d 223, 226-27.

Generally, a possessor of land, such as defendant, owes its invitees a duty of reasonable care to maintain its premises in a reasonably safe condition. (Restatement (Second) of Torts §343, at 215-16 (1965); Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 145-46, 554 N.E.2d 223, 229.) Section 343A of the Restatement of Torts, which Illinois has adopted, provides that a possessor of land cannot be liable for an invitee’s injury if the condition of the land which caused the injury was known or obvious to the invitee. (Restatement (Second) of Torts §343A(1), at 218 (1965).) “Known” means “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” (Restatement (Second) of Torts §343A, Comment b, at 219 (1965).) “Obvious” denotes that “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, inteUigence, and judgment.” (Restatement (Second) of Torts §343A, Comment b, at 219 (1965).) Comment / to the Reporter’s Notes to section 343A explains further the duty of the possessor of land as set forth in section 343A:

“/. There are *** cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§466 and 496D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” (Emphasis added.) (Restatement (Second) of Torts §343A, Comment/, at 220 (1965).)

The principles expressed in the Restatement are consistent with the general duty of reasonable care owed to invitees and licensees and, as such, are relevant to the resolution of whether an injury was reasonably foreseeable. Ward v. K mart Corp., 136 Ill. 2d at 151, 554 N.E.2d at 232.

We conclude that the injury here was reasonably foreseeable. First, we note that the dirty, slippery floor, the condition which caused the injury, was obvious, as indicated by plaintiff’s own testimony. Plaintiff testified that he saw the buildup on the floor prior to his stacking the milk in the cooler. But despite this obviousness, we believe this is an instance where the possessor of land can be liable. Defendant has argued that there was no evidence of distraction or forgetfulness on the part of plaintiff and that defendant is therefore not liable. However, an examination of the record shows that plaintiff did not state that he was not distracted, nor did he state that he was always mindful of the condition of the floor. Plaintiff testified as to the large amount of milk he delivered to defendant and how it required a certain stacking procedure in the cooler. Plaintiff could have forgotten the slippery condition of the floor after a series of “safe” trips across the floor. Moreover, plaintiff might have been distracted by talking to the dairy manager who was on duty and who was only five feet away when plaintiff slipped. We agree with the trial court that it was a question of fact for the jury to determine whether defendant breached its duty to plaintiff. The obviousness of the danger and plaintiff’s own negligence affect whether and to what extent plaintiff is comparatively negligent, not the duty of the possessor of land. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d at 442, 566 N.E.2d at 245; Ward v. K mart Corp., 136 Ill. 2d at 143, 156-57, 554 N.E.2d at 228, 234; Restatement (Second) of Torts §343A, Comment f, at 220 (1965).

Defendant argues that the instant case is analogous to Amaral v. Woodfield Ford Sales, Inc. (1991), 220 Ill. App. 3d 357, 581 N.E.2d 19, which addressed the issue of duty of a possessor of land to a business invitee. The plaintiff in Amaral was an independent contractor who was injured in a slip and fall in a car dealership’s service area while at the dealership to apply rustproofing. In his deposition, the plaintiff stated that he was aware of the potential danger caused by radiator fluid on the floor and knew that the radiator had just been flushed in the area. The plaintiff stated that at the time he fell he was looking down and walking carefully because the floor was wet. The Amaral court found these admissions indicated that the plaintiff was “not only aware of the potential danger, but that he had not been distracted from that awareness.” (220 Ill. App. 3d at 364, 581 N.E.2d at 24.) The Amaral court held that the car dealership had no obligation to protect the independent contractor from the open and obvious danger of the radiator fluid. We find the instant case distinguishable. As previously discussed, the record supports the inference that plaintiff may have forgotten about the slippery condition of the floor. While plaintiff was never asked whether his attention was distracted or whether he forgot about the slippery condition of the floor, the jury could have reached the reasonable conclusion that after plaintiff had successfully slid between four and five stacks of crates to the back of the cooler without incident, he forgot about the slippery condition. In Amaral, the plaintiff admitted being mindful of the potential hazard at all times when he fell. Moreover, radiator flushes occurred frequently in Amaral and were a hazard of the job. Requiring the floor to be washed and scrubbed after every radiator flush would place a great burden on the owner of the auto shop, whereas requiring a dairy cooler to be cleaned intermittently by the dairy department employees would not. Amaral is, therefore, distinguishable.

Once it is determined that defendant owes plaintiff a duty, the next question is whether the duty was breached. Whether defendant breached its duty is a question of fact for the jury. (Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d at 437-38, 566 N.E.2d at 244.) The general rule is that liability will be imposed where a business invitee is injured by slipping on a foreign substance on business premises if (1) the substance was placed there by the negligence of the proprietor, (2) if the proprietor’s servant knew of its presence, or (3) if the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. Hayes v. Bailey (1980), 80 Ill. App. 3d 1027,1030, 400 N.E.2d 544, 546.

Here, it is reasonable to expect that defendant was aware via the dairy employees that the floor of the dairy cooler was in need of cleaning due to a slippery buildup that had been allowed to accumulate. The dairy manager was present when plaintiff was stacking the milk in the cooler. He should have seen the buildup and offered to have it cleaned prior to plaintiff working in the area. Moreover, plaintiff described the condition as a buildup, the connotation being that the condition was allowed to accumulate over a period of time. Had defendant required the floor of the dairy cooler to be cleaned on a regular basis, the slippery condition would not have existed.

Plaintiff did have a responsibility for his own safety and should be held to be as aware as defendant of the obvious danger of a slippery buildup on a floor. As discussed, however, a defendant’s duty does not terminate if the defendant had reason to expect that the plaintiff would be distracted or forgetful of the obvious danger. Such is the case here. It was for the jury to determine whether defendant exercised reasonable care to protect plaintiff and what effect, if any, the obviousness of the danger and plaintiff’s own negligence had on plaintiff’s recovery. Here, the jury found plaintiff’s actions to be a contributory factor to his injury and accordingly reduced plaintiff’s award by 33%. We find the trial court was correct to submit this case to the jury and deny defendant’s motions for directed verdict and j.n.o.v.

The other issue we are asked to consider is whether plaintiff failed to prove with reasonable certainty that defendant’s acts or omissions were the proximate cause of plaintiff’s injuries. Defendant argues that plaintiff failed to prove the “cause in fact” of his injuries because plaintiff offered no evidence at trial as to the nature of defendant’s act or omission which allegedly caused plaintiff’s injuries. Defendant argues that plaintiff failed to prove any act or omission by defendant produced plaintiff’s injuries through a sequence of events unbroken by any intervening cause. Defendant contends that plaintiff’s dragging four to five loads of milk into the cooler was an intervening cause and that we should find as a matter of law that plaintiff failed to prove defendant was the proximate cause of plaintiff’s injuries. We disagree.

In Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 369 N.E.2d 1284, affd in part, rev’d in part (1979), 76 Ill. 2d 154, 390 N.E.2d 859, the term “proximate cause” was explained:

“ ‘Proximate cause’ is a term of art which encompasses the distinct concepts of cause in fact and legal cause. Determining whether the defendant’s conduct was a cause of plaintiff’s injury involves nothing more than an analysis of the facts. Once it is established that the defendant’s conduct has in fact been a cause of the injury, however, there remains the question whether the defendant should be legally responsible for what he has caused. As otherwise stated, the question is whether the policy of the law will extend defendant’s responsibility to the consequences which have in fact occurred.” (54 Ill. App. 3d at 333, 369 N.E.2d at 1292.)

Cause in fact is ordinarily for the jury to determine, but where it is apparent from undisputed facts that only one conclusion can be drawn, the question then becomes one for the court to resolve as a matter of law. Fisher v. Crippen (1986), 144 Ill. App. 3d 239, 244, 493 N.E.2d 1204, 1208; Sharpe v. Jackson Park Hospital (1981), 99 Ill. App. 3d 874, 878, 425 N.E.2d 1244, 1247.

We have previously discussed the considerations expressed in sections 343 and 343A of the Restatement and how they relate to the facts of the present case. It is apparent that plaintiff may have forgotten the danger caused by the slippery buildup on the floor or may have been distracted from it. While defendant argues that plaintiff caused the slippery condition by moving “sweating” milk bottles over the floor or bringing leaking bottles into the cooler, there is no such evidence in the record. In fact, plaintiff expressly denied that he did anything to cause the slippery condition. There is no evidence that plaintiff’s actions constituted an intervening act. We cannot say conclusively that defendant did not breach its duty, nor can we say that defendant’s breach was not a proximate cause of the injury. We cannot agree with defendant that plaintiff was 100% responsible for his injury. We find that the trial court correctly left these issues for the jury to determine.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

H. LEWIS and CHAPMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    DuQUOIN STATE BANK, Plaintiff-Appellee, v. NORRIS CITY STATE BANK, Defendant-Appellant.
    Fifth District
    No. 5—90—0369
    Opinion filed June 26,1992.

      James L. Van Winkle, of Van Winkle & Van Winkle, of McLeansboro, for appellant.
    Michael F. Dahlen and Paul G. Schoen, both of Feirich/Schoen/Mager/ Green, of Carbondale, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Norris City State Bank, appeals from a judgment of the circuit court of Perry County in favor of plaintiff, DuQuoin State Bank, finding that defendant, in the course of its business, negligently supplied false information to plaintiff, and as a result of defendant’s actions, plaintiff made an unsecured loan on which the borrower defaulted. We affirm.

In this appeal, defendant contends that: (1) the trial court erred in holding that defendant owed a duty to plaintiff; (2) the trial court’s holding that defendant supplied information to plaintiff in the course of defendant’s business was against the manifest weight of the evidence; (3) the trial court’s holding that defendant negligently supplied false information to plaintiff was against the manifest weight of the evidence; and (4) the trial court erred in failing to consider plaintiff’s negligence and to reduce plaintiff’s award accordingly.

In August 1987, plaintiff filed an action against defendant based upon a theory of negligent misrepresentation. Plaintiff alleged that in the normal course of its business and in order to induce plaintiff to loan $25,000 to DeVoe Brothers, Inc. (DeVoe Brothers), defendant represented to plaintiff that DeVoe Brothers owned certain real estate on which defendant held a mortgage, and that defendant would subordinate its mortgage to plaintiff. Plaintiff also alleged that it was part of defendant’s business to provide information to other commercial banks, including plaintiff, to secure financing for defendant’s customers.

The events leading up to this lawsuit were adduced at a bench trial as follows. In April, May and June of 1986, Lawrence Luecking, a vice-president of plaintiff, was approached by Hollis DeVoe (DeVoe) regarding a business loan for DeVoe’s coal reclamation project in Valier. Plaintiff denied DeVoe’s first request for $110,000 for lack of security, inability to repay and insufficient business experience. After several more attempts without success, DeVoe requested a $25,000 loan to meet his payroll in June 1986. Again, plaintiff declined to make the loan. During this same time period, DeVoe Brothers, owned by Hollis DeVoe and his two sons, was negotiating to purchase Utility Coal Corporation (Utility), a coal-reclamation operation in Williamson County. DeVoe Brothers originally intended a stock purchase of Utility, but after undisclosed debts surfaced, DeVoe Brothers considered an asset purchase. Utility owned approximately 150 acres of coal-reclamation land in Williamson County. In 1984, defendant made a $300,000 loan to Utility, secured by a first mortgage on the 150 acres. The loan was also secured by a Small Business Administration (SBA) guarantee for 90% of the loan.

In July 1986, when the deal between DeVoe Brothers and Utility faltered, DeVoe contacted H. Bruce Burnett, then chairman of the board of defendant, requesting a $25,000 loan. Although defendant presented evidence that Burnett retired from this position on June 21, 1986, prior to DeVoe’s loan request, Burnett testified that he still held himself out to be chairman of the board until August 1, 1986. Burnett continued to use a room at the bank and utilized the services of bank employees, and the letterhead continued to show him as chairman until August 1,1986.

Burnett instructed DeVoe that defendant would not make the loan because several loans Utility had with defendant were in default. Burnett advised DeVoe to return to plaintiff, where DeVoe maintained deposits. DeVoe thereafter informed Burnett that he had obtained a pledge of retraining funds (hereinafter HITS funds) from John A. Logan College (Logan College) and requested help in securing the loan for the $25,000 he needed to stay in operation. On July 28, 1986, in response to DeVoe’s plea, Burnett called Michael Travelstead, president of plaintiff and longtime banking associate, to discuss a possible loan by plaintiff to DeVoe. Burnett explained to Travelstead that DeVoe Brothers was in the process of purchasing Utility and was currently operating that project, but the deal had not yet closed. Burnett further explained that DeVoe urgently needed a $25,000 loan to make payroll that week so the operation could continue. In order to convince Travelstead to approve the loan, Burnett offered to subordinate defendant’s mortgage on the Utility property, thereby enabling plaintiff to acquire a first mortgage position as collateral, contingent upon SBA approval. Additionally, Burnett offered to personally guarantee $10,000 of the loan. There was also some discussion about the HITS funds from Logan College as a method of repayment and whether such funds were assignable to plaintiff. At the end of the conversation, Travelstead told Burnett he would look at the file and call back, fully understanding the urgency of the matter. Later that same day, Travelstead called Burnett and stated that plaintiff would make the loan so that DeVoe’s payroll could be made that week. Travelstead further stated that without Burnett’s involvement there was no way plaintiff would have approved the loan, but if the mortgage defendant held on Utility land was subordinated it was unnecessary for Burnett to personally guarantee any part of the loan. Travelstead also commented that plaintiff would attempt to have the Logan College HITS funds assigned to it. Burnett repeated that the subordination was contingent upon SBA approval and that he would attempt to gain such approval as soon as possible. After that conversation, Travelstead instructed Luecking to process the loan, and Burnett wrote to SBA requesting approval of the mortgage subordination. Burnett also wrote a letter to Travelstead confirming the subordination agreement and attached a copy of defendant’s mortgage, the title insurance policy on the property, and a copy of the letter to SBA. Travelstead recalled receiving the letter, but did not recall seeing the supporting documents.

The next day, July 29, 1986, Burnett received verbal approval from SBA to subordinate defendant’s mortgage and allow plaintiff to acquire the first mortgage position. Written confirmation was received on July 30, 1986. Luecking prepared plaintiff’s mortgage from the mortgage documents received from Burnett but did not remember seeing the title policy. The mortgage documents sent from defendant indicated Utility as the owner of the property, but Travelstead testified that he never saw any of the documents. Luecking and Travel-stead spoke no further about the loan, and Luecking instructed his secretary to prepare the note and mortgage. The funds were disbursed July 30, 1986. Luecking testified that when he did notice the title to the real estate was in the name of Utility he asked DeVoe about it, and DeVoe stated that he owned the property or that he was in the process of buying it. That statement was supported by earlier statements made by Burnett to Travelstead. Therefore, Luecking was under the impression that the mortgaged property was owned or being bought by DeVoe Brothers, and that plaintiff would receive additional documentation from defendant to facilitate the mortgage subordination.

After the loan was made, Luecking prepared paperwork to reflect reassignment of the Logan College HITS funds. Sometime after August 30, 1986, Luecking told Travelstead he was having some difficulty obtaining the HITS funds. A representative from Logan College indicated that the checks had to be made payable to Guarantee Resources, Inc. (Guarantee), a company wholly owned by DeVoe Brothers. Around the first of October 1986, Luecking received a letter from Logan College stating that the college board had to approve the reassignment of the HITS funds to plaintiff, that approval was expected to come on October 8, 1986, and that the checks would then be sent to plaintiff. The first HITS funds check was issued on October 17, 1986, but it was mailed to Guarantee. After receiving the check, DeVoe spent it rather than applying it to plaintiff’s loan. Four to six weeks after the first loan payment was due, DeVoe sent a letter to Luecking, stating he knew it was wrong for him to spend the money, but he needed the funds to continue operations. On the same day Luecking received DeVoe’s letter, Luecking’s supervisor, Tony Elder, wrote DeVoe to notify him that plaintiff was accelerating the loan. On November 30, 1986, Logan College confirmed with Guarantee that the HITS funds would be paid to plaintiff under the July 28, 1986, assignment, and the second HITS funds check was issued on January 23, 1987, and sent to plaintiff. That was the only payment plaintiff received on the loan. Further, since the real estate on which plaintiff held the mortgage was owned by Utility and not DeVoe, the loan was, in fact, unsecured. Therefore, plaintiff held no collateral which it could apply toward the delinquent loan.

The trial court held that defendant, by and through its agent, Bruce Burnett, negligently supplied false information to plaintiff through the course of defendant’s banking business. As a result of being negligently supplied with this false information, plaintiff made an unsecured loan to DeVoe Brothers, which is in default. The trial court found that plaintiff was damaged in the amount of $21,106.29. The trial court also held that plaintiff was negligent in supervising the collection of HITS funds from Logan College which were assigned to plaintiff by Guarantee and DeVoe Brothers, so defendant is entitled to a setoff in the amount of $6,940 for funds not collected by plaintiff but due plaintiff. The trial court ordered that plaintiff be awarded judgment against defendant in the sum of $14,166.29 plus costs of suit.

Defendant contends that the trial court erred in holding that defendant owed a duty to plaintiff, and if such a duty does exist, defendant did not breach it. In its second amended complaint, plaintiff alleged that defendant negligently misrepresented the state of title to certain real estate, and as a result, plaintiff took a mortgage from DeVoe Brothers on land titled to Utility.

The Illinois courts have recognized the tort of negligent misrepresentation. One of the first cases to address this tort was Guaranty Bank & Trust Co. v. Reyna (1964), 51 Ill. App. 2d 412, 201 N.E.2d 144. In Guaranty Bank, the plaintiff inquired whether an individual with whom she had negotiated a lease was the bank’s agent. The defendant bank stated in a letter that the person in question was not empowered to act as the bank’s agent. Based on this information, the plaintiff repudiated her lease. The person with whom the plaintiff negotiated the lease was, however, a duly authorized agent of the bank. The court held:

“The information supplied by the bank was in the course of its business in response to an inquiry by Miss Reyna. The information was supplied to guide Miss Reyna in the conduct of a serious business matter. It was intended that Miss Reyna should rely upon such information for the purpose of ascertaining parties for a law suit. Miss Reyna relied upon the information to repudiate her obligations under a lease into which she was told she had never validly entered. *** The conclusion which Miss Reyna drew was an inference implicit in the bank’s answer. We believe that Miss Reyna was entitled to rely upon the bank’s representations.” (51 Ill. App. 2d at 422-23, 201 N.E.2d at 150.)

Our supreme court recognized the tort of negligent misrepresentation in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656. Although Rozny did not address the “business of supplying information” requirement, the court did approve the reasoning found in the Restatement (Second) of Torts §552 (then in draft form). Section 552 provided the basis of the “business of providing information” requirement:

“(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Restatement (Second) of Torts §552(1) (1977).

Applying the tort to stockbrokers, the court in Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376, construed section 552 as meaning “[i]f it is one’s business to supply information and if that information is negligently supplied *** the supplier can be held liable for the resultant damages.” (68 Ill. App. 3d at 81, 385 N.E.2d at 381.) This construction was followed in National Can Corp. v. Whittaker Corp. (N.D. Ill. 1981), 505 E Supp. 147. In National Can, the plaintiff, a bottle cap manufacturer, sued a supplier of compounds used in manufacturing the caps based on negligent misrepresentation concerning the fitness of the compounds. The court held that the tort of negligent misrepresentation “has been recognized almost exclusively in situations where information was supplied that damaged a plaintiff in its relations with third parties.” (Emphasis in original.) (505 F. Supp. at 150.) Our supreme court confirmed the interpretations espoused by Penrod and National Can in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, by specifically limiting the recovery of economic losses in negligent misrepresentation actions to circumstances in which “one who is in the business of supplying information for the guidance of others in a business transaction makes negligent misrepresentations.” Moorman, 91 Ill. 2d at 89, 435 N.E.2d at 452.

There has been no definitive analysis in the Illinois cases to date as to what principle should be applied in determining whether a party is “in the business of supplying information.” There are cases in which courts held that the defendants were not in the business of supplying information when the defendant was a developer, a builder/ owner of an apartment building, a precipitator manufacturer, a manufacturer of roofing materials, a computer manufacturer and a computer software manufacturer. (Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 503 N.E.2d 246; Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, 510 N.E.2d 1260; Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390; Knox College v. Celotex Corp. (1983), 117 Ill. App. 3d 304, 453 N.E.2d 8; Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp. (1982), 109 Ill. App. 3d 132, 440 N.E.2d 282.) In all of these cases, the courts found that although the defendants’ business involved the exchange of information as well as tangible products, the defendants were in the business of supplying tangible goods and the information provided was merely incidental. Alternatively, there are Illinois cases in which courts found that defendants such as banks, stockbrokers, real estate brokers, and termite inspectors are in the business of supplying information. Richmond v. Blair (1985), 142 Ill. App. 3d 251, 488 N.E.2d 563; Perschall v. Raney (1985), 137 Ill. App. 3d 978, 484 N.E.2d 1286; Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267; Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376; Guaranty Bank & Trust Co. v. Reyna (1964), 51 Ill. App. 2d 412, 201 N.E.2d 144.

In the cases of real estate brokers and termite inspectors it seems clear that their primary business is providing information, whether about the real estate market or the existence of termites. The more difficult cases to decide involve defendants whose business it is to provide both goods or services and information. Financial services such as those supplied by banks and stockbrokers present a more difficult problem because there is a thin line between an exchange of information about finances and actual financial transactions which would be classified as a good or service.

In the case before us, defendant’s president, Mike Foster, testified that defendant was in the business of loaning money to customers and in the course of its business would supply credit information about defendant’s customers to other financial institutions. Additionally, defendant was in the business of referring customers to other lending institutions and providing background information on those customers to the institutions, at least in the instance before us. There is no question plaintiff relied on the information provided by Burnett, then acting chairman of defendant, that a loan by plaintiff to DeVoe was a relatively safe venture. Burnett assured Travelstead that plaintiff would hold a first mortgage position on the real estate, that defendant would subordinate its own mortgage, and that Burnett was so sure of DeVoe’s capacity to repay the loan that Burnett was willing to personally guarantee $10,000 of the $25,000 amount. Burnett testified that defendant would benefit from a loan to DeVoe because the loan would provide cash flow that would “get Utility back in operation.” As stated earlier, Utility was in default on its $300,000 loan from defendant, and it is apparent that defendant hoped to recoup its losses on that loan if DeVoe could turn it into a profitable operation. We find the situation before us meets the required elements of negligent misrepresentation as stated in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. Burnett, as agent of defendant, indicated to Travelstead, an agent of plaintiff, that defendant held a mortgage on property owned by DeVoe, when in fact the property was titled to Utility. Burnett further indicated that time was of the essence and it was imperative that the loan be disbursed in a matter of one or two days, assuring Travelstead that plaintiff was in a secure position to avoid loss. Then, based on incorrect information furnished by defendant, plaintiff disbursed emergency funds to DeVoe, securing it with a mortgage on property owned not by DeVoe, as indicated by Burnett, but instead owned by Utility, a company DeVoe was purportedly in the process of purchasing. The mortgage was not binding on DeVoe, he defaulted on the loan from plaintiff, and plaintiff had no collateral on which to foreclose. Burnett’s information as to the ownership of the property subject to defendant’s mortgage was incorrect, and Burnett clearly supplied it to guide plaintiff in making a decision to loan money to a third party. Defendant was in the business of supplying information since it routinely gave out credit information to other banks. It was in the business of trying to salvage a bad loan it made to Utility in this case, which resulted in plaintiff making an unsecured loan to DeVoe based on incorrect information. This case clearly falls into the class of cases in which the defendants were in the business of supplying information for the guidance of others in their business transactions with third parties. Therefore, the trial court correctly found defendant owed plaintiff a duty and that duty was breached.

We next address defendant’s contention that the trial court erred by failing to consider plaintiff’s negligence and to reduce plaintiff’s award. As stated earlier, the trial court found plaintiff to be negligent in supervising the collection of the HITS funds assigned to plaintiff and reduced the judgment for plaintiff by $6,940. Defendant argues, however, that the trial court failed to consider adjusting the judgment to reflect plaintiff’s negligence in originating the loan. Defendant further argues that plaintiff and its agents were negligent in failing to ascertain who held title to the mortgaged real estate before making the loan, despite the information supplied by defendant.

The trial court addressed the issue of plaintiff’s contributory negligence when it found that plaintiff was negligent in collecting the HITS funds and reduced the judgment accordingly. We therefore do not accept defendant’s assertion that the trial court ignored or failed to address the issue of plaintiff’s negligence in this case. The determination of whether plaintiff was contributorily negligent is ordinarily a factual issue to be decided by the trier of fact. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) Unless it is established from the undisputed facts that all reasonable minds, in the exercise of fair and earnest judgment, will conclude that plaintiff was contributorily negligent, the trial court’s finding will not be disturbed. (Moran v. Aken (1981), 93 Ill. App. 3d 774, 417 N.E.2d 846.) In the present case, the trial court was in the best position to weigh the conflicting testimony and assess the credibility of the witnesses. Therefore, we affirm the trial court’s finding that plaintiff was not contributorily negligent in originating the loan to DeVoe in reliance on defendant’s information.

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

Affirmed.

RARICK and WELCH, JJ., concur.


author: JUSTICE HENRY LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KORY PIERSON, Defendant-Appellee.
    Fifth District
    No. 5—90—0751
    Opinion filed June 26,1992.

      William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

The State appeals a judgment of the circuit court of Madison County dismissing an armed robbery charge filed against the defendant, Kory Pierson. On appeal, the State contends that the court erred in dismissing the charges against the defendant on the basis that the prosecutor had violated its agreement with the defendant, wherein the prosecutor had agreed not to prosecute the defendant on any charge in exchange for his truthful statements. The State asserts that the agreement was unenforceable since the defendant did not relinquish any constitutional rights and he did not fulfill his part of the bargain when he failed to tell the truth. We affirm.

The facts of this case are few and are as follows: On June 15, 1990, the prosecutor and the defendant entered into a written agreement wherein the prosecutor agreed not to prosecute the defendant for the offense of murder if the defendant agreed to make a statement, which the defendant did. That same day, the State sought a second statement from the defendant as the State had determined that the defendant’s first statement was not truthful based upon other physical evidence obtained from the scene of the crime. In exchange for the defendant’s subsequent statement, the assistant State’s Attorney orally offered the defendant total immunity from prosecution on any charge. The assistant State’s Attorney made this offer of total immunity on at least three occasions. Following the initial oral offers, the defendant reiterated that he had told the truth in his first statement. However, after the last offer, the defendant gave the assistant State’s Attorney and law enforcement officials another statement, which the State determined was also untrue. One month later, on July 13, 1990, the State filed a criminal information against the defendant, charging him with the offense of armed robbery. Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a).

On August 17, 1990, the defendant filed a motion to dismiss the charge of armed robbery. In the motion, the defendant asserted that the State had violated an oral agreement of total immunity from prosecution made with him in exchange for his second statement to law enforcement officials. The defendant alleged in his motion that the State’s reneging on its promise of nonprosecution violated his fifth amendment rights (U.S. Const., amend. V), which he had relinquished on the enticement of the State’s promise.

The court conducted a hearing on the defendant’s motion on October 30, 1990. At this hearing, the State stipulated that it had entered into a written agreement with the defendant in which the State promised not to prosecute the defendant for murder. However, the State denied that there was a subsequent oral agreement promising the defendant total immunity from prosecution on any charge. The prosecutor also argued that, even if there were an oral agreement, the agreement would be unenforceable since the defendant had not relinquished any constitutional rights. The State asserted that, since the statement obtained from the defendant as a result of the assistant State’s Attorney’s promise was false and was not self-incriminating, the defendant’s constitutional rights were not violated.

A videotape of the defendant’s initial statement made pursuant to the written agreement of June 15, 1990, and of the assistant State’s Attorney’s and law enforcement officials’ attempts to obtain the defendant’s subsequent statement was also presented at the hearing on the defendant’s motion. In this videotape, the assistant State’s Attorney explained to the defendant that he (the assistant State’s Attorney) and the law enforcement officials did not believe the defendant’s initial statement of the events of the crime was truthful. The assistant State’s Attorney advised the defendant that specific objective evidence obtained from the crime scene did not correspond to the defendant’s statement. Because of the assistant State’s Attorney’s disbelief in the defendant’s initial statement, the assistant State’s Attorney attempted to persuade the defendant to make a further statement. As an inducement for a further statement from the defendant, the assistant State’s Attorney, in three separate instances, offered not to prosecute the defendant for any crime if the defendant would tell the law enforcement officials the truth. At first, in response to the assistant State’s Attorney’s inducements, the defendant asserted that his first statement was the truth. Finally, after much persuasion on the part of the assistant State’s Attorney, and after the assistant State’s Attorney’s last oral offer of total immunity, which the assistant State’s Attorney assured the defendant was binding, the defendant made another statement to the law enforcement officials in which the defendant stated he was not present at the scene of the crime. Following the presenting of this evidence and the arguments of the State and the defendant, the court dismissed the armed robbery charges and discharged the defendant. This appeal ensued.

On appeal, the State argues that the defendant only relied on the written agreement not to charge him with murder when he made his statement and relinquished his fifth amendment rights based upon the written agreement. However, the State asserts that the oral promise followed the written agreement, and since the defendant had previously relinquished his privilege against self-incrimination, he relinquished nothing for the oral promise and gave up no constitutional rights in reliance on the oral promise of complete immunity. Further, the State contends that since the defendant gave false information in the statement induced by the oral promise of complete immunity, and this false information was not incriminatory (i.e., the defendant denied being present at the scene of the crime), the agreement was not enforceable. Therefore, the State asserts that the circuit court erred in dismissing the charges against the defendant. We disagree.

In People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350, the supreme court noted that the bargaining relationship between a defendant and a prosecutor is universally recognized and that an agreement, a “plea bargain” if you will, is an essential component of the administration of justice. The supreme court stated that it is the State’s Attorney who has been given the responsibility of evaluating evidence and of determining what offense, if any, can and should be charged, and in fulfilling this responsibility, a prosecutor has been given a broad range of discretion. (People v. Starks, 106 Ill. 2d 441, 478 N.E.2d 350.) The supreme court, in discussing agreements made by prosecutors with defendants, stated as follows:

“The prosecution must honor the terms of agreements it makes with defendants. To dispute the validity of this precept would surely result in the total nullification of the bargaining system between the prosecution and the defense.” (People v. Starks, 106 Ill. 2d at 449, 478 N.E.2d at 350.)

The supreme court concluded that if an agreement had been struck between a defendant and the prosecutor, then the State must abide by the agreement, especially where there is a relinquishing of a constitutional right.

Here, the State does not disagree that there was an oral promise made to the defendant but argues that the defendant did not relinquish his constitutional right to self-incrimination. The State’s argument urges us to conclude that because the defendant made an initial statement which was incriminatory, the defendant’s right against self-incrimination was relinquished forever. We do not find this persuasive and we decline to so find.

Similarly, the State’s argument that because the defendant’s subsequent statement was not self-incriminating, even though obtained through the inducement of the assistant State’s Attorney’s oral promise, the agreement was not enforceable is also not persuasive. The State’s approach appears to be one of hindsight, for when the assistant State’s Attorney sought the second statement, he could not know in advance that the defendant’s second statement would not be incriminating or that it was not truthful. We cannot look at a statement after a promise has been utilized to overcome a constitutional right to silence, and we cannot hold that the agreement is not binding.

This case is similar to the Florida case cited with approval by the supreme court in Starks (State v. Davis (Fla. App. 1966), 188 So. 2d 24), for in the Florida case, the prosecutor promised not to prosecute the defendant for the offense of first-degree murder if the defendant agreed to take a polygraph examination and if the results of the examination showed the defendant to be telling the truth. The defendant agreed and successfully passed the polygraph test. A second examiner reviewed the results of the defendant’s polygraph examination, and the second examiner questioned whether the the results of the polygraph showed that the defendant was telling the truth, so the prosecution refused to dismiss the indictment against the defendant. The defendant was tried and convicted, but on appeal, the Florida Appellate Court overturned the conviction, finding that the prosecution had made a bargain which it did not fulfill, and that the bargain cannot be lightly disregarded. From the facts of the Florida case, it is a reasonable inference that the defendant did not tell the truth, and that his statement during the polygraph test was not self-incriminatory but exculpatory. Even so, the Florida court dismissed the defendant’s charges. Additionally, the supreme court in Starks concluded that a statement made while taking a polygraph examination did involve relinquishing the defendant’s fifth amendment right against self-incrimination, whether the defendant’s statement was or was not truthful. The same reasoning would apply in this case, for, regardless of the truthfulness (which was determined by hindsight) of the statement, the defendant was nevertheless relinquishing his privilege against self-incrimination.

Further, simply because the defendant’s statement was not directly self-incriminating does not mean that his privilege against self-incrimination was not applicable. The privilege of self-incrimination protects a defendant from being compelled to testify against himself and from otherwise providing the State with evidence of a testimonial or communicative nature. (People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328.) Thus, from evidence provided by a defendant after relinquishing his right to self-incrimination, evidence may be obtained from his statement which is indirectly incriminatory to him. Therefore, the defendant had relinquished his constitutional right to silence under the fifth amendment, and since the assistant State’s Attorney did promise the defendant that he would not be prosecuted for any crime if he would make a second statement, the State must abide by this agreement. The circuit court’s dismissal of the charges against the defendant was proper.

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

Affirmed.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK HUGUES, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2152
    Opinion filed December 24,1991.
    Rehearing denied June 9,1992.

      Turner & Wolff, of Chicago (Daniel H. Wolff, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Mark Hugues, was convicted of armed violence and aggravated battery and sentenced to 20 years’ imprisonment on the armed violence charge and seven years’ imprisonment on the aggravated battery charge, both sentences to run concurrently. Defendant appeals his convictions, arguing that he was improperly charged with armed violence based on aggravated battery, that he was not proven guilty beyond a reasonable doubt and that the trial court erred in refusing to grant a mistrial after being informed that the jury could not reach a unanimous verdict on all counts. Defendant also argues that his 20-year sentence was an abuse of discretion.

Facts

Defendant was charged with attempted murder, armed violence and aggravated battery. At defendant’s trial, Frank Vitucci testified that on the evening of February 6, 1987, he was in a bar called Lou & Millie’s. The bar was located near the intersection of Fullerton and Mannheim in Melrose Park, Illinois, and was adjacent to Mario’s Food Store.

One half hour after Vitucci arrived at the bar, defendant arrived and began talking to Vitucci, although the two had never before met. Vitucci testified that he and the bartender asked defendant where he had parked before entering the bar and warned defendant that his car would be towed if he had parked on the north side of the driveway.

Vitucci testified that defendant left the bar and returned a few minutes later, saying that his car had been towed. Vitucci described defendant as irate and stated that he was yelling, screaming and hollering. Defendant found out the name of the towing company from the bartender, and Vitucci agreed to drive him there to retrieve his car.

Vitucci stated that defendant was still angry when they arrived at the office of the towing company and that defendant was yelling, screaming, pounding on the walls and threatening to get even. A few minutes later, Vitucci saw defendant come out of the office with David Mumbower, the owner of the towing company. According to Vitucci, defendant got into his car and pulled out of the lot wildly, spraying Vitucci and Mumbower with gravel.

When Vitucci returned to the bar, he saw defendant, who was complaining that his tires had been flattened. Vitucci testified that defendant left the bar to go home and change cars and that when defendant returned he was still angry and threatening to get even with the towing company.

A short time later, Mumbower came into the bar, and defendant began yelling at him, accusing him of having towed his car. Mumbower repeatedly told defendant that he was not the one who had towed the car and that if defendant did not believe him they could go back to the towing company to see the towing receipt. After exchanging more words, the two left the bar and Vitucci followed. Vitucci testified that he watched them walk south on the east side of the street until he lost sight of them. Shortly thereafter, Vitucci heard a gunshot and saw defendant running toward him with a gun in his hand. Vitucci went back into the bar and called the police. When he came back outside, defendant was gone.

David Mumbower testified that he was the owner of S&S Towing (S&S) and that S&S had an agreement with Mario’s Food Store to tow any illegally parked vehicles. Mumbower testified that he was at S&S’s office on February 6, 1987, when defendant and Frank Vitucci arrived and that defendant was screaming profanities and banging on the window because his car had been towed.

Mumbower testified that after paying for his car, defendant came up to him and said “I’m coming back to get you. I am going to kill you.” Defendant than drove off, spraying gravel over Mum-bower and Vitucci.

Later that night, Mumbower went to Lou & Millie’s for a drink. Mumbower testified that after he was there for a few minutes, he was approached by defendant, who threatened to kill him. Mum-bower testified that he tried to ignore defendant, but defendant continued to threaten him and accused him of towing his car and cutting his tires. Mumbower stated that he told defendant that he was not the one who towed his car and he offered to take defendant back to the office to show him the tow tickets.

Mumbower left the bar and began walking south on Mannheim Road with defendant following about a foot behind him. Mumbower testified that when they were a block from the bar, he turned around and saw that defendant had his hands behind his back. Mumbower testified that when he asked defendant what he had behind his back, defendant pulled out a handgun, pointed it at Mum-bower’s face and stated that he was going to blow Mumbower’s head off. Mumbower ducked, turned around and began running. As he ran, he heard the gun go off and felt a bullet strike him in the back. Following the shooting, Mumbower was hospitalized for seven days with cracked ribs and injuries to his diaphragm, spleen and abdomen.

Also testifying for the State was Karen VanderWerff, a forensic scientist with the Illinois State Police. VanderWerff testified that, in her opinion, the gun used in the shooting could not have been fired without pulling the trigger. According to VanderWerff, the gun contained three safety features and all three were functional and operational at the time the gun was tested. VanderWerff also testified that she tested the gun to determine whether it could fire accidentally and that it did not discharge during the tests.

Assistant State’s Attorney Roger Kemp testified that he spoke with defendant after his arrest on February 7, 1987, and that defendant gave a statement concerning the shooting. In the statement, which was read to the jury, defendant stated that after discovering that his car had been towed, he went to S&S to retrieve it, and that while he was at S&S, he got into an argument with a towing company employee.

Defendant stated that he returned to the bar, where someone told him that S&S might flatten his tires because he had given them a hard time. After leaving the bar and seeing that one of his tires was flat, defendant went home, got his wife’s gun and went back to the bar. Defendant stated that at first, it was his intention to damage the tire of one of the tow trucks but that he later decided to “get back at the driver of the tow truck and not just the company.”

Back at the bar, defendant saw the same S&S employee he had seen earlier and this man asked defendant to step outside. Outside, the man began to walk toward an alley, and defendant followed with his hand on his gun. Defendant stated that he suspected that there might be a set up so he removed the gun from his waistband, and the gun went off, striking the man. Defendant told Kemp that “[t]he gun went off before I really wanted to.”

Kemp testified that after defendant’s statement was transcribed, he showed it to defendant, who looked it over and then signed it.

Ronald Asher, an FBI special agent, arrested defendant on April 20, 1987 in Las Vegas, Nevada, for unlawful flight to avoid prosecution. Asher testified that at the time of the arrest, defendant stated that the charges against him stemmed from a parking incident. Defendant told Asher that he, the victim and a friend of the victim went outside to settle the matter and that, as they were walking, the friend pushed defendant into an alley, while the victim attempted to strike defendant. Defendant stated that he pulled a gun out of his belt, pointed it and it discharged. Defendant stated that he was surprised when the gun discharged and that both he and the victim ran at that point.

Defendant appeared as a witness in his own behalf. Defendant testified that he suffered from hemophilia and that, as a result, he had to be careful to avoid injuries that could cause internal bleeding.

Defendant testified that he arrived at Lou & Millie’s between 11 and 11:30 p.m. on February 6, 1987. Shortly after he arrived, he was introduced to Frank Vitucci and they began a discussion of car engines. After a while the two walked outside to look at the engine in defendant’s car. It was at that time that defendant discovered that his car had been towed.

Defendant testified that he returned to the bar, telephoned S&S and than drove to S&S with Vitucci. Defendant stated that he was angry when he arrived at S&S and that, while he did swear and hit the counter, he never threatened anyone. Defendant paid the towing fee and then went outside where David Mumbower directed him to his car. Defendant stated that when he pulled out of the lot, he kicked up a lot of dirt and gravel but that he did not do this intentionally.

Defendant and Vitucci returned to the bar, where Vitucci told defendant that Mumbower had threatened to flatten defendant’s tires. Mumbower arrived at the bar a few minutes later and a few minutes after that defendant went to his car to get some cigarettes. Defendant testified that when he got outside he decided to go home and that, as he drove away, he noticed that he had two flat tires.

Defendant testified that he became angry and decided to go home, get a gun and shoot out the tires of the tow truck. Defendant testified that when he got home, he checked that the gun was loaded and drove back to the bar.

Defendant testified that when he returned to the bar, he became angry when he noticed Mumbower laughing and pointing at him. Defendant stated that when he went over to Mumbower and asked him about the tires, Mumbower told him to come outside where it was quiet so he could explain things. Defendant followed Mumbower outside and south on Mannheim Road. A few minutes later, defendant heard the door to the bar slam and saw someone else walking in the same direction.

According to defendant, Mumbower walked into an alley, turned in defendant’s direction and attempted to strike him. Defendant stated that he reached for his gun and the gun went off. Defendant denied intentionally discharging the gun.

Defendant claimed that when he reached for the gun he believed that Mumbower intended to beat him up and that because of his hemophilia any such beating would have caused great bodily harm. Defendant also stated that he never intended to shoot Mum-bower.

On cross-examination, defendant acknowledged that his testimony at trial differed from the statement he signed at the time of his arrest. Defendant claimed that he did not know what was in the statement when he signed it; however, he admitted that he was given the opportunity to read the statement before he signed it.

The jury began deliberations at 12:50 p.m. Two hours later, the jury sent out a note stating:

“If the jury can agree on a verdict for certain charges but not all the charges, will the defendant be retried on the charge not agreed on, or is the jury considered hung?”

The trial court refused to answer the question but instructed the jury to continue deliberations.

A short time later, the jury sent out a second note stating “we would like to hear part of [defendant’s] testimony read to us.” The court responded that the jury was to rely on its collective memory and notes taken during trial.

At 9 p.m., the court stated that it was going to send the jury a note asking if there was any progress in its deliberations and whether it needed any assistance. At this time, defendant made a motion for a mistrial. The court responded that it had an obligation to see if the jury had reached an agreement on anything. The court added that if there was no agreement it would “Prim” the jury.

The jury was brought into the courtroom and asked whether any progress was being made. The jury foreman responded that he believed the jury was at an impasse. The court then gave a further instruction, reciting verbatim the language approved by the supreme court in People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.

The jury resumed deliberations and, at approximately 9:57 p.m., indicated that it had reached a verdict. Before the jury returned to the courtroom, defendant renewed his motion for a mistrial, arguing that the verdict would not be the result of the jury’s free will, but of coercion. The court denied defendant’s motion, and the jury returned verdicts finding defendant guilty of aggravated battery and armed violence and not guilty of attempted murder.

At defendant’s sentencing hearing, the State presented evidence that in May 1980 defendant was convicted of burglary and theft and sentenced to one year’s probation; that in October 1980, while on probation, defendant was convicted of grand larceny and sentenced to one year in jail; that in February 1982, defendant was convicted of attempted burglary and sentenced to two to four years’ imprisonment and that in October 1986, two months before the shooting in the present case, defendant was convicted of aggravated assault with a weapon.

The trial court sentenced defendant to 20 years’ imprisonment on the charge of armed violence and seven years’ imprisonment on the aggravated battery charge, both sentences to run concurrently. In imposing the sentences, the court noted that defendant’s criminal background included a previous weapons offense and that the victim had been shot in the back while attempting to flee.

Opinion

Before addressing the issues raised by defendant in this appeal, we note that the trial court erred in entering judgment and imposing sentences on both the armed violence and the aggravated battery charges. (See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477 (holding that multiple convictions for both armed violence and the underlying felony of aggravated battery cannot stand where a single physical act is the basis for both charges).) Accordingly, we vacate defendant’s conviction and sentence for aggravated battery.

I

Defendant’s first argument on appeal is that his armed violence conviction cannot stand because it was based on the offense of aggravated battery and amounts to a double enhancement of a misdemeanor in violation of the Illinois Supreme Court’s ruling in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627. Defendant contends that because aggravated battery constitutes a misdemeanor (battery) that has been enhanced to a felony by the use of a weapon, it would be improper to allow the offense to be further enhanced to a Class X felony based on the use of the same weapon.

Defendant’s reliance on Harón is misplaced. Defendant in the present case is charged with aggravated battery under section 12— 4(a) of the Criminal Code of 1961. Section 12 — 4(a) provides that a person commits aggravated battery when, while committing a battery, he intentionally or knowingly causes great bodily harm.

In Haron, the defendant was charged with aggravated battery under section 12 — 4(b) of the Criminal Code. That section provides that a person commits aggravated battery if he commits a battery using a deadly weapon. The supreme court held in Harón that because the defendant was charged with aggravated battery under section 12— 4(b), which enhanced the offense of battery to aggravated battery based on the use of a deadly weapon, there would be a double enhancement if the State also was allowed to charge the defendant with armed violence based on a violation of section 12 — 4(b).

Defendant argues that it is logical to extend the supreme court’s holding to aggravated battery charged under section 12 — 4(a) as well. However, in Harón, the supreme court indicated that the armed violence charge would have been allowed to stand if the defendant had been charged with aggravated battery under section 12 — 4(a). In addition, this court has distinguished armed violence predicated on aggravated battery under section 12 — 4(a) from armed violence predicated on aggravated battery under section 12 — 4(b). People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267; People v. Garcia (1981), 103 Ill. App. 3d 779, 431 N.E.2d 1234.

In Garcia, this court pointed out that aggravated battery under section 12 — 4(a) is always a felony, regardless of whether the defendant uses a deadly weapon and, therefore, an armed violence charge based on this section would not constitute a double enhancement of the penalty for battery. Garcia, 103 Ill. App. 3d at 783.

In Eure, we upheld a defendant’s conviction for armed violence based on the use of a weapon in an aggravated battery causing great bodily harm. There, we noted that the legislature intended the armed violence statute to act as a strong statutory deterrent to carrying a dangerous or deadly weapon. In ruling that the rationale precluding application of the armed violence statute to the predicate offense of voluntary manslaughter did not apply to a charge of aggravated battery, we stated:

“It cannot be said, therefore, that the use of a weapon in the commission of aggravated battery causing great bodily harm cannot be deterred. The decision to so use a weapon is not one forced on an accused, as in voluntary manslaughter/unreasonable belief in self-defense, nor is it a spontaneous decision, as in voluntary manslaughter/sudden and intense passion. It is an intent offense, unlike involuntary manslaughter. The use of a weapon in such a case can be deterred; the purposes of the armed-violence statute may therefore be achieved by application of that offense to the predicate felony of aggravated battery.” Eure, 140 Ill. App. 3d at 395.

There is no question that, in the present case, the purposes of the armed violence statute would be achieved by applying it to the predicate felony of aggravated battery. Here, there was evidence that after the initial disagreement with Mumbower, defendant left the bar, went to his home, obtained a gun, changed the ammunition and returned to the bar. Defendant’s actions were of the type the armed violence statute was designed to reach, and we find that the deterrent purposes of the statute are satisfied by its application in the case before us.

II

Defendant next claims that the State failed to prove him guilty beyond a reasonable doubt. Defendant’s claim is based on alleged conflicts and contradictions in the testimony of the State’s witnesses.

It is well settled that discrepancies in the evidence do not require a finding that the jury’s conclusions were so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt. (People v. Young (1989), 128 Ill. 2d 1, 52, 538 N.E.2d 453.) The credibility of witnesses, the amount of weight to be accorded their testimony, and the appropriate inferences to be drawn therefrom are within the province of the trier of fact. The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Schorle (1990), 206 Ill. App. 3d 748, 565 N.E.2d 84.) A reviewing court will not substitute its judgment for that of the jury on questions involving the weight of evidence or credibility of witnesses and will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Young, 128 Ill. 2d 1, 538 N.E.2d 453.

In the present case, defendant was charged with knowingly and intentionally causing great bodily harm while committing a battery. Defendant contended that the shooting was accidental and the State presented evidence disputing defendant’s version of the events. Viewing the evidence in a light most favorable to the prosecution, it cannot be said that no rational trier of fact could have found the elements of aggravated battery beyond a reasonable doubt.

Ill

Defendant’s next arguments concern the jury’s deliberations and the trial court’s action in giving the Prim instruction. Defendant contends that the trial court should have declared a mistrial when the jury indicated, after nine hours of deliberation, that it was deadlocked.

In Prim, the supreme court approved the giving of a supplemental instruction where a jury has reached a deadlock. The court acknowledged the possible coercive dangers inherent in the giving of a supplemental instruction but added that it did not feel that “a jury should be left to grope in such circumstances without some guidance from the court.” (Prim, 53 Ill. 2d at 74.) The supreme court stated that the time when a supplemental instruction should be given is for the court to decide. People v. Cowan (1985), 105 Ill. 2d 324, 473 N.E.2d 1307.

Here, after deliberating nine hours, the jury indicated that it had reached an impasse. The trial court then gave a supplemental instruction using the language approved by the supreme court in Prim for instructing deadlocked juries. The jury returned its verdict 50 minutes later.

Defendant argues that the fact that the jury returned its verdict so soon after receiving the Prim instruction indicates that the verdict was the result of a compromise. However, in People v. Dungy (1984), 122 Ill. App. 3d 314, 461 N.E.2d 485, this court upheld a verdict returned by a jury under similar circumstances.

In Dungy, the jury had deliberated 12 hours when it indicated that it was deadlocked. The trial court gave the jury the Prim instruction and 40 minutes later the jury returned a verdict. This court affirmed the jury’s verdict finding no abuse of discretion in the giving of the Prim instruction.

Accordingly, we find no error in the giving of the Prim instruction on the facts before us.

IV

Defendant’s remaining arguments concern the length of his sentence for armed violence. Defendant argues that his sentence is excessive and should be reduced to the six-year minimum term for armed violence.

This court has repeatedly stated that sentencing determinations are within the discretion of the trial court and that its determination will not be disturbed on review absent an abuse of that discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The trial judge’s determination of an appropriate sentence must be given great deference and weight because the trial judge is in the best position to make a sound determination regarding punishment. People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708.

In the present case, defendant argues that his 20-year sentence was an abuse of discretion. Defendant points out that the defendants convicted of armed violence in Eure and Garcia received the minimum term of imprisonment and argues that he should have received a similar term. However, in Eure and Garcia there is no indication of the defendants’ prior criminal history. Here, the record reveals that defendant had several previous convictions, including one involving the use of a weapon. Under these circumstances, we cannot say that the trial court abused its discretion in determining that something more than the minimum term of imprisonment was required.

For the foregoing reasons, we affirm defendant’s conviction and sentence for armed violence, and we vacate defendant’s conviction and sentence for aggravated battery.

Affirmed in part; vacated in part.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE McMORROW

text:
    KALMAN S. LIEBERMAN, Plaintiff-Appellee, v. PAULA STOLLMAN, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2288
    Opinion filed December 26,1991.
    Modified on denial of rehearing June 30,1992.

      Sheryl E. Fuhr and Ralph M. Bernstein, both of Ralph M. Bernstein & Associates, of Chicago, for appellant.
    Kalman S. Lieberman, of Chicago, appellee pro se.

   JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, the circuit court determined that defendant Paula Stollman (Stollman) owed plaintiff Kalman S. Lieberman (Lieberman) $22,000 in attorney fees for Lieberman’s handling of a commercial real estate transaction on Stollman’s behalf. On appeal, Stollman argues that the trial court’s determination that Lieberman’s services were reasonably valued at $22,000 was an abuse of discretion. Stollman also contends that the trial court erred in awarding Lieberman prejudgment interest, and in failing to direct that half of Lieberman’s fees are due from the estate of Stollman’s late husband.

Because we conclude that the evidence of record does not support the trial court’s determination that Lieberman’s handling of the commercial real estate transaction entitled him to fees in the amount of $22,000, we reduce the fee award to $11,515, which represents Lieberman’s out-of-pocket expenses, plus the hourly charge for his services according to the number of hours he expended on the commercial real estate transaction. We also reverse the award of prejudgment interest, and affirm the court’s entry of judgment against Stollman individually.

The evidence presented at the court’s bench trial of the parties’ dispute established that Stollman’s husband passed away on November 9, 1986, and Stollman retained Lieberman’s law partner, Howard Slater, to handle the probate of her late husband’s estate. When Slater became ill, Stollman contacted Lieberman on July 16, 1987, to represent her in the sale of commercial real estate owned by Stollman and her late husband. She informed Lieberman that she had received an offer of $825,000 for the property and that a contract would be forwarded to her shortly. Stollman advised Lieberman that she wanted to be very careful not to lose the offer because she was very interested in having the property sold. Lieberman told Stollman that he would handle the real estate transaction for a fee, and that it was necessary that he receive all documents as quickly as possible. Lieberman did not state a fee for this service, however, and Stollman did not inquire as to the amount Lieberman would charge for this legal representation.

On July 20 or 21, 1987, Lieberman received a sales contract from the broker of the proposed buyer. Finding numerous provisions that he believed inadequate, Lieberman discussed these matters with the broker. While searching through the files of his law partner, Slater, Lieberman found documents indicating that the property was in land trust and that the trustee had executed documents that deeded ownership in the property from the land trust to Stollman and her late husband. These documents had never been recorded, however. Lieberman returned the deeds to the land trustee so that the land trust could be reopened and the trustee could sign a contract for sale of the real estate. Lieberman also had discussions with the brokers and the tenant of the premises. In addition, he initiated investigation into the proper legal description of the property.

Lieberman learned from the brokers that there was a second potential buyer for the premises, and so advised Stollman. Stollman and Lieberman met at Lieberman’s home on July 23 to discuss this second buyer. Stollman directed Lieberman to negotiate a higher price for the property, if he could. Based upon this direction from Stollman, Lieberman had a series of discussions with the brokers that culminated in an offer from the first buyer to purchase the commercial property for $875,000. During this time, Lieberman also prepared a letter for Stollman’s signature directing the bank as land trustee to execute a sales contract. Thereafter, Stollman and her son, who was co-executor of the estate, signed the letter of direction at Lieberman’s home. On August 4, Lieberman took the letter of direction to the land trustee and obtained the trustee's signature on the real estate contract. In this document, the property was to be sold to the first buyer for $875,000.

Lieberman also continued to investigate documents at the Torrens office with respect to the precise legal description of the property involved in the transaction. He performed a Torrens tax search and discovered that certain taxes had not been paid, and obtained the necessary documents to remedy this deficiency. Thereafter Lieberman arranged for a survey of the property and prepared closing documents. Lieberman and the buyer’s attorney went through a mock closing to ensure that all documents were in proper order. Closing of the transaction was held on November 2 and 3, 1989, which Lieberman attended. On November 4, Lieberman received two checks for Stollman representing proceeds of the sale. His out-of-pocket expenses were $135, and the handwritten time sheets he offered at trial indicated that he had spent 45.66 hours on the real estate transaction.

On November 4, Lieberman contacted Stollman and advised her that his fee for the transaction was $22,000. Lieberman informed Stollman that he expected her to pay the fee immediately, and Stollman agreed. A few days later, Lieberman sent Stollman a fee statement for $22,000. Stollman responded in a letter to Lieberman requesting a breakdown for this fee amount.

Lieberman’s letter in reply advised Stollman that the $22,000 fee was based upon “the complexity of the matter that was involved, the number of hours that [he] had spent, the fact that [he] had alone increased the sale price *** and the fact that [he] had availed [himself] to [Stollman] at odd times by having [Stollman] come to [his] home to try to make things easier for [Stollman].” Lieberman also stated that his hourly charge was $250 per hour for “usual normal matters” and that the transaction had not been “a usual and normal matter.” Lieberman also stated in his letter that he had been practicing law continuously since 1946 and that he “specialize^] in real estate law, and [is] considered by other lawyers an expert in that field.”

Stollman refused to pay the $22,000 amount, and Lieberman filed suit against her to recover his fee. In his suit, Lieberman requested the $22,000 attorney fee based upon quantum, meruit (count I) and account stated (count II).

Lieberman testified that he has been licensed to practice law in Illinois since 1946, and has practiced law continuously during this time. His legal experience has been in the field of general practice and has included banking, real estate, and corporate work. Lieberman has been the attorney and director for a national bank and a savings and loan association.

Both parties presented expert witnesses at trial with respect to the reasonableness of Lieberman’s $22,000 fee. Lieberman’s expert, William Allen Nathenson, testified that based upon a hypothetical set of facts representing the work performed by Lieberman, it was his opinion “that the services were worth the $22,000.” No additional testimony was presented by Nathenson.

Stollman’s expert, Jack R. Hertz, testified that he had reviewed the documents involved in the real estate transaction. He said that, generally, an attorney advises a new client of his fee at the parties’ first meeting, and that the fee will be either an hourly rate or a flat rate based upon the attorney’s estimation of the number of hours involved. Hertz stated that in 1987, the usual hourly rate for attorneys in the Chicago metropolitan area for a senior partner in a law firm was approximately $150 an hour. He testifed that after reviewing the documents that were prepared and based upon his own experience, it was his opinion that “the transaction in this case had some complexity with respect to untangling the title, but nothing that a well-trained lawyer couldn’t handle [and that he did] not consider that the transaction was overly complex.” Hertz stated that absent an express agreement, it had no impact that Lieberman was able to negotiate a higher sale price for the property.

Hertz testified that in the event there has been no discussion as to an hourly rate or a set rate prior to the services having been rendered, it was his opinion that the lawyer should add up his hours and charge his hourly rate. He stated that in his experience, he had known of no attorney in the Chicago area who charged $250 per hour for a commercial real estate transaction in 1987. Hertz testified that, in his opinion, the real estate transaction in the instant cause would have required between 30 to 40 hours of attorney time and a few hours of paralegal time. Hertz also stated that, in his opinion, the reasonable fee for Lieberman’s services fell within the range of $5,000 to $9,000.

The trial court determined that the evidence revealed the existence of an account stated between the parties (count II), that Lieberman was entitled to a reasonable amount for his services under principles of quantum meruit (count I), and that Lieberman’s fee was reasonably set at $22,000. It also awarded Lieberman prejudgment interest based on Stollman’s vexatious refusal to pay the fee. Stollman appeals.

Stollman challenges the trial court’s award to Lieberman under both quantum meruit and account stated, and argues that the evidence at trial failed to establish that the $22,000 fee demanded by Lieberman was reasonable.

An account stated is an agreement between persons who have had prior transactions that the balance outstanding for those transactions is true, correct, due and owing. (McHugh v. Olsen (1989), 189 Ill. App. 3d 508, 545 N.E.2d 379.) Under the theory of account stated, however, the client is allowed to prove that the attorney’s charges are excessive, not justified by custom and usage, or otherwise unreasonable. (Yowell v. Ringer (1991), 217 Ill. App. 3d 353, 577 N.E.2d 468.) Under a theory of quantum meruit or account stated, the reasonableness of the attorney’s fees is considered according to the following factors: the time, labor, and skill required, the novelty and difficulty of the issues, the preclusion of other employment, the fee customarily charged in the community, the amount of money involved in the case, the results obtained, and the attorney’s reputation, experience and ability. (Yowell, 217 Ill. App. 3d 353; McHugh, 189 Ill. App. 3d 508.) It is the attorney’s burden to produce evidence to prove that his fee was reasonable, and the fact finder’s determination is subject to reversal on appeal if it is an abuse of discretion. In re Estate of Callahan (1991), 144 Ill. 2d 32, 578 N.E.2d 985.

Based upon our review of the record, we cannot say that the evidence presented by Lieberman proved that his request for a $22,000 fee was reasonable. According to Lieberman’s handwritten time sheets, he expended 45.66 hours in his handling of the commercial real estate transaction. Lieberman testified that his usual and customary charge for such services was $250 per hour. Lieberman’s hourly charge, multiplied by the number of hours expended, equals $11,415. His out-of-pocket expenses were $135, for a total of $11,550.

Lieberman presented no evidence to demonstrate why he was entitled to the additional sum of $10,450, for a total attorney fee of $22,000. His expert testified that the $22,000 fee was “reasonable,” but gave no testimony to specify reasons for this increased valuation of Lieberman’s services in handling the real estate transaction. We cannot say that the transaction at issue herein was of such a complex nature that Lieberman was deserving of a significantly increased fee. We also are unable to conclude that Lieberman was entitled to a higher fee because he had negotiated an increase in the sales price of the property. Moreover, we are not prepared to hold that Lieberman’s decision to allow Stollman to meet with him in his home should entitle Lieberman to an increased fee for the services he provided.

In light of the factors set forth above regarding reasonableness of attorney fees, and in view of the testimony of record presented in the instant cause, we conclude that Lieberman’s services warranted attorney fees in the amount of $11,550. Accordingly, the judgment of the trial court is modified to reflect an award of $11,550 to Lieberman.

Because the attorney fee award is reduced, we conclude that Lieberman is not entitled to prejudgment interest for Stollman’s vexatious refusal to pay his attorney fees, and the trial court’s award of prejudgment to Lieberman is hereby reversed. See, e.g., Schulz v. Rockwell Manufacturing Co. (1982), 108 Ill. App. 3d 113, 438 N.E.2d 1230.

Stollman also claims that she should not be held solely liable for Lieberman’s fee, because Lieberman’s handling of the real estate transaction also included legal services provided to the estate of her late husband. Stollman testified at trial that she agreed to pay Lieberman’s attorney fees with respect to the commercial real estate transaction. There is nothing in Stollman’s trial testimony to indicate that she intended that Lieberman’s attorney fees would be paid from the estate of her late husband. Consequently, we find no abuse of discretion in the trial court’s entry of judgment against Stollman for the full amount of Lieberman’s reasonable attorney fees. We express no opinion with respect to whether the estate of Stollman’s late husband is or should be liable for any or all of Lieberman’s reasonable attorney fees.

For the reasons stated, the trial court's judgment is affirmed in part as modified, reversed in part, and affirmed in part.

Affirmed in part as modified; reversed in part; affirmed in part.

JIGANTI, P.J., and JOHNSON, J., concur.