author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMIE L. RIXIE, Defendant-Appellant.
    Second District
    No. 2—86—1157
    Opinion filed October 24, 1989.

      G. Joseph Weller, Michael E Braun, and Beth Katz, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Jamie Rixie, appeals from his conviction of felony murder and the subsequent sentence imposed. Rixie was found guilty after a jury trial, and the court sentenced him to an extended term of 60 years’ imprisonment.

Rixie, along with Victor Ganus, was charged by indictment with one count of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)) and one count of felony murder (Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(a)(3)). These charges stem from the armed robbery and murder of Richard Misslich on May 1, 1985. On October 24, 1985, the court granted a motion for severance, and Rixie was tried separately.

Prior to trial, Rixie filed a motion to quash the search warrant and suppress evidence seized pursuant thereto. Several officers of the Rockford police department testified at the hearing on the motion. The officers executed a search warrant for the defendant’s home at 2716 Bildahl Street in Rockford, on May 2, 1985. Detective Erickson stated that he was instructed to find anything with blood on it, or that could be used as a weapon. Officer Anderson testified that the warrant authorized a search for blood, fibers, hairs, and weapons. Discretion was used in determining what items to seize according to Anderson. The items seized included: a footstool; a brown-flowered drape; a piece of gauze cloth; a gray jacket; an upholstery button; two newspapers; a pair of brown and black shower shoes; a piece of wooden board; a broken window shade; a Phillips screwdriver; pieces of a broken bottle; a butcher knife; an empty Clorox bleach bottle; and a pillow. The court did not allow the motion to quash but did suppress the brown-flowered curtain that was seized.

The defendant also filed a motion in limine seeking to exclude evidence of his prior conviction of robbery. The court denied this motion. Defendant also presented a motion in limine seeking to prevent the testimony of Terry Delemeter insofar as his testimony referred to Rixie placing a knife to Delemeter’s throat in order to collect a long-standing debt. The court granted this motion and held that the State was precluded from eliciting testimony regarding threats directed at an individual in an unrelated matter.

The case proceeded to trial on June 27, 1986. Detective Rinehart testified that he went to Levings Lake on the morning of May 1, 1985, and found the body of Misslich. He removed certain items from the area around the body, including: socks, a shirt, a strip of cloth, a drape and a pair of shoes. Dr. William Rouse, a forensic pathologist, testified that when Misslich’s body was discovered, his upper body was unclothed and there were numerous stab wounds and lacerations to his upper body, including his head, face and neck. A bite mark was also discovered on one of Misslich’s arms. Dr. Rouse also found marks on either side of the mouth and on both wrists which indicated that there had been some type of ligature or binding in those areas. The configuration of the stab wounds supported the theory that they had occurred in rapid succession. Additionally, some of the wounds could have been caused by a screwdriver, although it was more probable that they were caused by some type of knife.

Mrs. Wanda Ganus, Victor’s mother, testified that she saw Rixie on the morning of May 1, 1985, with her son. She testified that Victor told her he and Rixie had killed a man the night before. Victor stated that both he and Rixie were drunk and on drugs, and they stabbed a man at least 25 times each. Wanda stated that she asked Rixie if this was true, and he responded that it was. After hearing reports of a killing on the 5 o’clock and 10 o’clock news that night, Wanda Ganus notified the police. She also testified that there was blood on Rixie’s head when he was at her house on May 1, and she knew that he had been stabbed.

On cross-examination, Mrs. Ganus testified that she had given a statement to Rockford police on May 2, 1985. She admitted that there was nothing in her earlier statement which indicated that Jamie Rixie had acknowledged the truth of Victor’s statements. Mrs. Ganus further testified that she had twice pleaded guilty to misdemeanor theft charges: in September 1982 and again in August 1986.

Bruce Williams testified that he lived in a duplex adjoining Jamie Rixie’s apartment on May 1, 1985. Williams testified that at 12:15 a.m. there was a loud “bang” on the wall. At 2:15 a.m., he was awakened and heard a yell that was muffled. He went back to sleep. Later that day, he saw Rixie and another male packing items into a car.

Rose Frickson, Williams’ roommate, also testified. She stated that she heard Rixie say, “Let’s go kick his ass” at about 2 a.m. on May 1, 1985. Frickson next heard a loud, then muffled, yell. She testified that she was able to hear the conversation in the next apartment because the walls were thin. On cross-examination, Frickson stated that she did not mention overhearing this conversation when questioned by police on May 2.

FBI agent Timothy Rembijas testified that he arrested Rixie on May 14, 1985, in Brookport, Illinois. Rembijas stated that Rixie was read his Miranda warnings after being placed in the agent’s car, and he understood them. Upon arrival at the Massac County sheriff’s department, Rixie indicated that he wanted to tell the officers what had occurred, and he signed a waiver of rights form.

According to Rembijas, Rixie then described the events of May 1, 1985. Four men were at Rixie’s apartment drinking beer for several hours. One of the men wished to go home. They all got into a car and started driving toward the man’s house when Victor Ganus stated that he wanted to go to a bookstore. They dropped him off, and he told them to wait. When he did not return right away, Rixie went inside to look for him. Unable to find Ganus, Rixie left the bookstore, but the others had driven away. Rixie waited a little while for Ganus and then hitched a ride home with an acquaintance who happened by. When Rixie returned home, Ganus was there with a middle-aged man whom Rixie did not know. Ganus pulled Rixie aside and suggested robbing this person. Ganus then jumped the man. The man retrieved a screwdriver from a nearby tool box and attacked Rixie with it. Rixie stated that he was stabbed twice in the head and once in the ear.

Together, Ganus and Rixie stopped the attack on Rixie, and Rixie admitted to stabbing at the man, possibly striking him once or twice in the chest. Rixie also stated that he bit the man on the wrist in defending himself. Rixie then became aware of blood running down the front of his face and went into the bathroom to tend to his wounds. After a few minutes in the bathroom, Rixie went back to the living room. The man was either unconscious or dead according to Rixie, and there was a great deal of blood everywhere. Ganus then suggested taking the man to a park. Ganus took the man’s wallet. They cleaned the apartment and put the towels, clothes and screwdriver in a nearby dumpster.

After seeing a news report about the incident, Rixie became frightened and went to Brookport to stay with his grandparents. Rixie told the agents that there was no premeditated plan to pick up a homosexual and rob him.

On cross-examination, Rembijas stated that Rixie indicated the man was fully clothed and neither bound nor gagged at any time. Rembijas acknowledged that Rixie had a somewhat healed-over head wound and pointed out the scar in a photograph of Rixie taken May 14, 1985.

Detective Muenkel testified that he recovered a social security card, a wallet with identification for Richard Misslich, a brown throw rug, a screwdriver, a blue nylon jacket, some material, a pair of Nike tennis shoes, a red pullover shirt, a pillowcase, a bath towel, and a hand towel from a dumpster located about six blocks from Rixie’s residence. The towels smelled of bleach, and the jacket, pillowcase, tennis shoes and hand towel appeared to have blood on them.

Terrence Delemeter, testifying for the State, stated that he had known Rixie for approximately two years. Delemeter testified that on May 1, 1985, he and Melanie Lundblade were with Darryl Birmingham driving around in Birmingham’s car. The three stopped at a convenience store to buy some beer, and they saw Rixie and Ganus in the parking lot. Birmingham asked Ganus to purchase some beer for them, and he did so. The five of them then proceeded to Rixie’s apartment, where they drank beer for about IV2 hours. During that time, Delemeter testified that Ganus started talking about the fact that he needed money. It was during this discussion that Ganus mentioned the idea to “rob a fag.” On the way to the adult bookstore, Delemeter exited the car to meet his girlfriend.

On cross-examination, Delemeter stated that he was detained for questioning on this matter due to outstanding arrest warrants. He had previously been convicted of burglary and forgery. Delemeter further testified that he was awaiting treatment for drug addiction. Delemeter also testified that a detective told him he would sit in jail for the warrants unless he agreed to discuss Rixie and Ganus and, if he cooperated, he would be given a recognizance bond. He stated that Ganus was acting wild and talking about how he was going to end up back in the penitentiary. It was Ganus who brought up the subject of money and initiated the idea of committing a robbery. Delemeter also stated that when Rixie drank he would talk tough, but that no one ever took him seriously. Delemeter further testified that he was not afraid of Rixie. While Ganus was discussing the possibility of being dropped off at a “fag” bar, Rixie wanted to find out if there was a party at another acquaintance’s house. Delemeter also testified about an incident that occurred earlier in the evening. Rixie approached Delemeter at the convenience store, put a pocket knife near his neck, and demanded repayment of a $5 debt. Ganus intervened, and Rixie stated that he was not serious. Immediately thereafter they all went to Rixie’s apartment to drink.

Following Delemeter’s testimony, and outside the presence of the jury, defense counsel asserted that the Rockford police officers had been instructed not to speak with Rixie’s attorneys prior to testifying. A hearing was held after which the court found that there was “a sufficient showing somebody believes from the police department that they are not to talk or an official order from somebody not to talk to defense attorneys.” The court further acknowledged that there was such an impression on the part of the officers, “[wjhether it came from misunderstanding or otherwise.” The defense motion for a mistrial based upon this situation was denied. The State was ordered to rectify this situation.

Darryl Birmingham’s testimony substantially corroborated that of Delemeter. He stated that Rixie told him that he had to go to the penitentiary at the end of May and he might as well make a life out of it. Birmingham further stated that after Delemeter exited the car, he, Lundblade, Ganus and Rixie proceeded to the adult bookstore on Seventh Street. Ganus instructed Birmingham to follow him if Ganus got into another car with someone. Ganus then went inside the bookstore. When Rixie went into the bookstore to find Ganus approximately 10 to 15 minutes later, Birmingham and Lundblade drove away. The State rested after this evidence.

William Morrison, a former police officer and legal investigator, was the first defense witness. He testified that he was present when defense counsel interviewed Birmingham. Birmingham told them that Rixie was drunk during the early morning hours of May 1, 1985. Further, Morrison indicated that Birmingham stated Ganus was the instigator of the plan to go to the bookstore and rob a homosexual. Morrison further testified that Birmingham stated that Rixie got out of the car to find Ganus and there had been no agreement between Ganus and Rixie to rob or kill anyone. According to Morrison, Birmingham acknowledged that Jamie had been drinking and said that, when Jamie drank, he tried to talk tough and make people think he was a very tough person.

Sheldon Walling was a sales clerk at the adult bookstore on Seventh Street on May 1, 1985. He stated that he knew Richard Misslich as a customer of the bookstore and had seen him once every week or two since November 1984. On the morning of May 1, 1985, Misslich entered the bookstore alone. He saw Misslich by the magazine display talking to a man who had entered the store about 15 minutes later. This man was identified as Ganus. The two men went into a movie room together and then left the store 10 to 15 minutes later. David Replogle, a friend of Sheldon Walling, testified that he saw Ganus and Misslich enter a movie booth together also. After leaving the bookstore, Replogle saw Misslich enter a car and Ganus enter a different car. After approximately 30 seconds to a minute, Ganus then got out and went to Misslich’s car and entered it. The men then drove away together.

Rixie testified on his own behalf. Rixie testified that he had known Ganus for approximately five or six years. Ganus had spent 31/2 years in the penitentiary and had only been out a few weeks on May 1, 1985. Rixie testified that Ganus spent the night of April 29 in Rixie’s apartment, and the two men spent the afternoon of April 30 riding and repairing Rixie’s motorcycle and drinking wine. Eventually the motorcycle broke down, and Ganus purchased a bottle of Southern Comfort and a 12-pack of beer after forging a check for $15. The two men consumed quite a bit of liquor that day, and Rixie stated that Ganus was trying to start fights. Rixie was able to borrow $6 from a friend, and the two men purchased two more bottles of wine. Rixie and Ganus consumed the wine and went riding around in a friend’s car until approximately 11:30 p.m. Ganus suggested robbing the Stop-N-Go, but Rixie told him he was crazy. On the way back to Rixie’s apartment, they saw Delemeter, Birmingham and Lundblade. These were people Rixie knew from parties, and Rixie reminded Delemeter of the outstanding $5 debt. Delemeter said that he had no money, and, even if he did, he would not give it to Rixie. Rixie testified that he showed Delemeter a pocket knife and said, “I bet you I can get that $5.” Rixie stated that he put the knife close to Delemeter, but was not serious and did not try to hurt him. They purchased a 12-pack of beer, and all five people proceeded to Rixie’s apartment.

Rixie testified that he and Ganus were drunk that night. Rixie testified that Ganus stated if he wanted to make a quick dollar all he had to do was “go to a fag bar and pick a fag up and roll him.” Rixie testified that he then told the group that Ganus had earlier suggested robbing the Stop-N-Go as well, but that Rixie had responded he was in enough trouble already. Rixie testified that he had previously been convicted of robbery. Rixie was on probation at the time of the instant events and was supposed to have enrolled in an alcohol program, although he had not done so. When the group left Rixie’s apartment, Delemeter wanted to be dropped off near his girlfriend’s hotel, and Rixie wanted to see about a party on the west side of Rockford. After dropping Delemeter off, they did drive toward the west side.

Rixie’s testimony regarding the facts and circumstances surrounding the stabbing incident was consistent with the statement given on the day of his arrest, as testified to by Agent Rembijas.

Rixie further testified that Ganus never spoke to his mother about the incident in Rixie’s presence. Rixie testified that he did not agree to any type of a robbery scheme with Ganus, and he participated in disposing of the body only because he was scared and did not know what else to do. The defense rested.

Following the initial instructions conference, the court agreed to instruct the jury on the lesser-included offenses of murder. The jury was to consider those verdicts, and, if a verdict of guilty was returned on voluntary manslaughter or another lesser offense, the jury was not to consider the second count of felony murder. The State then dismissed count I. Defense counsel’s subsequent motion for a mistrial was denied. Despite the dismissal of the charge of murder set forth in count I, defense counsel proffered jury instructions pertaining to lesser-included offenses based upon the evidence adduced at trial. These instructions were refused. The jury returned a verdict of guilty of felony murder.

Rixie was found to be eligible for the death penalty following a hearing on August 21, 1986. A sentencing hearing was held in which evidence in aggravation and mitigation was presented. After consideration of all the evidence, the court imposed an extended sentence of 60 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005— 8 — 2(a)(2).) Defendant filed a motion for a new trial, which was denied. The defendant also filed a post-sentencing motion which was similarly denied. Defendant appeals from the denial of these motions.

The first issue raised is whether the court erred by admitting evidence of defendant’s prior conviction of robbery. The trial court is to exercise its discretion in admitting evidence of a prior conviction for the purpose of impeaching a witness’ credibility. (People v. Montgomery (1971), 47 Ill. 2d 510, 515; People v. Powell (1985), 139 Ill. App. 3d 701, 707.) The trial court is given wide latitude in exercising this discretion. (Powell, 139 Ill. App. 3d at 708.) In Illinois, evidence of a prior conviction may be introduced if the prior conviction is for a crime punishable by imprisonment in excess of one year, and less than 10 years have passed since the conviction or the witness’ release from confinement. (Powell, 139 Ill. App. 3d at 707.) Once it is established that the prior conviction falls within the class of convictions outlined above, the court must weigh the prejudicial effect of admitting evidence of the prior conviction against the probative value. (Montgomery, 47 Ill. 2d at 517.) Factors for consideration by the trial court are the nature of the crime, the nearness in time of the prior conviction to the present trial, the subsequent career of the defendant, and the similarity of the crimes. People v. Evans (1981), 92 Ill. App. 3d 874, 878.

Defendant does not contest the fact that his prior conviction of robbery falls within the class of convictions that may be admitted for impeachment purposes. However, defendant argues that since the prior conviction was of robbery, and the underlying felony in this matter is armed robbery, the crimes are similar. Therefore, admission of the prior conviction would be unduly prejudicial.

The fact that the prior conviction and the present charge are similar does not prohibit the prior conviction from being admitted of impeachment purposes. (Evans, 92 Ill. App. 3d at 878.) In Evans, this court upheld the admission of a prior conviction for manslaughter in a murder trial. We noted that the trial judge considered the relevant factors and, in addition, gave the jury a limiting instruction advising the jurors to only consider the evidence as it bears on the defendant’s credibility. Therefore, we found that the trial court did not abuse its discretion in admitting evidence of the prior conviction even though it was for a similar offense. Evans, 92 Ill. App. 3d at 878.

It is clear the trial court in the case at bar considered the relevant factors. While noting the similarities in the offenses, the court placed emphasis on the fact that the charged offense occurred within approximately one year of the prior conviction. We do not find that emphasizing this factor was an abuse of discretion. Additionally, the court instructed the jury to consider this evidence only for impeachment purposes. We believe that the court carefully balanced the probative value of the prior conviction against the prejudice to defendant and did not abuse its discretion in admitting the evidence.

The next issue raised is whether the trial court erred in denying defendant’s motion to quash the search warrant and suppress the evidence seized. Defendant contends that the search warrant issued in this case did not identify the items to be seized with sufficient particularity and, therefore, the warrant must be quashed and the evidence suppressed.

A search warrant must particularly describe the place to be searched and the items to be seized. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6; Ill. Rev. Stat. 1985, ch. 38, par. 108 — 7.) Whether a warrant satisfies the requirements of particularity is determined on a case-by-case basis. (People v. Allbritton (1986), 150 Ill. App. 3d 545, 547.) The degree of particularity required varies with the nature of the case and the material or items to be seized. People v. Casillo (1981), 99 Ill. App. 3d 825, 828.

In People v. Wolski (1980), 83 Ill. App. 3d 17, authorities were investigating a murder. The victim’s partially clothed body was discovered in a field approximately 60 feet from a road. It appeared that she had been struck on the head with a blunt instrument. A credit-card receipt bearing the defendant’s signature was found near the body. A search warrant was obtained authorizing the police to search the defendant’s person, home and automobile and to seize:

“[Bjlood, articles of clothing with blood or male or female secretions theron [sic], jewelry and other personal items formerly in possession of [the victim], hair from the head of [the victim], dirt, grass on [sic] other materials or things from the area where the body of [the victim] was found, fingerprints [isic] of [the victim].” (Wolski, 83 Ill. App. 3d at 23.)

This court held that the warrant described the items to be seized with as much exactitude as was possible at that stage of the investigation. Wolski, 83 Ill. App. 3d at 23.

In People v. Mitchell (1978), 61 Ill. App. 3d 99, the police discovered the deceased victim at her home after her daughter expressed concern as to her well-being. The victim’s daughter then implicated her ex-husband, the defendant, in the murder. The police obtained a warrant to search the defendant’s home. The search warrant authorized the seizure of “any clothing, weapons, instruments, articles or contraband which have been used in the commission of or which constitute evidence of the offense of murder.” (Mitchell, 61 Ill. App. 3d at 100.) The court found that a detailed description of the items sought was impossible under the circumstances, and a characterization in more general terms was sufficient. Mitchell, 61 Ill. App. 3d at 102; see also People v. Raicevich (1978), 61 Ill. App. 3d 143, 147 (“When circumstances such as presented in this case make an exact description of items a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking”).

Defendant cites Stanford v. Texas (1965), 379 U.S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506, and Allbritton (150 Ill. App. 3d 545), as support for his contention that the specificity requirement has not been satisfied in this case. Both of these cases are factually distinguishable.

In Stanford, the defendant was suspected of violating a Texas statute basically outlawing the Communist Party. A search warrant was issued authorizing the seizure of “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas.” (Stanford, 379 U.S. at 486, 13 L. Ed. 2d at 437, 85 S. Ct. at 512.) The court stated:

“[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” Stanford, 379 U.S. at 485, 13 L. Ed. 2d at 437, 85 S. Ct. at 511-12.

In Allbritton, the defendant was suspected of residential burglary. A warrant was obtained to search defendant’s home for “jewelry, chains, cuff-links, sweater-closers and diamonds.” (Allbritton, 150 Ill. App. 3d at 545.) The court noted that prior to seeking the warrant, the police discussed the burglary with the victim and a co-defendant. Both of these individuals had detailed knowledge of the items stolen, and a definite description of the items sought was neither impracticable nor impossible. The court held that detailed descriptions of the items sought were readily available and, therefore, the warrant was insufficient and properly quashed. Allbritton, 150 Ill. App. 3d at 547.

The case at bar does not involve first amendment rights, nor does it involve stolen merchandise. This case is similar to Wolski and Mitchell in that the officers were searching for evidence of the crimes committed. The officers did not know what the murder weapon was or even how the murder took place. The officers believed that the murder took place in the defendant’s apartment. They also believed that evidence existed in defendant’s apartment in the form of blood, fibers and weapons. We find that the warrant was sufficient due to the circumstances of this case. Therefore, we do not find error in the court’s decision to deny defendant’s motion to quash and suppress.

Defendant next contends that the trial court erred by admitting testimony of Delemeter concerning the incident in which defendant threatened him with a knife. The trial court granted defendant’s motion in limine excluding this testimony. However, after defense counsel cross-examined Delemeter, the court stated:

“Initially I ruled that this was inadmissible on the case in chief or on direct. At this time, though, I think the defense has opened the door by going into several incidents not only at the house but otherwise about Mr. Rixie making statements about killing somebody, attacking them or something, and the defense has tried to show those were all in the context of jest and idle boasting in the presence of this witness. I think otherwise it would not be admissible. I think the defendant opened the door to show that.”

Defendant contends that this evidence is wholly irrelevant and highly prejudicial, and the court erred by allowing it into evidence.

Evidence of criminal conduct other than that for which the defendant is on trial is generally inadmissible. (People v. Romero (1977), 66 Ill. 2d 325, 330.) However, the defendant cannot complain about the admission of testimony which is invited by defendant’s own trial tactics. (People v. Davis (1977), 53 Ill. App. 3d 424, 432.) “If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain.” People v.

Burage (1961), 23 Ill. 2d 280, 283.

On cross-examination, the following exchanges took place:

“Q. You weren’t afraid of Jamie that night; were you?
A. No.
* * *
Q. When he said words to the effect that he’s going to kill some MF, he laughed; didn’t he?
A. Yeah.
* * *
Q. You didn’t take him serious [sic]; did you?
A. No.
Q. When Jamie gets drunk, normally doesn’t he talk tough?
A. Yeah.
Q. When Jamie talks about somebody like he’s going to fight somebody, doesn’t he normally say things like, quote, I’ll kill the mother fucker, something like that?
A. Yeah.
Q. Have you heard him say that in the past?
A. Yes.
Q. Have you taken him seriously in the past?
A. No.
* * *
Q. When he made any type of a statement indicating he was going to kill somebody, isn’t it true that he laughed, you laughed, and everybody there laughed and took it as a joke? True or not?
* * *
Q. Did you laugh?
A. Yeah.”

On redirect, the State asked Delemeter to describe the incident at the convenience store during which Rixie placed a knife to his throat and demanded repayment of a debt. Delemeter described the incident and indicated that he was afraid of Rixie at the time. This evidence was only introduced after the defendant had elicited testimony establishing that Delemeter was not afraid of Rixie and did not take him seriously. The testimony objected to was introduced after defendant had raised the issue and opened the door to this area of inquiry. Additionally, the court instructed the jury to only consider this evidence as it relates to the participants’ states of mind and whether they were joking or serious. We find that the testimony was invited by the defendant. Therefore, it was not error to admit it into evidence. Furthermore, any prejudice that resulted was cured by the limiting instruction given by the court.

Defendant’s next contention is that the trial court erred by allowing the State to nol-pros the murder charge. After an instruction conference during which the court expressed its decision to give instructions on several lesser-included offenses, the State moved to nolpros the murder charge and proceed only on felony murder. The court granted this motion. Defendant claims that he was substantially prejudiced because the jury was precluded from finding him guilty of a lesser-included offense and was . forced to find him guilty or not guilty solely of felony murder. We disagree.

The State’s Attorney has nearly unfettered discretion in determining whether to nol-pros a charge. (People v. Olson (1984), 128 Ill. App. 3d 560, 562; People v. Verstat (1983), 112 Ill. App. 3d 90, 102.) The State’s Attorney has absolute power to nol-pros a charge unless his actions are vexatious or repetitious or will cause substantial prejudice to the defendant. (See Olson, 128 Ill. App. 3d at 562.) This power extends throughout all stages of the trial proceedings. Olson, 128 Ill. App. 3d at 562.

Defendant argues that he presented a defense based upon the many verdict options that would be available to the jury if the defense was well formulated. By allowing the State to nol-pros count I of the indictment, the jury was limited to finding guilty or not guilty of felony murder only. We do not see this as substantially prejudicing defendant. Defendant knew of the felony murder charge since the inception of the proceedings. He was given a full opportunity to prepare and present a defense to felony murder. The jury was presented with all the evidence in this matter along with counsel’s arguments that Rixie was not involved in any plan or attempt to rob Misslich. The jury could have concluded that Rixie may have been guilty of something, but not felony murder. This determination would have required the jury to find Rixie not guilty. The jury was properly instructed on the remaining charge of felony murder and, after considering all the evidence, the jury returned a verdict of guilty. Simply because the defendant may have been guilty of a lesser offense to murder, had it been charged, does not require a finding of prejudice because he was not so charged. The court did not err in allowing the State to nol-pros the murder charge and to proceed on only the felony murder charge.

Defendant next contends that his due process rights were violated because the State’s Attorney’s office informed the Rockford police to refrain from speaking with defendant’s counsel.

This issue was not addressed in defendant’s post-trial motion. This argument is therefore waived. (See People v. Precup (1978), 73 Ill. 2d 7, 16.) Even if not waived, defendant’s claim lacks merit. Defendant has not established that his attempts to interview Rockford police officers were thwarted. Defendant has set forth no evidence whatsoever that this conduct, assuming it did in fact occur, prejudiced his preparation and presentment of a defense.

Defendant’s last contention is that the trial court’s imposition of a 60-year sentence was excessive and, therefore, error. The imposition of a criminal sentence is a matter of judicial discretion, and the sentence may not be altered upon review unless there is an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) The trial court’s decision with respect to sentencing is entitled to great weight and deference. (Perruquet, 68 Ill. 2d at 154.) Additionally, when considering an extended-term sentence, the court’s focus is on the offense committed rather than the nature of the offender’s participation. People v. Johnson (1985), 132 Ill. App. 3d 1, 7.

The court noted the defendant’s potential for rehabilitation, but also stressed the offense committed and the surrounding circumstances. The court discussed the fact that the victim was lured to defendant’s apartment, bound and gagged, and then stabbed between 40 and 50 times. The robbery proceeds totaled $12. The victim's body was then taken and dumped in a park. The court indicated, and we agree, that this was a brutal and heinous offense. The court indicated that a term of less than 60 years would deprecate the seriousness of the offense.

A reviewing court will not substitute its judgment for that of the trial court merely because it would have balanced the appropriate sentencing factors differently. (People v. Cox (1980), 82 Ill. 2d 268, 280.) We find that the court took into consideration all of the appropriate factors and did not abuse its discretion in imposing an extended sentence of 60 years.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

INGLIS and REINHARD, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    BRADLEY HAGY, A Minor, by his Mother and Next Friend, Linda Hagy, Plaintiff-Appellant, v. McHENRY COUNTY CONSERVATION DISTRICT, Defendant-Appellee.
    Second District
    No. 2—89—0039
    Opinion filed October 26, 1989.

      Thomas A. Demetrio, of Corboy & Demetrio, P.C., of Chicago (Francis Patrick Murphy, of counsel), for appellant.
    Robert S. Phillips, of Kell, Nuelle & Loizzo, of Woodstock (Vette E. Kell, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Bradley Hagy, appeals the order of the circuit court of McHenry County granting defendant McHenry County Conservation District’s motion for summary judgment on the basis the district owed plaintiff no duty as a matter of law. We affirm.

Plaintiff was a ninth-grade student at Grant Community High School and had spent the better part of May 28, 1981, in school. After school, he went home and then rode his bicycle to his grandmother’s house. After visiting with his grandmother, he set out on his bicycle for “the swimming hole,” which was located at a bend on Nippersink Creek, about 1,000 feet from the end of Prospect Avenue in Spring Grove, Illinois. His mother and grandmother both told him to be careful when he told them he was going to the swimming hole. Nippersink Creek is a moderate-flow stream, 5- to 6-feet deep with some areas 10- to 12-feet deep. The area of the swimming hole is remarkable in that, at the bend in the river, there is an embankment of 8 to 12 feet in height at a 90-degree angle with the plane of the land. The embankment was built in the 1900's as a dike in order to create a pond and has not been changed since save for natural erosion. There were no other similar structures in close proximity, and by May 28, 1981, the dike had partially eroded into the swimming hole. The district acquired title to this and other parcels in the area in 1980 intending to leave the area in its natural state, and no picnic, recreational areas or nature trails had been developed.

The plaintiff arrived at the swimming hole by riding his bicycle along a worn path from the end of Prospect Avenue. He saw no signs or fences along the path. He did not know who owned the area, but he thought it was “like a park area, you know, just a regular swimming hole.” Plaintiff visited the area of the swimming hole many times in the past and had dived and swum there on numerous occasions, including twice a week in the previous summer. He also had walked at least a mile up and down the banks of the creek and had swung out over the creek in a tire that was tied to a tree, but he had not swum in any other area of the creek. Plaintiff learned to swim several years prior to the accident. He swam on a regular basis at the Boys’ Club camp in Salem, Wisconsin, and attended this camp annually from age 7 to age 13. Although he knew how to swim before he went to camp, he received swimming instructions during the six years he attended camp, and his swimming experience included swimming at beaches and lakes. He admitted to doing “a lot of diving” before the date of the accident, including diving into a lake. Though his diving ability was self-taught, he knew how to do various types of dives such as back flips, forward flips, the jackknife, swan dive and the straight dive. On the day of the accident, he was attempting a straight dive.

It was the plaintiff’s first trip to the swimming hole that year. He found several of his friends at the swimming hole upon his arrival. They were sitting on the grass about 10 to 12 feet to the left of the embankment. As plaintiff was coming up to the grassy area, he saw his friend, Rob Katherin, dive from the embankment into the creek and saw him emerge from the creek downstream about 10 to 15 feet from where plaintiff’s friends were sitting. Plaintiff talked with his friends a while, then went to the top of the embankment and dove headfirst with his hands above his head into the creek and out about three to four feet from the bank. It did not occur to him to check the depth of the creek before he dove in, and he stated no one there suggested he check the depth of the water before diving. Plaintiff stated the reason he dove in instead of jumped in was because he had dived there before. Plaintiff’s head struck the creek bed, breaking his neck, and he is now a quadriplegic.

Plaintiff’s complaint alleged the district owned and controlled the land and creek and that it held same out to the public as being reasonably safe for use by the public; that it was the district’s duty to exercise reasonable care and diligence to keep and maintain said land and creek in a reasonably safe condition; that it nevertheless caused or permitted “the existence of a dangerous condition, namely a high embankment overlooking a segment of said creek, said segment containing an area several feet in circumference which is approximately five to six feet deeper than the surrounding ground level existing at the bottom of said creek bed, said segment further giving the appearance that the depth of said creek was uniform from the vantage point of said embankment, due to the muddy condition of the water in said creek”; that the district had notice and knowledge of the existence of the dangerous condition and that the general public frequented the land for recreational purposes including, but not limited to, hiking, swimming and diving from the embankment; that the district negligently breached its duty of care by failing to warn of the dangerous condition or to prohibit swimming or diving, by permitting the existence of the dangerous condition, by failing to inspect the bottom of the creek, and by maintaining the land in a condition unsafe for members of the public; and that as a proximate result of one of more acts of negligence, he was injured.

The district answered, admitting ownership and control of the land and knowledge that members of the general public used the land for recreational purposes. It subsequently moved for summary judgment, arguing that it owed no duty to the plaintiff to remedy a condition which presented an obvious risk. The district’s motion was supported by the discovery depositions of plaintiff, Edward Kattner, a resident of the area in question, Kenneth Fiske, then executive director of the McHenry County Conservation District, the statements of Linnae Kaminski and Jeffrey Collins, who were present when plaintiff’s injury occurred, and various plats, surveys and photos of the area of the creek and embankment. Plaintiff’s response to the motion for summary judgment included an affidavit of Dr. M.A. Gabrielsen. The affidavit set forth his qualifications as an aquatic safety and recreation expert and his expert opinions that the dangerous condition was not open and obvious since the effect of the ongoing erosion process was hidden and concealed below the surface of the moderate-current always-muddy water, and that the man-made levee (the embankment) caused a slower current which, combined with the height of the levee and the bend in the creek, made a perfect swimming spot which should have been posted with adequate warning signs and controlled. On motions of the parties, the court struck Kaminski’s and Collins’ statements and Dr. Gabrielsen’s affidavit, and it granted the district’s motion for summary judgment.

The plaintiff raises these issues: (1) whether the trial court erred in expanding the dangers deemed obvious to children to include the risk of injury from diving into water; (2) whether the trial court erred in striking the affidavit of his expert, Dr. M.A. Gabrielsen; and (3) whether the trial court erred in granting the defendant’s motion for summary judgment.

OBVIOUSNESS OF THE DANGER

Plaintiff acknowledges the abandonment in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, of the “attractive nuisance” doctrine and its replacement with the customary rules of ordinary negligence— i.e., the foreseeability of harm — in determining the liability of landowners and occupiers of land for injuries caused by conditions on the land to children who enter upon it. Plaintiff also notes the exception identified in Kahn that a duty not imposed under the rules of ordinary negligence will be imposed, however,

“where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risks involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it.” Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625.

This exception has not been interpreted to mean that owners or parties in possession and control of premises are duty-bound to remedy all conditions on the land. It is clear there is no duty to remedy a dangerous condition which presents an obvious risk which children would be expected to appreciate and avoid. Cope v. Doe (1984), 102 Ill. 2d 278, 286; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326.

Plaintiff notes three risks or dangers which have been identified as being obvious to children are those of fire, water, and falling from a height, citing Corcoran and Cope, which approved of the comments set forth in section 339 of the Restatement of Torts. (Corcoran, 73 Ill. 2d at 327; Cope, 102 Ill. 2d at 286-87; Restatement (Second) of Torts §339, comment j, at 203 (1965).) According to the Restatement, liability as to such obvious dangers will not lie “in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or [there is] a distracting influence which makes it likely that the child will not discover or appreciate it.” Restatement (Second) of Torts §339, comment j, at 203 (1965).

Citing numerous cases which have applied section 339 of the Restatement in instances involving water (e.g., Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62 (14-year-old drowned); Durham v. Forest Preserve District (1986), 152 Ill. App. 3d 472 (16-year-old drowned); Christon v. Kankakee Valley Boat Club (1987), 152 Ill. App. 3d 202 (nine-year-old drowned)), fire (Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396 (four-year-old burned by a candle)) and falling from a height (e.g., Batzek v. Betz (1988), 165 Ill. App. 3d 399 (14-year-old fell while climbing a tree); Alop v. Edgewood Valley Community Association (1986), 154 Ill. App. 3d 482 (six-year-old fell off a slide); Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92 (17-year-old fell from a tree)), plaintiff concludes Illinois has not expanded the exception to Kahn liability beyond the open and obvious dangers that one may drown in water, that fire burns, and that one may fall from a height. Thus, plaintiff asserts, it was error for the court to expand the list by finding as a matter of law that diving into water was a danger obvious to children.

The district asserts the trial court did not expand the dangers deemed obvious to children as established in Illinois law. Rather, the district asserts, the issue which confronted the trial judge was whether Bradley Hagy at age 15 years and 2 months was mature enough to appreciate the risk and danger of diving from an embankment or cliff at a height of 8 to 12 feet into a muddy creek, an act which involved two of the three recognized obvious risks, water and falling from a height.

It was stated in Corcoran:

“Unless an owner or occupier has reason to know that children of very tender age are likely to roam unattended onto the premises, the law will impose a duty on the owner or occupier only to remedy conditions which are dangerous to children gen erally." (Emphasis added.) (Corcoran, 73 Ill. 2d at 327.)

It has also been stated that “the duty issue is broad in its implication and it is only the jury’s negligence determination which need be strictly confined to the facts of the particular case.” (Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 663.) Notwithstanding the usual objective nature of the court’s duty analysis, we have found that consideration of the particular minor plaintiff’s knowledge is appropriate where the minor has some greater understanding of the alleged dangerous condition than would a typical minor of the same age. (Swearingen v. Korfist (1989), 181 Ill. App. 3d 357, 361-63.) By virtue of the procedural posture of the instant case, the court was apprised through the plaintiff’s deposition testimony of his considerable swimming and diving experience not only at the instant site, but in other bodies of water as well. The court’s written opinion expressly noted the plaintiff’s background experience in swimming and diving, and we do not construe its judgment to be an expansion of the list of dangers obvious to children generally. Rather, its judgment reflects its opinion that the defendant owed no duty to this plaintiff where the plaintiff in fact knew of the condition — or at least had knowledge of the condition equal to that of the defendant — and was able to appreciate the risk involved but nevertheless chose to undertake it. See Swearingen, 181 Ill. App. 3d at 362, 363-64; Restatement (Second) of Torts §339, comment to, at 204 (1965).

Plaintiff’s implication that the mere fact of expansion would per se be error and that there are no dangers other than water, fire and heights which could be considered obvious to children is unsupported by any authority and, in fact, is contrary to the clear language of section 339, which recognizes there are “many dangers *** which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.” (Emphasis added.) Restatement (Second) of Torts §339, comment j, at 203 (1965).

PLAINTIFF’S EXPERT’S AFFIDAVIT

Plaintiff argues this affidavit should not have been stricken since, unlike the affidavit in our opinion in Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, which was suggested to have improperly invaded the province of the court by opining as to the obviousness of the condition, Dr. Gabrielsen’s affidavit “merely identified the dangerous condition upon which the court could then determine the existence of the duty.”

Plaintiff’s contention is refuted by the affidavit itself. Based, inter alia, upon the deposition of Bradley Hagy and inspection of the site, Dr. Gabrielsen states therein that (a) the dangerous condition of the property was not open and obvious since the effect of the ongoing erosion process was hidden and concealed below the water surface; (b) the effects of erosion are not open and obvious from month to month or season to season because this process is below the water surface; (c) the water is always muddy due to the moderate current over the soil bottom of the creek, and, therefore, one cannot see the stream side effects of erosion contrasting with the rest of the water; (d) the man-made levee made an attractive diving platform and caused a slower current which, combined with the levee and the elbow in the river, made a perfect swimming spot; (e) the artificial, man-made levee and resultant swimming/diving area should have been posted with adequate warning signs and adequately patrolled with enforcement of district rules and regulations; (f) the area should have been fenced or barricaded to prevent users of the district property from gaining access to said area; and (g) it was the dangerous and hidden condition of the McHenry County Conservation District’s property of May 28,1981, which proximately caused plaintiff’s injury.

Consequently, Dr. Gabrielsen’s affidavit does not merely identify the dangerous condition but concludes the condition was not “open and obvious.” Dr. Shack’s affidavit in Old Second National Bank was offered to show that the scene of the drowning constituted a dangerous condition which the 14-year-old plaintiff in Old Second National Bank was not able to appreciate. We opined that Dr. Shack’s affidavit was “not appropriate for consideration in a case such as the one at hand, where the danger being considered is one of water, fire, or falling from a height, which under ordinary circumstances may reasonably be expected to be fully understood and appreciated by a child of the age of plaintiff’s decedent.” (Old Second National Bank, 156 Ill. App. 3d at 66-67.) Upon considering it, however, we found Dr. Shack’s affidavit was properly stricken because it was based on a subjective standard, rather than an objective one, and because it failed to comply with Supreme Court Rule 191 (107 Ill. 2d 191).

Plaintiff correctly notes the “modem standard” for admissibility of expert testimony is whether such testimony will aid the jurors’ understanding of the facts. (Ketchum v. Dura-Bond Concrete, Inc. (1989), 179 Ill. App. 3d 820, 831.) However, Dr. Gabrielsen’s affidavit contrasts sharply with the detailed testimony offered by plaintiff’s expert witness in Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, cited by plaintiff, as to whether it was dangerous for the defendant to permit youngsters to make a running, headfirst entry into the wading area of defendant’s commercial lake. It also stands in sharp contrast to the deposition testimony of plaintiff’s expert witness in Corbin v. Coleco Industries, Inc. (7th Cir. 1984), 748 F.2d 411, a products liability case also cited by plaintiff, to the effect that even though people are generally aware of the danger of diving into shallow water, they believe there is a safe way to do it, namely, by executing a flat, shallow dive. An expert’s opinion may be excluded where it offers no aid to the trier of fact in determining questions at issue (see, e.g., Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90), and affidavits which state mere conclusions are insufficient to defeat a motion for summary judgment (In re E.L. (1987), 152 Ill. App. 3d 25). Dr. Gabrielsen’s largely conclusional affidavit contained no facts which would have assisted the court in deciding whether the plaintiff could appreciate the risk of diving from a height into a muddy-water creek of uncertain depth, nor, in fact, did Dr. Gabrielsen’s affidavit purport to reach the conclusion that the plaintiff could not appreciate the fact that erosion which cannot be seen occurs below the surface of the water. (See Miklos v. Caliendo (1987), 161 Ill. App. 3d 132; Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 482.) We conclude the court did not err in striking it.

SUMMARY JUDGMENT

A summary judgment is properly granted when the pleadings, depositions and affidavits show no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523.) In ruling on a motion for summary judgment, the court must construe the evidence shown by the depositions, admissions and affidavits strongly against the movant. (Schroth v. Norton Co. (1989), 185 Ill. App. 3d 575.) Summary judgment should be awarded with caution so as not to preempt the right to trial by jury or the right to present fully a factual basis for a case when a material dispute may exist. (Guthrie v. Zielinski (1989), 185 Ill. App. 3d 266.) Summary judgment is appropriate, however, where there is no dispute as to any material fact but only as to the legal effect of the facts. (First State Bank v. Busse (1984), 126 Ill. App. 3d 577.) A party seeking summary judgment must affirmatively show a clear legal right to summary judgment, and, if any facts exist which allow for more than one conclusion or inference, including one unfavorable to movant, the motion must be denied, and the resolution of those facts and inferences must be left for determination at trial. Dockery v. Ortiz (1989), 185 Ill. App. 3d 296; Vincent DiVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325.

The existence of a duty is a question of law properly decided on a motion for summary judgment, because absent a legal duty, there can be no recovery in negligence as a matter of law. (Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 436; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 331.) In invoking the summary judgment procedure, a defendant concedes that the pleadings are valid, but contends the additional facts contained in the plaintiff’s deposition leave no material issues of fact. (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 190.) In the absence of any showing upon which the court could infer the existence of a legal duty on the part of the defendant, no recovery would be possible as a matter of law, and summary judgment in favor of the defendant in a negligence action would be proper. (Mason, 173 Ill. App. 3d at 331; Keller v. Mols (1984), 129 Ill. App. 3d 208, 210.) On appeal from the grant of a motion for summary judgment, the reviewing court must determine whether the trial court properly ruled that no genuine issue of material fact was raised and, if none was raised, whether summary judgment was properly entered as a matter of law. (Dockery, 185 Ill. App. 3d at 305.) An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. Addison v. Whittenberg (1988), 124 Ill. 2d 287.

Because there is a duty on the part of landowners only to remedy those conditions which, although considered harmless to adults, are dangerous to children by reason of their immaturity, plaintiff asserts the determination of whether the condition on the defendant’s property presented an obvious risk is essential. As to this essential determination, plaintiff argues that if this court reverses the trial court’s order striking Dr. Gabrielsen’s affidavit, then a question of fact will arise as to the precise nature of the dangerous condition which caused his injury, inasmuch as the defendant argued at the summary judgment hearing that it was the water which was the dangerous condition, whereas it was plaintiff’s position that it was the man-made dike and unseen erosion which caused his injury.

The defendant argues that even if this court reverses the court’s order striking Dr. Gabrielsen’s affidavit, there is no genuine issue of material fact as to what the purported dangerous condition on the defendant’s premises was. We agree.

Although the defendant did refer at the hearing to the risk presented by the instant condition as the risk generally presented by water, it does not dispute the existence of the man-made dike or that the depth of the creek varied. Based on the pleadings, admissions, depositions and affidavits, there is no question that there was on the premises an 8- to 12-foot high man-made embankment located at the bend of a soil-bottom moderate-flow creek of varied depths where children were known to swim. Consequently, there is no genuine issue of material fact as to what the condition on the defendant’s premises was, only the legal effect of the existence of such condition.

Plaintiff further asserts that a question of fact exists as to whether the condition presented an obvious risk to children. Under the law, the defendant here owed no duty to the plaintiff to protect him from obvious or common conditions. (Corcoran, 73 Ill. 2d at 326.) Necessarily, then, the court’s duty determination — a question of law (McLane v. Russell (1989), 131 Ill. 2d 509, 515) — included consideration of whether the condition presented an obvious risk. The court here found the danger presented to the plaintiff by diving from a height of 8 to 12 feet into a meandering creek without checking for changes in the depth of the creek from the preceding year was an obvious one, and, thus, the defendant owed plaintiff no duty to protect him from it.

Plaintiff argues, however, that the danger presented by diving is quite complex and, therefore, is not one which would be obvious to a child. He cites Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, in support. The diving being considered in Pit-stick, however, was surface or horizontal diving while in shallow water at a commercial lake as opposed to the headfirst vertical dive from a considerable height into a creek of uncertain depth which is at issue here. If the risk of falling from a height may reasonably be expected to be understood by any child of an age allowed to be at large, certainly vertical diving from a height into muddy water also presents an obvious risk. A body suddenly sprung from the gravity which secures all things is only momentarily weightless and will be constrained again as surely as Newton’s apple. The impact with which the reconstraint will occur is estimable, but uncertain where the intensity of the impact will be heightened or diminished by a factor— here, muddy water — which alone presents the obvious risk that it will be too deep for the nonswimmer or too shallow for the diver. (See Scheeler v. Bahr (1969), 41 Wis. 2d 473, 164 N.W.2d 310.) There was nothing unusual or deceptive about the moving creek here which presented a special or indiscernible danger which could not have been appreciated by this 15-year-old plaintiff. Cf Sumner v. Hebenstreit (1988), 167 Ill. App. 3d 881 (that soft sand on the bottom of a body of water shifts with currents and disturbances is a condition which reasonably could be expected to be understood by the 19-year-old trespasser).

Plaintiff also cites Hughes v. Quarve & Anderson Co. (Minn. 1983), 338 N.W.2d 422, in support of his argument the obviousness of the danger of diving to a teenage boy is suspect. In Hughes, the Minnesota Supreme Court affirmed a jury verdict for the 16-year-old quadriplegic plaintiff. It found it was not error for the trial court to hold the plaintiff not to be an adult trespasser as a matter of law and that the jury was properly instructed that the defendant’s duty to the plaintiff was governed by section 339 of the Restatement (Second) of Torts. The plaintiff there made a running, headfirst dive from the shoreline of the defendant’s quarry pond expecting a drop-off but encountering sand instead. A front-end loader had dumped and smoothed two shovelsful of sand on the shoreline of the accident site three weeks earlier. In affirming, the court noted the large number of cases involving teenage boys and driving accidents “indicates that mature judgment at age 16, at least as it regards personal safety, cannot be assumed to be the norm.” (Hughes, 338 N.W.2d at 425.) The court also relied on evidence from a psychologist in the record that the 16-year-old plaintiff was very immature compared with other 16-year-olds.

No question has been raised here as to whether the plaintiff here falls within the scope of the Kahn exception, although we note that plaintiff’s complaint only alleges defendant’s knowledge of use of the site by the general public. Moreover, a lack of “mature judgment” does not negate the ability to recognize or appreciate an obvious risk; rather, it suggests that obvious risks nonetheless may be undertaken. (See Swearingen v. Korfist (1989), 181 Ill. App. 3d 357, 363 (“[W]hat is important is the fact that the minor can appreciate the risk, not that he will in fact avoid it”).) Further, if the standard for determining the obviousness of risks to children was measured by the frequency of cases involving them, the obvious risks of water, fire and falling from a height would have to be eliminated, as well.

The additional cases plaintiff cites (Markowitz v. Arizona Parks Board (1985), 146 Ariz. 352, 706 P.2d 364; Dumas v. Pike County (S.D. Miss. 1986), 642 F. Supp. 131) in support of the proposition that the risk of injury from diving is one which is not readily apparent to children are distinguishable. The 15-year-old plaintiff in Markowitz, an invitee, was injured when he dove into a cove in a recreation area leased by the State of Arizona and struck his head on a shallow ledge or sandbar below the surface. The State was granted summary judgment on its claim that it breached no duty owed to the plaintiff, and the court of appeals affirmed. The Arizona Supreme Court reversed, however, finding there were many inferences which could be drawn from the facts as to whether the State exercised reasonable care for the plaintiff’s safety and that one of the factors to be considered in drawing such inferences is whether the condition was open and obvious. Thus, the openness or obviousness of the condition was not a factor there in determining whether plaintiff was owed a duty — a question of law; rather, only insofar as whether the duty owed was breached, a question of fact. Unarguably, Arizona recognized that a possessor of land is under an affirmative duty to use reasonable care to make the premises safe for use by invitees. The question here, however, was whether in the first instance the undisputed facts raised a duty owed by the defendant to the plaintiff to protect him from “a dangerous condition,” i.e., one which the plaintiff could not appreciate the risk of by reason of his age and immaturity. Alop, 154 Ill. App. 3d at 484-85.

Dumas is more distinguishable. The plaintiff in Dumas, whose age was not mentioned, was rendered a quadriplegic when he dove from an earthen platform located five to six feet above a river which meandered through a county water park and, in parts, through the property of an individual defendant. His head struck the river bottom. As to the county, the plaintiff was considered a business invitee. The county moved for summary judgment based on a statute which provided riparian landowners an absolute assumption of risk defense to tort liability for accidents occurring in the waterways. Because the asserted negligence, however, was the maintenance of the land from which the plaintiff had dived and not the waterway, a question of fact concerning premises liability remained which was sufficient to defeat summary judgment. The court also rejected summary judgment for the individual defendant on the basis of this same assumption of the risk defense and also on the basis of another statute exempting lessees and owners of land or water areas opened up for public use from any duty or liability to those members of the public who avail themselves of the use thereof. The court further rejected the individual defendant’s contention the plaintiff was a trespasser to whom he owed only the duty to refrain from wilful and wanton injury. The court found there was a question of fact as to whether the plaintiff was a licensee based upon evidence which tended to show the landowner permitted plaintiff to enter the land and summary judgment was precluded thereby. Accordingly, the authorities cited by plaintiff fail to support his position that the danger of diving from the defendant’s embankment into the creek was not one which would be obvious to a child.

Plaintiff’s final contention is that a question of fact exists as to whether the combination of the dike, water, and erosion presented a hidden danger rather than an obvious risk. Defendant’s argument that this presents a new theory which was not advanced by plaintiff below is well taken. It is settled that a theory which is not raised at trial cannot be raised for the first time on appeal. (IMM Acceptance Corp. v. First National Bank & Trust Co. (1986), 148 Ill. App. 3d 949.) Accordingly, this issue is not properly preserved for appeal.

In sum, we conclude no genuine issues of material fact exist, and the judgment of the circuit court of McHenry County granting the defendant summary judgment is hereby affirmed.

Affirmed.

DUNN and WOODWARD, JJ., concur.


author: JUSTICE WOODWARD JUSTICE McCULLOUGH,

text:
    GENERAL ELECTRIC COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ann Holycross, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—88—0326WC
    Opinion filed June 21, 1989.
    Modified on denial of rehearing December 5, 1989.

      McCULLOUGH, J., dissenting.
    John F. Martin, of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellant.
    David C. Harrison, of Scheele, Cornelius & Associates, Ltd., of La-Grange, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Ann Holycross, filed two applications for benefit, both on the same day. The first application alleged an accident occurring on February 6, 1985, resulting in injury to her right shoulder, arm, and wrist. The second application alleged an accident occurring on June 25, 1985, resulting again in injury to her right shoulder. The cases were consolidated at arbitration.

Claimant testified at the April 14, 1986, arbitration hearing as follows. On February 6, 1985, claimant had been employed by General Electric for 26 years. At that time, she was a “combination worker,” attaching electrical leads and soldering wires onto a ballast. The ballasts weighed about two pounds each, and she would pull down three to five of these ballasts at a time. She stood while performing this job.

As claimant worked with each ballast, she would pull leads down from above and insert them with her right hand. Each lead was inserted into a hold, and the claimant would pound it down. She could then pull the lead out through the hole with her right hand and solder the connection, holding the soldering gun with her right hand. Next, she would push 6 to 12 of these ballasts down the roller belt with her right hand.

Claimant would then go to the other end of the belt and insert leads. She would have to put bundles of leads in a bin. She would lift bundles of these leads with both hands. The bins were at about head level. She would then take ballasts and put them on the roller belt.

The claimant would next pull leads out of the bins and insert several leads into each end of the ballasts. As she finished about five ballasts, she would shove them down the roller belt to other employees and start all over again. She performed these functions all day long, rotating usually from attaching leads to the stringing job.

In the latter part of 1984, while working, claimant began to note pain in her right shoulder, forearm, and hand. She went to the company nurse, who wrapped the arm in an ace bandage and gave her a pain pill. After that, the claimant saw the company nurse about once a week for the same treatment. Claimant did inform her foreman about her problem.

In January 1985, claimant was experiencing breathing problems, and General Electric sent her to Dr. Lopez, who admitted her to St. Elizabeth’s Hospital for breathing tests. While she was in the hospital, Dr. Lopez called in Dr. Johnson, an orthopedic doctor, who evaluated her. Dr. Johnson had Dr. Tazudeen, a neurologist, perform an EMG on claimant.

After her release from the hospitál, claimant saw Dr. Johnson once a month. The doctor treated her with injections of cortisone and placed a splint on her right forearm which she wore except at work. After three or four months of treatment with Dr. Johnson, claimant seemed to be getting better. Claimant had continued to work during this time.

On June 25, 1985, claimant was performing a different job with ballasts than her regular one. She would push 10-pound ballasts down to the test set, testing them and pushing them on down to the packing station and packing. She worked this particular job for a couple of hours every day.

On June 25, 1985, claimant was getting ready to test the ballasts which were double stacked behind the test set. She went around the test set and shoved about 20 ballasts down to her test set, pushing with her right arm. She felt a sharp pain in her right shoulder which went up into her neck. Claimant went to the nurse, who gave her a pain pill, and she returned to work.

At the beginning of July 1985, claimant took one week’s vacation. She returned to work and worked one week, and then took two more weeks’ vacation. She then returned to work. She noted that while she was off work, she was not bothered by pain in her shoulder, but as soon as she used pressure, the pain returned.

On August 6, 1985, claimant again saw Dr. Johnson. He continued to give her inflammatory pills, an injection, and had claimant stay home from work. He also prescribed physical therapy two to three times a week and did an arthrogram in September 1985. In November 1985, Dr. Johnson operated on claimant’s right shoulder. Following surgery, he prescribed mild therapy two or three times a week. Claimant has not worked since August 6, 1985.

At tiie time of the hearing, claimant still suffered pain in her right shoulder and right arm. Weather changes produce more pain and aching. Dr. Johnson, whom she continued to see once a month, restricted her lifting to two pounds. When she lifts, she has a lot of pulling and hurting, especially when her right arm is extended. She had not injured her right shoulder prior to February 1985 and not since June 25, 1985.

On cross-examination, claimant testified that she had been treated for bursitis and impingement in 1984. On August 22, 1985, she completed a form applying for group disability benefits, and she stated that the facts set forth in that document were accurate at the time she filled out the form.

On redirect examination, claimant was asked if she knew what the definition of an accident was under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Over the objection of General Electric, claimant testified that she did not. General Electric then introduced a copy of the group disability benefit form which claimant had filled out and which she indicated that her disability was not the result of an accident.

The evidence deposition of Dr. Leighton Johnson, an orthopedic specialist, was admitted into evidence at the request of the claimant. Dr. Johnson testified that he first saw claimant on February 2, 1985, at the request of Dr. Lopez, her internist. He took a history from her and performed a physical examination. After reviewing the results of the EMG performed by Dr. Tazudeen and the X rays, Dr. Johnson’s impression was that the claimant was suffering from mild right carpal tunnel syndrome, mild right lateral epicondylitis (tennis elbow), chronic cervical strain, and mild impingement syndrome of the right shoulder. His recommendation was to monitor the condition, and that she be kept on anti-inflammatory medicine. At the present time, the claimant is showing signs of improvement. She can lift up to about 2 to 21k pounds in her present range of motion, which is still limited. She is still not ready to be released to return to steady work. It would be a minimum of two months before she could return to work full time.

Dr. Johnson testified that the number one cause of carpal tunnel syndrome is idiopathic, to wit, it just occurs in a patient. He generally sees it in people who use their hands in a repetitive manner on a daily basis. Epicondylitis is associated with forearm and wrist movements, usually repetitive, against resistance. The impingement syndrome can be due to degeneration in the muscle by aging. Many times it is caused by repetitive motion. However, there are a wide variety of causes for it. The chronic cervical strain apparently was no longer a problem for claimant.

In Dr. Johnson’s opinion, the repetitive motion of claimant’s work was an aggravating factor of the carpal tunnel syndrome. While claimant’s “tennis elbow” was not bothering her too much, the carpal tunnel syndrome and tennis elbow are aggravated by the same type of activity, so it was possible that claimant’s work aggravated this condition as well. The tennis elbow is temporary. The carpal tunnel syndrome is in a dormant state. It could very well have a release at some time, so that it would not be permanent in the long run.

On cross-examination, Dr. Johnson testified that cardiovascular problems are not generally factors that cause carpal tunnel syndrome unless the patient were suffering congestive heart failure, which would cause fluid to be retained throughout the body. The doctor stated that claimant was in an age bracket where some patients have degeneration of their musculature of the shoulder. While the tennis elbow was a temporary condition, the further development of the impingement syndrome depends on claimant’s future progress. When Dr. Tazudeen did another EMG on June 1, 1985, Dr. Tazudeen interpreted the results as showing no evidence of carpal tunnel syndrome.

Dr. Johnson did not know what had caused claimant’s right shoulder problem. The condition could be caused by overhead use of the shoulder. According to the doctor, the amount of weight was not important, but rather the use of the shoulder in an overhead fashion. Another causal activity would be forward flexion. The problem could be caused by a single traumatic event or by repetitive stress. Everyday use could also cause an eventual tear.

Dr. Johnson testified that a bone scan was performed on claimant by Dr. Shah. The result of that showed a “slightly increased uptake” in both shoulders and the right wrist. According to Dr. Johnson, the significance of this was that it was “probably mild arthritic or degenerative changes.”

Dr. Johnson did not know what caused the rotator cuff tear (which was repaired in the surgery of November 1985). Further, claimant did not describe to Dr. Johnson her physical activities outside of her employment.

On redirect examination, Dr. Johnson testified that a person in claimant’s age bracket (57) was more likely to suffer an impingement syndrome as a result of the type of trauma he had earlier described. He reiterated his opinion that an impingement syndrome can be aggravated by either overhead activity or forward flexion. When asked whether a person’s pushing on a weight of 20 pounds would be a forward flexion activity, the doctor stated, “If the pushing is done with the arm going forward from the body, yes.” Although not certain before, Dr. Johnson was now of the opinion that claimant’s shoulder impingement syndrome was aggravated by her work.

The evidence deposition of Dr. M. Adeli was also admitted into evidence at the request of General Electric. Dr. Adeli, an orthopedic surgeon and board certified, conducted an examination of the claimant at the request of General Electric on May 2, 1986. He was also furnished materials relating to claimant’s case by her other doctor. In Dr. Adeli’s opinion, claimant’s job activities do not aggravate her condition and as long as the movement was up to the level of the head and not higher, it would not have much effect on the shoulder. The impingement syndrome could be caused by an injury or by other ailments, such as osteoarthritis or rheumatic arthritis, which can produce it or aggravate it. Dr. Adeli did not detect any specific work injury. He did state, however, that possible multiple minute trauma could produce an early small tear. This could, however, occur at work or out of the workplace. Dr. Adeli would permit her to return to work for light duty only because she has quite a bit of disability in her right shoulder.

On cross-examination, Dr. Adeli testified that if claimant’s job required her to lift her arms overhead fully extended to place an object, regardless of its weight, into a container, repetitively over a period of a year, such activity would not necessarily produce but could sometimes aggravate a shoulder impingement. Again, forward flexion motion in pushing on a weight of 20 to 50 pounds on a conveyor belt would rarely produce a shoulder impingement but it could aggravate it. While even in combination, Dr. Adeli did not believe the two movements described above would cause the shoulder impingement; however, if there was an impingement, those movements could aggravate it. When Dr. Adeli was asked whether there might be a causal connection between the claimant’s work and her carpal tunnel syndrome, the following exchange took place:

“Q. Could the type of work that she had described to you have been any causal connection between — or is there any causal connection between that type of work and this carpal tunnel syndrome that was found in Miss Holycross?
A. Well, the type of repeated motion can produce more, I would say, especially lower part, not raising up. It could produce carpal tunnel or epicondylitis. Those are more often possible.”

When questioned as to Dr. Johnson’s opinion that claimant’s shoulder impingement might have been aggravated by her work, Dr. Adeli indicated that under General Electric’s description, it did not, but under claimant’s description of her work activities, it could have aggravated her shoulder condition.

The arbitrator awarded benefits to claimant, finding that she had sustained accidental injuries on both February 6, 1985, and on June 25, 1985. He further found that claimant’s condition as a result of the June 25, 1985, accident had not yet reached a permanent stage and awarded her benefits under section 19(b) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b)). The arbitrator also awarded penalties and attorney fees against General Electric. General Electric appealed.

On review, the Industrial Commission found that claimant failed to prove that she had sustained accidental injuries on either February 6, 1985, or June 25, 1985, but found that she had sustained accidental injuries arising out of and in the course of her employment on August 6, 1985. The Commission also found that timely notice of the accidental injuries was given and that there was a causal connection between claimant’s accidental injuries and her condition of ill-being. The Commission also reversed the award of penalties and attorney fees.

The Commission relied on Dr. Johnson’s testimony that claimant’s carpal tunnel syndrome, epicondylitis, and shoulder impingement syndrome were aggravated by her work activities. The Commission discounted the fact that claimant had indicated that her disability was not work related on the group insurance form, noting that claimant was not an expert in the definition of accident under the Workers’ Compensation Act and that there was no prejudice to General Electric.

The Commission then concluded as follows:

“Based on the above and pursuant to Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026, 106 Ill. Dec. 235, which held that an injury is compensable under the Workers’ Compensation Act where it has been shown to be caused by the performance of the claimant’s job and has developed gradually over a period of time without requiring complete dysfunction or collapse, and that the date of an accidental injury in a repetitive trauma case is the date on which the injury ‘manifests itself,’ that is, the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person, the Commission finds in 85 WC 51439 that the Petitioner failed to prove she sustained accidental injuries arising out of and in the course of her employment on February 6, 1985 and finds in 85 WC 51440 that Petitioner sustained accidental injuries arising out of and in the course of her employment as the result of repetitive trauma on August 6, 1985, [rather than June 25, 1985] the day that Dr. Johnson took her off work because her employment aggravated her condition of ill-being.”

General Electric then sought review before the circuit court of Vermilion County. Relying on Peoria County Belwood Nursing Home v. Industrial Comm’n and Nunn v. Industrial Comm’n (1987), 157 Ill. App. 3d 470, the circuit court confirmed the decision of the Commission that claimant had failed to prove that she sustained accidental injuries on February 6, 1985. However, the circuit court determined that the Commission’s findings that claimant had failed to prove that she had sustained accidental injuries on June 25, 1985, but had, in fact, sustained them on August 6, 1985, were against the manifest weight of the evidence, and set aside those portions of the Commission’s decision. The trial court also confirmed that part of the- Commission’s decision denying attorney fees and penalties against General Electric.

The circuit court stated that the test set forth in Peoria County Belwood Nursing Home v. Industrial Comm’n does not require that the causal connection between the accidental injury and the claimant’s state of ill-being be plainly apparent to a reasonable physician. Dr. Johnson’s opinion on August 6, 1985, merely confirmed what was plainly apparent to a reasonable person on June 25, 1985. Therefore, the circuit court concluded, the substitution of the date of August 6, 1985, over June 25, 1985, by the Commission was error. This appeal by General Electric followed.

The sole issue on appeal is whether the decision of the Commission was against the manifest weight of the evidence.

At the outset, we find it instructive to note what is not on appeal, as well as what exactly is being appealed from. Apparently, all parties have accepted the Commission’s determination that claimant suffered no compensable accident on February 6, 1985. Further, all parties have accepted the Commission’s decision vacating the arbitrator’s award of attorney fees and penalties to the claimant. Although in her prayer for relief the claimant asks that this court find, as did the Commission, that she suffered an accident due to repetitive trauma on August 6, 1985, claimant has not filed a cross-appeal as to that issue, and therefore, the circuit court order setting aside that finding of the Commission stands. Therefore, the only issue before the court is whether the Commission’s determination that claimant did not suffer a compensable injury on June 25, 1985, is against the manifest weight of the evidence as the circuit court determined.

It is well settled that the findings of the Commission will not be disturbed unless they are against the manifest weight of the evidence. (Ferrin Cooperative Equity Exchange v. Industrial Comm’n (1976), 64 Ill. 2d 445, 448.) Further, the fact that an employee may have suffered from a preexisting condition will not preclude an award if the condition was aggravated or accelerated by the employment. (Williams v. Industrial Comm’n (1981), 85 Ill. 2d 117, 122.) After reviewing the record in this case, we are of the opinion that the decision of the Commission finding no compensable accident on June 25, 1985, was against the manifest weight of the evidence and that the circuit court was correct in determining that claimant had suffered a compensable injury on that date.

General Electric contends that claimant’s condition is noncompensable because her shoulder problems were simply a continuation of a preexisting condition, and that her work provided no greater risk or special strain than she would experience in performing everyday activities. General Electric argues that the record shows that claimant’s condition preceded both the February and June dates she alleged she was injured on, and that she was being treated by Dr. Johnson in connection with her shoulder prior to the February 6, 1985, date. General Electric cites claimant’s age, 57, and the fact that claimant testified that she had been having trouble with her shoulder since at least 1984, and that she had been treated since 1984 for bursitis and impingements. Finally, General Electric points to the fact that in filling out the group disability form, claimant indicated that her disability was not due to a work-related accident.

We first observe that the Commission chose to discount the significance of the group disability form on the basis that claimant had no expertise regarding the definition of the word “accident” under the Workers’ Compensation Act. As the Commission is the judge of the credibility of the witnesses, we cannot say that its rejection of General Electric’s argument in that regard was error.

General Electric’s argument that claimant’s condition was a continuation of a preexisting condition flies in the face of our supreme court’s decision in Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, and the medical testimony introduced in this case.

In Peoria County Belwood Nursing Home v. Industrial Comm’n, our supreme court held that the Workers’ Compensation Act encompasses those cases in which an employee’s work-related injury is gradual rather than the result of a sudden and/or completely disabling trauma. However, the claimant is still required to show that the injury is work related and not the result of a normal degenerative aging process. 115 Ill. 2d at 530.

Claimant testified that she had been employed by General Electric for 26 years. Dr. Johnson testified that in his opinion, claimant’s condition was or could be aggravated by the work she was performing. Further, Dr. Johnson also testified that a person of claimant’s age was more likely to suffer impingement syndrome when subjected to trauma. Even Dr. Adeli, who examined claimant on behalf of General Electric, testified that claimant’s work could have aggravated her condition if she performed in the manner described by claimant. General Electric disputes the fact that claimant, in order to perform her job, had to extend her arm over her head and relies on Dr. Adeli’s opinion that in that case, claimant’s work did not aggravate her preexisting shoulder condition.

There seems no disagreement that claimant suffered from a shoulder condition prior to the specific dates on which she claimed accidental injuries. Nonetheless, “[t]o deny an employee benefits for a work-related injury that is not the result of a sudden mishap or completely disabling penalizes an employee who faithfully performs job duties despite bodily discomfort and injury.” (Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 530.) The question then becomes did the work claimant performed for General Electric as of June 25, 1985, aggravate her preexisting condition, as claimant claims, or was it merely a continuation of claimant’s preexisting condition, as is claimed by General Electric.

It is well settled that the Commission is the judge of the credibility of the witnesses and the weight to be given their testimony. It is for the Commission to decide which of the conflicting medical opinions given in a case is to be accepted. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 43.) Given Dr. Johnson’s opinion that claimant’s work aggravated her condition and Dr. Adeli’s opinion that if claimant’s job required her to reach above her head, this motion could have aggravated her condition, we cannot disagree with the conclusion of the arbitrator, the Commission, and the circuit court that claimant suffered a work-related injury.

We do, however, disagree with the Commission’s conclusion that June 25, 1985, was not the date of the claimant’s injury.

In Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 531, our supreme court held “that the date of an accidental injury in a repetitive-trauma compensation case is the date on which the injury ‘manifests itself.’ ‘Manifests itself means the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.”

The circuit court correctly observed that the test established in Peoria County Belwood Nursing Home does not require that the causal connection be plainly apparent to a reasonable physician. The fact that Dr. Johnson offered his opinion as to a causal connection between claimant’s work and her condition of ill-being on August 6, 1985, although helpful, is not necessarily the date the injury “manifested itself.” As the circuit court noted, it was on June 25, 1985, that claimant noticed the “sharp pain” when she attempted to shove ballasts to her position. We agree with the circuit court that it was on that date that the fact of the injury and causal connection would have become plainly apparent to a reasonable person. We conclude, therefore, that the Commission’s determination that claimant did not suffer an accidental injury on June 25, 1985, was against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA and LEWIS, JJ., concur.

JUSTICE McCULLOUGH,

dissenting:

As the majority states, the Commission in its decision found “[petitioner sustained accidental injuries arising out of and in the course of her employment as the result of repetitive trauma on August 6, 1985, [rather than June 25, 1985] the day that Dr. Johnson took her off work because her employment aggravated her condition of ill-being.” (190 Ill. App. 3d at 854.) This decision is not against the manifest weight of the evidence.

We need only review the evidence which is indicated in the majority’s disposition. In the latter part of 1984, she began to note pain in her right shoulder, took some action, and in January 1985 experienced breathing problems and was referred to a doctor. She continued to work during this time, and on June 25, 1985, she was getting ready to test the ballasts and after shoving about 20 ballasts down to her test set felt a sharp pain in her right shoulder which went into her neck. She went to the nurse, who gave her a pain pill, and she returned to work. In July of 1985, she took one week’s vacation, returned to work, worked one week and then took two more weeks’ vacation and returned to work. While on vacation, she was not bothered by pain in her shoulder, but as soon as she used pressure, the pain returned. It was then on August 6, 1985, that the claimant saw Dr. Johnson. He gave her inflammatory pills, an injection, and told the claimant to stay home from work. As the Commission stated in its decision, “the date of an accidental injury in a repetitive trauma case is the date on which the injury ‘manifests itself,’ that is, the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.” (190 Ill. App. 3d at 854.) As pointed out recently by the supreme court in Sperling v. Industrial Comm’n (1989), 129 Ill. 2d 416, 421-22:

“[A] reviewing court will not set aside the decision of an administrative agency unless the findings are against the manifest weight of the evidence. *** We must, therefore, affirm, even though our decision, were we the trier of fact, may have been different.”