author: JUSTICE O’CONNOR

text:
    CARA TATE, Petitioner-Appellant, v. POLICE BOARD OF THE CITY OF CHICAGO et al., Respondents-Appellees.
    First District (1st Division)
    No. 1—91—3086
    Opinion filed January 4,1993.

      Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy and Thomas J. Pleines, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Bobbie McGee Gregg, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On March 26, 1990, the superintendent of Chicago police filed charges with respondent, Police Board of Chicago (the Board), alleging that petitioner, Cara Tate, violated several Chicago police department rules. The charges stemmed from events occurring on the night of September 18, 1988, both in and outside of the 29th Street police station in Chicago. Tate entered a plea of not guilty, and the Board conducted an administrative hearing. On January 15, 1991, the Board issued its “Findings and Decision” in which it found Tate guilty of the charges and discharged her from her employment. Tate sought administrative review in the circuit court. That court denied Tate’s petition and affirmed the Board’s findings and decision. Tate appeals.

We affirm in part and reverse in part.

At the administrative hearing, Vincent McLaurin testified that, on the night of September 18, 1988, he was driving on Prairie Avenue in Chicago, when he noticed that the car behind him “veered out” as if to pass him. The car did not pass, but remained behind McLaurin’s car. After a second attempt to pass was made, McLaurin speeded up and, at the corner of 29th Street, turned left. The car behind him then “cut [him] off” directly in front of the 29th Street police station. The driver of the car, identified as Tate, pointed at McLaurin and, as she exited her car, asked him to get out of his car. McLaurin refused, and Tate demanded to see his identification. McLaurin refused and asked Tate to show her identification. Tate again asked McLaurin for identification, then grabbed McLaurin by the neck. According to McLaurin, Tate, who was in plain clothes and drove her own car, never identified herself as a police officer. McLaurin grabbed Tate’s wrists and told her that if there was a problem, they could go to the nearby police station. Tate responded by demanding that he show his identification and exit the car. She grabbed McLaurin by the hair and pulled his head toward the outside of the car. During the altercation, Tate broke two gold necklaces which McLaurin was wearing.

As Tate and McLaurin continued to struggle, another car pulled up in front of Tate’s car. A uniformed woman and a man in plain clothes exited. The female officer told McLaurin to get out of the car, which he did, and the man handcuffed him. During Tate’s ensuing search of his car, McLaurin saw Tate “throw[ ] stuff around.” For example, she pulled McLaurin’s radio equalizer from the dashboard and dumped the purse of McLaurin’s female passenger. When Tate exited from his car, McLaurin detected a “strong” odor of alcohol. McLaurin indicated to the uniformed officer that he wished to press charges and later, at the station, saw Tate, pacing and talking loudly.

The testimony of Dawan Johnson, McLaurin’s passenger, was similar to McLaurin’s in all material respects. Johnson characterized Tate’s behavior that night as “rude and loud.”

Chicago police officer Donna Barnes testified that, as she was leaving the 29th Street police station, she saw Tate struggling with an individual who was seated in a car. At the time, Barnes had just gotten off duty and was being driven home by her fiance, Brandon English. Barnes noticed that Tate’s car was parked “diagonally” in front of the other car, and Tate was standing at that car, struggling with the driver and shouting for help. English backed his car up, and Barnes, with gun drawn, exited, announced her office, and ordered the driver out of the car. Sergeant Minogue then drove up to the scene and asked Barnes what was going on. Barnes explained that she responded to Tate’s shout for assistance, but did not know the nature of the altercation. Barnes then left the scene, but was later recalled to the station to fill out a report of the incident.

According to Sergeant James Minogue, McLaurin was in handcuffs, and Tate was searching McLaurin’s car when he arrived on the scene. The car’s stereo component was on the floor, and papers were strewn on the car’s floor. Barnes told Minogue that she saw Tate and McLaurin struggling as she was leaving the station. Another squad car then arrived at the scene, and Minogue ordered one of its officers to take charge of McLaurin. Tate told Minogue that she had noticed McLaurin driving suspiciously on Prairie Avenue and attempted to pull him over when he turned onto 29th Street. McLaurin refused and said to her “you must be one of them.” In response, Tate pulled her car in front of his. When McLaurin refused to exit his car, Tate saw Barnes and summoned her for assistance. Minogue stated that Tate was “agitated” and that he could “smell a little bit of alcohol on her breath.” Tate ignored him when he asked her if she had been drinking. Because McLaurin complained about his treatment, Minogue decided that everyone involved should return to the station. Minogue told Tate to go to the station, but ordered her not to drive. Tate replied that she was going to drive and entered her car. Minogue walked up to the car window and ordered her out of the car, but Tate put the car in gear and drove around him.

At the station, Minogue informed the watch commander, Lieutenant Margaret Nugent, of the incident. Tate, who was also present, was very loud and abusive toward both Minogue and Nugent. Tate would not listen to Minogue when he tried to speak with her. Her behavior was erratic, as she alternatively laughed and yelled. Minogue eventually was instructed to charge Tate with driving under the influence. He read Tate her Miranda rights. Tate refused to take a breathalyzer test when asked by both Minogue and Nugent.

Chicago police officer Percy Roland was also on the scene outside the station house on 29th Street, and Minogue told him to take McLaurin into custody. Roland later filled out a battery report and issued two traffic citations. At the station, Roland saw Tate “yelling” in the watch commander’s office.

Lieutenant Nugent interviewed both Minogue and Tate to determine if Tate had broken any department rule. Nugent noted that Tate’s eyes were “red and glossy,” and she had a “slight odor of alcohol on her breath.” As Minogue began to tell Nugent about the incident, Tate interrupted him and demanded to speak to someone from the Fraternal Order of Police. Tate continued to yell out and was “disruptive” and “boisterous.” Tate then asked to speak to Nugent alone. She explained that she had seen McLaurin driving suspiciously and had pulled him over. When Nugent asked Tate what legal justification she had had to make the stop, Tate “jumped out from her chair” and started yelling at Nugent. When Tate physically demonstrated the manner in which she pulled McLaurin from his car, Nu-gent asked her if she had been drinking. Tate replied that she had had a few drinks. Nugent characterized Tate’s behavior as erratic.

Nugent next spoke with Minogue. Both determined that Tate was under the influence of alcohol, and they consulted the “General Order” in order to ascertain how to handle the situation. Nugent obtained a “CR information” and notified the first deputy superintendent of the situation. At 1:30 a.m., Nugent instructed Minogue to start filling out the necessary forms. Nugent then returned to the office where she advised Tate that, based upon her actions and demeanor, and Minogue’s observations, Tate would be charged with “DUI.” Tate repeatedly stated that she had done nothing wrong and interrupted Minogue as he attempted to read her Miranda rights to her. After Tate was informed of her administrative rights, Nugent ordered her to submit to a breathalyzer test, but Tate refused. Tate was allowed to telephone the Fraternal Order of Police.

Sergeant Wayne Hovland of the Chicago police department’s internal affairs division was summoned in connection with Tate’s case. Hovland arrived at the 29th Street station between 3:30 and 4 a.m. After speaking with Nugent, Hovland determined that there was “sufficient cause” to require Tate to submit to a urinanalysis. He introduced himself to Tate and advised her that, based on her actions, he was requiring a urine specimen from her. He told her that she would be asked to submit to the test first, and, if she refused, would then be given a direct order to submit. Tate refused to cooperate, and Hovland then prepared a new notification of charges stemming from this refusal. According to Hovland, the “criminal aspect of the investigation” had been terminated when he asked Tate to submit to the urinanalysis. Hovland attempted to explain to Tate that the administrative proceedings were commencing, but Tate continually interrupted him.

Assistant Deputy Superintendent Ivan Rittenberg was called to the 29th Street station, where he introduced himself to Tate. After being apprised of the situation by both Minogue and Nugent, he informed them the appropriate action to take consisted of issuing-Tate a citation for “DUI” and of allowing McLaurin to lodge a complaint. He then instructed Minogue and Nugent to begin the administrative investigation. To that end, Tate was advised of her administrative rights and was told that she was no longer in custody. Rittenberg stated that he made clear to Tate that the administrative procedure was not “to garner evidence against her in a criminal prosecution.” Tate was ordered to give a urine sample and to submit to the breathalyzer test. Rittenberg informed her that she could not be forced to do either, but that under administrative law, she was required to comply. Rittenberg described Tate as “angry” and “irritated.” Rittenberg was present when Tate refused to comply with the orders given to her.

Chicago police evidence technician Thomas Kelly was called to the 29th Street station to administer a breathalyzer test to Tate. Kelly witnessed Tate refuse Nugent’s order to submit to the test.

In her own behalf, Tate testified that she was off duty on September 18, 1988, but went to the 29th Street station to pick up her paycheck. As she was looking for a parking space, she noticed a car behind her. The car pulled up alongside her vehicle, and the driver, McLaurin, shouted, “There is one of those motherfuckers there.” Tate characterized the driver’s actions as “suspicious.” McLaurin “veered” sharply in front of Tate’s car and “almost” hit it. Tate drove after him, pulled alongside his car, and showed her identification badge. She then asked him to pull over. After identifying herself as a police officer, she ordered McLaurin from his car. McLaurin reached out to Tate through his open car window. He grabbed her fingers and wrist and “bent them back.” As she was struggling with McLaurin, Tate saw Officer Barnes and Barnes’ fiance leave the station, and she yelled to them for assistance. With the aid of Barnes and English, McLaurin was removed from the car and handcuffed. Tate denied ever grabbing McLaurin by the shirt, neck, or hair. When Sergeant Minogue came to the scene, McLaurin began screaming and yelling so Minogue told everyone to go to the station to “straighten things out.” Minogue then walked toward the station, and Tate went to her car, which was still in the street, and drove it to a nearby parking area. Tate stated that she never heard Minogue tell her not to drive. At the station, Tate was told to go to the watch commander’s office.

Minogue joined her in the office, and she told him what had occurred. He then left the office and returned with papers. Minogue told her that McLaurin said she had been drinking and that they would have to charge her with “DUI.” Minogue read Tate her Miranda rights. Tate became very upset at this time. She refused to submit to the breathalyzer test because she believed that, under Miranda, she did not have to say or do anything. Tate maintained that she had not been drinking and that she was not under the influence of any substance. Tate was “very confused” because she had never been in such a situation in her life. Between 4:30 and 5 a.m., Roland gave her two tickets and the implied motorist consent form. Hovland then arrived and read her administrative rights. Tate told Hovland that she was not answering any questions under her Miranda rights. Tate stated that she believed that her criminal rights “overrode” the administrative rights. Hovland told her that the criminal investigation was over and asked for a urine sample. When she refused, Hovland ordered her to provide the sample. Tate refused, stating that she was “being railroaded” for something she did not do. At 5 a.m., she was allowed to leave the station.

The two tickets Tate received that night were eventually “thrown out” of court, and Tate was never convicted of any offense arising from the night’s events. Tate returned to duty two weeks later, reporting to the field inquiry unit. Tate has never been disciplined for any other conduct apart from the incident at question, and she has received efficiency ratings in the high 80s and low 90s. During her tenure as a police officer, Tate received six honorable mentions. Tate admitted that she was “confused” on the night in question because she had “never been locked up and they kept threatening [her] with that.” Tate maintained that she did not intend to be insubordinate.

Several witnesses testified to Tate’s good character, excellent work record, truthfulness, respectfulness, and sobriety. However, one witness, Chicago police officer Rosella Clayborn, admitted that on the day after the incident, Tate had telephoned her and had told Clayborn that she had been drinking vodka before she had the altercation at the station. Tate also admitted to Clayborn that she had sworn at some officers.

Tate’s first argument concerns the Board’s finding that Tate violated Rule 14, which prohibits an officer from “making a false report, written or oral.” The Board found that Tate violated Rule 14 by providing “false responses during her formal statement at the Internal Affairs Division.” In response, the Board concedes that this finding is against the manifest weight of the evidence and that this court “must overturn the Board’s decision with respect to this finding.” Accordingly, we vacate the Board’s finding of guilt as to Rule 14.

Tate next challenges the Board’s finding that she violated Rule 6, arguing that the finding is contrary to law.

Specifically, the Board found that Tate violated Rule 6 (“disobedience of an order or directive, whether written or oral”) by refusing to comply with Sergeant Minogue’s order not to drive her car, Lieutenant Nugent’s order to submit to the breathalyzer test, Sergeant Hovland’s order to provide a urine specimen, and by failing to do either, contrary to the Department’s written directives.

Tate contends that these findings of guilt are contrary to law in that her Miranda rights protected her from having to respond to questioning and submit to the tests.

We have reviewed carefully the record and are satisfied that Tate received the full constitutional protection afforded to her by the Miranda rights. The testimony adduced at the hearing clearly establishes that the criminal aspect of the investigation had ended and the administrative process had commenced when Tate refused to obey the orders of her superiors.

Parenthetically, we note that the Miranda rights do not shield citizens from requests for chemical breath analyses. The United States Supreme Court has held that the privilege against self-incrimination does not extend to circumstances such as requests for a sample of blood from a defendant in order to perform a blood test. (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) The Court noted that Miranda applied only to “testimonial” evidence and not to “physical” evidence. (Schmerber v. California, 384 U.S. at 764-65, 16 L. Ed. 2d at 916-17, 86 S. Ct. at 1832-33.) Our own supreme court, in addressing the same argument with regard to breathalyzer tests, adopted the Schmerber holding in People v. Mulack (1968), 40 Ill. 2d 429, 240 N.E.2d 633.

Tate also complains that the Board did not follow its own regulations in the pursuit of its investigation, arguing that the State’s Attorney’s office was never contacted during the course of events on September 18,1988. We find this argument unpersuasive.

The department’s “Conduct of Investigation” states:

“If the alleged act is a crime and the evidence is such that had the crime been committed by a private citizen it would have resulted in his arrest, the investigator will explain the circumstances to his commanding officer of exempt rank who will contact the Assistant Deputy Superintendent, Internal Affairs Division, the Administrators of the Office of Professional Standards, or the on duty assistant deputy superintendent, Bureau of Operational Services. The Assistant Deputy Superintendent, Internal Affairs Division Administrators of the Office of Professional Standards, or the assistant deputy superintendent, as appropriate, will determine the further action to be taken, consulting the office of the State’s Attorney and appropriate Detective Division personnel for guidance when necessary’’ (Emphasis added.)

As the above-cited language indicates, notification of the State’s Attorney is not mandatory. The evidence adduced at the hearing indicates that the directive was followed and that the appropriate personnel were contacted.

An administrative agency’s findings of fact upon review “shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 110.) Upon review of the findings of an administrative agency such as the Board here, this court must determine whether the findings are against the manifest weight of the evidence. (Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419.) This court is precluded from weighing the evidence and then determining where the preponderance of the evidence lies. (Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1094, 494 N.E.2d 171.) Therefore, the focus, upon review, is on whether the agency’s final decision is just and reasonable in view of the evidence in the record. Mead, 143 Ill. App. 3d at 1095.

Here, Minogue testified that he ordered Tate not to drive her car, but that she disobeyed this order. Nugent averred that she ordered Tate to submit to the breathalyzer test, and Tate refused. Sergeant Hovland swore that Tate refused to obey his two orders to provide a urine sample. Finally, Rittenberg testified that he was present when Tate refused to take the breathalyzer test and to provide a urine sample. We are particularly mindful of the fact that Tate was informed, at the conclusion of the criminal investigation, that the administrative process against her was beginning. Although Tate may very well have been “confused” and “frightened” during the events of the night, the record reveals that those around her attempted to alleviate some of these anxieties. For example, Tate’s superior officers tried to differentiate between the Miranda warnings and the administrative rights for Tate, but Tate was disrespectful, disruptive, and discourteous during these attempts. The Board’s determination regarding Tate’s violation of Rule 6 was not against the manifest weight of the evidence.

Tate also contends that the sanction of discharge is too severe a penalty for the type of infractions at issue.

A public employee in Illinois can only be discharged for “cause.” “Cause” has been held to mean “some substantial shortcoming which renders continuance in his office or employment in some way detrimental.” (Mihalopoulos v. Board of Fire & Police Commissioners (1978), 60 Ill. App. 3d 590, 596, 376 N.E.2d 1105. See also Massingale v. Police Board (1986), 140 Ill. App. 3d 378, 380, 488 N.E.2d 1289; Albert v. Board of Fire & Police Comm’n (1981), 99 Ill. App. 3d 688, 425 N.E.2d 1158.) Unlike the Board’s findings of fact, determinations of “cause” are subject to judicial review to determine if the charges brought are unreasonable or arbitrary, and the dismissal is unrelated to the requirements of service. (Mihalopoulos, 60 Ill. App. 3d at 596.) Moreover, “cause” for discharge can be found regardless of whether other employees have been disciplined differently. Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419.

We are of the opinion that Tate’s conduct, when viewed in its entirety, warrants the sanction of dismissal. Although Tate’s continued refusals to obey the orders of her superiors were egregious acts of insubordination, even more troubling was her physical altercation with McLaurin, a private citizen who the record indicates had done nothing to warrant such police action. This alone is conduct which is detrimental to both the discipline of and the efficiency of the department. See Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 378 N.E.2d 1160.

Although we have reversed the Board’s findings as to Tate’s alleged violation of Rule 14, remandment of the entire cause to the Board is unnecessary in light of our affirmance of what we consider to be the more serious charges against Tate. See Basketfield v. Police Board (1974), 56 Ill. 2d 351, 307 N.E.2d 371 (remand proper where only the less serious finding of the Board is sustained on appeal); see also Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 382 N.E.2d 90 (cause not remanded where more serious charges were affirmed and a lesser charge was reversed on review).

The order of the circuit court, therefore, is reversed in part and affirmed as modified to reflect the vacatur of the Board’s finding of guilt as to Rule 14.

Reversed in part and affirmed as modified.

MANNING, P.J., and BUCKLEY, J., concur.

      Tate was accused of violating Rule 1 (“violation of any law or ordinance”), Rule 2 (“any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department”), Rule 6 (“disobedience of an order or directive, whether written or oral”), Rule 7 (“insubordination or disrespect toward a supervisory member on or off duty”), Rule 8 (“disrespect to or maltreatment of any person, while on or off duty”), Rule 9 (“engaging in any unjustified verbal or physical altercation with any person, while on or off duty”), Rule 14 (“making a false report”), and Rule 15 (“intoxication on or off duty”).


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    MARION BODAM, Indiv. and as Special Adm’r of the Estate of Scott Bodam, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—91—2964
    Opinion filed January 15,1993.

      Craig D. Tobin & Associates, of Chicago (Craig D. Tobin and Thomas Petkus, of counsel), for appellant.
    Hennessy & Cihak, P.C., of Chicago (Barry Locke and Michael J. Hennessy, of counsel), for appellee Estate of Gilbert Armbruster.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Marion Bodam (Bodam), individually and as special administrator of the estate of her husband, Scott Bodam (Scott), deceased, appeals from a directed verdict granted to Judith Belva, administrator of the estate of Gilbert Armbruster. For the reasons that follow, we affirm the ruling of the trial court.

On September 5, 1984, Scott Bodam, a freelance painter, fell to his death while working on a building located at 1652 West Belmont in Chicago. The building was owned by the estate of Gilbert Armbruster. On April 16, 1985, Marion Bodam instituted a wrongful death lawsuit in her capacity as administrator of the estate of her deceased husband. She named as defendants the City of Chicago (City) and Judith Belva (Belva), as special administrator of the estate of Armbruster (the Estate).

The initial complaint charged the City with negligence, contending that it had improperly maintained certain overhead wires near the building at 1652 West Belmont and that these wires proximately caused Scott to be electrocuted and then fall to his death. In a second count Bodam charged the Estate with wrongful death under the Illinois Structural Work Act (commonly referred to as the Scaffolding Act). See Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.

The complaint was later amended. The amended complaint restated the negligence count against the City. However, it also charged the Estate with negligence, contending that an electrical sign which was attached to the building was improperly maintained and that the sign was the proximate cause of Scott’s electrocution and fall. In addition, Bodam charged both the City and the Estate with negligence on a theory of res ipsa loquitur and the Estate, once again, with a violation of the Scaffolding Act.

On May 21, 1991, trial began. Evidence adduced at trial indicated that the building at 1652 West Belmont required some rehabilitation and maintenance, so that the Estate hired Wally Kostachewsky (Kostachewsky), a freelance painter and friend of Judith Belva and her husband Brian, to complete the necessary work on the building. After working on the building for two weeks, Kostachewsky was contacted by a friend, Scott Bodam, who asked if Kostachewsky had any work for him to do. Scott was also a freelance painter who had worked with Kostachewsky on other occasions. They sometimes called each other when they needed someone to assist on a job.

Kostachewsky said that he could use some help painting the peak of the building on Belmont and said he would ask Belva if it would be alright to let Scott assist. Belva agreed and Kostachewsky called Scott on September 4, 1984, to work on September 5,1984.

At about 8:20 a.m. on September 5, 1984, Scott arrived at the 1652 West Belmont location and assisted Kostachewsky in setting up the equipment necessary for the job. To reach the peak of the building required a long extension ladder, which neither Kostachewsky nor Scott owned. However, Brian Belva gave them permission to use a metal extension ladder that was stored at the building. That morning Scott and Kostachewsky positioned the ladder and Scott began to paint.

Scott worked on the ladder, climbed down, repositioned the ladder and then climbed back up. At about 10 a.m., Scott climbed down the ladder again and left the area for about one hour. Upon his return, he and Kostachewsky had some lunch. After lunch, however, when Scott scaled the ladder to retrieve his paint bucket and resume work, he fell to his death.

Kostachewsky, who was on a nearby scaffolding, saw Scott begin to climb the ladder. He looked away as he reached for a scraper to give to Scott. Then Kostachewsky heard an “Uuhh” sound. He looked up just in time to see Scott throw his arms back and fall from the ladder.

Dr. Edmund Donoghue, deputy chief medical examiner for Cook County, supervised and assisted in the autopsy examination of Scott Bodam. He testified that the autopsy revealed that although Scott’s death was due to injuries he sustained because of the fall from the ladder, Scott fell from the ladder because of electrocution. Because the autopsy indicated electrocution, Dr. Donoghue, along with two other medical examiners, went to the Belmont Avenue address on September 6, 1984, to inspect the scene of the accident. There they spoke with Kostachewsky. During this investigation it was determined that the electrical sign attached to the building was disconnected from any power source.

William Switalski, a mechanical and forensic engineer, testified that he had inspected the building and the location where Scott had been when he had fallen. Based upon his observations and calculations he believed that there were only two possible sources of electricity that could have caused Scott’s electrocution. One was the sign which was attached to the building, the other was the overhead alarm wires, which were owned by the City. Mr. Switalski also testified that the overhead wires were the more likely source of the electricity and that areas on the overhead wire were bare where the insulation was frayed and had been worn away.

After plaintiff’s evidence was presented, the Estate moved for a directed verdict, arguing that all the evidence pointed to the fact that the source of the electricity that caused Scott’s electrocution and fall was the City’s wires and that there was no liability under the Scaffolding Act. The trial court granted the Estate’s motion for directed verdict as to all counts raised against it and the trial proceeded only as to the City.

The jury returned a verdict in favor of the plaintiff and against the City in the amount of $685,500, with a 70% reduction due to Scott’s contributory negligence. Neither the City nor plaintiff has appealed from that judgment, nor is the City a part of the present appeal. The present appeal is brought by plaintiff only from the trial court’s order granting the Estate a directed verdict. Nevertheless, plaintiff’s plea for relief seeks reversal of the judgment below and a remand for a new trial.

Initially, we note that both parties have presented forceful briefs concerning the propriety of the trial court’s directed verdict in the Estate’s favor. However, neither party has addressed the impact that the judgment entered against the City of Chicago has upon this appeal. We find, however, that the judgment entered against the City does affect the issues here. In fact, the issue of the Estate’s liability, at least with respect to the negligence counts, is moot based upon the fact that a judgment, which has not been appealed and is now final, has been entered against the City. Thus, we find that there is no need to determine the correctness of the trial court’s directed verdict in favor of the Estate on the two negligence counts.

In order to recover in a negligence action, a plaintiff must be able to show: (1) the existence of a duty, (2) a breach of that duty, (3) an injury proximately resulting from the breach, and (4) damages. (Lucker v. Arlington Park Race Track Corp. (1986), 142 Ill. App. 3d 872, 492 N.E.2d 536.) Damages cannot be severed from the liability issue during a plaintiff’s case because damages are an integral part of a prima facie case of negligence. (American National Bank & Trust Co. v. City of North Chicago (1987), 155 Ill. App. 3d 970, 508 N.E.2d 1111.) In the present appeal Bodam seeks a reversal of the directed verdict entered against her and a new trial to prove that the Estate was negligently liable for the wrongful death of Scott. However, even if Bodam were given the opportunity to prove liability in a new trial, Bodam would be unable to make out a prima facie case. This is because any compensatory damages to which Bodam would be entitled have already been satisfied by the final judgment entered against the City of Chicago.

At oral argument plaintiff’s attorney all but conceded that the negligence counts were no longer viable. Counsel’s only argument for allowing the negligence counts to be litigated was an unsupported claim that plaintiff should not be limited to the amount of damages determined in the trial against the City. However, it has long been held that where a plaintiff has been awarded damages in a lawsuit against one tortfeasor and then seeks to hold a second tortfeasor liable for the same injury in a subsequent action, the plaintiff is estopped by the former adjudication from recovering an amount of damages greater than that awarded in the first suit. (See Riley v. Unknown Owners of 304 North Oak Park Avenue Building (1975), 25 Ill. App. 3d 895, 324 N.E.2d 78.) Consequently, since plaintiff would be unable to obtain any greater damages in a subsequent lawsuit against the Estate and she has already been fully compensated by the City, plaintiff has no cause of action against the Estate based upon a theory of negligence since she is lacking an essential element, i.e., damages.

Despite the preclusive effect that the doctrine of collateral estoppel has upon the negligence counts, plaintiff argues she is not estopped from pursuing the alleged violation of the Illinois Structural Work Act and that this court should reverse the trial court’s order granting the Estate a directed verdict on this issue. It is plaintiff’s position that, even if recovery of damages were limited to the total amount of damages as determined by the trial court in the first suit against the City, she could still recover the amount of damages that were deducted from the total judgment based upon Scott’s contributory negligence. This is because the common law doctrines of assumed risk and contributory negligence may not be considered when determining damages upon a showing of a violation of the Illinois Structural Work Act. Schmid v. United States (7th Cir. 1959), 273 F.2d 172; Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 190 N.E.2d 315.

Although we find the inconsistency and inequity of this situation to be puzzling, it has apparently been held that it is not unconstitutional for the Act to allow construction workers’ widows suing under the Scaffolding Act to recover more than widows of other persons suing under some other theory or law. (Mitseff v. Acme Steel Co. (N.D. Ill. 1962), 208 F. Supp. 805.) Thus, this court must consider whether the trial court erred in granting the Estate’s motion for directed verdict on this count.

On appeal plaintiff argues that the trial court erroneously granted the Estate a directed verdict based upon a finding that the Estate was not in control of the jobsite within the meaning of the Structural Work Act. However, this representation is not entirely accurate. While it is true that the trial court stated at some point during argument on the motion “[tjhere’s not one scintilla of evidence that he (Brian Belva) ever used any control over him (Scott) that day,” this does not seem to be the only basis for the trial court’s ruling on the motion for directed verdict. In an earlier discussion of the evidence during argument on the motion, the trial court also considered the fact that there was no evidence that the ladder had any burn marks on it which might indicate that it had come in contact with the electricity, there was no evidence that the ladder was defective, and there was no evidence that the ladder was unstable causing it to move or slip so as to cause Scott to come in contact with the electrical wires.

We believe that, under the circumstances, the Illinois Supreme Court’s recent ruling in American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 594 N.E.2d 313, is directly applicable. In American National the plaintiff’s deceased (Lukas) was electrocuted while painting a billboard sign. Lukas and his co-worker set up an aluminum staging supported by grappling hooks attached to the top of the sign. After painting the middle of the sign, Lukas climbed a ladder up to the top of the sign to move the grappling hooks. Although there were no witnesses, the coroner established that Lukas’ forehead somehow came in contact with a nearby high voltage line.

After reviewing a number of cases which have interpreted the Scaffolding Act in the context of workers’ contact with electrical or power lines, the court held that the purpose of the Structural Work Act was to ensure stable support to a worker and, thus, it had no application to a situation where a stable support structure’s placement near electrical wires allowed the worker to come in close proximity to ambient hazards such as electrical wires.

Although we believe that the American National case is dispositive of the matter here, another case, O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, 543 N.E.2d 546, lends further support for our judgment. In O’Rourke the trial court granted summary judgment to defendant on the issue of a violation of the Structural Work Act finding that the Act was not intended to cover any and all construction site injuries, but rather, that it must be shown that the structure or supporting device was defective and that the defect proximately caused the injury.

In the present case, as in O’Rourke and American National, there was no evidence that the supporting device was defective or unstable. The ladder was in good condition and contained rubber “shoes” to keep it from slipping. It is true that, being metal, it was a conductor of electricity. However, that fact alone does not make the ladder defective, especially since there was no evidence that the ladder came directly in contact with electricity.

Furthermore, even if the trial court did grant the directed verdict based upon a finding that the Estate failed to exercise the necessary control over the jobsite, we would have to affirm the decision. We agree with the court in O’Rourke when it stated that “[m]ere ownership of a premises on which structural work was being performed or retention of the right to reject or stop the work is not a sufficient basis for holding an individual is ‘in charge’ of structural work within the meaning of the Structural Work Act.” (O’Rourke, 187 Ill. App. 3d at 583.) In the present case there was no evidence that the Estate or its representatives were in charge of or exercised any control over the jobsite. Scott and Kostachewsky, both professional freelance painters, set the ladder up and worked without direction or supervision.

For the reasons stated above, we affirm the order of the circuit court granting the estate of Armbruster directed verdicts on the three counts lodged against it by the estate of Bodam.

Affirmed.

GORDON, RJ., and COUSINS, J., concur.

      The complaint was initially filed against Mildred Armbruster, as administrator of the estate of her husband, Gilbert Armbruster, deceased. However, on August 25, 1989, during the course of this litigation, Mildred Armbruster died. On February 8, 1991, Judith Belva, the daughter of Gilbert and Mildred Armbruster, was named special administrator of the estate for the purpose of defending the cause of action.

      In fact, Kostachewsky resided in the same building as the Belvas, at 2300 Lawn-dale, and the Belvas were his landlords and neighbors.


author: JUSTICE COUSINS

text:
    U S G INTERIORS, INC., Plaintiff-Appellant, v. COMMERCIAL AND ARCHITECTURAL PRODUCTS, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—91—1581
    Opinion filed January 15,1993.

      Sachnoff & Weaver, Ltd., of Chicago (Joel S. Feldman and Michael M. Kaplan, of counsel), for appellant.
    Oppenheimer, Wolff & Donnelly, of Chicago (David C. Bohrer, of counsel), for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

In this case, the plaintiff, USG Interiors, Inc. (USG), appeals from a grant of summary judgment by the trial court in favor of the defendant, Commercial And Architectural Products, Inc. (CAP), on a breach of contract claim. For the year beginning January 1, 1989, USG seeks proration and reimbursement from CAP for a prorated portion of personal property taxes that USG paid on some of the assets purchased by CAP. In granting the motion, the trial court ruled that the contract was unambiguous and required USG to pay the personal property tax liability for the entire year.

The issues presented for review are (1) whether the trial court erred in finding the general allocations of liabilities language in the purchase agreement to be unambiguous concerning the personal property taxes; (2) whether the trial court erred in failing to consider provisionally extrinsic evidence to determine whether language in the contract was ambiguous; and (3) whether the trial court erred in failing to consider the intent of the parties when it determined the meaning of the word “incur.”

We affirm.

Background

USG manufactures and markets a diverse product line of ceiling wall and floor systems. It sold certain assets to CAP. Some of the assets purchased by CAP are located in Georgia, Texas, and Ohio. These States impose personal property taxes.

The parties executed a purchase agreement (Asset Purchase Agreement) on or about December 21, 1988, and the closing occurred on January 27, 1989. There is no express provision allocating personal property tax liability. The agreement, however, does include a general section for the allocation of liabilities. The pertinent language in the purchase agreement provides that except for assumed liabilities, “Purchaser shall assume no costs, liabilities, obligations, or duties of the Seller *** prior to the Closing Date of any nature *** incurred or accrued, *** including *** any *** state *** or other taxes except as provided in the Real Estate Contract.” (Emphasis added.) Under the terms of the agreement, the payment of personal property taxes are not listed as an “Assumed Liability.”

The assets located in Georgia, Texas, and Ohio were subject to personal property taxes incurred throughout calendar year 1989. USG paid all of the personal property tax bills, which amounted to approximately $188,000. The assets purchased by CAP from USG exceeded $20 million.

USG contends that personal property tax liability can only be prorated based on time of ownership; that because CAP consisted of former senior USG executives, the parties knew that the personal property tax liability had always been incurred on USG’s books based on time of ownership; that the custom and practice of the industry is to prorate; and that any ambiguity should be interpreted against CAP since it drafted section 3.5.

CAP contends that the purchase agreement was unambiguous and that the personal property taxes imposed by statutes for Georgia, Texas, and Ohio attach on January 1 of the calendar year thus creating liability for the person owning the property on January 1.

USG brought this action against CAP alleging breach of contract and in the alternative unjust enrichment. The unjust enrichment claim is not a part of this appeal.

Both parties filed motions for summary judgment based upon the written contract. The trial court granted CAP’s motion for summary judgment and denied USG’s motion. Appeal was taken from this order.

Opinion

I

We note in the case sub judice that one of the contentions by USG before the trial court was that the contract was ambiguous.

USG asserts that the trial court erred in finding that the general allocations of liabilities language in the purchase agreement was unambiguous concerning the personal property taxes. We find no error.

The trial court’s grant of summary judgment in favor of CAP was proper. Summary judgment is proper procedure where only construction of an agreement is at issue. (Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App. 3d 153, 154, 397 N.E.2d 75, 77.) Questions of law are appropriate for summary judgment. And the meaning and construction of a written instrument are questions of law for the court where there is no ambiguity created by the language used, or where some disputed extrinsic facts, such as the particular meaning attached to the words by the parties, create an ambiguity in the meaning of the instrument. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824-25, 483 N.E.2d 1013, 1015.) Construing the language of a contract is a matter of law appropriate for summary judgment. (In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 539, 510 N.E.2d 1057, 1060.) The determination of whether contract language is ambiguous is a question of law. (1000 Condominium Association v. Carrier Corp. (1989), 180 Ill. App. 3d 467, 469, 535 N.E.2d 1144, 1146.) Construction of a clear and unambiguous contract is a matter of law appropriate for summary judgment. J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 748, 551 N.E.2d 340, 342.

The Illinois Supreme Court has held that courts must initially determine, as a question of law, whether the language of a purported contract is ambiguous as to the parties’ intent and, if the language of the contract is clear and explicit, then courts, as a matter of law, must derive the parties’ intent and the meaning of the instrument solely from the writing itself. Rakowski v. Lucente (1984), 104 Ill. 2d 317, 323, 472 N.E.2d 791, 794; Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288, 565 N.E.2d 990, 994.

The pertinent language of the contract between USG and CAP provides:

“3.5. Excluded Liabilities. Except for Assumed Liabilities, Purchaser shall assume no costs, liabilities, obligations or duties of Seller or relating in any way to the Assets or the operations of the Business prior to the Closing Date of any nature whatsoever, whether contractual or otherwise, incurred or accrued, absolute or contingent, direct or indirect, including without limitation any cost, obligation or duty under or for *** (iv) any federal, state, local or foreign, income, sales, excise or other taxes except as provided in the Real Estate Contract.”

In its brief, USG interprets the phrase “incur or accrue,” as it relates to personal property taxes, as meaning incurring or accruing with time. As such, USG contends that since the closing occurred on January 27, 1990, USG owned the assets for only one month of the tax year and, accordingly, incurred liability for only one-twelfth of the personal property tax bill. This argument is not persuasive. We note that the contract uses “incurred or accrued” and not “incur” or “accrue.” “Incurred or accrued” reflects the past while “incur or accrue” reflects the future. “Incur” means to become liable or subject to. Black’s Law Dictionary 768 (6th ed. 1991).

The trial court interpreted the language of the contract to mean that CAP assumed no tax liabilities which USG had incurred. The trial court was correct in finding the meaning of the word “incurred” to be unambiguous in the contract and the trial court’s finding was reasonable.

A court must construe the meaning of a contract by looking at words used and cannot interpret the contract in a way which is contrary to the plain and obvious meaning of these words. J.M. Beals, 194 Ill. App. 3d at 748, 551 N.E.2d at 342.

USG also contends that the trial court erred in finding that the contract was unambiguous regarding the obligation of USG to pay the Georgia, Texas, and Ohio personal property taxes. We find no error.

The Georgia statute provides that taxes shall be charged against the owner of the property if the owner is known (Ga. Code Ann. §48 — 5—9 (Michie 1982)), that each return by a taxpayer shall be for property held and subject to taxation on January 1 next preceding each return (Ga. Code Ann. §48 — 5—10 (Michie 1982)), and that nothing in the code section should be construed to impose liability upon any person for any property which was not owned January 1 of the applicable tax year (Ga. Code Ann. §48 — 5—23(d) (Michie 1982)).

The Texas statute provides that property taxes are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed and that a person is not relieved of the obligation because he no longer owns the property. Tex. Tax Code Ann. §32.07 (West 1982).

The Ohio statute provides that all taxable personal property and credits used in a business shall be listed as of the close of business of the last day of December and that the subsequent transfer of taxable property shall not authorize the taxpayer to omit the same from his return (Ohio Rev. Code Ann. §5711.03 (Anderson 1991)).

Citing Crown Pipe & Foundry, Inc. v. Davis (1960), 167 N.E.2d 390, 394, Amoco Oil Co. v. G. Sims & Associates (1982), 162 Ga. App. 307, 291 S.E.2d 128, and State v. Smith (Tex. 1968), 434 S.W.2d 342, USG further asserts that the January 1 date creates an inchoate and contingent lien in favor of the State and that the Ohio, Georgia, and Texas courts have ruled that the contingent lien is null and void until the State publishes a notice of delinquency and files the lien.

However, these cases are inapposite. Crown involves an estoppel issue, and Amoco Oil and Smith involve the perfection of tax liens. The issue in this case is whether a legal obligation to pay property taxes had been incurred. USG’s cases confirm the distinction between a lien and an incurred legal obligation.

In examining the applicable Georgia, Texas, and Ohio statutory provisions, it is clear that USG was solely liable to the States for the payment of the personal property taxes as USG was the sole owner of the property as of January 1, 1989 (December 31, 1988, in accordance with the Ohio statute).

Moreover, the mere fact that parties disagree on a term of a contract is not a sign that the term is ambiguous, and unless the agreement unequivocally specifies its own meanings, the court must interpret the words of the contract with their common and generally accepted meanings. La Salle National Bank v. Wieboldt Stores, Inc. (1965), 60 Ill. App. 2d 188, 202, 208 N.E.2d 845, 853; J.M. Beals, 194 Ill. App. 3d at 748, 551 N.E.2d at 342.

We further note that USG contends that the language of the contract must be construed against the drafter, CAR We disagree. Where the language of a contract is clear and unambiguous, this rule of construction is inapplicable. Western Illinois Oil Co. v. Thompson (1962), 26 Ill. 2d 287, 291, 186 N.E.2d 285, 287; Smith v. Johnston (1979), 73 Ill. App. 3d 601, 606, 391 N.E.2d 1092, 1096; Puckett v. Oelze (1985), 134 Ill. App. 3d 1020, 1025, 481 N.E.2d 867, 871.

II

USG contends that the trial court erred in failing to consider provisionally extrinsic evidence to determine whether the language in the contract was ambiguous. Specifically, USG sought the admission of extrinsic evidence regarding usage and custom relative to the construction of the agreement. We find no error.

We are mindful that some Illinois appellate courts have held that a court may permit the admission of parol or extrinsic evidence provisionally to determine whether an ambiguity exists in the writing. U I D C Management, Inc. v. Sears Roebuck & Co. (1986), 141 Ill. App. 3d 227, 230, 490 N.E.2d 164, 166 (the appellate court affirmed the portion of the trial court’s judgment finding that terms of the contract were unambiguous); Design Studio International, Inc. v. Chicago Title & Trust Co. (1989), 185 Ill. App. 3d 797, 803, 541 N.E.2d 1166, 1169 (the appellate court supported the trial court’s decision to consider extrinsic evidence because the lease was ambiguous); Riney v. Weiss & Neuman Shoe Co. (1991), 217 Ill. App. 3d 435, 443, 577 N.E.2d 505, 509 (the appellate court affirmed the trial court’s consideration of extrinsic evidence and its conclusion that no ambiguity existed).

However, when interpreting a written agreement, evidence of custom and usage may be used only when the writing is ambiguous. (Ambarann Corp. v. Old Ben Coal Corp. (1946), 395 Ill. 154, 164, 69 N.E.2d 835, 840; Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 406, 405 N.E.2d 418, 426.) Here, the writing is unambiguous, and the general rule that the trial court must derive the parties’ intent solely from the writing itself is applicable. Rakowski, 104 Ill. 2d at 323, 472 N.E.2d at 794; United Equitable Insurance Co. v. Reinsurance Co. of America, Inc. (1987), 157 Ill. App. 3d 724, 731, 510 N.E.2d 914, 919; Quake Construction, 141 Ill. 2d at 288, 565 N.E.2d at 994.

III

Finally, USG asserts that the trial court failed to consider the intent of the parties when it determined the meaning of “incur.” We disagree.

When reduced to a writing, an agreement must be presumed to speak the intention of the parties who signed it. The intention with which it was executed must be determined from the language used. Such language is not to be changed by extrinsic evidence. Western Illinois Oil Co. v. Thompson, 26 Ill. 2d at 291, 186 N.E.2d at 287.

Absent ambiguity in the written terms of an instrument, the instrument provides the sole criterion of intention of the parties. Country Service & Supply Co. v. Harris Trust & Savings Bank (1981), 103 Ill. App. 3d 161,165, 430 N.E.2d 631, 634.

The court does seek to determine the intention of the parties in construing a contract. However, in order to determine intent, the classic rule of construction requires that a court simply look to the contract as ultimately executed. When the contract terms are clear and unambiguous, they must be given their ordinary and natural meaning, and no parol evidence may be considered to vary the meaning of the terms. Hammel v. Ruby (1985), 139 Ill. App. 3d 241, 247, 487 N.E.2d 409, 413; Manor Healthcare Corp. v. Soiltest, Inc. (1989), 192 Ill. App. 3d 934, 940, 549 N.E.2d 719, 723-24.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, CAP.

The judgment of the trial court is affirmed.

Affirmed.

McNULTY and MURRAY, JJ., concur.


author: JUSTICE McNULTY

text:
    BOB NEOFOTISTOS et al., Plaintiffs-Appellees, v. CENTER RIDGE COMPANY et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—2655
    Opinion filed January 15,1993.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Richard H. Donohue, Michael A. Pollard, and Jane M. McFetridge, of counsel), for appellants.
    Philip J. Ryan and Amy C. Wright, both of Ryan & Ryan, Ltd., of Waukegan, and Cooney & Conway, of Chicago (Kevin J. Conway and Kathy Byrne, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

This court granted defendants-appellants Center Ridge Company, Lakehurst Joint Venture Limited Partnership, and Jacob, Visconsi & Jacobs Company leave to appeal from an order of the circuit court of Cook County denying their motion to transfer venue of this cause on the basis of intrastate forum non conveniens to the circuit court of the Nineteenth Judicial Circuit, Lake County, Illinois, pursuant to Supreme Court Rule 306(a)(ii) (134111. 2d R. 306(a)(ii)).

The sole issue presented for review is whether the trial court erred in denying defendants-appellants’ motion to transfer venue to the circuit court of Lake County, Illinois, on the basis of intrastate forum non conveniens.

In 1987 an electrical panel exploded at the Lakehurst Shopping Center in Lake County, Illinois, injuring plaintiff Bob Neofotistos and another worker, Tom Kleist. They were the only eyewitnesses to the occurrence. Kleist, a Cook County resident, filed a personal injury suit in 1988 in the circuit court of Cook County.

Defendants-appellants, on two separate occasions, filed a motion in the circuit court of Cook County to transfer the Kleist case to Lake County based on forum non conveniens. Both motions were denied and defendants-appellants did not appeal either denial.

Bob Neofotistos, a Lake County resident, filed a personal injury suit against defendants-appellants and others in 1989 in the circuit court of Lake County, Illinois, over a year after the Kleist case had been filed in Cook County. The defendants and issues in the Kleist and Neofotistos cases are essentially the same.

Supreme Court Rule 384 (137 Neofotistos v. Center Ridge Co.. 2d R. 384) became effective on November 1, 1990. After the effective date of Rule 384, defendants-appellants filed a motion in the supreme court to consolidate the Kleist and Neofotistos civil actions and transfer venue to the circuit court of Lake County. Prior to ruling on the matter, Neofotistos filed a motion informing the supreme court that he would voluntarily dismiss his Lake County action without prejudice to refile. The record does not reveal that defendants-appellants requested the supreme court to protect its jurisdiction by staying Neofotistos’ dismissal of the Lake County action until after the court had ruled on the Rule 384 motion. Defendants-appellants opposed Neofotistos’ voluntary dismissal of his lawsuit in Lake County on the grounds they now advance in this court that the dismissal was motivated by forum shopping and was an attempt to avoid a supreme court ruling on consolidation and transfer of venue of both the Kleist and Neofotistos cases to Lake County. Defendants-appellants did not, however, appeal the Lake County circuit court order granting the voluntary dismissal. Subsequently, on January 14, 1991, the supreme court denied defendants-appellants’ motion to consolidate and transfer venue of the two cases to Lake County.

Neofotistos refiled his action in the circuit court of Cook County. Defendants-appellants filed their forum non conveniens motion to transfer the case to Lake County. The trial court denied the motion and this appeal followed.

Forum non conveniens is an equitable doctrine that assumes the existence of more than one forum with jurisdiction over the parties and the subject matter of a case. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209; Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.

The trial court has broad discretion in determining whether to transfer a cause of action to another jurisdiction based on forum non conveniens. (Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883; Griffith, 136 Ill. 2d 101, 554 N.E.2d 209.) The trial court’s decision will be reversed only upon a showing of clear abuse of discretion. Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.

Defendants-appellants are all Ohio corporations which have or at one time had registered agents in Cook County. Defendant Westinghouse Corporation and third-party defendant Carrier Corporation are residents of Cook County and have not objected to the trial of this matter in Cook County.

A plaintiff’s right to choose the forum is a substantial one and will not be disturbed unless the private and public factors weigh strongly in favor of the defendant. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.) Plaintiff Neofotistos is a resident of Lake County. Plaintiff’s choice of forum is entitled to less deference when plaintiff is not a resident of the chosen forum, but the balancing test is still unequal. The factors taken as a whole must still strongly favor transfer. Griffith, 136 Ill. 2d 101, 554 N.E.2d 209; Grachen v. Zarecki (1990), 200 Ill. App. 3d 336, 558 N.E.2d 132.

Defendants-appeilants stress that Lake County is the residence of plaintiff and also the site of the accident. However, while those locations may have an interest in resolving the litigation, Illinois courts have held that it is not an abuse of discretion for a court to deny a motion to transfer when plaintiff chose neither the county of his residence nor the situs of the injury as a forum. See Schoon v. Hill (1990), 207 Ill. App. 3d 601, 566 N.E.2d 718; Hoffmeister v. K mart Corp. (1989), 181 Ill. App. 3d 739, 537 N.E.2d 460.

Convenience of the parties is another factor the court must consider in determining whether plaintiffs’ choice of forum will be unduly burdensome or inconvenient to the parties seeking transfer. (See Schoon, 207 Ill. App. 3d 601, 566 N.E.2d 718; Hoffmeister, 181 Ill. App. 3d 739, 537 N.E.2d 460.) In the case at bar, defendants-appeilants are all Ohio corporations which have or had registered agents in Cook County. Codefendant Westinghouse, a foreign corporation doing business in Cook County, and third-party defendant Carrier Corporation have voluntarily appeared and have not objected to plaintiffs’ choice of forum. Plaintiffs, Lake County residents, have voluntarily dismissed their lawsuit in Lake County and refiled it in Cook County, thus indicating their satisfaction with a forum in Cook County. Since Lake and Cook are adjoining counties, defendants-appeilants have failed to establish that they would be unduly burdened or inconvenienced by being required to litigate in Cook County.

In Snook v. Lake Forest Hospital (1985), 133 Ill. App. 3d 998, 479 N.E.2d 994, the court held that defendant physicians who resided and practiced in Lake County were not entitled to have a cause of action against them in Cook County transferred to Lake County where they failed to allege specific facts as to inconveniences and hardships attendant to defending the suit in Cook County.

Defendants-appeilants argue that transfer of the case to Lake County would facilitate the jury’s ability to view the scene because Lakehurst Shopping Center is located in Lake County. No specific facts are alleged, however, that would demonstrate that a view of the scene of the accident would be helpful to the jury. The electric panel that exploded has been removed from the scene, is in defendants’ possession, has been inspected and is available for view. Further, the scene as it existed at the time of the accident is portrayed by photographs taken immediately after the accident by investigators from OSHA, Commonwealth Edison and various insurance companies, among others.

In Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App. 3d 807, 414 N.E.2d 1227, the court found that an on-view inspection of the scene by the jury was not a significant factor in favor of moving venue to the State where the injury occurred because the scene had changed and many photographs of the scene as it existed at the time of the accident would be available to the jury. The facts are similar in the case at bar. Moreover, a party does not have an absolute right to have the jury view the accident scene. (Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883.) This matter is a decision within the sound discretion of the trial court. (Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.) Finally, Lake and Cook Counties are adjoining and the distance between them is not so great as to bar a Cook County jury from viewing the accident scene if the trial court determined it would be helpful.

Defendants-appellants have not demonstrated that any obstruction to sources of proof would result from plaintiffs’ choice of forum being in Cook County rather than Lake County. See Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745.

Defendants-appellants contend that a preponderance of witnesses are located in Lake County. Many of those listed by them, however, are emergency personnel from the Lake County fire and police departments who responded to the accident. Since there is no apparent dispute that an accident occurred resulting in serious injuries to Bob Neofotistos and Mr. Kleist, it is unlikely that these witnesses will be needed at trial.

On the other hand, the only eyewitness to the accident other than Bob Neofotistos is Tom Kleist, a Cook County resident. Neofotistos’ principal and current treating physician is a Cook County resident with offices in Evanston, Illinois.

OSHA investigators from their Cook County offices took photographs and statements. Commonwealth Edison of Cook County was called to the scene to turn off the electricity and its investigators took photographs.

The record reveals that the trial court carefully evaluated the witness lists submitted by the parties, the relevance of their testimony, their residences and the likelihood of testifying at trial. The court properly exercised its discretion in concluding that accessibility to witnesses was not significantly impaired by allowing the case to remain in Cook County, plaintiffs’ chosen forum. Griffith, 136 Ill. 2d 101, 554 N.E.2d 209.

Finally, an evaluation of the public interest factors is required. Defendants-appellants claim that the Lake County court docket is significantly less crowded than that in Cook County. Although a matter of public concern, court congestion alone, however, is not enough to justify transfer of a case to a forum other than the one of plaintiffs’ choice. Griffith, 136 Ill. 2d 101, 554 N.E.2d 209.

In Hoffmeister, a reviewing court observed that the trial court is in a better position than an appellate court to assess the burden posed by its own dockets and will not substitute its judgment for that of the trial court when the trial court denies transfer of a case from its own congested docket to a less congested one. (Hoffmeister, 181 Ill. App. 3d at 744, 537 N.E.2d at 462.) In making this determination it was clearly appropriate for the trial court to consider the fact that there is a companion case pending in Cook County against the same defendants-appellants, involving essentially the same issues and being defended by the same law firms. It was entirely proper for the court to consider that hearing both cases in the same forum would likely result in the consolidation of both actions into one proceeding thus serving the interests of judicial economy.

We finally address defendants-appellants’ argument that plaintiffs' voluntary dismissal of their Lake County action and refiling it in Cook County was an attempt to “shop” for a more favorable forum. The Cook County forum was not objected to by defendant Westinghouse and third-party defendant Carrier. Only the three defendants-appellants have objected to the Cook County forum. Moreover, the record reveals that although the defendants-appellants objected to plaintiffs’ voluntary dismissal of the Lake County action, they chose not to appeal the Lake County circuit court order granting the dismissal. Also, defendants-appellants did not seek leave to appeal the denial of their two motions in the Kleist case to transfer that case to Lake County on the grounds of forum non conveniens. Only after defendants-appellants failed in two attempts to have the Kleist case transferred to Lake County did Bob Neofotistos dismiss his case in Lake County and refile it in Cook County. Plaintiffs’ motivation for this action could well have been to avoid multiple litigation involving the same parties and issues. Defendants-appellants apparently wish to avoid multiple litigation only if the forum is in Lake County but not if the forum is in Cook County.

Further, after defendants-appellants filed a motion under Supreme Court Rule 384 (137 Ill. 2d R. 384) to consolidate the Kleist and Neofotistos cases in Lake County for trial and Neofotistos filed a motion advising the supreme court that he was going to move to dismiss voluntarily his Lake County action, the record does not indicate that defendants-appellants objected to Neofotistos’ action as an attempt to forum shop or asked the supreme court to stay the dismissal until it could rule on the Rule 384 motion. After the supreme court denied the Rule 384 motion, defendants-appellants did not move for reconsideration. In fact, defendants have stated in their brief filed with this court that should we grant the relief requested and transfer this case to the Lake County circuit court, they will again file with the supreme court a Rule 384 motion to consolidate Kleist with Neofotistos in Lake County, and thus attempt to oust Mr. Kleist, a Cook County resident, from the forum of his choice in derogation of two trial court orders of which they did not seek appellate review.

The time has come to halt the procedural merry-go-round for the Kleist and Neofotistos litigants. This court cannot be oblivious of the fact that the Kleist case remains pending in Cook County arising out of the same accident.

The Illinois Supreme Court made this very clear in Horn v. Rincker (1981), 84 Ill. 2d 139, 417 N.E.2d 1329, when it held that to permit the maintenance of separate actions in separate counties which arose out of a single occurrence would frustrate the efficient administration of justice. It is therefore appropriate and necessary that the court consider the fact that a companion case is pending in Cook County and a consolidation of those cases, if they remain pending in the same county, is likely to occur, thus conserving judicial time and resources.

For the reasons set forth above, we find that the court properly exercised its discretion in denying defendants-appellants’ motion to transfer this case to the circuit court of Lake County, and the judgment of the trial court is affirmed.

Affirmed.

GORDON, P.J., and COUSINS, J., concur.

       Justice Cousins read the briefs and listened to the tape of oral argument in substitution of Justice Lorenz, who has since retired.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY KIRKMAN, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—3685
    Opinion filed January 22,1993.
    Rehearing denied February 18,1993.

      Rita A. Fry, Public Defender, of Chicago (Cheryl K. Lipton and Richard E. Cade, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Frank Cece, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Stanley Kirkman was found guilty of armed robbery and sentenced to 13 years in the Illinois Department of Corrections. He now appeals alleging that reversible error occurred due both to the admission of improper rebuttal testimony and the introduction of evidence concerning his gang affiliation. Defendant also contends that the sentence he received was excessive and that the award of restitution was in error. For the reasons which follow, we affirm the judgment of the trial court on all matters except the award of restitution.

At trial defendant’s case consisted solely of his own testimony in which he denied any participation in the armed robbery with which he was charged. Although he admitted speaking with the detective and the State’s Attorney, defendant denied making and signing the statement which the State’s Attorney had prepared. Trial evidence adduced by the prosecution included defendant’s sworn statement as well as the testimony of the arresting officer, the State’s Attorney, and the alleged victim (Willie Randall). The substance of defendant’s statement was substantially similar to the officer’s testimony regarding his conversation with the defendant. In his statement defendant admitted that he got a handgun from his cousin for protection in walking through rival gang territory. He further stated that he and a friend (a codefendant who was tried separately) approached the 63-year-old Randall, who was parking his car, and asked him for directions. While Randall was replying, defendant pointed a gun at his head and ordered him out of the car. Then defendant took Randall’s wallet, codefendant took his car keys, and together they drove off in the victim’s car. Randall's trial testimony corroborated the above sequence of events.

On appeal, defendant first contends that the trial judge erred in allowing the State to introduce as rebuttal evidence the complaining witness’ testimony that he had conversations with Kirkman and his mother after the arrest. On cross-examination the prosecutor asked defendant if he and his mother had gone to the victim’s house after defendant’s arrest and if he and his mother had talked to the victim at the preliminary hearing which was held at the Belmont and Western police station. In response, defendant denied that he had gone to the victim’s house, but stated that he did not know whether or not his mother had gone there. His exact testimony when asked about his mother’s actions was, “I don’t know. She didn’t tell me nothing about that, but I didn’t go.” Similarly, defendant denied speaking with the victim at Belmont and Western (indicating that the police officer threatened to arrest him if he did) but noted that, “Maybe my mother did.”

The objected to rebuttal testimony of the victim, Willie Randall, was as follows:

“Q. Sir, I want to direct your attention to a couple of days after the armed robbery. Did you have occasion to be visited by anyone?
A. Yes.
Q. And who was it that visited you?
A. Kirkman’s mother
Q. Had you ever met this woman before?
A. No.”

At this point defense attorney’s objection to any further testimony about this visit was sustained. However, the prosecutor continued with further questions about the alleged conversations at Belmont and Western.

“Q. Mr. Randall, if I could direct your attention to approximately a week after the arrest, or when you at least testified at Belmont and Western. Do you recall that?
A. Yes, I do.
Q. That was in relation to a hearing with respect to the arrest of Stanley Kirkman?
A. That’s correct.
Q. When you were at Belmont and Western, did anyone approach you?
A. I talked to him and his mother.
* * *
Q. Could you tell the ladies and gentlemen of the jury what the circumstances were, how this conversation came to be?
A. Well, his mother told me he was sick.
Q. Okay, where did this conversation take place?”

At this point, the defense attorney’s objection was overruled, as the judge ruled that the conversation which was being offered into evidence was not being offered for the truth of the matter asserted. The prosecutor continued asking the witness questions regarding the substance of the alleged conversation.

“Q. Who was it that approached you specifically?
A. Well, I walked up to them. They were standing. They come in.
Q. All right.
A. The point is, I asked Kirkman, I said, what happened to my tire and tools in my car.
Q. Let’s back up for one moment. What was contained within your car.
A. What was in my car?
Q. Yes, what items were in your car that were taken during the armed robbery?
A. I had a brand new spare, and I had about two hundred dollars worth of tools in the trunk.
Q. When you refer to a spare, you’re talking about a spare tire?
A. Yes.
Q. And you asked the defendant what happened about that?
A. I asked him what happened.
* * *
Q. Did he indicate he was sorry at any time?
A. Yes, he did.”

Illinois case law firmly establishes that the latitude to be allowed on cross-examination and rebuttal is a matter within the sound discretion of the trial court and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in a manifest prejudice to the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267, 281.) Generally, any permissible kind of impeaching matter may be developed on cross-examination since one of the purposes of cross-examination is to test the credibility of the witnesses. (People v. Columbo (1983), 118 Ill. App. 3d 882, 966, 455 N.E.2d 733, 793.) However, the cross-examiner may not impeach a witness on a collateral matter, but must accept the witness’ answer as final. (People v. Thomas (1991), 217 Ill. App. 3d 698, 702, 577 N.E.2d 831, 834.) The test to be applied in determining if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict. (Collins, 106 Ill. 2d at 269, 478 N.E.2d at 281.) In the case at bar, defendant argues that any contact the defendant’s mother may have had with the victim is immaterial because whether she went to the victim’s house after the arrest and whether she told him that defendant was sick do not tend to prove that defendant committed the robbery. Furthermore, defendant argues that the testimony regarding the conversation at Belmont and Western was collateral as the trial judge found that there was no value to this evidence other than its ability to contradict the defendant. Defendant also maintains that the conversation does not even contradict his previous testimony because he never testified about any post-arrest conversations he might have had with the victim, and in fact admitted that his mother might have gone to the victim’s house and might have had a conversation with him. While we cannot agree with defendant’s contention that the conversation testimony had no value other than to impeach (if a proper foundation had been laid, this conversation could have been admitted as a party admission), we do agree that both the testimony regarding the mother’s visit and the conversation testimony went beyond the scope of proper rebuttal and its admission was error. However, because the evidence against the defendant was overwhelming, (positive identification by the victim as well as admissions to the State’s Attorney and a signed statement), any error resulting from this admission was harmless.

Defendant also maintains that the trial court erred in denying his motion in limine to bar evidence of defendant’s gang affiliation. He argues that his gang affiliation was not relevant as the robbery was not gang related and, further, that even if the evidence was relevant it was highly prejudicial and should have been excluded. At trial the alleged damaging references were first introduced in defendant’s signed handwritten confession to the police which he made shortly after his arrest. The prosecution made an offer of proof that the defendant signed a handwritten statement which indicated that he had obtained the gun that he used in the robbery from his cousin because he would be going through Vice Lord territory and that defendant was a Disciple. (This evidence was further mentioned in the arresting officer’s testimony as well as in the prosecutor’s cross-examination.) The prosecution additionally maintained that the evidence was not being offered to show defendant’s propensity for bad acts, but to show the jury the circumstances of how defendant obtained the gun. The trial court denied defendant’s motion, noting that the probative value of the offered evidence outweighed any prejudicial effect.

It is the function of the trial court to weigh the probative value and prejudicial effect of evidence in determining whether it should be admitted. Evidentiary rulings of this nature will not be overturned on appeal unless a clear abuse of discretion is shown. (People v. Shum (1987), 117 Ill. 2d 317, 353, 512 N.E.2d 1183, 1195.) Further, a reviewing court will only reverse a trial court’s grant or denial of a motion in limine if the trial court manifestly exceeded its discretion. (People v. Downey (1987), 162 Ill. App. 3d 322, 515 N.E.2d 362.) While it is well established that gangs are regarded with considerable disfavor, gang-related evidence will not necessarily be excluded if it is otherwise relevant and admissible. People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207.

Without endorsing the proposition that the gang-related evidence showed defendant’s motivation as established by the facts of this case, we nevertheless find that such evidence was relevant, as it indicated how defendant came to be in possession of the gun. Furthermore, such evidence appeared for the first time in defendant’s own statement and was referred to by the State for impeachment purposes only. Under these circumstances, we cannot find that such evidence was more prejudicial than probative. Nor can we hold that the trial judge abused his discretion by allowing the admission of the gang-related testimony.

Defendant also contends that the trial court erred in sentencing him to 13 years’ imprisonment because such sentence was excessive, “primarily punitive” and further that the trial judge improperly considered defendant’s lack of remorse. The State maintains that the trial court properly considered all matters in aggravation and mitigation and also argued that 13 years’ imprisonment is not excessive for armed robbery of an elderly victim.

A trial court’s decision with regard to sentencing is entitled to great deference and weight. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) Absent an abuse of discretion, a sentence may not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In the case at bar, the trial court listened to the factors in aggravation and mitigation. It considered defendant’s age and his prior criminal record. It heard testimony regarding his personal background, employment, and educational and family background. Although defendant argues that the court improperly considered his lack of remorse, no authority is cited for this contention.

Finally, although defendant contends that the sentence is primarily punitive, a 13-year incarceration of a 19-year-old still leaves room for rehabilitation. Although defendant cites several cases in which other youthful defendants received lesser sentences for armed robbery (People v. Ward (1990), 194 Ill. App. 3d 229, 550 N.E.2d 1208; People v. Carr (1986), 149 Ill. App. 3d 918, 501 N.E.2d 241; People v. Conley (1983), 118 Ill. App. 3d 122, 454 N.E.2d 1107), this authority does not persuade us that the trial judge in the instant action abused his discretion in sentencing.

Both defendant and the prosecution maintain that the award of $450 in restitution was erroneous. This award was made by the trial court without any information on how to calculate the exact amount as required by statute (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6). Accordingly, we find that the court was not authorized to make such an award and therefore vacate only this portion of the judgment.

Affirmed in part; vacated in part.

GORDON, P.J., and COUSINS, J., concur.

      Defendant also argues (relying on People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387) that besides being improper rebuttal, this testimony was highly prejudicial, noting that evidence of a mother’s actions after her son’s arrest for a crime have been found to be highly prejudicial and reversible error because the only conceivable purpose for this testimony is to raise the highly prejudicial inference that the defendant’s own mother believed him to be guilty of the crime charged. Although we agree with defendant that a mother’s actions after the arrest of her son could be highly prejudicial (as they were in Davis, where the mother actually apologized for the son’s behavior) the mere act of going to the victim’s house or indicating that her son was sick does not rise to the level of reversible error.

      The trial judge also stated (although this issue was not raised by the State) that the evidence of gang affiliation showed defendant’s motivation to participate in the alleged act.

      In a post-appeal motion to add additional authority, defendant cites to People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234, to support his position that the trial judge abused his discretion in refusing to redact references to defendant’s gang affiliation from his confession. Even though the appellate court found that Henderson did involve an abuse of discretion in the trial court’s refusal to redact portions of defendant’s statement dealing with his intent to commit another murder, such abuse was determined harmless error because of the substantial nature of the evidence confirming defendant’s guilt. This reasoning is completely in accord with our determination in the case at bar.