text:
    MARGARET HEEG, Plaintiff-Appellant, v. JEWEL COMPANIES, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1588
    Opinion filed July 6, 1992.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Howard A. London, of counsel), for appellant.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Mark R. Mayer and John Skapars, of counsel), for appellee.
   JUSTICE MANNING

This is an appeal from an order of the trial court vacating a jury verdict for $90,000 in favor of plaintiff Margaret Heeg and against defendant Jewel Companies and granting a new trial. On December 21, 1983, plaintiff Margaret Heeg filed a negligence action against defendant Jewel Companies seeking damages for injuries she received when she fell on defendant’s premises. The complaint alleged that about August 4, 1982, plaintiff was a customer in a Jewel store located at 305 Lake Marion Road, Carpentersville, Illinois, where she slipped and fell and suffered permanent injuries. Plaintiff asserted that as the direct and proximate result of one or more acts of negligence, defendant breached the duty owed to her to exercise ordinary care to keep the premises reasonably safe or to warn plaintiff of any unreasonable risk of injury.

Plaintiff argues on appeal that the trial court abused its discretion in granting defendant a new trial based on alleged errors which defendant maintained occurred.

Dr. Mira, an orthopedic surgeon, testified that he first treated plaintiff in November 1984. At that time, plaintiff complained of pain in her lower back, left ankle, right knee, and neck. Plaintiff explained to Dr. Mira the history of her injuries. She stated that in August 1982 she slipped on a floor while shopping in a food store. Dr. Mira examined plaintiff’s posture, her spine, knee and ankle. He found that her back showed a slight increase of curvature and that flexin of the lower back was 70% normal. Plaintiff experienced lower back pain and pain in her right knee when bending and turning. Dr. Mira testified that there appeared to be a sign of irregularity to the meniscus or cartilage between the thigh bone and the knee bone. Plaintiff’s left ankle also showed slight swelling. Dr. Mira took X rays of the lower back and it showed signs of degenerative arthritis. He also took X rays of plaintiff’s knee and back. He diagnosed her condition as degenerative disease of the lower back and probable tear of the cartilage in the right knee with a cyst. Mira opined that the cause for the degenerative arthritis was general wear and tear. He also opined that the cause for the tear of the cartilage was trauma, as well as the degenerative process. Dr. Mira stated that given the history of the onset of plaintiff’s symptoms after the fall at the grocery store in August 1982, the fall aggravated a preexisting condition of degenerative arthritis in both areas. Dr. Mira prescribed aspirin and exercise.

He next treated plaintiff in February 1985. Plaintiff continued to experience discomfort at that time and stated that she had difficulty with her knee and right ankle. Dr. Mira prescribed Motrin and recommended microscopic surgery to treat the cartilage in the right knee.

Plaintiff visited Dr. Mira next on March 15, 1985, and June 18, 1985. Plaintiff's condition had not improved and the microscopic surgery was scheduled. Plaintiff was placed on Tylenol with codeine and examined again on July 22, 1985. Dr. Mira opined after the surgery that plaintiff had moderate degenerative arthritis with moderate degenerative tear of the cartilage and a cyst on the right knee. He continued to treat plaintiff until November 1985, describing various forms of medication for her discomfort. Dr. Mira gave his prognosis of plaintiff's condition as static and he thought it would not change.

In May 1989 Dr. Mira performed a second antroscopic surgery on plaintiff’s knee, but plaintiff continued to experience pain in the knee.

Dr. Kanter, a physician specializing in orthopedic surgery, testified that he initially treated plaintiff in February 1982 and last treated her in August 1989. On the initial visit, plaintiff told Kanter that she had been treated at a hospital after falling at a Jewel food store. She also explained that she was under the care of a chiropractor who treated her twice each week. Plaintiff complained of pain in her back and right leg. Dr. Kanter testified that he performed a neurological examination of her back and neck and took X rays of her spine. Dr. Kanter diagnosed plaintiff as having strained or sprung the muscles and soft tissue parts of the cervical spine, the neck area, and lower back. He also diagnosed arthritis both in the neck and lower back area. Plaintiff was placed on a non-steroidal, anti-inflamatory agent to reduce the tightness and minor arthritis discovered, and advised to do exercise. Dr. Kanter opined that plaintiff would not experience the same state of health that she experienced prior to the injury because of the underlying arthritis and the superimposed injury. He stated that the only medical history that he had of plaintiff was her injury in August 1982 and that her current condition was related to that injury.

Dr. Kanter testified that plaintiff periodically came to visit him after moving to Pennsylvania. On a visit in September 1985 she complained that she continued to experience pain and difficulty with her left ankle and right knee. Kanter took X rays of the knee which revealed mild arthritis and a cyst. He diagnosed plaintiff to be suffering from a cyst behind the right knee and soft tissue sprain to the ankle.

In October 1987 plaintiff complained of residual lower back and right knee pain. She informed Dr. Kanter that she had previously had arthroscopic surgery to her right knee subsequent to his seeing her in July 1985. She again expressed pain in the knee and back. Dr. Kanter testified that he X-rayed the right knee and diagnosed the condition as atrophy of the thigh muscle that needed building up by therapy. He also diagnosed the injury to plaintiff’s back as degenerative disk disease.

Dr. Kanter stated that when he again examined plaintiff in 1989, his diagnosis was that her lower back was the same as it had been in 1987. Dr. Kanter stated that his prognosis of plaintiff’s knee in 1989 was that she would have permanent symptomatology and difficulty relative to the knee. Plaintiff gave Dr. Kanter the information he relied upon to state his opinion.

Plaintiff’s daughter, Rhonda Marotta, testified that at about 8 p.m. on August 4, 1982, she travelled to the Jewel store with her daughter and mother where she purchased some groceries. Marotta stated that she paid for the items by check in the amount of $30.31.

Marotta stated that plaintiff’s knee hit the ground and that she saw green onion peels mashed into the ground on which plaintiff had slipped, and also underneath plaintiff’s sandals. Marotta testified that there were no warning signs in the front of the store where plaintiff fell.

Marotta testified that after plaintiff fell, one of the cashiers came over to them, but Marrotta could not identify the cashier by name or describe what she looked like. She did testify that the cashier wore a Jewel's uniform. Marotta stated that the cashier then instructed them to prepare a report of the incident with the main office, and a male employee with blondish-brown hair came to the desk to talk with plaintiff. Marotta did not identify that person in court, but she stated that he wore a white frock.

Marotta testified that as they left the store she noticed a young male sweeping the area; however, she was not able to give a description of him or what he wore. Marotta stated that she and plaintiff then went home and later to a hospital.

Marotta further testified that she had been with plaintiff on another occasion some years earlier when plaintiff was injured at Frank’s Nursery by a fallen ceiling tile. However, her deposition testimony given on June 6, 1984, was inconsistent with this testimony given at trial. In her deposition taken after the fall at Jewel she stated that she had never witnessed any other occurrence where plaintiff had suffered an injury.

Dr. Altiere, a chiropractic physician, testified that he examined plaintiff in August 1982 for severe lower back pain. He conducted an orthopedic exam and a chiropractic exam, a regular physical examination and other tests. Altiere stated that plaintiff had a decrease in the range of body movement due to pain. There were also signs of problems with the lower back and neck due to pressure on the soft tissue and muscles. Dr. Altiere took X rays of plaintiff’s full spine. He diagnosed plaintiff as having suffered an acute traumatic lumbosacral sprain or injury to the lower portion of the back, and also strain to the neck and shoulder. Dr. Altiere opined that the cause of the condition was the fall that plaintiff sustained in Jewel.

Plaintiff was treated by Altiere for her injuries nine times in August 1982 and about 10 additional times until the end of 1982. Although plaintiff’s condition slightly improved, Dr. Altiere referred her to an orthopedic doctor in December 1982. He did not see her again until one year later.

Dr. Reddy provided deposition testimony. She testified that she had been plaintiff’s family physician from 1980 through February 1982. Reddy had treated plaintiff for pains in her shoulders, neck and back in December 1981. This treatment resulted from injuries that plaintiff received when she was struck by a ceiling panel at a Frank’s Nursery. The X rays revealed tenderness in the neck, shoulder, and back muscles. Reddy prescribed a muscle relaxant, and as part of her treatment of plaintiff, she relied on records of plaintiff’s previous hospitalization for chest pain. Reddy stated that her review of plaintiff’s past medical history disclosed that she had a herniated disk with pain to the left leg. She also testified that the last time she treated plaintiff was in February 1982.

On cross-examination of Reddy, defense counsel asked whether the medical records history showed that any diagnostic testing was conducted on plaintiff by which a determination was made that she had a herniated disk and Reddy replied “No, there is no such thing like that.”

Dr. Robert Thompson, an orthopedic surgeon, testified that he examined the medical records relating to plaintiff and opined that she suffered a minor aggravation of a previous existing arthritis condition as a result of the alleged Jewel accident in August 1982. Thompson also stated that plaintiff had back problems which were later diagnosed as a herniated disk, and subsequently she had surgery in April 1973 for that problem.

Dr. Thompson stated that in his opinion there was no causal relationship between plaintiff’s alleged accident in Jewel and the resulting right knee injury she complained of because the knee injury was reported two years after the alleged accident. Dr. Thompson opined that based on his review of the medical records of the chiropractor who treated plaintiff for her injuries following the Jewel accident, plaintiff’s injury had subsided by December 1982. Thompson stated that he did not believe plaintiff’s present complaint of injury to her back was connected to the August 1982 accident. He opined that natural history of degenerative arthritis was the cause of her symptoms.

Thompson opined that plaintiff had this condition of her neck and back prior to the date of August 4, 1982. He opined that the cyst which developed in plaintiff’s knee two years after the alleged accident was caused by development of arthritic changes in the knee in front of the location of the cyst.

Plaintiff testified that on August 4, 1982, she drove to Carpenters-ville, Illinois, to visit with her daughter Rhonda and later went shopping at Jewel. After purchasing groceries, Rhonda pushed the cart and the two walked toward the exit, passing checkout counters. Plaintiff stated that, as she walked, she slipped and fell as her left leg buckled under her, and her back snapped and cracked. She eventually fell down on her right knee.

Plaintiff testified that she remained on the floor for about one minute and observed smashed onions on the heel of her shoe. She stated in her opinion that the onion had lain on the floor for an hour; however, she did not actually know the amount of time that the onion had been there.

Plaintiff’s counsel attempted to introduce a photograph into evidence that the court had previously ruled inadmissible. The photographs showed a picture of the front of the store. The court advised counsel that only two of the three photographs were admissible. However, plaintiff’s counsel continued to display the third photograph throughout the trial proceedings.

Plaintiff testified that after she fell a uniformed female cashier about 30 years old with short dark hair approached her and asked “Are you okay?” Plaintiff testified that she advised the cashier that she was injured. She stated that the cashier said, “Before you leave the store I would suggest that you make a report,” and that “The floor was always a mess.” Plaintiff testified that the cashier picked up the onions, then went to the desk, where a second employee came and wrote her name, address and telephone number on a piece of paper. Defense counsel objected to the answer as hearsay. The court allowed it into evidence under the excited utterance exception to the hearsay rule, but later reconsidered its ruling. Plaintiff did not see a name tag on the person, but described him as 30 years old with blondish-brown hair and wearing an apron. Plaintiff stated that as she left the store she observed a male employee sweeping the area in which she fell.

Two days after the accident, plaintiff was treated by Dr. Altiere for her back. Before the fall at Jewel, plaintiff had previously had arthritis and a back sprain. Plaintiff testified that she continued to see Dr. Alte-rie the remainder of 1982, and in February 1983 began visiting Dr. Ranter.

Plaintiff was also treated by Dr. Reddy, her family doctor in 1982; however, Dr. Reddy did not treat plaintiff for the injury that resulted from the Jewel fall. Dr. Reddy treated plaintiff for neck problems in 1981 that resulted from an injury she received when a tile fell on her head and injured her neck. Plaintiff testified that Reddy never gave her treatment for her back.

Plaintiff testified that as a result of her injury in August 1982, she had difficulty performing housework, gardening, working and personal relations with her husband.

Peter Joy and Patricia Hemmingsen, employees of defendant, were working in the Jewel Carpentersville store at the time of the alleged incident. Mr. Joy testified that on the evening of August 4, 1982, he was the assistant manager in charge of the store. He testified that he was 24 years old, had dark brown hair and did not wear an apron while working. He stated that managers were not allowed to leave the building except to check the parking lot or on company related business. Neither employee had any direct knowledge or independent recollection of the alleged incident. Mr. Joy testified that he conducted an investigation of the store to determine which employees had worked that day. He questioned each of them individually and found that no one had any knowledge of the incident, and the company files contained no report of the incident. The company policy dictated that only a manager or assistant manager could complete accident reports, and there was no exception to this requirement.

Both Joy and Hemmingsen testified that produce was never delivered through the front doors of the store but rather through the loading area in the back of the building.

Plaintiff’s counsel argued in closing that plaintiff was entitled to damages for her past pain and suffering, and the cost of her medical bills and her lost time, a total of $92,862.62.

Defense counsel did not argue the reasonableness of the damages requested by plaintiff’s counsel; however, he argued the issue of liability and causation. He never contended that the $92,000 was excessive and did not suggest a lower award.

Judgment was entered on the verdict, and on April 11, 1990, defendant filed a post-trial motion for judgment n.o.v. or, in the alternative, for a new trial. On May 10, 1990, the court heard argument on the motion. The court denied the request for judgment n.o.v. but ordered a new trial on the ground that errors had been committed by the court and by counsel for plaintiff.

Plaintiff argues on appeal that the trial court abused its discretion in vacating the jury verdict of $90,000 and in granting a new trial on the ground of alleged error.

The decision to grant a new trial is within the sound discretion of the trial court and should not be disturbed unless a clear abuse of discretion appears in the record. (McKenzie v. Romeiser (1990), 205 Ill. App. 3d 830, 563 N.E.2d 837.) An abuse of discretion may be found where there is no basis in the record to support a new trial. Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.

In this case, plaintiff contends that the errors which defendant raised in its post-trial motion were either waived by defendant’s failure to raise them below, or that their impact was not so prejudicial that defendant was denied a fair trial.

Plaintiff first argues that no error occurred by her characterization of a defense witness’ testimony during closing argument. She argues that the witness testified that he never saw any produce on the floor of the store, although defense counsel argued that the witness admitted seeing produce on the floor. Plaintiff maintains that her summation of the testimony was not an intentional mischaracterization of the testimony and that defense counsel cured any error that may have occurred during his closing argument.

Plaintiff next asserts that she did not misstate the evidence by arguing that two of defendant’s witnesses had large financial interests in the case. She contends that this was proper comment because a witness’ interest, bias or prejudice are factors to be considered in determining a witness’ credibility.

Plaintiff’s counsel stated in rebuttal argument that he never impeached Jewel employees Joy or Hemmingsen because they never gave depositions. Defendant asserted that the statement gave the jury the impression that the evidence was being withheld from plaintiff. Plaintiff argued that the comments were proper because defense counsel invited the comments when in closing he stated that neither employee had been impeached with prior inconsistent statements.

Plaintiff also made comments on defendant’s failure to produce other employee witnesses during trial. Defendant argued that the comments made by plaintiff improperly implied to the jury that defendant was hiding evidence from it. Plaintiff argued that the remarks were neither improper nor prejudicial, given her right to comment on defendant’s failure to present sufficient evidence.

Plaintiff further contends that defense counsel erroneously asserted that she personally attacked him and his law firm. In seeking a new trial, defendant advised the court that plaintiff stated, “The party line in this case had been from its inception — eight years now — It wasn’t our fault.” Plaintiff maintains that this argument was not at defense counsel, nor to attack his integrity or suggest that he lied.

As to defendant’s contention that plaintiff’s opinion during closing argument constituted error, plaintiff asserted that the mere words “I believe” were not error, and if so, they did not constitute harmful error. During closing argument she stated, “I believe that after reviewing all of the evidence, certain things will become apparent.”

Another assignment of error was plaintiff’s counsel’s explanation during closing argument that plaintiff was not a doctor, but that she had been held to a very high standard to almost have a perfect memory. Defendant argued that this argument misstated the law and injected a prejudicial standard into the proceedings. Plaintiff’s counsel argued that the comments were fair in reply to defendant’s cross-examination of plaintiff.

During closing argument, plaintiff’s counsel made reference to a cancelled check in the possession of plaintiff. She stated that defendant was entitled to look at the check, but that it did not do so. Plaintiff contends that the evidence of the existence of the check was neither improper nor prejudicial, since its existence was established by plaintiff’s daughter without objection from defense counsel.

Plaintiff maintains that reference to her right knee in closing argument was not improper. Although the court had ruled that the right knee injury should not be considered by the jury, counsel for plaintiff maintained that her comments were proper as a summary of the evidence in accordance with plaintiff’s testimony. Plaintiff’s counsel further argued that she never mentioned that plaintiff was entitled to damages for a knee injury.

Defense counsel maintains that the new trial was proper because plaintiff’s counsel misstated the record in accusing defense counsel of producing evidence that suggested that plaintiff had a prior back surgery. Plaintiff further contends that a new trial was not proper where her comments during rebuttal argument were fair comment on the evidence. She asserted that her rebuttal argument was in reference to the direct examination of Dr. Reddy, and that defense counsel’s direct examination of Dr. Reddy suggested the fact that plaintiff had prior back surgery.

Plaintiff also contends that her questioning of Dr. Reddy during an evidence deposition and later referral to her as “the Indian doctor” during rebuttal argument was not improper. Plaintiff argues that this reference to Dr. Reddy was made to identify her for the jury, not to impugn Dr. Reddy’s character. Defense counsel argued that counsel’s reference to the doctor’s ethnic origin was an attempt to suggest that the doctor was incompetent and distracted the jury from its impartial consideration of her testimony.

Plaintiff maintains that no error occurred when a photograph that was not admitted into evidence remained on the table during trial. She maintains that defendant suffered no prejudice by having the photograph on the table.

Plaintiff asserts that the comment concerning the testimony of defendant’s clerk at the time of the accident was improper. The court permitted the testimony into evidence based on the excited utterance exception. After the court heard the testimony, it concluded that the testimony was self-serving. The court commented that it did not think that the effect was cured by calling it a self-serving statement. The court reasoned that the statement gave the jurors the impression that somebody in the store had complained that they made a mess of things. Although the court stated that this factor was not the deciding factor, it indicated that it had permitted serious errors requiring a new trial.

Considerable latitude is allowed in making closing and rebuttal argument. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) The trial court’s ruling in this regard will be upheld, absent an abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) Here, several of the remarks were merely comments on the evidence and legitimate inferences therefrom. (People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859.) Some were responses to defense counsel’s argument. (People v. Morando (1988), 169 Ill. App. 3d 716, 523 N.E.2d 859.) Others were mere overstatements of the evidence. (People v. Enoch (1989), 189 Ill. App. 3d 535, 545 N.E.2d 429.) Furthermore, remarks regarding defendant’s failure to produce witnesses, and failure of witnesses to give deposition testimony, although error, did not constitute reversible error. People v. McKinney (1983), 117 Ill. App. 3d 591, 453 N.E.2d 926.

In this case, the errors complained of do not rise to the standard of egregious, blatant behavior sufficient for the trial court to order a new trial. (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) Although plaintiff’s counsel’s conduct did raise questions of compliance with the court’s rulings on objections to the admissibility of some evidence, it cannot be said that this behavior caused the jury to decide the case on emotions and prejudice. The jury heard testimony from the two occurrence witnesses, doctors and defendant employees. While there were issues of impeachment raised, the jury is charged with weighing the evidence and the credibility of the witnesses. Arnold N. May Builders, Inc. v. Bruketta (1981), 100 Ill. App. 3d 722, 426 N.E.2d 1246.

The court noted that the most serious of the alleged errors was that of its admission of a statement into evidence under the excited utterance exception to the hearsay rule. However, the court specifically noted that this was not its reason for granting a new trial. Even with the court’s acknowledgment of its error, the cumulative effect of the errors was not so prejudicial that defendant was denied a fair trial. Thus, the trial court abused its discretion in granting defendant a new trial.

For the above reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    ROBERT W. WILLIAMS, Plaintiff-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—3286
    Opinion filed July 6, 1992.

      Michael W. Rathsack, of Chicago (James M. Dower and Michael W. Rathsack, of counsel), for appellant.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (Stephen S. Phalen, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

This is an appeal from a jury verdict entered in favor of plaintiff Robert Williams and against defendant Commonwealth Edison. Plaintiff was injured while working on defendant’s premises as a subcontractor. The jury entered a verdict in favor of plaintiff in the amount of $221,500, which was reduced to $155,325 based on his comparative negligence. The itemized verdict included nothing for present or future disability, $41,000 for pain and suffering, $10,000 for medical expenses, and $221,000 for past and future lost wages.

Plaintiff Robert Williams was employed with Morrison Construction Company as a millwright. On December 11, 1982, he worked at the defendant Commonwealth Edison’s nuclear power plant and conducted a bearing inspection. While there, plaintiff observed oil on the floor near the area in which he was working. Plaintiff testified that there was “oil dry” (an absorbent) on the floor but that there were no absorbent mats for the oil. Plaintiff stated that the area was slippery and dangerous. Plaintiff testified that a co-worker requested that the area be cleaned, but that his request was never honored.

Later that afternoon, plaintiff and his co-worker left for lunch. They approached the stairs, where they noticed that oil remained on the floor and around the pump where they had worked. As plaintiff walked down the stairs he slipped, hit the handrail, and fell to the lower deck. Plaintiff testified that he twisted his left leg and knee.

Plaintiff did not remember whether he wiped his feet before leaving the pump area, but after the fall he noticed that the sole of his shoe was shiny with oil. He stated that he did not see any oil on the stairs. A co-worker testified that both he and plaintiff had wiped their feet before leaving the area.

Plaintiff was first treated for his knee injury by Dr. Bettasso on December 16, 1982, and again on December 27, 1982. Dr. Bettasso ordered an arthrogram, which was performed December 30, 1982. After the arthrogram was completed, Dr. Bettasso referred plaintiff to Dr. Choy, a bone specialist. Dr. Choy saw plaintiff twice in January 1983 and advised him that he and Dr. Bettasso would perform an operation on plaintiff’s knee.

After seeing Dr. Choy in early January 1983 plaintiff saw Dr. Pa-proski, a knee specialist, who performed an operation on plaintiff’s knee January 20, 1983. Plaintiff remained off work from that time until March 22, 1983, when he was released to return to work. He returned to work as a millwright on March 12, 1983, and continued to receive therapy weekly for the knee. The knee problem interfered with his ability to perform all the duties of a millwright that he had performed before the fall.

Plaintiff was next treated by Dr. Pinzer in the fall of 1983. At that time, he received an injection to freeze the knee. He was also treated by Dr. Loyal for that same injury.

Plaintiff returned to see Dr. Paproski on December 15, 1983. On January 20, 1984, Paproski admitted plaintiff into the hospital and performed a second knee operation. Plaintiff received follow-up therapy until May of 1984 when he was released to return to work.

Plaintiff testified that after the second operation, he continued to experience pain to his knee. He was unable to kneel for any length of time, could not walk beams or climb ladders, and felt pain if he bumped his knee. Plaintiff testified that the work of a millwright required that he be able to perform all these duties. Plaintiff testified that he turned down several job offers at other locations because they involved climbing and the injury prohibited him from doing so. Plaintiff was off work for two periods of time due to the injury. He was first off work from January 20, 1983, through March 15, 1983, and again from January 25,1984, through May 23,1984.

Plaintiff stated that his earnings also decreased after the injury. In 1981 he earned $47,000 and $46,000 in 1982. In 1983 he earned $16,000, and about $12,000 in 1984. Plaintiff earned $12,000 in 1985 and $17,000 in 1986. He earned $20,000 in 1987 and $17,000 in 1988. Plaintiff testified that he was not able to perform the work that he once did, and that he never earned the $44,000 which he earned before the injury.

At trial, Dr. Rentschler testified as an expert witness on behalf of plaintiff. He treated plaintiff in 1986 and diagnosed plaintiff to have a neuroma on the left knee. Dr. Rentschler also opined that at the time of his first surgery, plaintiff had chondromalacia. He further opined that plaintiff’s knee was in the post-operative state following the two surgeries. Dr. Rentschler opined that plaintiff’s left knee pathology was permanent. He stated that the pain plaintiff experienced in kneeling and squatting, and pressure to the knee, were caused by the trauma to his knee resulting from the injury in December 1982. Dr. Rentschler opined that plaintiff would have difficulty working in the position of millwright as that position involved squatting and kneeling.

Dr. Milgram testified that he treated plaintiff in April 1987. He also reviewed Dr. Paproski’s operative report dated January 1983 and the medical notes indicated that plaintiff had chondromalacia (softening of cartilage) at the time of an arthroscopic procedure. Dr. Mil-gram stated that the disease probably took years to develop. Dr. Mil-gram opined that the disease in plaintiff’s knee was not caused by the December 1982 injury. He stated that the injury preexisted and could not have occurred in six weeks. Dr. Milgram also noted that Dr. Pa-proski’s report did not include a finding that plaintiff had a neuroma, and in his opinion plaintiff did not have a neuroma.

At the end of plaintiff’s case, defendant moved for a directed verdict. The court denied this motion. At the end of defendant’s case, defense counsel tendered Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter IPI Civil 2d), which allows an adverse inference to be drawn if a party fails to call a witness. The court refused to give the jury that instruction, and also instructed defense counsel not to comment on that issue during closing argument. Defense counsel also objected to instructions on future lost wages on the grounds that plaintiff did not prove future wage loss and had not claimed any future wage loss in his answers to interrogatories. The court also overruled this objection.

The jury returned an itemized verdict which awarded nothing for present or future disability, $41,000 for pain and suffering, $10,000 for medical expenses, and $221,000 for past and future lost income. The jury also found plaintiff 43% negligent and reduced the gross verdict from $272,500 to $155,325. By special interrogatories the jury found defendant was negligent. Defendant’s post-trial motion was denied, and judgment was entered on the verdict. Defendant appealed this judgment.

On appeal defendant argues that: (1) the verdict and judgment were fatally inconsistent because the jury awarded future lost wages without finding that plaintiff had suffered any disability; (2) the trial court erred in refusing to tender IPI Civil 2d No. 5.01 and instructing defense counsel not to comment on plaintiff’s failure to call his treating physician; and (3) the jury verdict was against the manifest weight of the evidence.

Defendant first argues that the jury verdict was fatally inconsistent. Specifically, it argues that the jury found that plaintiff suffered no disability and yet awarded him future lost wages. Defendant cites to Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, where the jury rendered an itemized verdict awarding medical expenses, but awarding nothing for disability or pain and suffering. On review the appellate court found that the jury’s verdict was irreconcilably inconsistent. In reversing the case and granting plaintiff a new trial, the appellate court stated:

“If the jury believed that plaintiff had no compensable pain and suffering, its award of pain-related expenses was wholly unwarranted and contrary to the manifest weight of the evidence. Conversely, if it believed that plaintiff’s pain and suffering were sufficiently serious to warrant expenditures for pain medication and physical therapy, its failure to award her compensation for that pain and suffering means that it disregarded a proven element of damages.” 144 Ill. App. 3d at 1046.

Defendant also cites Bisset v. Joseph A. Schudt & Associates (1985), 133 Ill. App. 3d 356, 478 N.E.2d 911, where the appellate court determined that a discrepancy existed in the damage amount claimed by plaintiff and that awarded by the jury. The court determined in that instance that the award by the jury was against the manifest weight of the evidence and awarded a new trial. The court further noted that the jury gave plaintiff nothing for his lost wages even though there was unrebutted evidence of a disability which limited his ability to work.

Plaintiff contends that the jury’s verdict here was consistent because disability and future wage loss are two separate elements of damages. Plaintiff maintains that the jury understood and followed the instructions of the trial court. He asserts that the jury considered each element of damages and concluded that the injuries to his knee resulted in a permanent reduction of earnings.

Plaintiff cites to McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 548 N.E.2d 461, for the proposition that an inconsistent verdict is a verdict which includes irreconcilable conclusions. Plaintiff contends that the jury found his inability to return to work as a millwright was compensable in the form of lost wages, both present and future. Plaintiff further cites Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4, for the proposition that a verdict is generally within the discretion of the jury and a reviewing court should not order a new trial on damages unless the damages awarded are inadequate, if proved elements of damages have been ignored, or if the awarded amount has no reasonable relationship to the loss which plaintiff suffered.

Plaintiff also cites to a Nebraska Supreme Court case, Hunter v. Sorensen (1978), 201 Neb. 153, 266 N.W.2d 529, which held that where a jury awarded damages for lost time and medical expenses, but no damages for his injury, disability or pain and suffering, the verdict was not inconsistent. Plaintiff contends that as in Hunter, there was a reasonable basis here for the jury to award him future lost wages because his earning capacity had diminished since he could no longer work as a millwright.

Generally, a jury verdict will be upheld on appeal unless it is clearly contrary to the manifest weight of the evidence. (Voss v. Tune (1984), 121 Ill. App. 3d 692, 460 N.E.2d 51.) A verdict -will be found to be against the manifest weight of the evidence if it is clearly erroneous and unreasonable based upon the facts and evidence. (Gilman v. Kessler (1989), 192 Ill. App. 3d 630, 548 N.E.2d 1371.) A verdict may be found to be against the manifest weight of the evidence where the size of the award is the result of passion or prejudice, where the amount is palpably inadequate, or where the jury disregarded proven elements of damages. Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147.

In Barr v. Groll (1991), 208 Ill. App. 3d 318, 567 N.E.2d 13, plaintiff was injured in a motorcycle accident and suffered brain damage. Plaintiff filed an action to recover from defendant, whose dog struck plaintiff’s motorcycle. The jury returned a verdict in his favor for $4,550 for past medical expenses, $2,225 for past pain and suffering, $3,225 for past lost wages, and nothing for future medical expenses, pain and suffering, lost earnings or disability. The appellate court set aside the verdict and remanded the case on the grounds that the jury’s failure to award damages for several elements of damages despite clear evidence demonstrating their existence was against the manifest weight of the evidence. The court reasoned that there was substantial uncontradicted evidence of the permanent injuries plaintiff suffered and medical testimony that plaintiff could not return to work as a construction laborer. The jury declined to award damages for the disability and also the damages for future wage loss.

The Barr case supports plaintiff’s position that disability and future lost wages are two distinct elements of damages. Hinnen is distinguishable based on the fact that the court in Hinnen awarded medical expenses but no award was given for disability or pain and suffering. In Barr, awards were given for past medical expenses, pain and suffering and lost wages, but not for future medical expenses, pain and suffering, lost earnings or disability. Thus, the jury’s award here of future lost earnings was not fatally inconsistent.

Defendant next argues that the court erred in refusing to instruct the jury that it could draw an adverse inference from plaintiff’s failure to call his treating physician as a witness. Defendant asserts that there was no evidence that Dr. Paproski was beyond the jurisdiction of the court, nor that he was unable to testify. Defendant maintains that therefore, it could be inferred that the doctor’s testimony would have been unfavorable.

Defendant cites Hollembaek v. Dominick’s Fine Foods, Inc. (1985), 137 Ill. App. 3d 773, 484 N.E.2d 1237, for this proposition. In that case, plaintiff requested that jury instruction IPI Civil 2d No. 5.01 be given after defendant failed to call the doctor who examined plaintiff at defendant’s request before trial. While the appellate court stated that the trial court was first required to make a determination whether, in all likelihood, the party would have produced that witness unless the testimony was in fact unfavorable, it went on to hold that because the doctor who examined plaintiff was under defendant’s control, in all likelihood defendant would have produced him but for the fact that the testimony would have been unfavorable.

As a general matter, the adverse inference is available when the missing witness is under the control of the party to be charged and could have been produced by reasonable diligence, the witness was not equally available to the party requesting that the inference be made, a reasonably prudent person would have produced the witness if the party believed that the testimony would be favorable, and no reasonable excuse for the failure to produce the witness is shown. (Lewis v. Cotton Belt Route — St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 576 N.E.2d 918.) The giving of the instruction is within the sound discretion of the trial court, and a reviewing court will reverse only where a clear abuse of discretion has been shown. Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 513, 492 N.E.2d 1364.

The same criteria govern the use of this instruction and the allowance of comments in closing argument regarding the adverse inference from a party’s failure to produce a witness. Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 22, 541 N.E.2d 643.

Hollembaek is distinguishable from the instant case. Here, the doctor was not hired by defendant to examine plaintiff or under its control. Further, plaintiff never hired Dr. Paproski as an expert. Moreover, Dr. Paproski was equally available to plaintiff and defendant. Therefore, the court did not abuse its discretion in failing to grant the IPI Civil 2d No. 5.01 instruction and in advising defendant not to comment on the failure of plaintiff’s treating physician to testify.

Defendant lastly argues that the jury’s verdict was against the manifest weight of the evidence. It maintains that in order to recover for lost earnings, the loss must be reasonably certain to occur and not be based on testimony which is speculative or uncertain. (Turner v. Chicago Transit Authority (1984), 122 Ill. App. 3d 419, 461 N.E.2d 551.) Defendant asserts that in the instant case, plaintiff failed to present any competent medical testimony that his injury prevented him from working at his customary job.

Plaintiff provided testimony by Dr. Rentschler, who stated that he was familiar with the work performed by millwrights and that it involved erecting and repairing heavy machinery. He further testified that plaintiff would have problems squatting, kneeling, carrying heavy equipment and climbing indefinitely. Plaintiff testified that he was unable to kneel for longer than two minutes, unable to walk beams as he once did, and was unable to climb ladders. Further, he testified that the work of a millwright involved climbing and walking beams. Moreover, his salary as a millwright before the injury was $44,000 and after the injury, he never earned more than $20,000 because he was unable to do the work of a millwright.

The determination of an adequate verdict is peculiarly within the province of the jury and great weight must be given to its determination. (Zitzmann v. Miller (1990), 194 Ill. App. 3d 477, 551 N.E.2d 707.) A reviewing court will not disturb the jury’s findings unless the damages are manifestly inadequate. (Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147.) A verdict may be found contrary to the manifest weight of the evidence where the size of the award is the result of passion or prejudice, where the amount is palpably inadequate, or where the jury disregarded proven elements of damages. Barr v. Groll (1991), 208 Ill. App. 3d 318, 567 N.E.2d 13.

Here, there is no argument or evidence that the jury’s verdict was the result of passion or prejudice. Further, there was testimony sufficient for the jury to have reached the verdict that it did. Therefore, the decision was not against the manifest weight of the evidence.

For the following reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL GRANT, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—3473
    Opinion filed July 10, 1992.

      Rita A. Fry, Public Defender, of Chicago (Kim L. Sorrells and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol Gaines, and Harmon K. Aguilar, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a jury trial, defendant Carl Grant was found guilty of home invasion and aggravated criminal sexual assault, and was sentenced to 50 years in the Illinois Department of Corrections, followed by a three-year period of mandatory supervised release. On appeal, defendant contends that (1) his conviction for aggravated criminal sexual assault should be reversed because complainant’s testimony that the assault occurred in a dark room where four other people were sleeping and no one woke up lacks credibility and is contrary to human experience; (2) the trial court erred in refusing to allow cross-examination of the complainant regarding prior sexual relations with her boyfriend to explain or rebut the medical evidence; (3) the prosecutor’s comments during closing argument regarding the subpoena power of defendant to obtain the testimony of an emergency room physician impermissibly shifted the burden of proof to the defendant; and (4) the examination of the complainant’s mother on redirect concerning the taking of certain photographs of her apartment building had the effect of making the prosecutor a witness. For the reasons set forth below, we affirm.

Facts

L.F., the 13-year-old complainant, lived in an apartment with her mother, two sisters, ages 7 and 16, and three brothers, ages 7, 8 and 14. The apartment consisted of a living room, dining room, kitchen, bathroom and two bedrooms. L.F.’s mother slept in one bedroom and five of her children slept in the other bedroom. The furniture in the children’s bedroom consisted of a king size mattress and box spring which were next to each other on the floor, and two dressers. L.F. and two of her brothers slept on the mattress, and two other children slept on the box spring. Her 16-year-old sister slept on a sofa in the dining room.

L.F. testified that on April 1, 1988, at about 7:30 p.m., she was at home, in bed, when she saw the defendant and his friend walking through the apartment. The defendant was on the way to his uncle’s apartment, which was downstairs from the apartment where she lived. She had known the defendant for close to a year.

Later during the night, L.F. saw the defendant again. She was in bed, sleeping, but woke up to find the defendant on top of her, pulling down her shorts and underwear. The defendant called her by her nickname. His face was a foot to a foot and a half away from hers. There was light coming into the bedroom from the kitchen, bathroom and a window.

L.F. testified that she tried to sit up and pull her shorts back on, but the defendant pushed her down and put her hands behind her back. He then vaginally penetrated her and “started pumping” on her. She was crying softly and tried to push him away. She thought that he had a knife. He told her to stop trying to push him away or it was going to hurt. L.F. testified that after he was finished, she felt sperm on her vagina and on her underwear.

L.F. ran to the bathroom, where she found her mother, and told her mother that “Carl raped me.” When she and her mother went into the living room, the window, screen and door were open. Her mother took her to the police station and then to the hospital.

Eight days later, L.F. identified the defendant in a lineup.

On cross-examination, L.F. testified that she did not yell out or scream. Her elbow was touching her eight-year-old brother sleeping next to her.

The defense then attempted to question L.F. about her boyfriend. When he asked L.F. whether she had told the police that she had sex with her boyfriend the day of the alleged rape, the State objected. The court sustained the objection. At a sidebar, defense counsel argued that L.F. had told a police officer that she had sex with her boyfriend at noon on the day in question. It was the defense position that someone other than the defendant may have been the source of the seminal material detected on swabs taken from the victim following the alleged assault since seminal material may remain in the body for up to three days after sexual intercourse, and that this fact cast doubt on the validity of the scientific evidence to be presented later.

As his offer of proof, defense counsel stated:

“If I call the officer, I don’t know what her response would be, yes or no, if she admitted or denied, but I would elicit testimony from Officer Patterson where she indicated to him when he interviewed her she allegedly had sex with her boyfriend.
Just so that we did talk to her and my partner did remind me and she does have a boyfriend and she has had sex with him two or three times and she told us the last time four or so months prior to this incident.”

The court ruled that any reference to sexual activity by the complainant with her boyfriend was barred by the rape shield statute (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7), and instructed the jury to disregard the last question.

Janice Reisse, an emergency room nurse at Ingalls Memorial Hospital, testified that she saw L.F. in the early hours of April 1, 1988. L.F. told her that she had been raped. Nurse Reisse collected hair and blood samples from L.F., and also was present when the emergency room physician examined L.F. and took vaginal swabs for evidence.

On cross-examination Ms. Reisse testified that she observed one abrasion on L.F.’s face, but she noted that it was an old abrasion. She did not see any marks or bruises anywhere else on L.F.’s body.

Sadie Fulwiley, L.F.’s mother, also testified at trial. She described her children as sound sleepers, and said that it was not unusual for her children to sleep while the radio or television was on or while a party was in progress.

Sadie Fulwiley testified that on the evening of March 31, 1988, she was at a card party at a house two doors down from hers. She left the party at about 3 a.m. on April 1, after drinking seven or eight beers, and went home. Upon arriving home, she went straight to the bathroom. Her daughter came to the bathroom door and told her mother that Carl had raped her. She and her daughter went into the living room and found one of the windows and a screen open. She nailed the window shut before she and her daughter walked 5Vz blocks to the police station.

Sadie Fulwiley also testified that prior to April 1, 1988, it was usual for her to see the defendant around her house three or four times a week. After April 1, 1988, she did not see him again until April 9,1988, the day L.F. identified him in a lineup.

The prosecutor showed Mrs. Fulwiley several photographs, which she identified as photographs of the exterior of her apartment building. On cross-examination, she said that the pictures had been taken three or four days prior to trial by two State’s Attorneys.

Also on cross-examination, Mrs. Fulwiley stated that when she came out of the bathroom, she looked in on the other children in the bedroom and they were all asleep. The 16-year-old was asleep on the sofa in the dining room and did not wake up until her mother “shook her and hollered her name out a couple times.”

On redirect, the State asked several other questions about the photographs of the apartment, without any objection at that time:

“[Prosecution]: Q: Sadie, you testified that both Mr. Cahill and myself came out to your apartment on Saturday, this past Saturday; is that correct?
A. Yes.
Q. We both came out there. Do you remember who was taking the pictures?
A. You.
Q. Do you remember when I first started taking the pictures that I started by taking pictures of the front of the house?
A. Yes.
Q. And I took three from a far distance from the front and three more close up of the porch?
A. Yes.
Q. These are the pictures you see here?
A. Yes.
Q. Then do you remember me taking pictures of the door and of the window?
A. Yes.”

Officer Lawrence Patterson, a detective with the Harvey police department, also testified for the State. Prior to Patterson’s testimony, defense counsel, outside the presence of the jury, requested permission to ask him whether L.F. had told the officer that she had had sexual relations with her boyfriend on March 31. As an offer of proof, counsel stated that, if asked, the officer would indicate that L.F. told him that she had sex with her boyfriend at noon on the 31st. The prosecutor countered that he was present for that conversation, and no mention was made of sex with the boyfriend. The court denied defense counsel’s request, but stated “the offer of proof can be developed through Officer Patterson, if necessary, outside the presence of the Jury, so that it is fully preserved for whatever purposes.” Defense counsel responded “my offer is consistent with what was stated initially,” and made no further attempt to question Officer Patterson on the subject.

When the jury returned, Officer Patterson testified that the defendant surrendered himself to the police on April 9, 1988. Later that day a lineup was held, and L.F. identified the defendant by sight and by voice. Patterson described the defendant as 30 years old and approximately 6 feet 1 inch tall. L.F. is approximately 5 feet 6 inches tall and weighs 130 pounds. Patterson described L.F. as a shy, non-talkative “closet” child who would not speak up for herself.

Officer Patterson testified that L.F. told him she did not fight with the defendant because he said that he would hurt one of her brothers who was in bed with her. The defendant had his hands on her neck and was choking her. He also smelled like alcohol.

The final witness was Judy Welch, a forensic scientist in serology with the Joliet crime laboratory. She testified that tests conducted on blood samples from L.F. showed that L.F. was an ABO type O secretor. Tests performed on blood and saliva samples taken from the defendant showed him to be ABO type A secretor. The vaginal swabs taken from L.F. in the emergency room indicated the presence of seminal material, ABO type A, which Welch testified could have originated from the defendant. Tests performed on seminal material on L.F.’s underpants were inconclusive.

Welch also examined pubic hair combings taken from L.F. and compared them with samples taken from the defendant and from L.F. and her brother who slept next to her. One of eight hairs exhibited an unusual characteristic known as an “exploded medulla,” and was consistent with the defendant’s pubic hair samples and inconsistent with samples taken from L.F. and from her brother.

On cross-examination, Welch was asked about another genetic marker, PGM, which is an enzyme present in blood and seminal material. Although the defendant was a PGM 1 plus, no PGM activity was detected in the seminal material tested. Welch also stated that the seminal material detected on the vaginal swabs could have been present for three days.

On redirect, Welch explained that tests for PGM are affected by the time between collection of a sample from the victim and the time the sample is tested. In addition, contaminants may degrade PGM activity but would have no effect on ABO activity. She stated that it was not uncommon to detect no PGM activity on a semen-stained swab, and that the failure to detect such activity in this instance did not affect her conclusion as to the possible source of the semen.

The State then rested its case. Out of the presence of the jury, the defense requested a continuance to allow it to attempt to secure the testimony of the emergency room doctor who had treated L.F. The request was denied, and the defense rested, presenting no witnesses.

In closing arguments, the defense commented on the fact that the emergency room doctor who treated L.F. had not been called as a witness by the State to testify as to any physical injury to L.F.

“Here is the one true expert that checked that vaginal area to determine if there was any injury, any trauma, any lacerations.
No testimony, the State did not present any testimony whatsoever from any medical doctor to show you that, Ladies and Gentlemen.
Reasonable doubt.
Where is the one true expert, the doctor? Where is he at, who would testify concerning the condition of this vagina? The nurse says there was no bleeding, she doesn’t see any.
If the act physically occurred between a person that size and [L.F.], that girl’s vagina would be traumatized, it’s that simple, it was not.
Reasonable doubt, Ladies and Gentlemen.”

In rebuttal, the prosecution responded:

“We could have called him [the doctor], why didn’t we call him?
Well, he has the same subpoena power I do in this courtroom, we are equals, I don’t have him, I am representing the People, but I don’t have any more power in this courtroom than him.
He can subpoena anybody he wants to, Mr. Grant can.
The doctor didn’t testify, the doctor wasn’t subpoenaed, we didn’t have any reason to call him in, if he wanted to call him, he could have.”

An objection by the defense was overruled.

The jury found the defendant guilty of home invasion and aggravated criminal sexual assault. He was sentenced to 50 years’ imprisonment followed by a period of three years’ mandatory supervised release. This appeal followed.

Opinion

Defendant’s first argument is that the evidence introduced at trial does not remove all reasonable doubt as to his guilt. He contends that the events testified to by L.F. are contrary to common sense and ordinary human experience. He also questions her identification of him as her attacker.

It is the jury, however, and not this court, which is charged with the responsibility of weighing the credibility of witnesses. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268.) The test to be employed on review in all criminal cases when the sufficiency of the evidence is questioned is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267. See also People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690.) Here, we conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of aggravated criminal sexual assault.

As to L.F.’s identification of the defendant, she testified that she had known the defendant for almost one year prior to the assault. During the assault, the defendant’s face was no more than a foot and a half from L.F.’s, and she testified that there was light in the bedroom from a window and from the kitchen and bathroom. Thus she had ample opportunity to observe and identify the defendant. In addition, he spoke to her, calling her by her nickname. When the assault was over, L.F. immediately went to find her mother and told her “Carl raped me.” Eight days after the attack, L.F. identified the defendant by sight and voice, in a police lineup.

L.F.’s clear and unequivocal identification of the defendant as her assailant distinguishes this case from that of People v. Appleby (1968), 104 Ill. App. 2d 207, 213, 244 N.E.2d 395, cited by defendant, in which the court reversed defendant’s conviction in part because of the complainant’s identification of the defendant which the court characterized as “susceptible to error.” The complainant in Appleby had never seen the defendant prior to the attack, and when she saw him two days after the attack, was not positive that he was the one who had raped her. In addition, in Appleby there was a question as to the lighting conditions during the attack.

Defendant, however, argues that L.F.’s story is unbelievable since it is contrary to common sense and human experience, pointing to the fact that, according to L.F., her four siblings were asleep in the bedroom where the assault occurred, yet not one of them woke up. Two of her brothers were even in the same bed, and her arm was touching one of them. L.F.’s mother, however, testified that her children were sound sleepers. The assault occurred at 3 in the morning, a time at which it is reasonable to assume that the children would be in deep sleep. In addition L.F. testified that she did not cry out or scream for fear that defendant would hurt her or her siblings.

Counsel for defendant made the same argument to the jury in his closing statement as he makes here, and the jurors obviously found her story to be believable. We will not substitute our judgment for theirs. It is not beyond plausibility that children who are accustomed to the sleeping arrangements presented here would not wake up during the assault. Nor is it implausible for a 13-year-old child, described as a shy, nontalkative “closet” child, to refrain from screaming under the circumstances of this occurrence.

Defendant also contends it is contrary to human experience that L.F.’s mother returned home during the alleged attack and went directly to the bathroom without hearing any noise or crying. However, Sadie Fulwiley had just returned from a party where she had consumed seven or eight beers. We see nothing incredible in her actions or the fact that she heard nothing from the children’s room. L.F. testified that she did not cry or scream.

We likewise are not persuaded by defendant’s contention that it is contrary to human experience that a 13-year-old who had just been sexually assaulted could walk, without any apparent difficulty, 5Vz blocks to the police station. There was no evidence presented that the attack was particularly painful, or that it injured L.F. so as to cause her difficulty in walking.

In addition, other evidence supports the verdict. L.F.’s mother testified that the defendant usually came around the house several times a week prior to the attack. After the attack, he was not seen again until eight days later, when he turned himself in to the police and L.F. identified him. This sudden absence following the attack lends further support to a reasonable inference of guilt.

The scientific evidence is also consistent with the verdict. Seminal material on vaginal swabs taken from L.F. were of a type which could have come from the defendant. One pubic hair was also consistent with the sample taken from defendant, including the unique “exploded medulla,” and inconsistent with samples taken from both L.F. and from the brother who slept in the same bed.

In sum, we find that a rational trier of fact could have found defendant guilty of aggravated criminal sexual assault beyond a reasonable doubt and, therefore, reject defendant’s first claim of error.

Defendant’s second claim of error concerns the trial court’s refusal to allow cross-examination of L.F. about her prior sexual relations with her boyfriend. The defendant argued at trial that questions about prior sexual activity were necessary to rebut the medical evidence and to show that semen which was detected in vaginal swabs taken from the victim following the alleged assault could have originated from someone other than himself. The trial court ruled that the rape shield statute (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7) prohibited such inquiry.

The rape shield statute provides, in part:

“In prosecutions for aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse or criminal sexual abuse, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7(a).)

Our supreme court has held that this statute is clear in prohibiting evidence of a victim’s past sexual conduct, but that when such evidence is relevant and based upon a showing of bias, motive or prejudice, a defendant’s constitutional right of confrontation through cross-examination will supersede the protections of the statute. People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726.

The Sandoval court did not directly address the question before us, namely, whether evidence of prior sexual activity would be admissible to explain or rebut medical evidence. The court did recognize, albeit by way of dictum, that under some “extraordinary circumstances,” evidence of past sexual activity by the victim would be both relevant and its admission necessary to preserve the defendant’s right to confrontation. One such circumstance would be when the evidence is “ ‘ “explanative of a physical fact which is in evidence at trial, such as the presence of semen.” ’ ” (Sandoval, 135 Ill. 2d at 185, quoting People v. Hackett (1984), 421 Mich. 338, 355 n.4, 365 N.W.2d 120, 128 n.4, quoting United States v. Kasto (8th Cir. 1978), 584 F.2d 268, 271 n.2.) Other cases cited in Sandoval where evidence was allowed to explain physical evidence include Shockley v. State (Tenn. 1978), 585 S.W.2d 645 (evidence allowed to show possibility that another caused pregnancy), and State v. La Clair (1981), 121 N.H. 743, 433 A.2d 1326 (evidence allowed to explain physical injuries). Cf. People v. Wilder (1986), 146 Ill. App. 3d 586, 496 N.E.2d 1182, decided prior to Sandoval.

Thus, while the Sandoval court explicitly held only that evidence of prior sexual activity is admissible to show bias, prejudice or motive, it did not foreclose the possibility that such evidence would also be admissible in a case such as this. “Although we certainly recognize that there may be certain situations in which the preclusion of the rape shield statute may not apply because of the defendant’s greater constitutional right to confrontation, we need not specifically adopt the rationale of our sister State courts since we conclude that we are not here confronted with an applicable situation demanding emphasis of the right of confrontation over the preclusion of the rape shield statute.” Sandoval, 135 Ill. 2d at 191-92.

We too need not decide whether the evidence which defendant here sought to introduce was admissible notwithstanding the statute, since defendant has failed to make an adequate offer of proof and thus waived the issue for review. (People v. Wilder, 146 Ill. App. 3d at 589 (“failure to make an adequate offer of proof results in waiver, for purposes of review, of the question of whether the trial court erred in excluding evidence”).) In Wilder, defendant sought to introduce evidence that the victim’s physical condition was due to prior sexual relations with others. The only evidence in the record concerning her prior sexual relations was her testimony that she had “gone out” with another person and a report by a doctor that she had attempted intercourse with that person. No offer of proof was made as to the exact nature of her sexual relations with others, or whether such relations could have accounted for her physical condition. The court held the evidence to be insufficient to establish that the victim’s physical condition was attributable to the acts of intercourse with others, and that defendant’s failure to present additional specific evidence regarding the matter constituted waiver. Wilder, 146 Ill. App. 3d at 588-89.

Here, there is less evidence than was the case in Wilder. There was no statement from L.F. about having sexual relations with her boyfriend. Nor was there anything in a police report to indicate she had told the police about having intercourse with her boyfriend. The only information before the court was the contradictory statements made by defense counsel in his representation that he would elicit testimony from Officer Patterson that L.F. told him she had sex with her boyfriend, but went on to say that she told him (defense counsel) that the last time she had sex with her boyfriend was “four or so months” prior to the incident. Later, immediately prior to Officer Patterson’s testimony, defense counsel added that, if asked, Patterson would state that L.F. told him that she had sex with her boyfriend at noon on March 31. The prosecution, however, said that he was present for that conversation and there was no mention of sex with the boyfriend. Thus it remains unclear what testimony might have been elicited had the defendant been allowed to pursue this avenue of inquiry.

Although the court invited defense counsel to develop the offer of proof outside the presence of the jury through Officer Patterson, counsel declined. Under these circumstances, we find that defendant has waived his contention that he should have been allowed to present this evidence to provide an alternative explanation as to the source of the semen by his failure to present an adequate offer of proof.

Moreover, even where the rape shield statute expressly allows evidence of prior sexual activity by its express provisions, which it does as to past sexual encounters between the alleged victim and the defendant, the statute requires a preliminary showing of “reasonably specific information as to the date, time and place” to be made at an in camera hearing before such evidence will be admissible. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7(b).) No less should be required when the defendant seeks to admit evidence of the victim’s sexual conduct with others. Defendant presented no specific information regarding the date, time or place of the alleged sexual intercourse with the boyfriend. The court had only defense counsel’s indication that the officer would testify that L.F. told him she had sexual relations with her boyfriend the day of the assault, but the certainty of that testimony was substantially diminished by counsel’s own admission that L.F. told him that she last had intercourse with her boyfriend “four or so months” before the assault. Moreover, the prosecutor stated that he had been present when L.F. allegedly made the statement to the police and that no such statement was made.

The lack of certainty in defendant’s offer of proof distinguishes the instant case from that of People v. Gray (1991), 209 Ill. App. 3d 407, 568 N.E.2d 219, in which the court held that a defendant’s right to cross-examine the victim regarding a sexual relationship with another superseded the protections of the rape shield statute. There, in an offer of proof, the defendant elicited testimony that the complainant told a friend that the defendant had not raped her and that she made up the rape story because she feared she was pregnant by the other man. There was no such offer of proof or testimony here by Officer Patterson as to what the victim allegedly told him.

In his brief on appeal, defendant contends for the first time that, in addition to rebutting the medical evidence, this line of questioning was relevant to show L.F.’s bias, interest or motive to testify falsely. (People v. Campos (1987), 155 Ill. App. 3d 348, 358, 507 N.E.2d 1342 (defendant is entitled to “fully cross-examine to show bias, interest, or motive”).) He suggests that “if [L.F.] had become sexually active and feared her mother’s knowledge of her conduct, [L.F.] had bias, interest, and motive to alleged [sic] that she had been forcefully assaulted by another man such as [defendant].” This basis for admissibility, however, was not raised below and accordingly has been waived. People v. Thompson (1984), 125 Ill. App. 3d 665, 679, 466 N.E.2d 380 (different theory of admissibility than that which was offered at trial may not be argued on appeal).

The third contention raised by defendant on appeal is that he is entitled to a new trial due to comments made by the State in rebuttal, comments which defendant urges impermissibly shifted the burden of proof to the defendant. He claims that the prosecutor, by telling the jury that the defendant has the same right as the State to subpoena witnesses and that the defense could have subpoenaed the emergency room doctor who treated L.F., implied that the defendant had a burden to prove his innocence.

The State, on the other hand, contends that his issue has been waived for review by defendant’s failure to include it with the requisite specificity in his motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) In addition, the State argues that in the event we conclude that the issue was not waived, the comments were an invited response to defense counsel’s repeated references in his closing argument to the State’s failure to call the doctor.

Regarding the question of waiver, we agree with the State that defendant’s post-trial motion lacks the specificity required to preserve an issue for appeal. In his motion for a new trial, defendant objected generally to “prejudicial, inflammatory erroneous statements in closing arguments.” Such a general objection has been held insufficient to preserve an issue for appeal. (People v. Sargent (1989), 184 Ill. App. 3d 1016, 540 N.E.2d 981.) However, where the alleged error is one affecting substantial rights, we may consider the issue on appeal, waiver notwithstanding, under the plain error doctrine. (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 453.) Because this contention touches upon defendant’s fundamental right to be presumed innocent and to have his guilt proven beyond a reasonable doubt, we believe that it should be considered, waiver notwithstanding. People v. Weinstein (1966), 35 III. 2d 467, 469-70, 220 N.E.2d 432.

It is generally inappropriate for the prosecution to comment on the defendant’s failure to call a witness who is equally accessible to both sides. (Weinstein, 35 Ill. 2d 467, 220 N.E.2d 432; People v. Franklin (1981), 93 Ill. App. 3d 986, 994, 418 N.E.2d 155.) The State, however, is allowed great latitude in closing argument (People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329) and may respond to defense comments which clearly invite response (People v. Boone (1988), 180 Ill. App. 3d 98, 534 N.E.2d 1266). When the defense invites comments regarding an absent witness, the comments cannot be relied upon as error on appeal. (People v. Mahaffey (1989), 128 Ill. 2d 388, 425, 539 N.E.2d 1172. See also People v. Jennings (1986), 142 Ill. App. 3d 1014, 1024, 492 N.E.2d 600.) There, as in this case, defense counsel in closing argument pointed to the State’s failure to call the physician who examined the victim. The court found no error in prosecutor’s remark regarding defendant’s failure to call the doctor, stating that “where the defendant has the same access to witnesses, he cannot complain of comments by the prosecutor concerning defendant’s ability to call these witnesses when he invited or provoked such comment.”

Moreover, even were we to determine that the State’s remarks were improper, we would conclude that reversal is not warranted. Unless improper remarks result in substantial prejudice to the defendant, reversal is not required. (People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089.) “If the prosecutor’s remarks were such that, had they not been made the jury may have reached a different result, then the error is prejudicial.” People v. Mullen (1990), 141 Ill. 2d 394, 407, 566 N.E.2d 222.

As discussed above, we have found the evidence presented at trial to be amply sufficient to support the verdict. There simply was no evidence presented on the question of injury to L.E The defense pointed out this deficiency in its closing arguments, and the State responded. The State did not repeat the comment nor did it dwell on the issue. In addition, the court correctly instructed the jury as to the burden of proof and the defendant’s presumption of innocence. As a result, we cannot say that the result would have been different had these comments not been made.

The cases upon which defendant relies are not on point. In People v. Weinstein, 35 Ill. 2d 467, 220 N.E.2d 432, the prosecutor repeatedly and explicitly told the jury that it was defendant’s burden to present evidence creating reasonable doubt. The court found that the defendant was manifestly prejudiced by these repeated erroneous assertions. In People v. Lopez (1987), 152 Ill. App. 3d 667, 679, 504 N.E.2d 862, the State in rebuttal argument named 11 people who might have provided the defendant with an alibi. The court found that the remark “[w]here are those people that can clear the defendant” constituted an impermissible shifting of the burden, which resulted in substantial prejudice to the defendant. As discussed above, we find no such prejudice here.

Regarding defendant’s final argument, i.e., that the State’s questioning of Sadie Fulwiley on redirect regarding the photographs of her house had the effect of making the prosecutor a witness and was unfair and prejudicial, defendant failed to object to the questioning at trial or to raise the issue in his post-trial motion and, as a result, has waived the issue on review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Moreover, even were the issue not waived, we find it to be without merit. The prosecutor did not take the stand, in contrast to what occurred in People v. Janes (1985), 138 Ill. App. 3d 558, 486 N.E.2d 317, cited by the defendant. Here the defendant, on cross-examination of Sadie Fulwiley, brought out the fact that the pictures were taken by the prosecution. The State was simply clarifying the issue on redirect, which it had the right to do. (People v. Miller (1978), 58 Ill. App. 3d 156, 373 N.E.2d 1077.) Further, the defendant has not explained, nor can we conceive, how these questions regarding who took the pictures of the complainant’s house have resulted in prejudice to the defendant. People v. Janes, 138 Ill. App. 3d 558, 486 N.E.2d 317.

Accordingly, for all the above reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNULTY, P.J., and MURRAY, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    O’HARE-MIDWAY LIMOUSINE SERVICE, INC., Plaintiff-Appellant, v. CRAWFORD J. BAKER et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—90—1714, 1—90—1821 cons.
    Opinion filed July 10, 1992.

      Michael A. Abramson, P.C., of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

O’Hare-Midway Limousine Service, Inc. (O’Hare-Midway), appeals the decision of the circuit court affirming the Illinois Department of Employment Security’s determination that its chauffeurs were employees rather than independent contractors and, consequently, were covered for purposes of unemployment insurance contributions. For the reasons which follow, we affirm the judgment of the circuit court.

Joseph T. Wallon, Jr., and Crawford J. Baker worked as chauffeurs for O’Hare-Midway. On May 29, 1987, Wallon filed a claim for benefits under the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.). Subsequently, a claims adjudicator found that O’Hare-Midway had paid Wallon wages for insured work; O’Hare-Midway appealed, and a referee affirmed the adjudicator’s finding; O’Hare-Midway again appealed, and the Board of Review remanded the case to the referee so that a record of the hearing could be made; another hearing was held, and the referee again affirmed the adjudicator’s finding; and, finally, on August 18, 1988, the Board of Review affirmed the decision of the referee. Baker’s claim was filed on July 12, 1987. A claims adjudicator determined that he had been paid wages for insured work, and a referee and the Board of Review affirmed. On May 15, 1990, the circuit court heard appeals on both cases and affirmed the decisions of the Board of Review. These claims have been consolidated for appellate review.

The pertinent facts are as follows. Both Wallon and Baker leased limousines from O’Hare-Midway, which booked limousine reservations and dispatched drivers. Both Wallon and Baker operated under oral leasing agreements, whereby each received 40% of the fares collected (a commission percentage which was set by O’Hare-Midway and which was not negotiable). Both dressed in dark business suits, as prescribed by O'Hare-Midway. Both received instructions from O’Hare-Midway concerning radio usage, the dispatch system, and limousine driving. Both paid for gas, tolls, and car washes, while O’Hare-Midway paid for insurance, license fees, stickers, and oil changes. Both chauffeurs chose their own work schedules. While Baker kept detailed business records which itemized full passenger fares, his tips, and taxable income, Wallon kept no records. O’Hare-Midway also kept no records of the chauffeurs’ earnings.

Based on the aforementioned facts, the claims adjudicator, the hearing’s referee, the Board of Review, and the circuit court determined that Wallon and Baker were paid wages for insured work and were therefore entitled to unemployment compensation benefits. In our review of an agency’s decision, the findings of fact are held to be prima facie true and correct, and the agency’s decision should not be reversed unless it is contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101; Farmers Insurance Exchange v. Department of Labor (1989), 186 Ill. App. 3d 493, 498, 542 N.E.2d 538, 540 (“It is not the reviewing court’s function to make independent determinations on questions of fact; rather, the court’s sole function is to determine whether the administrative agency’s final decision was just and reasonable”).) Agency determinations on questions of law should be affirmed absent an abuse of discretion. (City of Chi cago v. Illinois Local Labor Relations Board (1988), 182 Ill. App. 3d 588, 536 N.E.2d 1219.) When the issue on review specifically involves the agency’s interpretation of a statute that the agency is empowered to administer, the agency’s interpretation should only be overturned if it is clearly erroneous. City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219.

The instant case involves the defendants’ interpretation of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.), the statute that the defendants are empowered to administer. The Act itself is to be liberally construed for the benefit of the unemployed worker. Griffits Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 390 N.E. 2d 333.

In its appeal, O’Hare-Midway first alleges that Baker and Wallon’s business of furnishing chauffeur services to passengers does not constitute employment under the Act. The Act defines employment as any service performed by an individual for an employing unit. (Ill. Rev. Stat. 1989, ch. 48, par. 316.) The Illinois Supreme Court has found that no services were rendered and therefore no employment relationship existed between cab drivers and a cab company, where the cab company leased cab licenses to cab drivers, held title to and carried insurance on the vehicles and maintained a garage for the cab driver while the drivers operated the cabs, paid for their expenses and gasoline, and paid the company $60 a week. (Parks Cab Co. v. Annunzio (1952), 412 Ill. 549, 107 N.E.2d 853.) These Parks cab drivers are readily distinguishable from the chauffeurs in the case at bar. While the cab drivers were free to pick up passengers wherever they chose, Wallon and Baker picked up customers who had “booked” limousine services with O’Hare-Midway. While the cab drivers paid a set weekly rate for their leases, Wallon and Baker paid a percentage of their commissions to Midway-O’Hare, thus establishing a financial interdependence, or a direct financial stake with the limousine company. (See NLRB v. O’Hare-Midway Limousine Service, Inc. (7th Cir. 1991), 924 F.2d 692 (in considering the employee-independent contractor issue, the Seventh Circuit stated that the decisive factor in the cab cases was the lack of any financial interdependence between the cab drivers and the taxicab companies).) O’Hare-Midway also relies on the case of Wallace v. Annunzio (1952), 411 Ill. 172, 103 N.E.2d 467, where the Illinois Supreme Court found that the relationship between associate attorneys and a law firm was really similar to a joint partnership, as the attorneys shared in the profits and losses and were really performing services for themselves. Again, the instant action is distinguishable, as the chauffeurs, although they did share a percentage of the commissions, were performing services for O’Hare-Midway (driving customers booked by the limousine service) and not for themselves.

O’Hare-Midway next argues that even if the furnishing of chauffeur services constitutes employment, Wallon and Baker are independent contractors, free from direction and control, and therefore uncovered by the provisions of the Act. The independent contractor exemption to the Unemployment Insurance Act provides as follows:

“Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that—
A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
B. Such service is either outside the usual course of business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
C. Such individual is engaged in an independently established trade, occupation, profession, or business.” (Ill. Rev. Stat. 1989, ch. 48, par. 322.)

All three conditions must be met before the exemption is allowed. (See Farmers, 186 Ill. App. 3d at 499, 542 N.E. 2d at 540.) Although there is no Illinois case law concerning the specific issue of whether limousine drivers are employees for unemployment insurance purposes, the Seventh Circuit Court of Appeals has decided this very same issue involving O’Hare-Midway. (See NLRB v. O’Hare-Midway Limousine Service, Inc. (7th Cir. 1991), 924 F.2d 692.) In its decision, the Seventh Circuit found that the issue centered on O’Hare-Midway’s ability to control the employees, noting the rules regarding collection of fares and servicing of passengers, and the mandatory dress code.

Similarly, in the case at bar, we find that the chauffeurs were not free from O’Hare-Midway’s general control. Although O’Hare-Midway argues that there was no uniform requirement, that the drivers were free to set their own hours, and that they could decline a dispatch if they chose, such is not the case. The dark business suit and tie, mandated by O’Hare-Midway, was essentially a uniform requirement. Even though the drivers could set their own hours and decline customers, O’Hare-Midway retained the right to stop leasing the limousines, and admitted before the hearing officer that if calls were declined regularly, it would, in fact, terminate leasing arrangements. This indirect sanction is an important element of O’Hare-Midway’s control. Furthermore, the commission percentage the drivers received was set by O’Hare-Midway and was not negotiable. Even though O’Hare-Midway considered the drivers to be independent contractors, and consequently made no deductions for social security, Federal income tax or State income tax, and even though the drivers paid for their own gas, tolls, and car washes, such evidence does not outweigh the fact that O’Hare-Midway retained substantial control of the chauffeurs at issue. O’Hare-Midway also contends that it is a provider of dispatch, booking, and billing services, that it offers these services from its Wheeling office, and that the chauffeurs performed their driving services outside O’Hare-Midway’s usual course of business. While it is true that the driving did not take place at the Wheeling office, the chauffeurs picked up and returned their limousines there. Furthermore, we cannot conclude that the usual course of a limousine dispatching service is limited to office space. Rather, we find that because the drivers represented the interests of O’Hare-Midway whenever they picked up passengers, the usual course of business was on the roadways traveled.

Finally, O’Hare-Midway maintains that the chauffeurs were engaged in an independent business and therefore were not employees. One of the characteristics of an independent business is the owner’s proprietary interest in the business to the extent of being able to operate that business without disturbance from anyone else, or of being the owner of an enterprise which the driver could sell or give away. (Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 518 N.E.2d 768.) The alleged independent business of the chauffeurs was under the complete control of O’Hare-Midway and had no assets, as O’Hare-Midway provided both the cars and the customers to the drivers. In fact, the operations manager for O’Hare-Midway testified that he would not have purchased Wallon’s “company” because it had no assets.

For the abovementioned reasons, we find that Wallon and Baker were not independent contractors and that their chauffeur services constituted covered employment under the Illinois Unemployment Insurance Act. Accordingly, we affirm the judgment of the circuit court.

Affirmed.

MURRAY and GORDON, JJ., concur.

       Additionally, the Seventh Circuit’s decision involved the narrower common law principles of agency, which do not apply to the statutory provisions in the case at bar.

       O’Hare-Midway also argues that the Board of Review’s determination as to the amount of Wallon’s wages and the reasons for his separation were incorrect. Since these issues were not raised during the administrative proceedings, they have been effectively waived for review.