author: PRESIDING JUSTICE GOLDENHERSH

text:
      In re MARRIAGE OF CARLA JEAN FUESTING, Petitioner and Counterrespondent-Appellee, and DONALD JOSEPH FUESTING, Respondent and Counterpetitioner-Appellant.
    Fifth District
    No. 5—91—0098
    Opinion filed May 4, 1992.

      Dale F. Choisser, of Burnside, Dees, Johnston & Choisser, of Vandalia, for appellant.
    James F. Jarrett, of Schniederjon, Weber, & Jarrett, of Effingham, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent and counterpetitioner (hereinafter respondent), Donald Joseph Fuesting, appeals from a judgment of the circuit court of Effingham County in favor of petitioner and counter-respondent (hereinafter petitioner), Carla Jean Fuesting. Both parties sought a modification of a judgment of dissolution of marriage entered October 9, 1984. In this cause respondent raises the following four issues: (1) whether the trial court’s order denying respondent’s counterpetition for modification of custody was against the manifest weight of the evidence, (2) whether the trial court’s order increasing the amount of child support to be paid by respondent from $175 per month to $90 per week was against the manifest weight of the evidence, (3) whether the trial court’s order finding respondent in contempt for failing to return the minor child at the end of his six-week period of summer visitation was against the manifest weight of the evidence, and (4) whether the trial court’s order requiring respondent to pay petitioner $400 in attorney fees for his failure to comply with the terms of the previously entered separation agreement was against the manifest weight of the evidence. We affirm in part, vacate in part, and reverse in part.

Petitioner and respondent were divorced on October 9, 1984. One child was born of the marriage, a daughter, Kara. Since the time of the divorce, Kara has been in the custody of petitioner by the parties’ agreement. Respondent had reasonable visitation rights along with six weeks of visitation during the summer. The original judgment of dissolution ordered respondent to pay $175 per month in child support and allowed petitioner to claim Kara as her dependent for income tax purposes. Respondent assumed the obligation of maintaining medical coverage on Kara.

Kara, who was 11 years old at the time of the instant proceedings, remained in Effingham almost exclusively after her parents’ divorce. Shortly after the parties’ divorce, petitioner and Kara moved to Stillwater, Oklahoma, where petitioner and respondent apparently attempted a reconciliation. Petitioner and Kara remained in Stillwater for six months but then moved back to Effingham. Respondent remained in Stillwater but recently moved to Marietta, Georgia, with his new wife, Judy, whom he married on May 23, 1986.

The custody and support agreements were followed by the parties, and all went smoothly until April 30, 1990, when petitioner filed a petition for modification of the judgment of dissolution seeking an increase in child support to a figure equal to at least 20% of respondent’s current net income. Petitioner also sought to enforce the part of the judgment of dissolution agreement which required respondent to provide medical insurance for Kara. On June 22, 1990, respondent filed an answer to the petition along with a counterpetition for modification in which he sought the right to claim Kara as a dependent for tax purposes as well as an order requiring petitioner to provide medical insurance for Kara. Respondent also sought contribution for the expenses he incurred in transporting Kara to his home for visitation. On July 30, 1990, respondent filed count II to his counterpetition seeking custody of Kara. Additionally, respondent filed a petition for temporary relief seeking custody of Kara. On August 7, 1990, petitioner filed a petition for enforcement of visitation and a contempt citation due to respondent’s failure to return Kara after his six-week summer visitation period, which expired on July 21, 1990. On August 9, 1990, respondent filed an answer to this petition. On August 17, 1990, the trial court entered an order requiring respondent to return Kara to petitioner and ordering a rule to show cause to issue as to why respondent should not be held in contempt for failing to return Kara at the end of the six-week summer visitation period. All issues were scheduled for hearing on September 4, 1990. At the hearing, evidence was adduced from several witnesses and included the following testimony pertinent to the issues before us. Other facts will be discussed during our resolution of the specific issues.

Both respondent and petitioner are homeowners. Petitioner lives with her fiance, Dennis Wilson. The two have been living together for approximately four years and during that time have engaged in sexual relations. While petitioner and Mr. Wilson intend to marry at some point, no plans are definite. Petitioner and Mr. Wilson are both liable on the mortgage on the house they share. They share living expenses, have purchased personal property together, and share bank accounts. Respondent lives with his new wife, Judy, in Marietta, Georgia. They purchased a home for $150,000 upon moving to Marietta. Both respondent and petitioner have adequate room for Kara in their respective homes.

Respondent is employed as a bindery supervisor. Respondent leaves his home to go to work around 2 p.m. and arrives home around 11:30 p.m. Both respondent and his new wife testified that should they be awarded custody of Kara, Judy would quit her job and remain home to be with Kara. Petitioner also works in a printing business. She works from midnight to 8 a.m. Dennis Wilson remains with Kara while her mother is at work.

By all accounts, Kara seems to have normal “stepparent” relationships with both Judy Fuesting and Dennis Wilson. Both respondent and petitioner expressed concern about Kara’s religious training. Kara attends a Catholic grade school in Effingham and regularly attends church with either her mother or her grandmother Fuesting. Respondent indicated that he would continue taking Kara to church, but from his testimony, it is apparent that he is no longer a practicing Catholic and would choose to take Kara to a different type of Christian church.

Kara and petitioner seem to have a good mother-daughter relationship. Kara and respondent also seem to have a good relationship. Kara indicated that she would prefer to live with respondent in Georgia because “it would probably be a change.”

After hearing all the evidence, the trial court denied respondent’s petition to change custody, ordered respondent to pay the sum of $90 per week in child support, except for the six weeks that Kara is to be with respondent each summer, ordered petitioner to maintain health insurance through her employer on Kara and allowed respondent to delete Kara from insurance coverage through his employer, granted respondent the dependency deduction for Kara in 1991 and future years, and ordered respondent to pay petitioner $400 for her attorney fees incurred as a result of respondent’s failure to return Kara after six weeks of summer visitation.

The first issue we are asked to address is whether the trial court’s order denying respondent’s counterpetition for modification was against the manifest weight of the evidence. Respondent contends that he proved by clear and convincing evidence that a change in circumstances had occurred in not only the circumstances of Kara and petitioner, but also in his own circumstances, which warranted modification of custody. Specifically, respondent contends that petitioner’s conjugal relationship with a man to whom she is not married warrants and mandates modification of custody, especially when petitioner’s home environment is contrasted to his own. Respondent contends that he and his wife, Judy, have more to offer Kara in terms of time, concern, love, religious training, and correct moral instruction. Petitioner responds that respondent did not meet the clear and convincing burden necessary to modify custody and that the trial court did not err in denying respondent’s counterpetition for a change in custody. We agree with petitioner.

Section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610) governs actions for modifications of child custody judgments. It provides in pertinent part:

“(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).)

This section reflects an underlying policy favoring the finality of child custody judgments and creating a presumption in favor of the present custody so as to promote stability and continuity in the child’s custodial and environmental relationships. (Gunter v. Gunter (1981), 93 Ill. App. 3d 1043, 1048, 418 N.E.2d 149, 153.) The paramount issue in all matters concerning custody of a child is his or her welfare. Changed conditions, in itself, is not sufficient to warrant a modification in custody without a finding that such changed conditions affect the welfare of the child. (Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 1099, 425 N.E.2d 1251, 1259.) Child custody matters are within the discretion of the trial court which has heard testimony of the witnesses and observed their demeanor and is in a better position to determine what is in the best interest of the child. (In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 618, 435 N.E.2d 1361, 1363.) The trial court’s determination will not be disturbed unless there is a clear abuse of discretion or the decision was contrary to the manifest weight of the evidence. Caulkins v. Caulkins (1979), 68 Ill. App. 3d 284, 385 N.E.2d 1117.

Respondent relies on Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, to support his contention that he should have been awarded custody of Kara. In Jarrett, the circuit court granted the father’s petition for a modification of custody of the parties’ three minor children based upon the mother’s continuing cohabitation with a member of the opposite sex and awarded the father custody, finding it was “ ‘necessary for the moral and spiritual well-being and development’ of the children.” (78 Ill. 2d at 342, 400 N.E.2d at 422.) The appellate court reversed (Jarrett v. Jarrett (1978), 64 Ill. App. 3d 932, 382 N.E.2d 12). The supreme court, in a split decision, reversed the appellate court and reinstated the order of the circuit court. However, even respondent agrees that Jarrett does not establish a per se rule that the custodial parent’s cohabitation with a member of the opposite sex requires a modification of custody.

“[A] custody award is not arrived at by pressing one lever and mechanically denying custody to one parent; rather all of the circumstances must be considered that affect the best interests of the child.” (In re Marriage of Thompson (1983), 96 Ill. 2d 67, 78, 449 N.E.2d 88, 93.)

Therefore, we must consider the totality of circumstances before us, not just petitioner’s relationship with Dennis Wilson.

In the instant case, Kara has resided almost exclusively in Effingham with her mother since the parties divorced. Kara and her mother seem to have, for the most part, a warm and loving relationship. All indications are that Kara also has a warm and loving relationship with her mother’s live-in fiance, Dennis Wilson. The relationship seems comparable to a stepfather-stepdaughter relationship. Kara is well adjusted to her school and has both family and friends in Effingham. While Kara expressed a desire to live with her father and stepmother, that decision seemed less than fully explored. Kara articulated her reason for wanting to live with her father over her mother as “it would be a change.” Yet, over the summer Kara had also expressed her desire to remain with her father but later wanted to return home to be with her mother. The testimony indicated that Kara would be adequately taken care of and would enjoy reasonable comforts necessary for her development in either petitioner’s or respondent’s household. The testimony also indicated that Kara would receive religious training in either household. If custody were modified, Kara would be taken away from a place she had lived almost exclusively since birth to a town some 500 miles away. Kara would leave behind both friends and family in Effingham. While Kara had made some friends in Marietta over the summer, they were not the types of relationships she had developed over her many years in Effingham.

We find it interesting that petitioner had lived with Dennis Wilson for four years prior to respondent’s petition seeking a modification in custody, which was sought only after petitioner requested an increase in child support. There was no evidence presented that petitioner’s relationship with Dennis Wilson had harmed Kara in any way or that it would necessarily harm her in the future. After a review of the evidence in the instant case, as well as a review of the trial court’s orders, we cannot say that the trial court erred in finding that respondent failed to meet his burden and refusing to transfer custody to respondent. On the contrary, we find that the trial court was well within its discretion to allow petitioner to retain custody of Kara. Under the circumstances presented here, we find that the trial court did not err in denying respondent’s counterpetition for custody.

The next issue we are asked to consider is whether the trial court’s order increasing the amount of child support from $175 per month to $90 per week was against the manifest weight of the evidence. Respondent contends that petitioner failed to prove any increase in the needs of Kara, failed to prove the sum of $175 per month was insufficient to meet the needs of Kara, and, thus, failed to prove any substantial justification for an increase of child support to 20% of respondent’s net income. Petitioner responds that under section 510(b) of the Act, she is entitled to a one-time increase to 20% of respondent’s net income. (Ill. Rev. Stat. 1989, ch. 40, par. 510(b).) However, we agree with respondent that we cannot review the trial court’s increase based upon section 510(b) of the Act, as section 510(b) was not alleged in the petition for modification, nor was it ever argued before the trial court. The general rule is that questions not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279, 545 N.E.2d 731, 733.) Nevertheless, we find sufficient support for the trial court’s increase and refuse to reverse the trial court on this issue.

Section 510(a) of the Act allows for modification of child support orders only upon a showing of substantial change in circumstances. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) The burden of proof is on the party who seeks the modification. (Gaines v. Gaines (1969), 106 Ill. App. 2d 9, 245 N.E.2d 574.) The relevant factors to be considered are clearly set forth in In re Marriage of Daniels (1983), 115 Ill. App. 3d 173, 450 N.E.2d 361:

“We believe that section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)) and the case law make clear that the paramount consideration of the court is to determine whether a substantial and material change has intervened since the original support allowance was made. While the needs of the child and the financial status of the noncustodial parent are important factors in making the decision, the court must also consider the financial resources of the child, the financial status and needs of the custodial parent, the standard of living the child was accustomed to prior to dissolution, and the physical and emotional needs and educational needs of the child. (Ill. Rev. Stat. 1981, ch. 40, par. 505; In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 160, 408 N.E.2d 1021, 1023.)” (115 Ill. App. 3d at 176, 450 N.E.2d at 362-63.)

We also note that a trial court’s decision to modify child support payments cannot be disturbed unless there is a clear abuse of discretion. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229,1233.

Here, the trial court specifically found:

“7) That Father’s net income for 1989 was approximately $27,000 after adjusting for income tax refund and FICA. Based on the uncontradicted statements in his financial affidavit his anticipated 1990 net income is $28,330 and his net should increase in 1991 by a minimum of $600/year if he is no longer required to maintain medical insurance on Kara. Father’s income has increased substantially since the date of the Dissolution due to his willingness to relocate twice out of the state of Illinois. As a result he has become vulnerable to an increase in child support which has, in fact, been sought by the Mother. This should be a two-edged sword however. Accordingly, the costs of transporting the child to the state of Georgia which is for her benefit must, in equity, be considered in setting the child support. Similarly, the evidence is uncontradicted that the cost of living in Marietta, Georgia is substantially higher than in Effingham and part of the substantial drain on Father’s income, mortgage payments, is a partial benefit to Kara during summer visitation. The Court finds 20% of Father’s net income for 1991 to be approximately $lll/week. That Mother has substantial income and her household expenses are shared with Dennis Wilson, and that Father has substantial debts. That based on the factors hereinabove set forth, commencing January 04, 1991 and each Friday thereafter Father should pay the sum of $90/ week in child support, said payments to be abated during Kara’s six weeks of summer visitation with her father, and Father should be granted the dependency deduction for 1991 and succeeding years provided all child support and his share of medical bills are timely paid.”

We find the trial court’s analysis sound. The trial court did not strictly adhere to guidelines such as the 20% of net income found in section 505(a) of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a).) Rather, the trial court looked at all relevant factors and ordered an increase to $90 per week. The trial court rightly ordered petitioner to include Kara on her health insurance plan. Kara’s addition would not cost petitioner any extra money and would save respondent $50 per month. Arguably, respondent could have been ordered to pay more than $90 per week in child support and could have been ordered to keep Kara on his health insurance. We are unconvinced by respondent’s arguments on this issue, including his argument that since he is paid bimonthly he should not be ordered to make weekly payments, and find the trial court was within its discretion to order an increase in child support to $90 per week.

The third issue we are asked to address is whether the trial court’s order finding respondent in contempt for failing to return Kara at the end of her six-week period of summer visitation was against the manifest weight of the evidence. Respondent contends that he presented evidence that he had reasonable justification for his actions and, therefore, his keeping Kara beyond the six-week period did not constitute wilful and contumacious conduct. Additionally, respondent contends that no evidence was presented by petitioner that a demand to return Kara was made prior to her filing the motion for contempt. We agree.

There are four types of contempt — direct, indirect, civil, and criminal. All four were defined in Eden v. Eden (1975), 34 Ill. App. 3d 382, 340 N.E.2d 141:

“(1) indirect contempt which entails a contumacious act committed outside the presence of the court (e.g., People v. Javaras [(1972)], 51 Ill. 2d 296, 300, 281 N.E.2d 670, 672; Kay v. Kay [(1974)], 22 Ill. App. 3d 530, 318 N.E.2d 9 (abstract opinion)); (2) direct contempt which involves an act committed in the presence of the court (e.g., People v. Clark [(1972)], 4 Ill. App. 3d 301, 303, 280 N.E.2d 723, 724; Kotowski v. Kotowski [(1971)], 3 Ill. App. 3d 231, 233, 278 N.E.2d 856, 857); (3) civil contempt which consists of failing to do something ordered by the court, usually for the benefit of the opposing litigant (e.g., People ex rel. Kazubowski v. Ray [(1971)], 48 Ill. 2d 413, 416, 272 N.E.2d 225, 226, cert. denied [(1971)], 404 U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78; Sullivan v. Sullivan [(1973)], 16 Ill. App. 3d 549, 551-52, 306 N.E.2d 604, 605); and (4) criminal contempt which comprises conduct directed against the dignity and authority of the court or the judge acting judicially (e.g., Sullivan v. Sullivan, 16 Ill. App. 3d 549, 551, 306 N.E.2d 604, 605; George v. Tool [(1972)], 6 Ill. App. 3d 329, 286 N.E.2d 41 (abstract opinion)).” (34 Ill. App. 3d at 388, 340 N.E.2d at 146.)

The instant case of alleged contempt falls into the category of indirect civil contempt. Our supreme court has generally defined contempt of court as conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court or bringing its administration of law into disrepute. (In re Estate of Melody (1969), 42 Ill. 2d 451, 452, 248 N.E.2d 104, 105.) It is this element we find missing in the instant case. See Roberson v. Liu (1990), 198 Ill. App. 3d 332, 338, 555 N.E.2d 999, 1003.

In the instant case, there was testimony that respondent had kept Kara beyond the six-week visitation period in the past without incident. Further, in this instance, Kara expressed her desire to remain with respondent. All parties had filed for some type of modification. While we do not condone respondent’s actions, we find it possible that respondent believed he could keep Kara until the petitions and counterpetitions had been heard without rebelling against the court, especially in light of the fact that petitioner never made a direct demand to respondent to return Kara prior to filing her motion for contempt. Petitioner admitted during cross-examination that no such demand was made:

“Q. Now, after July 29th, did you ever talk with Don?
A. No, I talked to him, I believe, on July 29th, and that’s when he informed me that she was in Florida with Judy’s daughter so he had to call her in Florida.
Q. Isn’t it true that at no time did you ever demand of Don that he return Kara to you after July 29th?
A. No, I asked Kara to ask her dad when he was bringing her home and Don’s wife informed me that that was up to him.
Q. So you did talk with Judy, is that correct?
A. Kara asked Judy. I didn’t talk to Judy directly.
Q. My question was though, did you ever tell Don Fuesting after you learned that Kara wanted to stay with him, that he should bring her back to you?
A. No, sir.”

Given these circumstances, we hereby vacate the contempt finding entered against respondent. Our resolution of the third issue also resolves the fourth issue raised by respondent, whether the trial court’s order requiring respondent to pay $400 in attorney fees on behalf of petitioner for failing to comply with the terms of the previously entered separation agreement was against the manifest weight of the evidence. Because we have found that the trial court erred in finding respondent in contempt, we reverse the trial court’s order requiring respondent to pay petitioner $400 for her attorney fees incurred as a result of filing a petition for contempt citation against respondent.

For the foregoing reasons, the order of the circuit court of Effing-ham County is affirmed in part, vacated in part, and reversed in part.

Affirmed in part; vacated in part and reversed in part.

RARICK and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH JUSTICE CHAPMAN,

license: Public Domain

text:
    DAVID WILLIAMS, Adm’r of the Estate of Terry L. Williams, et al., Plaintiffs-Appellants, v. JERRY L. CONNER, Defendant-Appellee.
    Fifth District
    No. 5—91—0154
    Opinion filed May 7, 1992.

      CHAPMAN, J., dissenting.
    Appeal from the Circuit Court of Franklin County; the Hon. Robert S. Hill, Judge, presiding.
    John D. Drew, of Benton, for appellants.

      Charles E. Schmidt, of Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs, Terry L. Williams, now deceased, and Olen E. Morgan, appeal from the June 26, 1990, judgment entered by the circuit court of Franklin County on a jury verdict in favor of defendant, Jerry L. Conner. Plaintiffs further appeal from the denial by the circuit court of their post-trial motion on February 4, 1991.

Plaintiffs alleged in their complaints that they were injured on August 8, 1987, as pedestrians when they were struck by an automobile driven by defendant, as they were crossing Illinois Route 154 approximately 57 feet east of Maple Street in Sesser, Franklin County, Illinois. Plaintiffs both alleged that defendant committed certain negligent acts or omissions at the aforementioned time and place and that their injuries were proximately caused by one or more of the specified acts or omissions, stated as follows:

“(a) Failed to keep a proper lookout.
(b) Operated his vehicle at a speed in excess of that which was reasonable and proper with regard to traffic conditions, in violation of Chapter 951/2, Illinois Revised Statutes, paragraph 11 — 601. (See, Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 601(a).)
(c) Operated his vehicle at a speed in excess of the posted speed limit, in violation of Chapter 95x/2, Illinois Revised Statutes, paragraph 11 — 601. (Cf. Ill. Rev. Stat. 1989, par. 951/2, par. 11 — 601(a).)
(d) Failed to reduce the speed of his vehicle in sufficient time to allow him to avoid hitting the Plaintiff[s].
(e) Operated his vehicle after dark without having the headlights operating, in violation of Chapter 951/2, Illinois Revised Statutes, paragraph 12 — 201(b). (See, Ill. Rev. Stat. 1989, ch. 951/2, par. 12-201(b).)”

Because these personal injury actions arose out of the same occurrence, occurred at the same time and place and involved the same defendant, the circuit court ordered that plaintiffs’ individual cases be consolidated for purposes of pretrial discovery and trial, by order entered December 31, 1989. Following the death of plaintiff Williams prior to trial, due to causes unrelated to the personal injury involved in the instant case, David Williams, administrator of the estate of Terry R. Williams, deceased, was substituted as plaintiff.

Plaintiffs raise the following issues on appeal:

(1) Whether remarks of defense counsel and the inferences drawn therefrom were violative of the court’s in limine order, prejudicing the jury and preventing plaintiffs from receiving a fair trial;
(2) Whether the court erred in refusing to give an issues instruction to the jury and whether the failure to give an issues instruction prevented plaintiffs from receiving a proper trial; and
(3) Whether the jury’s verdict was against the manifest weight of the evidence.

We will first discuss whether the jury’s verdict was against the manifest weight of the evidence. A verdict is contrary to the manifest weight of the evidence only where, upon review of all the evidence in the light most favorable to the party who prevailed at trial, an opposite conclusion is clearly apparent, or the jury’s finding is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary and unsubstantiated by the evidence. (Rainey v. City of Salem (1991), 209 Ill. App. 3d 898, 905, 568 N.E.2d 463, 468.) Moreover, this court will not set aside a verdict merely because we would have reached a different conclusion if we had been the trier of fact. (Rainey, 209 Ill. App. 3d at 905, 568 N.E.2d at 468.) With this formidable standard of review in mind, we will examine the evidence on which the jury based its verdict.

Defendant testified as an adverse witness pursuant to section 2— 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1102). He stated that on August 8, 1987, he had worked the evening shift at his job at the Old Ben Coal Mine, Number 21. Defendant had been the EMT in charge on underground property that night and was returning to his home in Whittington, Illinois, by way of Illinois Route 154, after completing his shift around 11:40 p.m. Defendant took this road into downtown Sesser, Illinois, heading east. Defendant stated that he had not checked his speedometer but believed he was traveling between 25 and 30 miles per hour. Defendant was very familiar with the roadway and businesses in the downtown Sesser vicinity and knew that it was possible that people could cross the street in that area.

Defendant testified that he was approximately 40 feet away when he first spotted Olen Morgan in the middle of his lane in the road and Terry Williams slightly behind him approximately on the center line. He had driven his blue Chevy Nova over a small crest in the road prior to reaching the impact area and stated that on a clear night he would be able to see 200 yards after the crest area. Defendant stated that it had been raining that night and it was hazy and the roadway was wet. The point of impact was approximately 80 yards after the crest in the road.

Defendant recalled at least one car traveling west on the roadway at this time and this car was just east of plaintiffs at the point of impact. He indicated that the headlamps and other equipment on his vehicle were in good working order on that night and testified that because he parks his car at work facing a building he would have been able to see whether or not the lights had been working when he left work. At no time between leaving work and the point of impact did defendant turn off his headlamps, and he stated that the headlamps were in low-beam position at the point of impact. Defendant admitted that he was nearsighted but stated that the problem was correctable by eyeglasses and that he had been wearing his glasses on the night of the accident. Defendant also testified that there were crosswalks in the area, located at street intersections 50 feet west and 100 feet east of the place where plaintiffs were crossing the street.

Defendant gripped the front wheel and locked his brakes but was unable to avoid hitting both plaintiffs. Defendant stated that he would have been unable to move his vehicle to the left or right to avoid hitting plaintiffs because there was not any time and noted that there were parked cars on the right side of the road. He estimated that his vehicle skidded approximately 60 to 80 feet after he applied his brakes. He skidded both before and after impacting with plaintiffs. His vehicle struck Terry Williams in the left front bumper region and Williams was thrown off to the left. When defendant’s vehicle struck Olen Morgan he was thrown onto the hood, hit the windshield and traveled with the vehicle until it was able to stop at which point Morgan rolled off in front of the vehicle.

Kenneth Jeffries testified on behalf of plaintiffs that he had had a couple of beers in the Bank Tavern in Sesser, Illinois, on the evening of August 8, 1987, and left to drive to another bar. He was going to make a right-hand turn onto Route 154 at the stop sign and noticed a car passing that did not have any headlights on and that the car was going faster than normal, about 35 to 40 miles per hour. Jeffries did not know what color or make of vehicle the car was. Another car behind that car passed moments later, but it did have its lights on, and Jeffries stated that he had seen the car with its lights on make a sudden stop. He did not see the impact between a car and plaintiffs and did not see whether it was the car with lights or the car without lights that had struck plaintiffs. Jeffries parked his vehicle and walked over to the area, and he saw that there had been an accident. He did not talk to the police about the accident but contacted plaintiff Morgan approximately four months later about what he had seen. Jeffries is now married to Olen Morgan’s daughter.

Terry Curtis Hutson, a patrolman for the City of Sesser, testified on behalf of plaintiffs. He responded to a call at approximately 11:45 p.m. on August 8, 1987, that there had been an accident. When Officer Hutson arrived at the scene of the accident he observed that there were two bodies lying on the roadway and that the distance between the two was approximately 80 feet. Officer Hutson observed that there were skid marks behind the vehicle that had been involved in the accident between 60 and 70 feet long, which began at the intersection of Walnut Street and followed the vehicle to the point where it had stopped.

Officer Hutson testified on cross-examination that there were no marked crosswalks on the roadway where the accident occurred and that the Walnut Street intersection was about 40 feet away. He also testified, however, that none of the intersections in Sesser had marked crosswalks either.

Linda Lou Eaton testified on behalf of plaintiffs that during the evening of August 8, 1987, she had been working as a barmaid at Wayne’s Bar and Grill. Someone came into the bar and asked her to call an ambulance because he had hit two gentleman out front. Eaton testified that when she went outside she observed that there was a blue automobile in the eastbound lane and that its lights were out. She also observed two men laying on the roadway and identified the men as Terry Williams and Olen Morgan.

Eaton admitted on cross-examination that she knew Williams and Morgan and that the two men had been inside the bar just a few moments before. She admitted that at the time she walked out of the bar the ambulance had already arrived. She also admitted that she had not seen the accident so that she had no way of knowing whether the lights on the blue car were on or off at the time of the accident. Eaton further admitted that she is presently employed as a barmaid at “Olen’s Bar,” an establishment owned by Olen Morgan.

Olen Morgan testified in August 1987 he was employed by S. J. Groves as the 3 p.m. to 11:30 p.m. shift concrete superintendent at the construction site for the Alton lock and dam project on the Mississippi River. After working his regular evening shift on Friday, August 7, 1989, Morgan attended a superintendent’s meeting in Alton on Saturday from 9 a.m. until 4 p.m. He went home after the meeting, took a shower and left Alton around 6 p.m. driving to his friend Terry Williams’ house in Zeigler, Illinois. He arrived at Williams’ house around 8 p.m., and they decided to go to Sesser. They went to Mamma Jo’s Lounge in Sesser and stayed there 21/2 hours. They left Mama Jo’s Lounge about 11 p.m. and went down the street to Wayne’s Bar and Grill. Morgan recalled that they stayed at Wayne’s about 20 minutes and decided to call it a night and go back to Zeigler.

Plaintiff Morgan testified that as he and Williams stood on the curve outside of Wayne’s Bar and Grill, he saw one small car going east but that there were no other cars coming from either direction that they could see. They started to cross the street to get to their car, but when they got into the eastbound lane, Morgan heard a noise from Williams and turned west toward Williams and caught a glimpse of something, but that was all he remembered. Morgan recalled that he was reaching for his keys when he started across the eastbound lane. He did not recall any lights from either direction as he was crossing the street. He did not recall seeing a Volkswagen passing in the westbound lane. He admitted that he could have crossed the street at the corner that night but chose not to.

Defendant testified on his own behalf and presented into evidence a videotape of which he had participated in the making, showing the route he had followed on the night of the occurrence. During the taping he drove the same vehicle he had been driving on the night of the accident.

The evidence deposition of Steve Bundy, a trooper with the Illinois State Police, was presented as part of the defendant’s case. Trooper Bundy testified that on August 8, 1987, he was called to investigate an accident that occurred on Illinois Route 154 in Sesser, Illinois. He arrived at the scene on August 9, 1987, at 12:29 a.m. He noted a 1985 Chevrolet Nova, still in the roadway, and that it had obviously been involved in a collision. To his knowledge the vehicle had not been moved following the collision. Bundy spoke both with the police officer from Sesser and a witness, Brian McBride. No other witnesses stepped forward with information about the accident. During the course of this investigation, no one told Trooper Bundy that defendant had not had his headlights on at the time of the accident. Bundy later spoke with plaintiffs, and neither told him that defendant was traveling too fast or that defendant had not had his headlamps on at the time of the accident. Trooper Bundy admitted that when he talked with Morgan and Williams they were incoherent.

Trooper Bundy observed skid marks left by defendant’s vehicle at the scene of the accident. The skid marks were located in the eastbound lane of traffic until the very end when the front tire angled off into the westbound lane. At this point it was well beyond the point of the collision. Bundy noted in his report that the skid marks extended 32 feet 7 inches on the driver’s side and 37 feet 10 inches on the passenger side prior to the collision point and thereafter extended 31 feet 5 inches on the driver’s side and 34 feet 5 inches on the passenger’s side. The total length of skid marks was 69 feet 3 inches on the driver’s side and 67 feet on the passenger side of defendant’s vehicle. Trooper Bundy noted that the roadway surface was slightly damp due to the rain earlier in the day and stated that this condition would lengthen the stopping distance for a vehicle. He admitted that he was not qualified as an accident reconstructionist to give an opinion as to the speed defendant’s vehicle had been traveling at the time it began skidding. Although Trooper Bundy arrived at the scene of the accident after plaintiffs had been taken to the hospital, he noted in his report that Mr. Williams’ body had been located 20 feet from the point of impact and Mr. Morgan’s body had been located 40 feet 2 inches from the point of impact.

Brian McBride testified on behalf of defendant that he saw the accident which occurred on August 8, 1987. McBride is a student at the University of Illinois and testified that on the night of the accident he and his parents had just returned from a trip to Chicago. He decided to go into Sesser to look for some of his friends. McBride testified that he was driving eastward on Route 154 in a 1983 Volkswagen and turned around at the loop by the railroad tracks to head westward on Route 154 when he saw the accident. He was only going 10 to 15 miles per hour because he had just made the turn around after coming to a complete stop. McBride testified that the roadway was a little slick from rain which had occurred earlier in the evening. He saw the car driven by defendant approach him in the eastbound lane as he saw its headlights come over the crest of the hill. He never saw defendant’s headlights go off prior to the impact with plaintiffs. McBride then saw two people walking across the road in front of him about halfway between his car and the defendant’s car. McBride testified that the two men did not look when they walked into the eastbound lane, that it appeared as though they walked right in front of defendant’s car, and that the impact occurred right after they crossed the center of the highway.

Plaintiffs argue that it is clear from the record that defendant was negligent in this cause and note the length of the skid marks as overwhelming proof that defendant had operated his vehicle at a speed which was clearly unwarranted. Defendant, however, points to evidence in the record that the roadway was damp and that this factor would increase the distance required to stop. Defendant also points to the testimony of Trooper Bundy that he could not state what speed defendant had been traveling at the time of the accident. We note that defendant testified that his speed was 25 to 30 miles per hour and that the only testimony with regard to speed that was clearly excessive was that of Mr. Jeffries. However, Jeffries was unable to say whether the vehicle he saw traveling faster than normal and without its lights was defendant’s vehicle because he admittedly did not see the accident. Jeffries also testified that he saw a second vehicle pass going east on the highway, that this vehicle had its lights on, and that it was this second vehicle that he had seen come to a sudden stop. The jury could reasonably have inferred that defendant’s vehicle was the second vehicle which Jeffries had seen. We note that it is the province of the jury as the trier of fact to determine the facts of the case, disputed as well as undisputed, and to draw from these facts the reasonable inferences which they support. Perry v. Storzbach (1990), 206 Ill. App. 3d 1065,1070, 565 N.E.2d 211, 215.

Plaintiffs also cite the testimony at trial that defendant’s lights were out at the time of the accident as further evidence of defendant’s negligence. This too was an area of disputed evidence. We note, however, that Mr. Jeffries and Ms. Eaton, who testified on behalf of plaintiffs, did not see the accident and therefore could not testify that defendant’s vehicle did not have its lights on at the time of the accident. Moreover, while Olen Morgan testified that he did not see lights from vehicles coming in either direction when he and Williams crossed the highway, Morgan admitted that he was reaching for his keys when he stepped into the eastbound lane. In contrast, Mr. McBride testified on behalf of defendant that he had his lights on and saw that defendant also had his lights on prior to the collision and that plaintiffs had crossed in front of him in the westbound lane and then without looking had stepped into the path of defendant’s vehicle. In addition, defendant testified that he would have known if his vehicle lights had been out when he started his car to come home from work and presented the videotape of the path his car would have come that night from work eastward through Sesser. Credibility of witnesses and the weight to be given their testimony is also the matter for the trier of fact. (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 912, 466 N.E.2d 925, 930.) We believe the jury could reasonably have determined that defendant’s and Brian McBride’s testimony with regard to defendant’s headlights was more credible.

Plaintiffs also argue that the introduction of evidence regarding the lack of a crosswalk where they were struck by defendant’s vehicle created a “red herring” which was cemented by the giving of defendant’s special interrogatories, over plaintiffs’ objection. However, evidence that plaintiffs had crossed in the middle of the street was relevant as to whether the two men had used “ordinary care,” and defendant had alleged by way of affirmative defense that it was plaintiffs’ own contributory negligence which was the proximate cause of their injuries. We note that by way of special interrogatory the jury responded that defendant was not guilty of negligence which was a proximate cause of the injuries sustained by Olen Morgan and Terry Williams. A jury’s determination that conduct by defendant is or is not a proximate cause of injury will only be reversed if it is contrary to the manifest weight of the evidence. Rainey, 209 Ill. App. 3d at 905, 568 N.E.2d at 468.

The jury in the instant case was instructed pursuant to plaintiffs’/ defendant’s instruction No. 6, as to the definition of “negligence”:

“When I use the word ‘negligence’ in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under the circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.” (Illinois Pattern Jury Instructions, Civil, No. 10.01 (3d ed. 1992) (hereinafter IPI Civil 3d).)

We find that the jury’s determination on the special interrogatories was not contrary to the manifest weight of the evidence. We also find that upon review of the evidence regarding the issue of defendant’s negligence, the jury’s verdict was neither palpably erroneous or unwarranted nor the result of passion or prejudice and did not appear to be arbitrary or unsubstantiated by the evidence. In short, the verdict was not against the manifest weight of the evidence.

We next will discuss the issue of whether plaintiffs were denied a fair trial because of certain conduct of defense counsel, contended by plaintiffs to have violated the court’s pretrial in limine order. Plaintiffs moved prior to trial that defendant be precluded from offering or introducing into evidence at trial questions concerning the intoxication of plaintiffs or evidence of the consumption of alcohol by plaintiffs. Following hearing, the court sustained plaintiffs’ motion with respect to the matter of drinking intoxicating liquors or the matter of having the smell of alcohol or intoxicating liquor on the breath of the particular person.

Defendant responds that none of his questions during the trial were in violation of the court’s in limine order; while defendant inquired as to the whereabouts of plaintiffs prior to the accident and the location of the accident itself, none of his questions made reference to the use of alcohol. Moreover, defendant contends that plaintiffs’ questioning of their own witnesses elicited testimony concerning taverns, and plaintiff Morgan, himself, testified during direct and redirect examination that he and Terry Williams were present at Wayne’s Bar and Grill and Mama Jo’s Lounge in the few hours immediately prior to the accident. In any event, defendant argues, plaintiffs waived appeal on this issue by failing to object at trial to any of his questions.

Plaintiffs contend, however, that defendant regularly and repeatedly made reference to the use of alcohol by overstating the whereabouts of plaintiffs in drinking establishments that night in order to plant in the jury’s mind, by innuendo, that plaintiffs were intoxicated at the time of the accident. Plaintiffs acknowledge that no objections were made to any of defendant’s individual questions; however, they explain that while any one question would not suffice to constitute a violation of the in limine order, as a whole the order was violated because of defendant’s plan to prejudice the jury with the inference that plaintiffs had been drinking.

We do not agree. In order to preserve an objection that certain evidence violates an order in limine, counsel must object at trial. (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 5, 422 N.E.2d 241, 244.) Moreover, while plaintiffs argue that repeated questions designed to elicit testimony that they were in drinking establishments violated the court’s order, we note that this order did not preclude questions as to plaintiffs’ whereabouts that night or questions designed to elicit testimony about drinking establishments. In none of defendant’s examination of witnesses did he ask whether plaintiffs had consumed any alcohol that night when they were in the various bars and taverns or whether they smelled of alcohol. As noted in Beasley, because orders in limine limit the jury’s access to certain evidence, courts must be certain that orders be specific to preclude introduction of inadmissible evidence while not restricting the opposing party’s presentation of its case. (Beasley, 97 Ill. App. 3d at 5, 422 N.E.2d at 244.) Any correction or interpretation of the order should be made by the trial court to accommodate these competing interests, and for a reviewing court to benefit from a trial court’s interpretation of the order, counsel must object to any evidence or comments allegedly violating the order in limine. (Beasley, 97 Ill. App. 3d at 5, 422 N.E.2d at 244.) If plaintiffs felt that defendant was repeatedly and prejudicially asking questions which created the inference that they were intoxicated, they should have asked for just such an interpretation of the in limine order. Because they did not, this issue is waived.

Finally, we will discuss whether the trial court erred in failing to give an issues instruction to the jury. Giving or denying a jury instruction is discretionary with the court, and a new trial may be granted for refusal to give an instruction only where serious prejudice to a party’s right to a fair trial has been shown. (Yedor v. Centre Properties, Inc. (1988), 173 Ill. App. 3d 132, 146, 527 N.E.2d 414, 423.) However, where there is an error in jury instruction but a reviewing court can see from the entire record that no injury has been done, the judgment will not be disturbed. Palmer v. Palmer (1988), 169 Ill. App. 3d 828, 831, 523 N.E.2d 1316, 1318.

Plaintiffs tendered an issues instruction as plaintiffs’ instruction No. 8 at the instructions conference following the close of evidence. In this tendered instruction plaintiffs stated in pertinent part:

“Each plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
(a) Failed to keep a proper lookout.
(b) Operated his vehicle at a speed in excess of that which was reasonable and proper with regard to traffic conditions.
(c) Operated his vehicle at a speed in excess of the posted speed limit.
(d) Failed to reduce the speed of his vehicle in sufficient time to allow him to avoid hitting the Plaintiff.
(e) Operated his vehicle after dark without having the headlights operating.”

At the conference the court refused this instruction, stating with regard to paragraph (c) above that there was no statute as to this particular duty nor did the common law say that it was negligence to exceed a posted speed limit. The court also noted that while there was a statute which covered the duties stated in paragraphs (b), (d), and (e) of the instruction, plaintiffs failed to state that this conduct was in violation of statute. Plaintiffs asked to retender instructions which were refused at the conference, and the court warned that while it would not have another conference on instructions in the morning, plaintiffs could reoffer those instructions for which the revised form had been agreed upon. Defendant did tender an issues instruction which apparently delineated that plaintiffs were claiming that certain conduct was “in violation of statute.” However, defendant’s issues instruction was also refused because it contained specific allegations of conduct on plaintiffs’ part which defendant was contending constituted contributory negligence and plaintiffs had pointed out that the affirmative defense on file merely stated that the occurrence described in the complaints was caused in whole or in part by the negligence of the plaintiffs. The court noted that it was important that there should be instruction on the issues and stated that it would give either side a chance to submit an issues instruction. The court also stated that it would look at them but would not reconsider them at large.

The following morning, five minutes before closing arguments were scheduled to begin, plaintiffs retendered, without objection, plaintiffs’/defendant’s instruction No. 7 and the court accepted this instruction. However, plaintiffs’ instruction No. 8 was retendered with objection of defendant and stated in pertinent part:

“Each plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
(a) Failed to keep a proper lookout.
(b) Drove his vehicle upon a highway of this state at a speed which was greater than was reasonable and proper with regard to traffic conditions and the use of the highway or endangered the safety of any person. The fact that the speed of a vehicle may not have exceeded the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching a hillcrest or when special hazards exist with respect to pedestrians or by reason of weather and highway conditions.
(c) Failed to decrease speed as may have been necessary to avoid colliding with any person on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
(d) All motor vehicles shall exhibit at least two lighted headlamps showing white lights during the period from one-half hour after sunset to one-half hour before sunrise and at any other times due to insufficient light or unfavorable atmospheric conditions.”

The court again refused plaintiffs’ issues instruction, noting that while plaintiffs tracked the language in the statute (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 601(a)) in their instruction, the instruction included elements of the statute that did not have any application to the facts of the case. The court also noted that certain paragraphs involving statutes did not tell the jury that a statute was involved. Finally, the court noted that there was nothing in the pleadings to set up paragraphs (b) and (c).

Defendant presented a motion for leave to amend his affirmative defense to specify the allegations of plaintiffs’ contributory negligence. The court allowed defendant’s motion but declined to accept defendant’s issues instruction.

While it is clear that a litigant has the right to have the jury instructed on his theory of the case (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 724, 504 N.E.2d 781, 786), a party is required to tender a proper instruction and it is not the duty of the trial court to prepare or amend instructions (Oak Brook Park District v. Oak Brook Development Co. (1988), 170 Ill. App. 3d 221, 238, 524 N.E.2d 213, 224) or to give an instruction on its own motion. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 509, 394 N.E.2d 1273, 1280.) Moreover, where a party’s instructions incorrectly state the issues in the case, they are properly refused. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 488, 473 N.E.2d 1322, 1343.) It is clear that neither version of issues instructions tendered by plaintiffs was correctly drawn under the court’s analysis, and plaintiffs’ tendered instruction No. 8 was therefore properly refused. We must therefore disagree with plaintiffs’ contention that the court refused to accept the tendered issues instruction on the morning following the issues instruction conference because of time constraints.

The issue, as refined, is whether the court was bound to allow plaintiffs to redraft and resubmit their issues instruction at this point in the trial proceedings. The purpose of the instruction conference is to give counsel an opportunity to object to or correct erroneous instructions. (DeBow v. City of East St. Louis (1987), 158 Ill. App. 3d 27, 33, 510 N.E.2d 895, 900.) The conference may be held at any time during the trial within the reasonable discretion of the trial court, provided counsel are informed of the court’s action on tendered instructions prior to closing arguments. (DeBow, 158 Ill. App. 3d at 33-34, 510 N.E.2d at 900.) The court informed the parties that they could resubmit instructions which reflected necessary changes which had been discussed at the instructions conference prior to closing arguments. The court warned that it would not reconsider instructions at large. We find that the court reasonably exercised its discretion because it gave plaintiffs the opportunity to submit a proper issues instruction. We must now examine whether plaintiffs were prejudiced by the failure to give any issues instruction. As noted above, the court declined to accept defendant’s issues instruction.

It is elementary that the instructions should, in a concise and comprehensive manner, inform the jury of the issues presented, the principles of law to be applied, and the necessary facts to be proved to support its verdict. (Grover, 76 Ill. App. 3d at 508, 394 N.E.2d at 1279.) The test is whether, taken as a whole and in series, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law. (Grover, 76 Ill. App. 3d at 508, 394 N.E.2d at 1279-80.) We do not dispute that it is the duty of the court to inform the jury of the plaintiff’s claims and the defendant’s responses. (Batteast v. Wyeth Laboratories, Inc. (1988), 172 Ill. App. 3d 114, 138, 526 N.E.2d 428, 444, rev’d on other grounds (1990), 137 Ill. 2d 175, 560 N.E.2d 315.) However, our review of the instructions which were given by the court in the instant case indicates that the jury was instructed as to the plaintiffs’ and defendant’s respective claims, albeit not by way of an issues instruction, per se.

The court gave a burden of proof instruction to the jury. In this instruction the jury was told that plaintiffs had the “burden of proving that defendant acted or failed to act in one of the ways claimed by plaintiffs as stated in these instructions and that in so acting or failing to act, defendant was negligent.” Negligence was defined for the jury as “the failure to do something a reasonably careful person would do or the doing of something a reasonably careful person would not do under the circumstances similar to those shown by the evidence.” The jury was also instructed that it is “the duty of every driver of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at all times to avoid a collision.” Further, ordinary care was defined for the jury as “the care a reasonably careful person would use under circumstances similar to those shown by the evidence.”

Plaintiffs’ instruction No. 3 was given and stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that every driver of a motor vehicle shall not operate a vehicle at a speed in excess of that which is reasonable and proper with regard to the traffic conditions.
If you decide that the defendant violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, the defendant was negligent before and at the time of the occurrence.”

In addition the jury received plaintiffs’ instruction No. 6, which stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that vehicles operated after dark shall have the headlights operating.
If you decide that the defendant violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, the defendant was negligent before and at the time of the occurrence.”

It is clear in our review of the negligence allegations of plaintiffs’ complaints that the jury was instructed as to plaintiffs’ claims and therefore what plaintiffs needed to prove with respect to the burden of proof instruction. We therefore hold that there was no prejudice to plaintiffs’ right to a fair trial. We do not mean to imply by our holding that an issues instruction need not be given in order to properly instruct a jury. Under the facts of this case, however, where the evidence overwhelmingly supported the jury’s verdict in favor of defendant and the instructions did inform the jury of plaintiffs’ negligence claims, there was no prejudice suffered by plaintiffs by the court’s failure to give an issues instruction, and accordingly, the judgment of the court should not be disturbed.

We therefore affirm the June 26, 1990, judgment and February 4, 1991, order of the circuit court of Franklin County.

Affirmed.

LEWIS, HENRY, J., concurs.

JUSTICE CHAPMAN,

dissenting:

I agree with the majority’s opinion except for their treatment of the issues instruction. The court should have submitted an issues instruction to the jury, and under the circumstances, I would hold that the plaintiffs were denied their right to a fair trial by its failure to do so.

A party has the right to have the jury instructed on its theory of the case (Zueck v. City of Nokomis (1987), 160 Ill. App. 3d 140, 145, 513 N.E.2d 125, 128), and the circuit court, in the exercise of its discretion, should instruct the jury on all issues which it finds have been raised by the evidence presented (Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 310, 562 N.E.2d 282, 287).

The majority opinion includes excerpts from both of the plaintiffs’ tendered issues instructions. Basically, these instructions were refused either because they failed to state that the alleged conduct was in violation of a statute or because they included elements of the statute that had no application to the facts of the case. Defendant’s tendered issues instruction, which was also refused by the court, provided in pertinent part:

“Each plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
(a) Failed to keep a proper lookout for pedestrians crossing the street;
(b) In violation of a statute, drove his vehicle at a speed which was greater than that which was reasonable and proper with regard to traffic conditions then and there present;
(c) In violation of a statute, failed to decrease his speed as may have been necessary to avoid colliding with any person on or entering the highway;
(d) In violation of a statute, failed to have his headlights on during the period from a half hour after sunset to a half hour before sunrise.”

This instruction was refused mainly because the defendant did not set forth specific allegations of negligence in his original affirmative defense, thereby precluding him from setting forth particular charges of contributory negligence in the jury instruction. Defendant inquired of the court whether an amendment of his affirmative defense would entitle him to submit his tendered issues instruction to the jury. The court vaguely responded, “I don’t want to rule on that here without seeing what it is — that would be handed up.”

At the instruction conference the court refused both parties’ tendered issues instructions, gave the parties leave to amend the instructions, and recessed the proceedings. Plaintiffs offered to come to court at 9 a.m. the following morning; however, the court instructed the parties to bring their amended jury instructions in at 9:30 a.m., just 15 minutes before closing arguments were to begin. At the 9:30 a.m. conference the next morning, defendant presented a motion for leave to amend his affirmative defense to specify the allegations of plaintiffs’ contributory negligence. The court allowed defendant’s motion to amend but still refused to accept the defendant’s issues instruction.

This is not a case where the parties did not even attempt to satisfy the court’s suggestion of what it would accept as a proper issues instruction. After the court rejected plaintiffs’ first tendered issues instruction because it failed to set forth the statutes defendant was alleged to have violated, the plaintiffs submitted an amended instruction, incorporating the language of the statutes which defendant was alleged to have violated. The court also refused this amended version. The defendant’s tendered instruction set forth the plaintiffs’ alleged theories of negligence and stated that such alleged conduct was a violation of statute. Defendant, in an attempt to cure the court’s earlier professed reasons for refusal, amended his affirmative defense. The court still refused to submit the issues instruction to the jury. Based on the circumstances, I believe the parties were improperly denied their right to have the jury properly instructed.

The jury was not fully instructed as to the plaintiffs’ claims. The submitted instructions did not apprise the jury of the defendant’s alleged failure to: (1) keep a proper lookout for pedestrians crossing the street; (2) decrease speed to avoid colliding with any person on or entering the highway; and (3) drive at a speed which was not in excess of the posted speed limit. Under the facts of this case, plaintiffs were prejudiced by the court’s failure to give an issues instruction. Therefore, I dissent.


author: JUSTICE HARRISON JUSTICE WELCH,

text:
    BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Defendants-Appellants.
    Fifth District
    No. 5—90—0796
    Opinion filed May 7, 1992.

      WELCH, J., dissenting.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Shari R. Rhode and Denise E. Gale, both of Board of Trustees of Southern Illinois University at Carbondale, of Carbondale, Theodore R. LeBlang and M. Douglass Henderson, both of Southern Illinois University, School of Medicine, of Springfield, and John Gilbert, of Southern Illinois University at Edwardsville, of Edwardsville, for appellees.
    Kenneth G. Kombrink, of Board of Trustees of University of Illinois, Richard T. Dunn, of Illinois Board of Governors of State Colleges and Universities, and Carol J. Fines, of Illinois Board of Regents of Regency Universities, all of Chicago, for amicus curiae.

   JUSTICE HARRISON

delivered the opinion of the court:

Defendants, the Illinois Department of Human Rights (the Department); the Department’s director, Joyce E. Tucker; and two of its investigators, Freddie Gatewood and Stanley R. Moen, appeal from a judgment of the circuit court of Jackson County which granted a writ of prohibition to prevent them from pursuing charges that plaintiffs, the Board of Trustees of Southern Illinois University (SIU) and certain of the university’s employees, David White, Jim Bramlet, Richard Moy, and Terry Travis, were guilty of unlawful discrimination in violation of the Hlinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 1 — 101 et seq.). The circuit court’s judgment was based solely on the proposition that the Department did not have statutory jurisdiction to investigate the charges because the alleged discrimination occurred in the context of the university’s academic programs. We reverse.

The dispute which gave rise to this appeal began when two SIU students, Kevin Mitchell and Marsha Stokes, filed charges with the Department alleging that plaintiffs had discriminated against them based on race or sex in violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 1 — 101 et seq.). Both Mitchell and Stokes are of African-American descent. Mitchell charged that Terry Travis, the “Director of Psychiatry Clerkship” at SIU’s school of medicine, and Richard Moy, the medical school’s dean, had unlawfully discriminated against him based on his race and sex when he was dismissed from the medical school after his third year there. According to Mitchell, he was treated differently than his nonblack and female classmates in the way he was evaluated, and he was denied the same opportunities to retake final examinations and clerkships that were afforded to his nonblack and female classmates. Mitchell further charged that Travis had demonstrated a racial bias against black male students and that this bias harmed the evaluation of Mitchell’s psychiatry clerkship at the hearing on his dismissal from the school.

Stokes, for her part, alleged that she had been the only black student in the commercial graphics program at SIU’s school of technical careers. She claimed that David White; Jim Bramlet, an instructor of commercial graphics; and SIU’s Board of Trustees were guilty of unlawful discrimination based on race in that they had sanctioned the existence of a racially hostile classroom environment in which the other students, who were white, were allowed to harass and threaten her and to subject her to racial epithets such as “nigger.” She also asserted that when she was suspended from class she did not receive the advance notice that the university usually provided to others.

The Department served copies of these charges on SIU’s Board of Trustees and on the particular faculty members involved. It also notified them of their statutory obligation to file a verified response to the allegations contained therein. (See Ill. Rev. Stat. 1989, ch. 68, par. 7A — 102.) SIU responded, through counsel, on behalf of all of the parties against whom the charges were filed. In that response it advised the Department of its view that the Department lacked jurisdiction “to entertain allegations of racial discrimination in academic programs.”

When the Department informed SIU that it still intended to assert jurisdiction over the charges, the SIU Board of Trustees and the faculty members involved filed a petition in the circuit court of Jackson County to obtain a writ of prohibition to block the Department from proceeding further. The circuit court subsequently entered a default judgment permanently enjoining the Department, its agents and employees from taking any additional action with regard to the charges filed by Mitchell and Stokes. That default judgment, which was entered on procedural grounds, was reversed by this court in Board of Trustees of Southern Illinois University v. Department of Human Rights (1989), 190 Ill. App. 3d 644, 546 N.E.2d 1039, and we remanded the cause for a decision on the merits.

On remand, SIU’s Board of Trustees, White, Bramlett, Hoy, and Travis filed an amended petition for a writ of prohibition. It was essentially the same as the original, but added a request to block the Department and its investigators from “conducting any and all proceedings” in the matter of an unlawful discrimination claim filed by an additional student, Michael Scruggs. Like the other students, Scruggs was of African-American descent. His charge was that the Board of Trustees had unlawfully discriminated against him in that he was graded and tested differently than white students, as a result of which he was denied admission to a Ph.D. program.

The amended petition was decided on cross-motions for summary judgment. There were no disputed facts. The only question was one of law, namely, whether the Department had statutory jurisdiction to pursue the discrimination charges filed by Mitchell, Stokes, and Scruggs where, as here, the challenged conduct occurred in the context of the university’s academic programs. As indicated at the outset of this opinion, the circuit court held that the Department had no such jurisdiction. It therefore granted the writ of prohibition. From this judgment the Department, Tucker, Gatewood, and Moen now appeal.

Prohibition is an extraordinary writ. (Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 467, 537 N.E.2d 784, 791.) It will be granted only if four conditions are met: (1) the action to be prohibited must be judicial or quasi-judicial in nature; (2) the jurisdiction of the tribunal against which the writ is sought must be inferior to that of the issuing court; (3) the action to be prohibited must either be outside the tribunal’s jurisdiction or, if within its jurisdiction, beyond its legitimate authority; and (4) the petitioner must be without any other adequate remedy. 127 Ill. 2d at 468, 537 N.E.2d at 791.

What the Board of Trustees and the named faculty members seek to prohibit in this case is not action by some inferior judicial tribunal, but rather the conduct of an administrative agency and its employees. The law is well established, however, that the actions of administrative officials may be sufficiently judicial in nature to be subject to a writ of prohibition. (127 Ill. 2d at 468, 537 N.E.2d at 791.) Although the parties have not explicitly so stated, they appear to agree that in advising the Board of Trustees and the faculty members that it intended to assert jurisdiction and to proceed against them on the students’ discrimination claims, the Department here was engaged in this type of judicial action. The first element for the writ has therefore been satisfied.

Elements two and four have also been met. There is no dispute that the Department constitutes a tribunal which is inferior to the court from which the writ was sought. In addition, no claim has been made that alternative remedies are available to the faculty members and Board of Trustees through administrative review or otherwise. Accordingly, the resolution of this appeal turns solely on element number three: whether the Department and its employees would exceed their legitimate authority, if not their very jurisdiction, by pursuing the discrimination charges against the Board of Trustees and the specified faculty members. We hold that they would not.

Strictly speaking, the concept of jurisdiction is inapplicable to administrative agencies. The term has, however, been used to designate an agency’s power to act. (Robinson v. Human Rights Comm’n (1990), 201 Ill. App. 3d 722, 726, 559 N.E.2d 229, 230.) It is axiomatic that an agency’s power to act is defined by the legislation trader which the agency was created. (201 Ill. App. 3d at 726-27, 559 N.E.2d at 232.) The agency here is the Department, which was established by the Illinois Human Rights Act. (See Ill. Rev. Stat. 1989, ch. 68, pars. 7 — 101 through 7 — 111.) That Act specifically authorizes the Department to issue, receive, investigate, conciliate, settle, and dismiss charges that a civil rights violation has been committed. Ill. Rev. Stat. 1989, ch. 68, pars. 7-101, 7A-102, 7A-103.

Under section 5 — 102(C) of the Act (Ill. Rev. Stat. 1989, ch. 68, par. 5 — 102(C)), a civil rights violation occurs when a “public official” denies or refuses to another “the full and equal enjoyment of the accommodations, advantage, facilities or privileges of the official’s office or services or of any property under the official’s care because of unlawful discrimination.” In this case, there is no question that SIU’s Board of Trustees and the named faculty members constitute such “public officials,” for the Act defines that term broadly to include “any officer or employee of the state or any agency thereof, including *** educational institutions and schools.” (Ill. Rev. Stat. 1989, ch. 68, par. 5 — 101(C).) There is also no dispute that what these officials are accused of is “unlawful discrimination,” for “unlawful discrimination” is expressly defined by the Act to include, among other things, discrimination against a person because of his or her race, color, or sex. Ill. Rev. Stat. 1989, ch. 68, par. 1 — 103(Q).

The Board of Trustees and the named faculty members argue that the Department is nevertheless powerless to act because the unlawful discrimination cited by the students cannot be said to involve the denial or refusal of the full and equal enjoyment of any “accommodations” under their care. They base their argument on the proposition that the term “accommodations” as used in section 5 — 102(C) (Ill. Rev. Stat. 1989, ch. 68, par. 5 — 102(C)) is synonymous with the phrase “place of public accommodation.” Under the Act, a “place of public accommodation” is defined to include a broad spectrum of business, refreshment, entertainment, recreation, and transportation facilities whose goods and services are made “available to the public.” (Ill. Rev. Stat. 1989, ch. 68, par. 5 — 101(A)(1).) By way of example, the Act includes in this definition such diverse places as restaurants, bathrooms, theaters, elevators, clothing stores, and concerts. Ill. Rev. Stat. 1989, ch. 68, par. 5 — 101(A)(2).

Plaintiffs do not contest that certain facets of the university fall within this expansive definition. They argue, however, that just because the university might be deemed a “place of public accommodation” for some purposes does not mean that the Act automatically applies to all phases of its operations. To the contrary, they posit that the various services, facilities, and programs offered by the university must be compartmentalized, and each must be analyzed individually to see if it constitutes a “place of public accommodation” within the meaning of the statute. In their view, the university’s academic programs, when viewed separately from its other operations, do not fall within the statutory definition. One of the reasons they do not, according to plaintiffs, is that the only people allowed in the academic programs are those who apply, meet the requisite academic standards, and are admitted by the university. Accordingly, in plaintiffs’ view, those programs cannot be regarded as being “available to the public,” and because they are not “available to the public,” they cannot be a “public accommodation.”

To accept plaintiffs’ analysis would mean that while the university would be prohibited from operating racially segregated snack bars or bathrooms, the Act would not prevent it from maintaining disparate academic standards based solely on race. In effect, Jim Crow would be free, as a matter of State law, to return to the classroom. We doubt that our legislature could have intended such an absurd and unjust result. We need not explore this issue further, however, for even if plaintiffs’ “compartmentalization” theory were valid, and even if the university’s academic programs did not, in fact, constitute a “place of public accommodation,” they would still not be beyond the reach of the Act.

This is so because the Act, by its terms, is not limited to discrimination in “accommodations.” It also prohibits public officials such as plaintiffs from denying or refusing, based on unlawful discrimination, the full and equal enjoyment of the “advantage, facilities or privileges of [their] office or services or of any property under [their] care.” (Ill. Rev. Stat. 1989, ch. 68, par. 5 — 102(C).) Adhering to the precept that a court should construe a statute so that no word or phrase is rendered meaningless or superfluous (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661), we believe that these additional categories must be given independent effect. That is, they should not be regarded simply as synonyms for the term “accommodations.”

When given their plain and ordinary meaning, these additional categories are broad enough to encompass a State university’s academic programs. That the public at large may have no right to freely partake of such programs is of no consequence. Unlike the situation with “accommodations,” nothing in the statute requires that an “advantage,” “facility,” “privilege,” or a “service” or “property” be of the sort which is “available to the public” before it will be deemed to fall within the ambit of the Act. Accordingly, we believe that when a university student is allowed to be harassed in the classroom, or is graded or tested differently, or is not allowed to enter into or continue in a program of study because of his or her race, color, or sex, he or she may fairly be said to have been denied or refused “the full and equal enjoyment of the advantage, facilities or privileges of the [university] officials’ office or services or property under their care because of unlawful discrimination.” That is precisely what was charged here. It was therefore within the Department’s legitimate authority to pursue these charges.

As an additional basis for opposing the Department’s actions, the plaintiffs cite article 5A of the Act (Ill. Rev. Stat. 1989, ch. 68, pars. 5A — 101 through 5A — 102), which outlaws sexual harassment in higher education. Plaintiffs claim that under that provision, which was added to the Act in an amendment promulgated in 1983, sexual harassment is now the only discriminatory act that a college administrator or faculty member is prohibited from committing in an academic context. We disagree. In our view, article 5A (Ill. Rev. Stat. 1989, ch. 68, pars. 5A — 101 through 5A — 102) was intended not as a limitation on university officials’ liability, but as expansion of it.

This interpretation is supported by the legislative debates on the amendment. Those debates are, of course, an appropriate source for ascertaining the legislature’s intention. (Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc. (1988), 172 Ill. App. 3d 993, 997, 527 N.E.2d 693, 696.) They show that when article 5A was proposed, the General Assembly assumed that unlawful discrimination in higher education was already prohibited by the Act. Sexual harassment, however, was recognized as a separate and distinct problem, and the purpose of the amendment was simply to expand the statute to address that problem. As Representative Koehler explained during the debates:

“[This amendment] amends the Illinois Human Rights Act to include sexual harassment in higher education as a civil rights violation. Under the Human Rights Act, discrimination on the basis of sex already constitutes a civil rights violation. However, it is important to point out that there is a distinct difference between sex discrimination, which deals with prejudice^] and sexual harassment, which deals with a hostile environment and repeated torment.”

Plaintiffs likewise can find no support for their position in the fact that when the General Assembly added article 5A (Ill. Rev. Stat. 1989, ch. 68, pars. 5A — 101 through 5A — 102) to the Act in 1983, it amended the statute’s “declaration of policy” provision to include parallel language specifying that sexual harassment is now prohibited in higher education as a matter of public policy. (Ill. Rev. Stat. 1989, ch. 68, par. 1 — 102(A).) This amendment merely harmonized the statutory “declaration of policy” with the new substantive provisions contained in article 5A. Given the common origin of these changes, we believe that the amendment can only be construed as reflecting the same legislative design to expand, rather than contract, the liability of university officials. In any case, we are wary of giving too much significance to what is or is not included in the statute’s “declaration of policy,” for such a declaration, like a preamble, is no part of the Act. Hayen v. County of Ogle (1983), 116 Ill. App. 3d 80, 84, 451 N.E.2d 612, 615, aff’d (1984), 101 Ill. 2d 413, 463 N.E.2d 124.

For the foregoing reasons, we hold that the Human Rights Act does authorize the Department and its investigators to pursue the discrimination charges filed here against SIU’s Board of Trustees and faculty members. Accordingly, the plaintiffs’ motion for summary judgment should have been denied, the Department’s cross-motion for summary judgment should have been granted, and the writ of prohibition requested by plaintiffs should have been refused. The judgment of the circuit court of Jackson County is therefore reversed.

Reversed.

LEWIS, HENRY, J., concurs.

JUSTICE WELCH,

dissenting:

The Illinois Human Rights Act (the Act) (Ill. Rev. Stat. 1989, ch. 68, par. 1 — 101 et seq.) prohibits certain types of discrimination in employment (article 2), real estate transactions (article 3), access to financial credit (article 4), and the availability of public accommodations (article 5). It also prohibits sexual harassment in higher education (article 5A). It is apparent that the only sections of the Act which could conceivably apply to the case at bar are contained in article 5, entitled “Public Accommodations. ”

Section 5 — 101 of the Act (Ill. Rev. Stat. 1989, ch. 68, par. 5 — 101) provides the following pertinent definitions for purposes of article 5:

“(A) Place of Public Accommodation. (1) ‘Place of public accommodation’ means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.
(2) By way of example, but not of limitation, ‘place of public accommodation’ includes facilities of the following types: inns, restaurants, eating houses, hotels, soda fountains, soft drink parlors, taverns, roadhouses, barber shops, department stores, clothing stores, hat stores, shoe stores, bathrooms, restrooms, theatres, skating rinks, public golf courses, public golf driving ranges, concerts, *** roads, omnibuses, busses, stages, airplanes, street cars, boats, funeral hearses, crematories, cemeteries, and public conveyances on land, water, or air, public swimming pools and other places of public accommodation and
amusement.
* * *
(C) Public Official. ‘Public official’ means any officer or employee of the state or any agency thereof, including state political subdivisions, municipal corporations, park districts, forest preserve districts, educational institutions and schools.” Ill. Rev. Stat. 1989, ch. 68, pars. 5 — 101(A), (C).

Section 5 — 102 of the Act (Ill. Rev. Stat. 1989, ch. 68, par. 5— 102), provides that it is a civil rights violation for any person on the basis of unlawful discrimination to:

“(A) Enjoyment of Facilities. Deny or refuse to another the full and equal enjoyment of the facilities and services of any public place of accommodation;
***
(C) Public Officials. Deny or refuse to another, as a public official, the full and equal enjoyment of the accommodations, advantage, facilities or privileges of the official’s office or services or of any property under the official’s care because of unlawful discrimination.” Ill. Rev. Stat. 1989, ch. 68, pars. 5— 102(A), (C).

The majority concludes that it does not matter whether the university is considered a place of public accommodation within the context of its academic programs because section 5 — 102(C), which prohibits discrimination by a public official, does not require that such discrimination take place within a place of public accommodation. The majority reasons that, because officers and employees of the university are clearly public officials within the meaning of the Act, they may not unlawfully discriminate even in the context of the university’s academic programs, regardless of whether such programs constitute places of public accommodation.

I think the majority’s conclusion is patently wrong. A plain reading of Article 5 of the Act, and the Act as a whole, indicates that Article 5 applies only to places of public accommodation and prohibits discrimination by public officials only in places of public accommodation. If this were not the case, there would be no logical reason to include section 5 — 102(C) within article 5, which deals only with places of public accommodation. Furthermore, a plain reading of Article 5 of the Act, and of the Act as a whole, leads unavoidably to the conclusion that the university is not a place of public accommodation, at least in the context of its academic programs.

Section 5 — 101(A)(1) of the Act defines a place of public accommodation as a business, accommodation, refreshment, entertainment, recreation or transportation facility whose goods and services are made available to the general public. When interpreting a statute, courts must give the language of that statute its plain and ordinary meaning. (Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 50-51, 563 N.E.2d 465, 477.) According the words of section 5 — 101(AX1) their plain and ordinary meanings, it can hardly be said that the academic programs of a university fall "within any of these categories. The academic programs of a university cannot reasonably be classified as a business, which is ordinarily considered a commercial or mercantile endeavor. Nor can a university’s academic programs reasonably be classified as an accommodation, which is defined as, and ordinarily considered to be, something that is supplied for convenience or to satisfy a need, such as lodging, food and services as at a hotel, or a seat or berth as on a train. (Webster’s Third New International Dictionary 12 (1976).) Finally, the academic programs of a university would not ordinarily be considered a refreshment, entertainment, recreation, or transportation facility.

Furthermore, the services and facilities of a university’s academic program are not available to the general public. Instead, they are available only to qualified students who meet rigid admission requirements. Only to those students who meet the requirements for admission are the services, facilities, and privileges of the university’s academic programs available. In this respect, the university’s academic programs resemble a private club, which is expressly exempted from the prohibitions of the Act. (Ill. Rev. Stat. 1989, ch. 68, par. 5— 103(A).) Indeed, the majority acknowledges that the public at large has no right to freely partake of the university’s academic programs.

My conclusion that the academic programs of a university are not places of public accommodation within the meaning of the Act is made clear by an examination of the enumerated examples of places of public accommodation contained in section 5 — 102(AX2). That section sets forth by way of example, but not of limitation, such places of public accommodation as restaurants, hotels, taverns, retail stores, barber shops, bathrooms, theatres, railroads, cemeteries “and other places of public accommodation and amusement.” This list of examples of places of public accommodations does not include schools or universities. While the list is meant to be illustrative and not exclusive, under the doctrine of ejusdem generis, when a statutory clause specifically describes several classes of things and then includes “other things,” the word “other” is interpreted as meaning “other such like.” (Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 396, 475 N.E.2d 536, 539.) Looking at the places of public accommodation enumerated in section 5 — 102(A)(2), I do not find that a university is similar to any of those places enumerated. The places listed include retail businesses, places of accommodation such as hotels and restaurants, and places of amusement or entertainment such as theatres and skating rinks. Nothing included in the list is similar to a university. Thus, I must conclude that the academic programs of a university are not considered a place of public accommodation within the meaning of the Act.

I find further support for my conclusion in the reasoning of the New Mexico Supreme Court in interpreting a similar definition of “public accommodation” in its own civil rights statute. In deciding that the academic programs of a university did not fall within the definition of a public accommodation, the court stated:

“Based upon the facts of this case, we hold that the University of New Mexico is not a ‘public accommodation’ within the meaning of the New Mexico Human Rights Act [citation], and is therefore not subject to the jurisdiction of the Human Rights Commission in this instance. In so holding, we look to the historical and traditional meanings as to what constitutes a ‘public accommodation’.
The prohibition against discrimination in public accommodation arose from the common law duties of innkeepers and public carriers to provide their services to the public without imposing unreasonable conditions. See Avins, What is a Place of ‘Public’ Accommodation?, 52 Marq. L. Rev. 1 (1968). The United States Supreme Court recognized these common law duties when it stated that ‘[i]nnkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them.’ Civil Rights Cases, 109 U.S. 3, 25, 3 S. Ct. 18, 31, 27 L. Ed. 835 (1883). Early statutes in most states tended to codify the common law by prohibiting discrimination in places of lodging, entertainment and public transportation. See Avins, supra. Universities were not considered public accommodations under the early statutes.” Human Rights Comm’n v. Board of Regents (1981), 95 N.M. 576, 577-78, 624 P.2d 518, 519-20.

A court should not and cannot inject provisions not found in a statute, however desirable or beneficial they may be. (Droste v. Kerner (1966), 34 Ill. 2d 495, 504, 217 N.E.2d 73, 79; Parizon v. Granite City Steel Co. (1966), 71 Ill. App. 2d 53, 70, 218 N.E.2d 27, 36.) There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of a statute imports. (Droste, 34 Ill. 2d at 503, 217 N.E.2d at 78.) The legislature did not include the academic programs of a university as a place of public accommodation, either in the definition contained in section 5 — 101(A)(1), or in the list of examples contained in section 5— 101(A)(2), nor can I reasonably construe those sections to include the academic programs of a university.

Finally, because I find no ambiguity in the language of the statute, I find that it is improper to resort to extrinsic aids to construction such as legislative history and legislative debates. (In re A.M.C. (1986), 148 Ill. App. 3d 775, 781, 500 N.E.2d 104, 108.) However, because the majority addresses the significance of the 1983 amendment to the Act (Public Act 83 — 89), which added article 5A prohibiting sexual harassment in higher education, I will do the same. Based upon its interpretation of the legislative debates surrounding this amendment, the majority concludes that unlawful discrimination in higher education was prohibited by the Act prior to the amendment, and that the addition of article 5A was an expansion on a university official’s liability rather than a limitation on it. I cannot agree with the majority’s conclusion, nor its interpretation of the legislative debates pertaining to Public Act 83 — 89. I interpret Representative Koehler’s remarks not as an indication that unlawful discrimination was already prohibited by the Act in higher education, but merely as an attempt to distinguish between discrimination on the basis of sex in any context and sexual harassment. Again, I find no language in the Act itself to indicate that a university is included in the definition of “place of public accommodation,” or that the legislature intended that it be so included.

Furthermore, the language of section 1 — 102(A), which sets forth the public policy represented in the Act, evidences the legislature’s intent not to include universities within the purview of article 5 of the Act. That section states that the purpose of the Act is to secure for all individuals the freedom from unlawful discrimination in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations; and to prevent unlawful discrimination or sexual harassment in connection with real estate transactions based upon familial status and sexual harassment in higher education. I think that a plain reading of this section demonstrates the legislature’s intention to exclude higher education from the prohibition against unlawful discrimination, but to prohibit only sexual harassment within the academic programs of a university. I think this intention is apparent from a plain reading of the statute. The most recent amendment to section 1 — 102 (Public Act 87 — 579) does not alter my interpretation of this section.

I also note the failure of a proposed bill which would have amended section 1 — 102(A) to expressly state that unlawful discrimination, as well as sexual harassment, is prohibited in higher education. I find it likely that the proposed bill failed because the legislature did not intend for the Act to address unlawful discrimination in higher education.

Because an administrative agency has no greater powers than those conferred upon it by the legislative enactment creating it (Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 506, 363 N.E.2d 814, 815), I think the trial court properly granted the university a writ prohibiting the Department from further proceeding on the complaints of discrimination by the university in the context of its academic programs.

I think it is important to mention that by my construction of the Act I do not wish to leave students such as the students here without a remedy. Discrimination on the basis of race, color, religion, sex, national origin, ancestry, age, marital status, or physical or mental handicap is as offensive in the classroom as in the workplace and should be as strongly condemned. However, I do not think the Act provides the appropriate remedy for the wrong.

Although the Act is the exclusive remedy in those situations to which it applies (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111(C)), because the academic programs of the university do not fall within the purview of the Act, students may seek redress elsewhere. (See Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953, 527 N.E.2d 1281.) Thus, these students may find a remedy for unlawful discrimination in the classroom in title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d (1988)), title IX of the Education Amendments of 1972 (20 U.S.C. §§1681 through 1688 (1988)) and under other Federal statutory and Illinois constitutional and common law theories of discrimination.

Finally, I note that with respect to functions of the university other than its academic programs, my decision as to whether the university is a place of public accommodation might be different.