author: PRESIDING JUSTICE DiVITO

text:
    THE NORTHERN TRUST COMPANY, as Trustee, Plaintiff-Appellee, v. HARRY J. HEUER, Defendant-Appellant (Dianna Winterbauer, Defendant).
    First District (2nd Division)
    No. 1—89—1739
    Opinion filed September 4, 1990.

      Friedman & Holtz, P.C., of Chicago (Gregory A. Friedman and Donna M. Adler, of counsel), for appellant.
    Sidley & Austin, of Chicago (John C. Williams, P.C., and Jordan A. Klein, of counsel), for appellee.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff The Northern Trust Company (Northern Trust), as trustee for the Harry P. Heuer Trust (the trust), filed a complaint in the circuit court for construction of the trust agreement. After resolution of the construction issues, the circuit court ordered that Northern Trust’s attorney fees and costs be paid from the trust and that the attorney fees and costs of defendant-beneficiary Harry J. Heuer (Heuer) be paid from his share of the trust. Heuer appeals from those orders, contending that (1) except for its expenses incurred from preparation and filing of the complaint, Northern Trust should not have been awarded attorney fees and costs from the trust because it breached its duty of impartiality to him as a beneficiary of the trust; and (2) his own attorney fees and costs should have been assessed against the entire trust principal because there was a genuine dispute as to the provisions of the trust agreement.

The trust which is the subject of this litigation was created by Harry P. Heuer (the grantor) on March 22, 1985. At that time, the grantor was married and the father of two adopted children, defendant Heuer and defendant Dianna Winterbauer, the sole beneficiaries under the trust agreement.

Upon the death of the grantor, the trust provided for alternate distributions, depending upon whether the grantor’s wife survived him. Article IV of the trust agreement provided for an equal distribution to the defendant-beneficiaries, if the grantor’s wife did not survive him by more than 90 days. Article V made provisions for distribution of the trust property in the event the grantor’s wife did survive him by more than 90 days. That article provided for an equalization clause which set limits upon distributions which could be made to Heuer.

The grantor’s wife died on April 28, 1985. On December 5, 1985, the grantor amended the equalization clause in article V by limiting it to $200,000. The grantor died on September 29, 1986.

Northern Trust filed its complaint for construction of the trust, raising two questions concerning the application and interpretation of the equalization clause contained in article V. The first question concerned the applicability of the equalization clause: though, under its terms, article Y was inapplicable if the grantor’s wife did not survive him, did the grantor’s amendment of the equalization clause after his wife’s death indicate his desire to make the clause applicable, thus limiting Heuer’s distribution? Northern Trust argued that the grantor’s amendment to article V, after his wife’s death, showed the grantor’s intent that the equalization clause should be applicable. Heuer took the opposing view.

The second question involved the interpretation of the $200,000 limitation imposed by the grantor’s amendment to the equalization clause. Northern Trust, believing that the equalization provision was subject to either of two interpretations, took no position on this issue.

Heuer retained counsel for the construction litigation, but Winterbauer chose to litigate pro se. Winterbauer, who lived in Washington, filed an appearance and a two-page answer to the complaint setting forth her position that the equalization clause should be given effect; however, she was not present at any of the hearings before the circuit court.

Heuer filed a motion to dismiss the complaint, maintaining that article V and the equalization provision were not applicable because the grantor’s wife had predeceased the grantor. Northern Trust opposed the motion to dismiss and affirmatively argued that the grantor’s amendment of article V after his wife’s death showed his intention that the equalization clause was to be applicable. The circuit court denied the motion to dismiss, finding a legitimate issue concerning the construction of the trust.

Thereafter, following Heuer’s answer, Northern Trust filed a motion for partial summary judgment, requesting that the circuit court find that the equalization clause was applicable to distributions under the trust and giving the value of certain items to allow implementation of the clause. Heuer filed a countermotion for full summary judgment contending that the equalization clause should not apply or, in the alternative, that the amount of equalization should be under $200,000. Northern Trust and Heuer filed memoranda in support of their positions. On February 16, 1989, the circuit court denied Heuer’s motion for full summary judgment and granted partial summary judgment in Northern Trust’s favor, ruling that the equalization clause applied to the trust distributions and that the $200,000 limitation in the equalization clause applied to the entire equalization clause.

In a letter forwarded to the circuit court on March 6, 1989, Winterbauer argued that Heuer should not be permitted to recover attorney fees from the trust because he had acted in bad faith by failing to reach a settlement with her. On May 4, 1989, Heuer filed a petition for attorney fees and costs. On May 5, 1989, Northern Trust filed its petition for attorney fees and costs. Heuer filed an objection to that petition, contending that Northern Trust had breached its duty of impartiality to him by advocating a construction of the trust which was favorable to Winterbauer and unfavorable to him and that fees incurred after the preparation and filing of the complaint should not be paid by the trust.

On May 30, 1989, after a hearing, the circuit court ordered that Northern Trust’s attorney fees and costs be paid out of the principal of the trust and that Heuer’s attorney fees and costs be paid out of Heuer’s share of the trust. Heuer appeals from this order. He does not appeal the circuit court’s rulings concerning construction of the trust agreement.

I

Northern Trust maintains that the award of attorney fees and costs from the principal of the trust was well within the bounds of discretion vested in the circuit court in a trust construction suit. It argues that ambiguities in the trust agreement compelled it to petition the circuit court for instructions, and therefore it is entitled to have its attorney fees reimbursed from the trust. It contends that it did not breach any duty owed Heuer because its primary concern was to effect the intent of the grantor.

A trustee has a duty to deal impartially with all beneficiaries and to protect their interests. (Jones v. Heritage Pullman Bank & Trust Co. (1988), 164 Ill. App. 3d 596, 602, 518 N.E.2d 178; Disher v. Fulgoni (1987), 161 Ill. App. 3d 1, 514 N.E.2d 767; 2A W. Fratcher, Scott on Trusts §183, at 557 (4th ed. 1987).) Unless the terms of the trust document provide otherwise, a trustee’s fiduciary duty to each beneficiary precludes it from favoring one party over another. (Comtrade, Inc. v. First National Bank (1986), 146 Ill. App. 3d 1069, 1074, 497 N.E.2d 527; 2A W. Fratcher, Scott on Trusts §183, at 558 (4th ed. 1987).) When there are conflicting claims to trust funds, a trustee is not required to make a determination as to the rights of the prospective claimants but should file an interpleader action to avoid acting at its own peril. Chicago Title & Trust Co. v. Czubak (1976), 42 Ill. App. 3d 349, 356 N.E.2d 118.

Generally, the costs of litigation to construe a trust in which there are adverse claims are paid by the trust estate. (See, e.g., Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 183 N.E.2d 505.) However, where a trustee breaches its duty to administer the trust according to its terms and performs in a manner which favors one beneficiary over another, the trustee is not entitled to attorney fees and costs even though the breach is technical in nature, done in good faith, and causes no harm. (Jones v. Heritage Pullman Bank & Trust Co., 164 Ill. App. 3d at 605; see also Ellis v. King (1949), 336 Ill. App. 298, 83 N.E.2d 367.) The circuit court has discretion in determining the need for and the amount of attorney fees, but its ruling will be reversed when its discretion is abused. See Jones v. Heritage Pullman Bank & Trust Co., 164 Ill. App. 3d at 605; Northern Trust Co. v. Tarre (1980), 83 Ill. App. 3d 684, 404 N.E.2d 882, rev’d on other grounds (1981), 86 Ill. 2d 441, 427 N.E.2d 1217.

Northern Trust cites a Wisconsin case, In re Cudahy Family Trust (1964), 26 Wis. 2d 153, 158, 131 N.W.2d 882, 885, in support of its position that since, in the case at bar, “the facts and arguments were not fully presented by the beneficiaries,” it was proper for it to present its view of the grantor’s intent. However, beyond the fact that the court in Cudahy held that the duty of the trustee is to treat the beneficiaries impartially and not to assume the role of advocate on behalf of either beneficiary, we find Northern Trust’s basic premise wholly without merit. In this case, the beneficiaries did present arguments concerning their positions. The fact that Winterbauer chose to proceed pro se and not to appear for court proceedings does not alter the reality that her position was communicated to and known by the circuit court. We note also that the circuit court never requested Northern Trust’s interpretation of the trust.

The record does not support Northern Trust’s contention that it was necessary for it to argue on behalf of the grantor’s intent. Northern Trust had already set forth in its complaint the relevant information which required construction of the trust. It had already supplied the circuit court the underlying facts and the different interpretations which could be drawn. Further, since the trust agreement and its amendment were executed without Northern Trust’s involvement, it could provide no additional information concerning the grantor’s intent.

Unavailing too is Northern Trust’s argument that if Winterbauer had retained counsel, her attorney fees and costs would have been properly paid from the trust. Though that may. be so, there is no justification for charging the trust for Northern Trust’s attorney fees and costs in representing her position while resisting the claim of the other beneficiary. If we were to hold otherwise, if the trustee could argue on behalf of one beneficiary to the detriment of another in the interests of saving attorney fees and costs for the trust, there would never be a reason for a beneficiary in an action for construction of a trust to retain counsel or argue its position; our well-established law concerning the trustee’s duty of impartiality to beneficiaries would be rendered meaningless. Instead, it is preferable that we reiterate established precedent and foster every incentive for a trustee to adhere to its well-established duty of impartiality.

In this case, Northern Trust acted properly in seeking the circuit court’s construction of the trust agreement concerning the appropriate distribution of the trust. However, when it argued that the trust should be interpreted in a manner beneficial to Winterbauer and detrimental to Heuer, it exceeded its role as trustee and breached its duty of impartiality. The circuit court’s award of Northern Trust’s attorney fees and costs, in excess of those incurred in preparing and filing the complaint for construction of the trust and in gathering and presenting the information necessary to interpret the equalization clause, constituted an abuse of discretion and is reversed. See Jones v. Heritage Pullman Bank & Trust Co., 164 Ill. App. 3d at 605.

Because Northern Trust’s petition for attorney fees and costs does not reveal what time was spent on appropriate activities, this case must be remanded to the circuit court for a determination of the amount properly payable from the trust.

II

Heuer maintains that the circuit court also erred in assessing his attorney fees and costs against his share of the trust rather than against the entire trust. He argues that Illinois law unequivocally provides for assessments against the trust principal where there are honest differences of opinion concerning the construction of a trust and that there is no evidence in the record that he acted in bad faith. Northern Trust takes no position regarding this issue. Winterbauer maintains that the circuit court properly exercised its discretion in assessing Heuer’s attorney fees and costs against his share of the trust and argues that assessing those charges against the entire trust would be unfair to her.

Heuer is correct in his contentions that attorney fees and costs are chargeable to the trust where there is an honest difference of opinion as to the language of the trust instrument. (First National Bank v. Edgeworth (1981), 94 Ill. App. 3d 873, 885, 419 N.E.2d 372; Wool v. La Salle National Bank (1980), 89 Ill. App. 3d 560, 563, 411 N.E.2d 1135; Northern Trust Co. v. Tarre, 83 Ill. App. 3d at 692, citing Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 183 N.E.2d 505.) Notwithstanding that principle of law, the record reflects that, because of correspondence from Winterbauer, the circuit court concluded that Heuer’s refusal to settle the case showed bad faith and therefore ordered that Heuer’s attorney fees and costs be paid only from his share of the trust.

The record, however, is devoid of any evidence that Heuer acted in bad faith. Though settlement discussions did occur, nothing but Winterbauer’s correspondence indicates that it was Heuer who prevented settlement. Failure to settle a lawsuit, moreover, is not a sufficient basis for not ordering attorney fees and costs to be paid from the trust principal. (See Northern Trust Co. v. Tarre, 83 Ill. App. 3d at 692.) The circuit court had determined that the trust was ambiguous and its construction was necessary; it also made no finding that Heuer’s objections were made in bad faith or that he had illegitimate arguments concerning interpretation of the trust. Thus, Heuer’s attorney fees and costs should have been paid from the trust estate. See First National Bank v. Edge-worth, 94 Ill. App. 3d at 888; Northern Trust Co. v. Tarre, 83 Ill. App. 3d at 692.

For the foregoing reasons, the judgment of the circuit court is reversed and the case is remanded to the circuit court for proceedings and orders consistent with this opinion.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE FREEMAN

license: Public Domain

text:
    ELDRIT NEWSOME, Plaintiff-Appellant, v. SENATOR THOMPSON et al., Defendants (The City of Chicago, Defendant-Appellee).
    First District (3rd Division)
    No. 1—88—3126
    Opinion filed September 5, 1990.

      Melvin Gaines, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Michael B. Kilgallon, and Dolores V. Horan, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Eldrit Newsome, filed an action to recover for personal injuries sustained when the automobile of defendant Senator Thompson collided with plaintiff’s motorcycle. Defendant City of Chicago (the City) filed a motion to dismiss plaintiff’s amended complaint for failure to state a cause of action. The trial court granted the motion. Plaintiff appeals.

Count I of plaintiff’s amended complaint alleged that while operating a motorcycle in a northerly direction on Vincennes Avenue in the City on September 12, 1987, he was struck, at approximately 10833 South Vincennes, by the automobile of defendant Thompson, who had negligently: (1) parked in a “no parking” zone on the east side of Vincennes; (2) attempted to make an illegal turn from a northbound to southbound direction; (3) failed to yield the right of way to northbound traffic on Vincennes; (4) driven from a parked position into plaintiffs path; (5) failed to give any signal or warning of the movement of his automobile; and (6) failed to keep proper lookout for northbound traffic on Vincennes. The complaint further alleged that sometime before September 12, 1987, the City had closed the three northbound lanes of Vincennes Avenue for street reconstruction and converted the three southbound lanes of Vincennes into one lane each for northbound and southbound traffic between 108th and 109th Streets. Count III of the amended complaint further alleged that the City negligently failed: (1) to erect any barricades between the southbound and northbound traffic lanes of Vincennes; (2) to warn of traffic entering into the northbound lanes from the southbound lanes; (3) to erect any protective devices at the point of the collision; and (4) to take any precautions to protect motorists northbound on Vincennes. It also alleged that as a result of the City’s negligence, plaintiff’s motorcycle collided with defendant Thompson’s automobile. Count II of the complaint alleged willful and wanton misconduct on the part of defendant Thompson. Count IV sounded in negligence against defendant Donald Hammel, d/b/a S.G. Hayes & Co., the contractor allegedly employed by the City to do the reconstruction work on Vincennes Avenue on September 12, 1987.

In moving for dismissal of count III for failure to state a cause of action, the City asserted that contrary to plaintiffs allegation of negligence in failing to erect any barricades on Vincennes, it had no duty to install medians or median barriers thereon, citing Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 366. The City further argued that contrary to plaintiff’s allegation of negligence in failing to warn of traffic entering the northbound lanes of Vincennes from the southbound lanes, it had no such duty under section 3—104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1—101 et seq.). Finally, the City argued that, contrary to plaintiff’s allegations of negligence in failing to erect any protective devices at the point of the collision and to take any precautions to protect motorists northbound on Vincennes, it had no such duties given that municipalities do not have a duty to undertake public improvements, citing American State Bank v. Cude (1975), 30 Ill. App. 3d 206, 331 N.E.2d 825.

Opinion

On appeal, plaintiff contends that count III of his amended complaint stated a cause of action against the City.

Specifically, he first asserts that the City owed him a duty to exercise reasonable care to maintain Vincennes in a reasonably safe condition during its reconstruction. He further argues that, in contrast to the City’s reliance upon the lack of any duty of municipalities to undertake public improvements, the foregoing duty encompassed a duty to make public improvements in a reasonably safe manner. These assertions are predicated on section 3—102(a) of the Tort Immunity Act, which provides, generally, that except as otherwise provided in article III thereof, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition. (Ill. Rev. Stat. 1987, ch. 85, par. 3—102.) In support of application of that duty here, plaintiff cites, inter alia, Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, and Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259. Plaintiff further asserts that it is a reasonable inference from the amended complaint that Vincennes was in a dangerous condition on the date of plaintiff’s accident. Plaintiff also argues that the City’s assertion that it had no duty to warn is contrary to the holding in Janssen (see also Allen v. McCalman (1923), 229 Ill. App. 221; City of Elgin v. Thompson (1901), 98 Ill. App. 358), that the duty to maintain public streets in a safe condition includes the duty to warn of dangerous conditions existing thereon. Plaintiff further urges, also citing Janssen, that the Tort Immunity Act does not absolve a municipality of all liability for negligence but merely codifies the common-law liability of municipalities.

Plaintiff is correct that Janssen states that a municipality has a duty to exercise ordinary care to maintain its property in a reasonably safe condition and that included in that duty is the duty to warn motorists of dangerous conditions within its public highways. (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 443, 450, 404 N.E.2d 213, citing Ill. Rev. Stat. 1973, ch. 85, pars. 3—102(b), 3—104(b).) Plaintiff is also correct that Janssen stands for the proposition that the Tort Immunity Act does not absolve a municipality of all liability for its negligence. However, Janssen is of no assistance to plaintiff.

That a municipality has a general duty to maintain its property in a reasonably safe condition (Ill. Rev. Stat. 1987, ch. 85, par. 3 —102) and that this duty encompasses a duty to make public improvements, once undertaken, in a reasonably safe manner are of no avail to plaintiff. Notwithstanding these duties, the explicit provisions of the Tort Immunity Act absolve municipalities of liability for the specific acts of negligence, i.e., breaches of those duties, alleged in plaintiff’s amended complaint. Specifically, section 3 — 104 thereof provides that neither a local public entity nor public employee is liable under the Act for injury caused by the failure to provide, inter alia, any traffic-regulating or warning signs or traffic-separating or restraining devices or barriers. (Ill. Rev. Stat. 1987, ch. 85, par. 3—104; Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215; Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 366.) Thus, under section 3—104, there is no liability for failing to provide traffic-separating devices or barriers or warning signs of any kind, including the type alleged in the amended complaint. In view of the City’s immunity from liability, it is immaterial that it is a reasonable inference from the amended complaint that Vincennes was in a dangerous condition on the date of plaintiff’s accident.

Parenthetically, we further note that with respect to the duty to post warning signs, section 3 — 104 is now substantially different than the version thereof upon which Janssen relied. Janssen was decided under the 1973 version of the Tort Immunity Act, section 3 — 104 of which contained a subsection (b) providing that a municipality was not liable for the failure to provide traffic warnings unless they were necessary to warn of a condition endangering the safe movement of traffic and not reasonably apparent to or anticipated by a person exercising due care. (Ill. Rev. Stat. 1973, ch. 85, par. 3—104(b).) Subsection (b) has since been eliminated from section 3—104 and it now contains only a broadened version of the former subsection (a) providing as set forth above. As such, Illinois municipalities are now immune from liability for failing to post any traffic warnings whatsoever, including those warning of the absence of traffic-separating barriers or devices (Charpentier, 150 Ill. App. 3d 988, 502 N.E.2d 366) and plaintiff’s citation to Janssen, Allen v. Mc-Calman (1923), 229 Ill. App. 221, and City of Elgin v. Thompson (1901), 98 Ill. App. 358, for a contrary rule is unavailing.

Plaintiff further argues that, in addition to its common-law duty of reasonable care, the City’s duty to post barriers is established by its ordinances. In this regard, plaintiff notes that the violation of a statute or ordinance, designed for the protection of human life or property, is prima facie evidence of negligence and that an injured party has a cause of action if he was intended to come within the scope of the protection afforded by the statute or ordinance and his injury was proximately connected with the violation. Plaintiff asserts, in accordance with the foregoing rules, that the clear implication of his complaint is that the City violated its duty under its ordinances to place barriers on Vincennes and that he is within the scope of persons intended to be protected by the ordinance.

Even assuming that plaintiff is correct that the City’s ordinances imposed a duty upon it to post barriers at its street reconstruction sites and even assuming, further, that the City was thus negligent in failing to post such barriers along Vincennes, the fact remains that the Tort Immunity Act immunizes the City from liability for that negligence. To the extent that a claim of liability against the City could be based upon its violation of the subject ordinances, those ordinances are in conflict with the Tort Immunity Act. To that extent, therefore, they are invalid. Municipal authorities cannot adopt ordinances which infringe the spirit of a State law or are repugnant to the general policy of the State. City of Marengo v. Rowland (1914), 263 Ill. 531, 534, 105 N.E. 285.

Lastly, plaintiff asserts that, contrary to the trial court’s ruling, the actions of defendant Thompson in crossing the single northbound lane of Vincennes Avenue while making an illegal U-turn from the eastern portion of Vincennes, which was under construction, into the single southbound lane of Vincennes were reasonably foreseeable by the City as revealed by its ordinances. Specifically, plaintiff asserts that the fact that the City, by ordinance, requires the placing of a fence or railing at a street construction site “to prevent danger to persons *** traveling such streets” (Chicago Municipal Code §33 — 52 (1939)) reveals the City’s awareness of the potential for injuries to travellers on such streets absent barriers between the construction area and moving traffic lanes. Plaintiff asserts that the fence or railing is obviously intended to prevent objects and vehicles from moving out of the construction zone into the moving traffic lanes.

Given our conclusion that the City is immune from liability for any dangerous condition of the reconstruction work on Vincennes, the fact that the injury to plaintiff might have been foreseeable to it is of no consequence. Even if the foreseeability of the plaintiffs injury might, alone, be a sufficient ground upon which to predicate an action for negligence against the City, we find that plaintiffs injury was not reasonably foreseeable to the City, its ordinances notwithstanding.

The foreseeability which is a factor in the establishment of a legal duty in traffic accident cases is limited by the extent of deviation of the motor vehicle causing the plaintiffs injury from the ordinary course of travel. That is so because a legal duty arises only where a reasonably prudent person could have foreseen as likely the events which transpired. (See Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 90, 522 N.E.2d 215 (no duty to install barriers to prevent “crossover” accident on Lake Shore Drive).) Given the extent of defendant Thompson’s deviation from that course of travel on Vincennes on September 17, 1987, we, like the Ross court, cannot say that the accident which caused plaintiff’s injuries was a type of reasonably foreseeable occurrence for which the City can be held liable. Therefore, as in Ross, plaintiff’s amended complaint fails to state a cause of action based on a common-law duty to take steps to prevent the accident which occurred here.

Moreover, we disagree with plaintiff that the City’s ordinances reveal its awareness of the dangers posed by vehicles or objects moving out from the construction areas around which the ordinances require fences or railings. The specific ordinance upon which plaintiff relies provides:

“It shall be the duty of every person engaged in digging in *** or in paving any street, or in building any sewer or drain or trench for water pipes in any *** public streets ***, where such work if left exposed would be dangerous to persons traveling on such streets, to erect a fence or railing at such excavations or work *** to prevent danger to persons who may be traveling such streets, and *** to maintain such railing or fence until the work shall be completed or the obstruction or danger removed.
It shall be the duty of such person to place upon such railing or fence, at sunset, suitable and sufficient lights and to keep them burning throughout the night during the performance of such work.
The provisions of this section [chapter 33] shall apply to every person who shall place building materials in any of the public ways; or be engaged in building any vault or constructing any lateral drain from any cellar to any public sewer; or who shall perform any work causing obstructions in the public streets ***; and to all city officers and employees performing any work *** whereby obstructions or excavations shall be made in the public ways.” Chicago Municipal Code §33 — 52 (1939).

A reading of the ordinance reveals that rather than intended to protect users of its streets from objects or vehicles moving out from construction zones, it is intended to protect such persons from injuries which might result from falling, whether while on foot or in a vehicle, into excavations made for one purpose or another or from walking or driving into obstructions of one sort or another. (See, e.g., Enders v. City of Chicago (1909), 147 Ill. App. 406.) We cannot reasonably construe the ordinance as being intended to prevent the harm which plaintiff asserts it is intended to prevent.

Finally, we agree with the City that much of plaintiff’s foreseeability argument actually relates more to the issue of proximate cause. While proximate cause is ordinarily a question of fact, it can be decided as a question of law where reasonable men could not differ as to the inferences to be drawn from undisputed facts. (Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 537 N.E.2d 1146.) As the facts in this case are largely undisputed, proximate cause became a question of law which could be decided by the City’s motion to dismiss. (See Novander.) Moreover, we find the following rule controlling on that issue:

“If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent act of a third party, the creation of that condition is not the proximate cause of the injury. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665.) The subsequent independent act becomes the effective intervening cause which breaks the causal connection, and itself becomes the proximate cause.” (Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361, 493 N.E.2d 72.)

(See also Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201; Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 537 N.E.2d 1146.) At bottom, we agree with the City that, consistently with the foregoing rule, the reconstruction work being done on Vincennes on September 15, 1987, and any lack of barriers, fences, railings, warning signs or other protective devices at the site did no more than furnish a condition which made plaintiff’s injury possible through the independent conduct of defendant Thompson. Moreover, similarly to Novander, we find that defendant Thompson’s act of crossing the northbound lane of Vincennes from the area under construction to the east, in order to make an illegal U-turn into the southbound lane of Vincennes, was the type of subsequent, independent act which constituted an effective, intervening cause breaking the causal connection between the City’s negligence, if any, and plaintiff’s injury. Novander, 181 Ill. App. 3d at 1079-80.

For all of the foregoing reasons, we affirm the order dismissing count III of plaintiff’s amended complaint for failure to state a cause of action against the City of Chicago.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

      At oral argument, plaintiff also asserted his reliance upon section 3—103(a) of the Tort Immunity Act. That section provides, inter alia, that a local public entity is liable for an injury caused by the adoption of a plan or design of a construction of, or an improvement to, public property, if, after the execution of the plan or design, it appears from its use that it has created a condition that is not reasonably safe. Plaintiff’s reliance on this section is misplaced. This section applies only where the construction of or improvement to public property has been completed. (Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 458 N.E.2d 39; Best v. Richert (1979), 72 Ill. App. 3d 371, 389 N.E.2d 894.) Here, the construction of or improvement to Vincennes Avenue had not been completed at the time of plaintiff’s accident.

        Ross and Charpentier involved “cross-over” accidents on Lake Shore Drive, which, unlike Vincennes Avenue here, was not undergoing repairs or reconstruction at the time thereof. However, that fact does not make the rules of nonliability applied therein for failure to install traffic-separating devices or to warn of their absence inapplicable here. As we note above, plaintiff’s attempt to predicate the City’s liability on its duties in making a public improvement rather than a duty to make such improvements is ultimately unavailing.


text:
    JOSEPH VILLA, Plaintiff-Appellant, v. CROWN CORK AND SEAL COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—1832
    Opinion filed September 5, 1990.

      Gabrielle S. Davis, of Heller & Richmond, Ltd., of Chicago, for appellant.
    Robert R Harris, of Harold A. Harris, Ltd., of Chicago (John Sanchez, of counsel), for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Joseph Villa, brought this action in the circuit court of Cook County to recover damages for injuries he sustained in a car-truck collision. Following a jury trial, a verdict was rendered in favor of plaintiff and against defendants, Crown Cork & Seal Company and Ronald Kukla. The jury attributed 99% of the fault to plaintiff and he now appeals.

The collision occurred on an unnamed two-lane road connecting Lawndale Avenue and Pulaski Road in Chicago. According to defendants, the road runs in a general east-west direction and contains some sharp curves, which temporarily lead traffic in a north-south direction. At the comer of Pulaski Road and the unnamed road, a sign is posted which states “City of Chicago, private road, city vehicles only.” The city Department of Streets and Sanitation vehicle garage is located at the Lawndale end of the road.

On October 16, 1984, at about 3:15 p.m., plaintiff, who was employed by the Department of Streets and Sanitation, left work driving south on the unnamed road. Although visibility was good, it was drizzling. The road was wet and had been made slick because of oil and debris from other vehicles. According to plaintiff, he was travelling at a rate of about 10 to 15 miles per hour. As he entered a curve on the road, he slowed his speed to 10 miles per hour. In an attempt to negotiate the curve, plaintiff applied his brakes. Defendants’ truck was over the center, yellow line, in plaintiff’s lane. Plaintiff’s car slid into the center of defendants’ trailer.

Defendant Kukla’s version of facts differs. According to him, at the time of the collision, he was driving a truck with a 12/2-foot-wide, 45-foot-long trailer. Defendant was travelling in the opposite direction of plaintiff on the unnamed road. He approached the curve slowly, in first gear, travelling at about two miles per hour. As plaintiff’s car entered the curve, it slid and began to fishtail. It hit the trailer section of the truck, stopping underneath it. After the collision, defendant told plaintiff not to move his vehicle, in order that the police or any other investigators could take pictures of the scene. However, plaintiff refused and moved his car away from the truck. At the time of the collision, plaintiff, according to defendant’s estimate, was travelling at about 20 miles per hour.

Defendant Kukla farther testified that he had been driving semi-tractor trailer trucks for 30 years. Additionally, he had negotiated this curve many times in the past, sometimes three or four times a day. He stated that at no time did his truck cross the center line on the road.

Edward Bloom, a photographer, took photographs of the scene of the collision in October 1984 and again in March 1989. In explaining his photographs, he testified that he had measured the road surface, which, from the center of the curve, was 500 feet. According to him, in order for defendants’ trailer to maneuver to the left on the curve where the collision occurred he would have to go farther right, into the other lane of traffic. On cross-examination he stated that his measurement of the road surface was done by foot-to-heel, and was only an approximation, which did not include the gravel shoulder of the road.

As a result of the collision, plaintiff filed a complaint against defendants for injuries which he sustained. A jury verdict was returned in favor of plaintiff and against defendants. The jury determined the damages to be $50,000 and attributed 99% of the fault to plaintiff, which reduced plaintiff’s award to $500. Plaintiff appeals, contending that: (1) the trial court erred in denying his motion for judgment notwithstanding the verdict; (2) the trial court erred in permitting a non-IPI instruction to be read to the jury; and (3) the trial court erred in.denying his motion for a new trial. We affirm.

Plaintiff first contends that the trial court should have entered judgment notwithstanding the verdict, with no reduction for comparative negligence. He correctly recites the applicable standard that judgments notwithstanding the verdict ought to be entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 511, 229 N.E.2d 504.) However, plaintiff’s application of the standard is fundamentally flawed.

First, plaintiff attempts an analogy between this case and Pedrick. In Pedrick, the plaintiff’s testimony concerned whether railroad crossing signals were flashing properly. Significantly, the plaintiff’s testimony, which was comparatively ambiguous to that of the defendant, went to the issue of causation.

In this case, plaintiff points to defendant Kukla’s testimony concerning his reason for having used the road on the day of the collision and the fact that defendant testified that he used the road with great regularity and yet had failed to notice the signs posting the road as private. He reasons that since the defendant’s testimony on these issues was equivocal and ambiguous, like in Pedrick, the trial court should have entered a judgment notwithstanding the verdict. We disagree.

Initially we note that the only testimony that was contradictory was that which concerned defendant’s reason for using the road. Additionally, the fact that defendant Kukla testified that he had often used the road without giving attention to the posted signs does not render his testimony on that issue ambiguous. Moreover, the testimony targeted by plaintiff in support of his motion was neither relevant nor probative on the issue of defendants’ negligence.

Unlike the testimony in Pedrick, the testimony to which plaintiff here points bears no relationship to any ultimate fact or issue in the case. Clearly this testimony does not compare, either in character or calibre, to the questionable testimony in Pedrick. Consequently, even if we were to agree with plaintiff’s characterization that the testimony was ambiguous, such a finding carries no weight to shift the balance of the evidence in plaintiff’s favor. Facts unrelated to essential elements of plaintiff’s cause are immaterial, no matter how sharply controverted, and cannot support a motion for judgment notwithstanding the verdict.

Also, in his analogy, plaintiff compares defendant Kukla’s testimony concerning the reasons and frequency with which he used the road, with his (plaintiff’s) “unequivocal and unambiguous” testimony concerning the events which immediately preceded the collision.

Plaintiff here attempts to compare apples and oranges. Defendants’ motive for using the road may have been contradictory; however, this nonessential testimony cannot logically be compared to testimony relating to ultimate facts. In Pedrick, the holding did not simply rest on the fact that some testimony was ambiguous and equivocal; the relevant and comparative testimony related to the same essential facts.

Here, each party’s version of the facts as to how the collision occurred, while different, was clear and consistent. Those differences merely created questions of fact and issues of credibility for the jury, not a mandate for judgment notwithstanding the verdict. Moreover, where, as here, the evidence demonstrates a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence may be decisive of the outcome, it is error to enter a judgment notwithstanding the verdict. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 509, 492 N.E.2d 1364; Wright v. Yellow Cab Co. (1983), 116 Ill. App. 3d 242, 451 N.E.2d 1313.) Based on all of the evidence presented, we do not find any to be so compelling as to support a verdict in plaintiff’s favor. We hold that the denial of plaintiff’s motion was proper.

Plaintiff next contends that the non-Illinois Pattern Jury Instruction (IPI) was erroneously given. He claims that the instruction overemphasized the nature of the road and prejudiced his case. Further, he argues that the instruction was not supported by evidence. Defendants have responded that the instruction was a necessary clarification to the jury on how to treat the issue of the private road.

The questionable instruction provided:

“The fact that the Defendant was operating his vehicle on a private roadway should not be a factor for you to consider in deciding the issues presented in this case.”

The trial court has the discretion to determine which instruction shall be given, and the exercise of such discretion will not be disturbed on review unless it has been clearly abused. (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 844, 462 N.E.2d 645; Clarkson v. Wright (1984), 121 Ill. App. 3d 230, 459 N.E.2d 305, rev’d on other grounds (1985), 108 Ill. 2d 129, 483 N.E.2d 268.) The standard for determining the adequacy of jury instructions is whether they were sufficiently clear to avoid misleading the jury, while at the same time fairly and correctly stated the law. (Nolan v. Elliott (1989), 179 Ill. App. 3d 1077, 1085, 535 N.E.2d 1053; Black v. Peoria Marine Construction Co. (1987), 160 Ill. App. 3d 357, 513 N.E.2d 622.) However, care should be taken to prevent instructions overemphasizing any particular matter. (Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 872, 466 N.E.2d 1038; Robinson v. Greeley (1983), 114 Ill. App. 3d 720, 449 N.E.2d 250.) Finally, a particular jury instruction given by the trial court is proper if it is supported by some evidence in the record, and the trial court has discretion in deciding which issues are raised by the evidence. Black, 160 Ill. App. 3d at 364.

We agree with defendants and find that the instruction was proper. Our review of the record reveals that in her opening statement and on direct examination of plaintiff, plaintiffs counsel made repeated references to the fact that the road was private. Additionally, plaintiffs counsel attempted, by referencing the posted signs, to bring up the issue in her examination of defendant Kukla, Bloom and the investigating officer, Cynthia Cummings. Plaintiff, however, never presented any evidence to show that that fact had any connection with the level of defendants’ duty of care. In fact, plaintiff agreed that no greater duty was required by virtue of the fact that the road was posted as private.

The court’s non-IPI instruction, which was clear, brief, and free from argument (see Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 445 N.E.2d 844), was necessitated by plaintiff’s references to the fact that the road was private. We believe that it would have been error for the court not to have given the instruction. Since plaintiff made repeated reference to the fact that the road was private, absent some clarification concerning the irrelevance of that fact, the jury could have erroneously inferred a greater duty of care based on the fact that defendants were in a place where they had no right to be. Plaintiff should not now be heard to complain about the necessity of the court to clarify a potentially prejudicial issue which he himself presented. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500; Noncek v. Ram Tool Corp. (1970), 129 Ill. App. 2d 320, 264 N.E.2d 440.) We find no abuse of discretion in the giving of this instruction.

Moreover, we believe that not every error in giving instructions necessitates a new trial. A reviewing court will ordinarily not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant. (Amstar Corp. v. Aurora Fast Freight (1986), 141 Ill. App. 3d 705, 710, 490 N.E.2d 1067.) As defendants point out, the fact that the road was private, had it been relevant, would have gone to the issue of defendants’ liability, not plaintiff’s. The jury determined that defendants were negligent; thus, the fact that the private road instruction was given was of no consequence to plaintiff. Since plaintiff was not prejudiced by the instruction, even had it been erroneous, reversal would not be required.

Plaintiff next contends that the trial court erred in denying his motion for a new trial. In support of his argument, he adopts the arguments stated in sections I and II of his brief (contentions 1 and 2 in this opinion).

It is within the sound discretion of the trial court whether to grant a motion for a new trial, and, absent a clear abuse of that discretion, its decision will remain undisturbed. (Ervin, 65 Ill. 2d at 144; Cadral Corp. v. Solomon, Cordwell, Buenz & Associates, Inc. (1986), 147 Ill. App. 3d 466, 497 N.E.2d 1285.) A new trial will not be granted merely because the evidence is conflicting. The relevant inquiry, when such a motion is presented, is whether the verdict rendered is against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence. Monier v. Winkler (1987), 158 Ill. App. 3d 724, 729, 511 N.E.2d 426; Anderson v. Beers (1979), 74 Ill. App. 3d 619, 393 N.E.2d 552.

The substance of plaintiff's argument in section I of his brief, as has already been stated, is that defendant’s testimony regarding his reason for using the road was ambiguous and contradictory, there was a sign which posted the road as private, and there was corroborative testimony concerning the posting of the road as private. Additionally, included in that section of plaintiff’s brief is his version of the facts concerning the collision.

We fail to see how this evidence supports plaintiff’s argument that the verdict was against the manifest weight of the evidence. Further, the fact that plaintiff’s version of how the collision occurred conflicted with defendant’s is not decisive. The jury was not obligated to reject defendant’s version of the facts because it differed from plaintiff’s.

The jury heard the testimony of the witnesses and viewed the evidence presented. It was its prerogative to draw reasonable inferences and ultimate conclusions from that evidence. (Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 436, 167 N.E.2d 212.) As we have stated previously, an election between conflicting evidence and the assessment of credibility of the witnesses were properly questions for the jury’s resolution. (Brooks v. City of Chicago (1982), 106 Ill. App. 3d 459, 464, 435 N.E.2d 1182; Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 422 N.E.2d 925.) The verdict will not be altered merely because the jury could have found differently. (Lee, 143 Ill. App. 3d at 512; Jardine v. Rubloff (1978), 73 Ill. 2d 31, 382 N.E.2d 232.) We have reviewed the record, and we find the jury’s verdict to have been properly supported by the evidence. Thus, we have no basis upon which to disturb its findings.

Plaintiff’s next argument (section III of his brief) concerned the non-IPI jury instruction. As we have already stated, we believe that the instruction in this case was not only proper, but necessary, and that plaintiff was not prejudiced thereby. We deem further discussion on the issue to be superfluous.

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

      Bloom’s testimony on direct examination, wherein he attempted to reconstruct the collision, was objected to by defendant on the basis that the witness was not an expert on reconstruction. The court sustained the objection and permitted defendant limited cross-examination on that testimony.


author: JUSTICE RIZZI

text:
      In re DAVID D. (David D., Respondent-Appellant, v. The People of the State of Illinois, Petitioner-Appellee (Lovey D., Respondent-Appellee)).
    First District (3rd Division)
    No. 1—89—2335
    Opinion filed September 5, 1990.

      Patrick T. Murphy, Public Guardian, of Chicago (Michael G. Dsida, Assistant Public Guardian, of counsel), for appellant.
    Randolph N. Stone, Public Defender, of Chicago (Lynn Flanagan Wilson and Richard E. Gade, Assistant Public Defenders, of counsel), for appellee Lovey D.
   JUSTICE RIZZI

delivered the opinion of the court:

On June 23, 1988, a petition for adjudication of wardship in the interest of David D. (petition), a five-year-old minor, was filed in the juvenile division of the circuit court of Cook County. The petition alleged in count I that David was abused in that his parent committed or allowed to be committed against David a sex offense listed in the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802—3(aX2Xiii)). In count II it was alleged that David was abused in that his environment was injurious to his welfare. (Ill. Rev. Stat. 1987, ch. 37, par. 802—3(1)(b).) On the same day, the public guardian was named as David’s guardian ad litem and an order of protection was entered. Under the order David and his sisters, Christine and Latera, were placed in the custody of their mother, respondent Lovey D.

A petition for supplemental relief was filed on June 8, 1989, alleging that respondent violated the order of protection. It asked the court to vacate the protection order and appoint the maternal grandmother as temporary custodian.

An adjudicatory hearing on the original petition was held on July 25, 1989. The father was defaulted and is not a party to the appeal. David was represented by the public guardian as his guardian ad litem and attorney. Respondent was represented by the public defender. The State amended the petition prior to the hearing by striking count I and amending count II to provide that David was a “neglected” minor to conform to the language in the recently amended Juvenile Court Act of 1987. Ill. Rev. Stat., 1988 Supp., ch. 37, par. 802—3(1)(b).

The State presented the stipulated testimony of Christine D., David’s maternal grandmother. The testimony showed that in January 1988, respondent moved out of Christine D.’s home with David and Latera and into the home of David W., the children’s father. Respondent lived with David W. until June 1988. In June 1988, but prior to June 21, 1988, Latera was taken to Ingalls Hospital. She was released on June 21, 1988, and taken to Mt. Sinai Hospital for an evaluation. After Latera was released, her grandmother had an occasion to speak with Latera. Latera informed Christine D. that David W., her father, “had been sticking his pee-pee into her vagina, pointing at the vagina area.”

The State presented the medical records from Mt. Sinai Hospital regarding the June 1988 evaluation of Latera. She had been diagnosed as having been sexually abused. Following admission of the documents into evidence, the State rested.

Respondent moved for a directed finding with respect to David on the grounds that there was no testimony or evidence that showed his environment was injurious to him. The State argued that based upon In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872, David’s environment was injurious to him because he was living in an environment where his sister was sexually abused even though there was no indication that David knew about or was exposed to the abuse of Latera. The court granted respondent’s motion and dismissed the petition with respect to David. The public guardian filed a timely notice of appeal.

The issue on appeal is whether the State presented sufficient evidence to establish a prima facie case that David’s environment was injurious to his welfare. The public guardian claims that the evidence of sexual abuse with respect to Latera was sufficient to find that David’s environment was injurious to him. See In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.

The public guardian also raises an equal protection argument with respect to the claim that David’s gender may have eliminated him from the protection of Brooks since it was his sister who was sexually abused. This argument is made apparently in response to respondent’s argument at the hearing that the sexual contact occurred between a male and female and there was no showing that the father would sexually abuse all his children. However, we do not deem it necessary to address this point in light of our decision.

Under section 2—3(1)(b) of the Juvenile Court Act of 1987 (Act), a minor whose environment is injurious to his or her welfare is a neglected minor. (Ill. Rev. Stat., 1988 Supp., ch. 37, par. 802—3(1)(b).) The Act provides that proof of abuse, neglect or dependency of one minor is admissible evidence on the issue of abuse, neglect or dependency of another minor for whom the parent is responsible. (Ill. Rev. Stat., 1988 Supp., ch. 37, par. 802—18(3); see In re S.M. (1988), 171 Ill. App. 3d 361, 525 N.E.2d 565.) An injurious environment for a minor may be found based upon a parent’s behavior toward a sibling. See In re S.M., 171 Ill. App. 3d at 366; In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.

The court in In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872, found that evidence of physical abuse of the minor’s two siblings was sufficient to find that the minor was subjected to an injurious environment. The minor was found to be a neglected minor. In its determination the court reasoned that the juvenile court should not be forced to refrain from taking action until each child suffers an injury.

Respondent attempts to distinguish Brooks by noting that the mother therein was accused of inflicting abuse on one of the minors and respondent herein is not. However, the petition herein alleged neglect based upon an injurious environment which respondent was part of and responsible for. (See In re Simmons (1984), 127 Ill. App. 3d 943, 469 N.E.2d 215.) Further, the hearing was an adjudicatory one to determine whether David was a neglected minor under the Act and not a dispositional hearing. We also point out that an adjudication of neglect was entered against the father in Brooks although the child’s allegations were directed at the mother. See In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84 (wherein a noncustodial father was found unfit under the Adoption Act for failing to protect the child from an injurious environment).

In In re S.M. (1988), 171 Ill. App. 3d 361, 525 N.E.2d 565, the reviewing court upheld the trial court’s finding that a minor was abused although there was no evidence that she was physically molested. The minor’s sister was found to be sexually abused by her father. The court cited Brooks in support of its position. While respondent distinguishes S.M. and later In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242, on the basis that David does not live with the abusive parent any longer, we again state that this was a hearing to determine neglect and not a dispositional hearing.

In In re A.D.R. (1989), 186 Ill. App. 3d 386, 542 N.E.2d 487, the court found a minor neglected on the basis of physical abuse by one parent against the other parent. The court stated that it would not wait until A.D.R. became a victim of the physical abuse or until she was emotionally damaged by the repeated beatings of her mother. In In re Harp-man (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242, an injurious environment was established for three minors whereby the father had been found unfit by reason of sexual abuse of his daughters by a prior marriage. There was no direct evidence of sexual or other abuse of the minors in issue in Harpman.

Respondent contends that Harpman is distinguishable because it did not involve a termination of parental rights and the instant case does. The record indicates that the present hearing was an adjudicatory one to determine wardship based upon neglect. It was not a dispositional hearing to terminate respondent’s parental rights. Based on the foregoing, we find that the evidence of abuse of a sibling in the present case is sufficient to establish a prima facie case of neglect based upon an injurious environment to David.

The judgment of the circuit court, which granted respondent’s motion for a finding and dismissed the petition regarding David, is reversed and the cause remanded for further proceedings.

Reversed and remanded.

CERDA, RJ., and WHITE, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE FRIEDLAND, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1449
    Opinion filed September 7, 1990.

      William J. Haddad, of Chicago (George Rashid, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Paula Carstensen, Special Assistant State’s Attorney, and Inge Fryklund and Mary Schultz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant Lawrence Friedland was convicted of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16—1) of $27,728.41 from Domino’s Pizza, Inc., where defendant was a store manager. He now appeals and we address the issue of whether computer-generated bank statements were erroneously admitted in evidence and whether he was convicted beyond a reasonable doubt. We reverse and remand for new trial.

The following facts are relevant to our disposition of this appeal. Samuel Zavatsky, the assistant to the vice-president of Domino’s Pizza, testified that in January of 1985 defendant became a store manager of a Domino’s Pizza located in Palatine, Illinois. The store manager was responsible for preparing a daily recap form which contained certain information concerning the store’s activity for that day including the employees who worked and the amount of bank deposits. On the daily recap form, there was a space for the amount of bank deposits made that day and an area next to it titled “I have made the deposit” for the manager’s initials. One copy of the daily recap form was sent to the regional office and the other was kept in the store. It was Zavatsky’s understanding that the manager who initialed for the deposit on the daily recap form should take the deposit to the bank. Zavatsky testified that management personnel including trainees had the authority to take deposits to the bank. Corporate policy required that two people, normally a manager and a trainee, take deposits to the bank. Because of the store’s hours, deposits were generally taken to the bank after the bank was closed. The deposit was made into the store’s exclusive bank account. After the deposit was credited, the bank sent a receipt back to the store and it was attached to the daily recap form. The bookkeepers in the regional office reconciled the store’s deposit receipts with the store’s bank account statements.

The corporate supervisor for the store was responsible for verifying the deposit receipts from the bank with the store’s records. At the time in question, Susan John was corporate supervisor for the Palatine store where defendant was store manager. Defendant and John married after they left their employment with Domino’s Pizza.

In the end of February of 1985, Zavatsky learned that there were discrepancies between the store’s deposits and the store’s bank account statements. Zavatsky spoke with John, who told him she verified the deposits.

The State introduced numerous daily recap forms showing that defendant initialed for all the deposits which were not credited to the store’s bank account from January 4, 1985, to March 10, 1985. Zavatsky testified that in late March of 1985, defendant admitted to him that he initialed the daily recap forms for each of the deposits that were not credited to the store’s bank account. Defendant was the only employee who worked on each of the days that deposits were missing.

Debra Garcia testified that she was hired by Domino’s Pizza in February of 1985 as a staff accountant and was responsible for reviewing the daily recap forms sent from the Palatine store and reconciling deposits with bank statements. In the end of February, Garcia discovered that there were discrepancies between the daily recap forms and the bank statements.

Garcia was shown an exhibit consisting of five pages which she identified as copies of the bank statements received by Domino’s Pizza for the Palatine store. The statements were dated January 1, 1985, February 28, 1985, and March 30, 1985, and indicated they were checking account statements for Domino’s Pizza, store number 2721, which was the Palatine store. The statements contained the account number but did not indicate the name of the bank. She compared the amount of each deposit with the bank statement to determine whether it was credited to the account. Garcia testified that most of the deposits were credited to the bank account within one or two days; however, one deposit dated January 9 was not credited until January 21 and another deposit dated February 12 was not credited until February 18. Garcia also testified that 24 deposits from January 4 to March 10 were never credited on the bank’s statements.

Garcia testified that she believed the account was closed in the end of March of 1985 and that the missing deposits were not subsequently credited to the store’s bank account.

William Hillman, a store manager for Domino’s Pizza, testified that he first met defendant when they were both working for Domino’s Pizza in 1983. In May of 1985, he left Domino’s Pizza and started a business with defendant in Kansas. Hillman worked with defendant for three weeks before leaving that position and returning to Domino’s Pizza. Hillman testified that he was aware that in some instances, a manager prepared the daily recap form but trainees took the deposit to the bank.

Before the State rested its case, it introduced into evidence the daily recap forms and the monthly bank statements. Defendant’s attorney stated he did not have any objection and the trial judge admitted those documents in evidence.

In defendant’s case in chief, Kenneth Iserman testified he was a vice-president cashier for First Bank and Trust of Palatine, where the Palatine store had its account. Iserman explained that when the bank opened in the morning, a bank officer and a teller would take the night deposits from the drop box and count the money. The funds were then given to a teller who made the deposits and entered them into bookkeeping machines. A minimum of three people were involved in processing a night deposit. Iserman could not explain why on three occasions deposits were not credited to the account for time periods of six days to two months. Iserman also testified that if the bank had received any deposits for the store’s account after it was closed, the account would be reopened with the deposit. The store’s bank statements from June of 1984 to December of 1984 were admitted in evidence over the State’s objection that they were not relevant.

Defendant’s wife, Susan John Friedland, testified that she was the corporate supervisor for the Palatine store from November of 1983, until she was asked to resign in April of 1985. One of her responsibilities was to check that the store’s deposits were made in a timely manner. However, she did not know deposits were not credited to the store’s account until February of 1985. When she was a management trainee, she often took deposits to the bank although a store manager prepared the daily recap forms. She further testified that she was not aware of a company policy requiring the person who initialed the daily recap form under “I have made the deposit” to take the deposit to the bank.

Defendant testified that he began working for Domino’s Pizza as a delivery man in October of 1983, and after entering a training program, he became the store manager of the Palatine store in January of 1985. Defendant explained that the procedure for night deposits required the manager who prepared the paperwork to count the deposit. Defendant testified that one copy of the deposit slip was kept in the store and the other two were given to the bank with the deposit. The manager had the authority to delegate the responsibility of taking the deposit to the bank to any trainee. Deposits were made when the bank was closed. When the bank sent the store a receipt for the deposit, it was defendant’s responsibility to verify that the deposit was credited to the account. That receipt was attached to the daily recap form.

Even though he initialed the daily recap forms for each of the missing deposits, defendant testified that he did not take the deposits to the bank. He verified every deposit listed on the daily recap form for the months of January, February and March of 1985, and for every deposit listed, there was a coordinating validated receipt. These receipts were not produced at trial. Defendant did not notice that deposits were not credited to the account for an unusually long period of time.

On March 20, 1985, defendant was notified that deposits were missing and had a discussion with Zavatsky. He told Zavatsky that although he initialed for the deposits on the daily recap form he did not take the deposits to the bank. Defendant testified that it was impossible to determine who took the deposits to the bank which were not credited to the store’s account. Defendant denied stealing any money from Domino’s Pizza and denied knowing what happened to the money.

The trial judge found defendant guilty of theft, and defendant’s motion for new trial was denied. He was sentenced to a probation period of 30 months and was ordered to pay restitution to Domino's Pizza in the amount of $27,728.41. Defendant now appeals.

Opinion

Defendant first argues that the computer-generated bank statements were erroneously admitted in evidence because the State did not lay a proper foundation. Although not addressed in the trial court, on appeal defendant and the State base their arguments on the fact that the bank statements were computer generated. Defendant now claims that the statements were improperly admitted; however, when the State offered them in evidence, defendant did not object. Also, defendant did not raise the issue in his motion for new trial.

The failure to raise an objection at trial and in a post-trial motion can result in a waiver of that issue on appeal (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124); however, plain errors or defects affecting substantial rights may be considered on appeal although they were not raised in the trial court (134 Ill. 2d R. 615(a)). The plain error rule applies when the evidence at trial was closely balanced or the alleged error was of such magnitude that defendant was denied a fair trial. (People v. Walker (1985), 109 Ill. 2d 484, 488 N.E.2d 529.) In this case, the evidence was closely balanced and, therefore, this issue merits consideration.

A computer record can be admitted in evidence as a business record under section 115 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115—5) although a proper foundation must be established (People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065, affd (1982), 92 Ill. 2d 268, 442 N.E.2d 250). The Illinois Supreme Court has held that foundation for such evidence requires testimony that the computer equipment was recognized as standard, that the entries were made in the regular course of business at or reasonably near the time of the event recorded, and that the testimony satisfied the court that the sources of information, method, and time of preparation indicated its trustworthiness and justified its admission. Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E.2d 1238.

Defendant relies on People v. Bovio (1983), 118 Ill. App. 3d 836, 455 N.E.2d 829, for his argument that the admission of the bank statements without proper foundation requires reversal of his conviction. In Bovio, defendant was convicted of theft by deception and deceptive business practices. He appealed the convictions, arguing that a computer-generated bank statement was admitted in evidence without proper foundation. The appellate court reviewed the testimony of a bank employee and found that the statement was kept on microfiche in the ordinary course of business; however,

“[njothing in the testimony *** demonstrated that the computer equipment at the data center was standard and that the method of preparation at the data center indicate[d] trustworthiness. *** [The] testimony [was] insufficient to prove that the particular equipment at the data center used by the [bank was] standard and accurate. *** [T]here [was] nothing in [the employee’s] testimony which described how transaction information was entered into and processed through the computer system at the data center which would verify the accuracy of the output on the microfiche. *** Systems, like the one apparently in question, which perform calculations must be scrutinized more thoroughly than those systems which merely retrieve information. [(People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065.)] *** On the basis of these gaps in the foundation requirement, we hold that the trial court erred in admitting the bank statement in evidence.” (Bovio, 118 Ill. App. 3d at 842, 455 N.E.2d at 833-34.)

The court in Bovio found that the erroneous admission of the bank statement was not harmless and constituted reversible error.

The State argues Bovio is inapplicable to the present case because in Bovio there was no testimony concerning how transaction information was entered into the computer system. The State in this case relies on the testimony of Iserman, a bank employee; however, his testimony only established that the records were kept in the ordinary course of business and that the night deposits were entered in the bookkeeping machines in the morning. There was no testimony as to what type of computer system was used by the bank and whether that system was recognized as standard. Further, there was no testimony to establish that the sources of information, method, and time of preparation indicated it was trustworthy. Iserman’s testimony, therefore, was insufficient to satisfy the foundation requirements enumerated in Grand Liquor.

The State relies on two cases which upheld convictions based on the admission of computer records despite arguments that the foundation was insufficient. See People v. Rivera (1989), 182 Ill. App. 3d 33, 537 N.E.2d 924; People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065.

In Rivera, defendant argued that there was insufficient foundation testimony for telephone records admitted in evidence. The appellate court reviewed the testimony at trial which established that the records were stored in IBM computers which were standard and reliable. Information was entered in the computer at the time it was received, and the records were kept in the ordinary course of business. The court distinguished Bovio because the computer system in that case performed calculations and, therefore, required more scrutiny than the system in Rivera, which only retrieved information. Also, the court noted that in Bovio there was no testimony describing the type of computer system involved. The appellate court found that the trial judge did not abuse his discretion in admitting the records.

In Mormon, defendant argued that the State did not lay a proper foundation for a facsimile of a computer-generated car rental agreement which was admitted in evidence. The appellate court found that although there was no testimony concerning “the standard nature of accuracy” of the computer, there was sufficient evidence presented at trial to establish the computer was standard and accurate. (Mormon, 97 Ill. App. 3d at 566, 422 N.E.2d at 1073.) The reliability of the facsimile was apparent because it contained information consistent with other evidence at trial. Further, there was “extensive” testimony concerning the method and manner of obtaining and recording information relating to rental transactions. (Mormon, 97 Ill. App. 3d at 567, 422 N.E.2d at 1073.) Also, the court that found the nature of the computer, which used a console typewriter rather than data cards to input information, increased the reliability of the computer. The court also noted it believed that because the computer was used to retrieve information, rather than to perform calculations, less scrutiny into the nature of the computer was required, although the court did not cite supporting authority for that belief. Lastly, the court emphasized the computer record was admitted for a limited purpose and other evidence in the record supported defendant’s convictions.

In this case, unlike Rivera and Mormon, there was absolutely no testimony presented at trial concerning the computer system used by the bank. In Rivera, the testimony established the computer was an IBM and was standard and reliable. In Mormon, the testimony established the nature of the computer using a console typewriter increased its reliability. Both courts noted that the computers only retrieved information rather than performed calculations. In this case, the only information provided was that deposits were recorded in bookkeeping machines. Due to the absence of testimony concerning the computer system involved here, it is not necessary to address the question of whether it required more scrutiny because it performed calculations. Therefore, neither Rivera nor Mormon justifies a finding that the bank statements in the present case were properly admitted.

An error is harmless when, beyond a reasonable doubt, it did not contribute to defendant’s conviction. (Bovio, 118 Ill. App. 3d 842, 455 N.E.2d 829.) In this case, the bank statements provided the evidence that the deposits were missing because they were not credited to the store’s account. It cannot be said beyond a reasonable doubt that the admission of the bank statements did not contribute to defendant’s conviction and therefore, the error was not harmless. Accordingly, defendant’s conviction must be reversed and remanded for new trial.

Defendant also argues that he was not convicted beyond a reasonable doubt because only circumstantial evidence was presented at trial and there were other reasonable theories which were consistent with his innocence.

A conviction can be based solely on circumstantial evidence and the standard of proof in such a case is essentially the same as one based on direct evidence. (People v. Hendricks (1990), 137 Ill. 2d 31.) When a defendant claims he was convicted with insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found defendant guilty of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) A reviewing court will not reverse a conviction unless the evidence presented was so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (Young, 128 Ill. 2d 1, 538 N.E.2d 461.) All the evidence presented at trial, including the evidence challenged on appeal, may be considered in determining whether defendant was convicted beyond a reasonable doubt. People v. Gibson (1990), 136 Ill. 2d 362, 556 N.E.2d 226.

The evidence presented at trial established that during the three-month period defendant was store manager, 24 deposits were not credited to the store’s bank account. Defendant signed for each of the deposits on the daily recap forms, and there was testimony that it was defendant’s responsibility to take the deposits to the bank. Also, defendant was the only employee who worked every day that deposits were missing. The bank statements, which were admitted without proper foundation, established the deposits were not credited to the store’s bank account. This evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant also argues that the evidence was not sufficient to prove the corpus delicti of theft. To prove a crime was committed beyond a reasonable doubt, the State must prove the corpus delicti of the offense which requires proof of injury or loss and criminal agency (People v. Bennett (1987), 152 Ill. App. 3d 762, 505 N.E.2d 41). Based on the above analysis, the evidence was sufficient to establish the corpus delicti of theft.

Reversed and remanded.

COCCIA, P.J., and MURRAY, J., concur.