author: PRESIDING JUSTICE KNECHT

text:
    KALAN D. RODGERS, SR., Adm’r of the Estate of Brenda Marie Rodgers, Deceased, Plaintiff-Appellant, v. ST. MARY’S HOSPITAL OF DECATUR, Defendant-Appellee.
    Fourth District
    No. 4—89—0721
    Opinion filed June 29, 1990.
    Rehearing denied July 27, 1990.

      Robert M. Owen, of Popkin, Stern & Owen, of Decatur, and Charles H. Fendell, of Popkin & Stern, of St. Louis, Missouri, for appellant.
    Graham & Graham, of Springfield (Richard J. Wilderson, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The plaintiff, Kalan D. Rodgers, Sr. (Rodgers), appeals the dismissal with prejudice of his amended complaint directed to defendant St. Mary’s Hospital (St. Mary’s), in which he requested damages on the basis of St. Mary’s alleged failure to preserve X rays relevant to a medical malpractice suit. The principal issues which we must resolve in this appeal are whether there is a cause of action for loss or destruction of X rays which results in prejudice to litigation rights and, if so, the effect of post-judgment settlements and failures to pursue all rights of appeal with respect to adverse verdicts on a party’s right to maintain an action for failure to preserve X rays.

The origin of this litigation was a medical malpractice suit which Rodgers filed on May 27, 1986, in his capacity as administrator of the estate of his late wife, Brenda Marie Rodgers (Brenda), against St. Mary’s, and the obstetricians and radiologists responsible for the care of Brenda during the days immediately prior to her death. Rodgers alleged, and the evidence presented at trial established, Brenda died on June 14, 1984, as a result of complications which developed after the cesarean section delivery of her and Rodgers’ son on June 12, 1984. The circuit court entered summary judgment in favor of St. Mary’s on September 10, 1987, subsequently vacated this judgment, and entered a second summary judgment in favor of St. Mary’s on May 13, 1988. On June 10, 1988, a jury returned a verdict in favor of the radiologists and against Rodgers. However, the jury found in favor of Rodgers on his claims against the obstetricians and assessed his damages at $1,200,000. Judgment was entered on this verdict, and the obstetricians’ post-trial motion was denied.

On August 29, 1988, the obstetricians filed a notice of appeal from the judgment in Rodgers’ favor. During the pendency of this appeal, Rodgers, acting against the advice of his attorneys, settled Brenda’s estate’s claims against the obstetricians for $800,000, after obtaining permission of the probate division of the circuit court to do so. The obstetricians’ appeal was dismissed per stipulation of the parties on May 24, 1989. Rodgers did not appeal the judgments in favor of St. Mary’s and the radiologists.

In the meantime, Rodgers had filed the present action against St. Mary’s Hospital on September 27, 1987. He requested damages based on the hospital’s alleged loss of all abdominal X rays of Brenda within five years after they were taken. Rodgers alleged (1) this breached a statutory duty (Ill. Rev. Stat. 1987, ch. 111½, par. 157—11) which the hospital owed to Brenda and her successors in interest and (2) the X rays were crucial to his proving his case against the physicians responsible for treating Brenda during the days immediately before her death. On April 12, 1988, the circuit court dismissed this complaint without prejudice and with leave to amend.

In an amended complaint filed May 25, 1989, Rodgers alleged the salient facts pertaining to Brenda’s hospitalization and death at St. Mary’s, including the taking of X rays of various portions of Brenda’s body during her hospitalization. Rodgers alleged a sigmoid colonic volvulus was or should have been depicted on certain of the X rays, and St. Mary’s owed Brenda and her successors in interest a statutory duty (Ill. Rev. Stat. 1987, ch. 111½, par. 157—11), as well as a duty pursuant to its internal regulations, to retain the X rays or diagnostic-quality minified versions thereof for a period of five years. Rodgers alleged St. Mary’s breached this duty by destroying the X rays and failing to retain diagnostic-quality minified versions of them.

Rodgers further alleged the missing X rays were critical and important evidence which, either alone or in combination with other evidence, would have established the radiologists’ negligence in treating Brenda, which was a proximate cause of her death. Rodgers alleged that as a result of St. Mary’s breach of its duty to preserve the X rays, he lost his case against the radiologists. Rodgers also alleged that if the X rays had been preserved, a verdict would have been returned in his favor against the radiologists and the obstetricians jointly and severally, and the judgment entered on that verdict would have been paid and not appealed. Rodgers asserted the loss of the X rays forced him to forego $400,000 of the verdict which was returned at the conclusion of the trial of his claims against the radiologists and the obstetricians. He requested damages in the amount of $400,000.

In an order entered August 15, 1989, the circuit court allowed St. Mary’s motion to dismiss Rodgers’ second-amended complaint with prejudice. In this order, the circuit court acknowledged the existence of the tort of spoliation of evidence and held (1) Rodgers’ spoliation of evidence suit is not barred by the res judicata effect of the summary judgment in favor of St. Mary’s in his medical malpractice action, (2) Rodgers’ spoliation of evidence action is not governed or barred by the statute of limitations applicable to his medical malpractice claims against St. Mary’s, (3) Rodgers’ spoliation of evidence action is not subject to dismissal for want of prosecution, (4) Rodgers’ spoliation of evidence action is not subject to dismissal by reason of his failure to attach to his complaint a healing art malpractice action affidavit (Ill. Rev. Stat. 1987, ch. 110, par. 2—622), and (5) Rodgers’ post-judgment compromise and settlement with the obstetricians and his failure to appeal the judgment in favor of the radiologists defeats and bars his action against St. Mary’s for spoliation of evidence. The circuit court denied Rodgers’ motion for reconsideration of this order.

The first issue we must decide is whether there is under Illinois law a cause of action for spoliation of evidence. Rodgers contends the circuit court properly concluded the tort of spoliation of evidence is recognized in Illinois, and the tort consists of violation of a duty owed a party entitled to the benefit of unavailable evidence.

St. Mary’s argues Illinois has not recognized the existence of such a tort, and at best Illinois cases “merely indicate acknowledgment of the concept.” St. Mary’s further asserts this tort is not recognized in many States.

Two Illinois decisions—Fox v. Cohen (1980), 84 Ill. App. 3d 744, 406 N.E.2d 178, and Petrik v. Monarch Printing Corp. (1986), 150 Ill. App. 3d 248, 501 N.E.2d 1312—have discussed the tort of spoliation of evidence. However, the Fox court held the plaintiff’s spoliation of evidence action was premature, while in Petrik the plaintiff abandoned the theory of liability which the missing evidence would have supported. Thus, in neither of these cases was there a need to squarely decide whether the tort of spoliation of evidence should be recognized in Illinois. In the present case, we likewise need not decide whether a wide-ranging common law spoliation of evidence tort should be recognized, for we conclude Rodgers’ amended complaint properly states a statutory cause of action.

“An Act concerning the retention for use in litigation of X ray or roentgen films of the human anatomy” provides:

“Hospitals which produce photographs of the human anatomy by the X-ray or roentgen process on the request of licensed physicians for use by them in the diagnosis or treatment of a patient’s illness or condition shall retain such photographs or films as part of their regularly maintained records for a period of 5 years provided that retention of said photographs or film may be by microfilm or other recognized means of ramification that does not adversely affect their use for diagnostic purposes. However, if the hospital has been notified in writing by an attorney at law before the expiration of the 5 year period that there is a litigation pending in court involving a particular X-ray or roentgen photograph in their records as possible evidence, and that the subject person of such photograph is his client, or is the person who has instituted such litigation against his client, then the hospital shall keep such photograph or film or minified copy thereof in its regular records until notified in writing by the plaintiff's attorney with the approval thereon of the defendant’s attorney of record that the case in court involving such photograph has been concluded, or for a period of 12 years from the date that the X-ray photograph film was produced, whichever occurs first in time.” (Ill. Rev. Stat. 1987, ch. 111½, par. 157-11.)

Manifestly, this statute seeks to protect the property rights of persons involved in litigation. Violation of a statute designed for the protection of human life or property is prima facie evidence of negligence. An injured party has a cause of action for a violation of such a statute if he or she is intended to come within the scope of the protection afforded by the statute, and his or her injury was proximately caused by a violation of the statute. (French v. City of Springfield (1976), 65 Ill. 2d 74, 357 N.E.2d 438; Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) The determination of the meaning and scope of statutes is ordinarily a question of law for the courts to determine, while the question of proximate causation usually must be decided by the trier of fact. (See French, 65 Ill. 2d 74, 357 N.E.2d 438.) The prima facie case of negligence established by a violation of a statute may be rebutted by evidence that the defendant acted reasonably under the circumstances, despite the violation. Davis, 65 Ill. 2d 380, 356 N.E.2d 93; Rowe v. Illinois Power Co. (1987), 154 Ill. App. 3d 174, 506 N.E.2d 975.

Taking the well-pleaded allegations of Rodgers’ amended complaint as true (Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340; Delano Law Offices, P.C. v. Choi (1987), 154 Ill. App. 3d 172, 506 N.E.2d 723), the complaint states matters which establish a violation by St. Mary’s of the statute pertaining to retention of X rays and which establish Rodgers is an individual within the scope of the protection afforded by that statute. Rodgers’ amended complaint thus states a cause of action. Whether St. Mary’s alleged breach of its duty to preserve the X rays of Brenda Rodgers proximately caused Rodgers to lose his suit against the radiologists, and whether St. Mary’s actions were reasonable despite its alleged violation of the relevant statute, is for the trier of fact to determine.

The next question we must resolve is whether the present action is barred by Rodgers’ post-judgment settlement with the obstetricians. Rodgers contends in holding his spoliation of evidence action is barred on this basis, the circuit court erred in concluding (1) he prevailed on the claim to which the missing X rays relate, and (2) he “gave away” part of the verdict which he obtained against the obstetricians. Rodgers asserts the circuit court apparently had the mistaken belief the missing X rays related to his claims against the obstetricians rather than the radiologists.

Rodgers also maintains one seeking damages for harm to litigation rights through loss or destruction of evidence should not be required to sue all possible defendants before suing the party responsible for the spoliation of evidence. He asserts a contrary holding would allow parties responsible for loss or destruction of evidence to escape liability by claiming the party injured by such loss or destruction should obtain relief by pursuing claims against tortfeasors with respect to which the lost or destroyed evidence is not crucial. Rodgers argues such a holding would discourage settlements and increase the amounts of damages proximately caused by spoliation of evidence.

Rodgers states if both the obstetricians and the radiologists had been found liable for Brenda Rodgers’ death, under statutory and common law principles he could have effected the $800,000 settlement with the obstetricians and collected the balance of the $1,200,000 judgment from the radiologists. Rodgers maintains St. Mary’s loss of the X rays relevant to his claims against the radiologists prevented him from doing this. Rodgers further observes that if he had not settled his claims against the obstetricians for $800,000, his claim in the present action against St. Mary’s might possibly have been for the entire amount of the judgment he obtained against the obstetricians— $1,200,000 — rather than $400,000. Rodgers asserts because of the obstetricians’ appeal (Rodgers v. Stroyls (4th Dist. 1989), No. 4—88—0631 (order of dismissal)), the present case is distinguishable from situations where a plaintiff settles a claim against one of several joint tortfeasors for less than the amount of an indefeasible and enforceable judgment.

St. Mary’s argues that in cases such as this, the actionable injury is not the loss of evidence but the loss of the predicate lawsuit which was to have been prosecuted with the aid of the missing evidence. St. Mary’s contends since any liability on the part of the radiologists was joint and several with that of the obstetricians, a verdict finding the radiologists negligent would not have increased Rodgers’ $1,200,000 damages award. Consequently, argues St. Mary’s, the loss of the X rays did not cause Rodgers to lose his malpractice suit. As further support for its assertion Rodgers did not lose his malpractice suit and thus sustained no damages as a result of loss or destruction of the X rays, St. Mary's observes Rodgers’ action against the radiologists survived a motion for a directed verdict, and despite the absence of the X rays, Rodgers was able to produce “voluminous evidence” and an expert witness against the radiologists.

In his reply argument, Rodgers states the more joint tortfeasors who are found liable for damages in a given case, the greater the likelihood the plaintiff will recover his full damages. He asserts that when, as here, a release is given in good faith to one joint tortfeasor, the plaintiff retains a right to recover his damages, less the amount of prior settlements, from the remaining joint tortfeasors. Also, Rodgers asserts that in this appeal, which is concerned with the sufficiency of his complaint to state a cause of action, St. Mary’s cannot argue the missing X rays were not crucial to his proving his case against the radiologists. Rodgers states rather, at this stage of the proceedings, his allegations concerning the materiality of the missing X rays must be regarded as true.

In order to determine whether Rodgers’ settlement with the obstetricians bars his spoliation of evidence action, it is not necessary to determine whether this settlement released Rodgers’ claims against the radiologists. The record before this court presents a question of fact as to whether the alleged unavailability of the X rays, and Rodgers’ resulting inability to obtain a verdict against the radiologists, was a proximate cause of the $400,000 in damages which Rodgers claims. The possibility these damages may have been proximately caused by the appeal of the judgment against, and the settlement of Rodgers’ claims against, the obstetricians is of no consequence with regard to the question of whether Rodgers’ amended complaint states a cause of action. An injury may have more than one proximate cause. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) The question of what proximately caused the alleged damages Rodgers claims is for the trier of fact to determine. On this record, we cannot say, as a matter of law, St. Mary’s alleged failure to preserve the X rays could not have been a proximate cause of Rodgers’ alleged failure to recover $400,000 of the damages to which Brenda’s estate claims entitlement.

In addition to being contrary to well-established principles of the law of negligence, a rule that a post-judgment settlement bars a spoliation of evidence action in this type of situation would impede settlements of disputed claims. As Rodgers points out, if he had obtained a verdict against the radiologists, he could possibly have obtained satisfaction of that verdict before settling with the obstetricians and thus avoided any impact that settlement may have had on his claims against the radiologists. Under the rule for which St. Mary’s contends, however, Rodgers’ failure to obtain a verdict against the radiologists would have required postponement of his settlement with the obstetricians until after his spoliation of evidence claim was resolved. Requiring persons in Rodgers’ situation to proceed in this manner would greatly impede settlements in factual settings similar to those here and often would encourage needless resort to litigation.

The sole case on which the circuit court relied in support of its conclusion the present action is barred by Rodgers’ settlement with the obstetricians is Henry v. St. John’s Hospital (1989), 180 Ill. App. 3d 558, 536 N.E.2d 221, appeal allowed (1989), 127 Ill. 2d 616, 545 N.E.2d 110. Henry is distinguishable. There, the plaintiff obtained judgments against a drug manufacturer, a hospital, and a physician. The jury fixed the manufacturer’s share of compensatory damages at 93% and the hospital’s and doctor’s joint share at 7%. This court held that in settling with the manufacturer for less than its apportioned share of liability, the plaintiff waived her right to recover the remainder of the manufacturer’s apportioned share of liability from the hospital and the physician. In the present case, by contrast, Rodgers obtained a judgment against only one tortfeasor. Thus, unlike in Henry, there was no right to collect a judgment from one of two or more joint tortfeasors for Rodgers to waive.

For all of the above reasons, we hold that when failure to preserve medical X rays in violation of the relevant statute irreparably damages a plaintiff’s litigation rights with respect to less than all of two or more alleged joint tortfeasors, a settlement with one of the tortfeasors with respect to which plaintiff’s litigation rights were not damaged does not bar an action for damages based on failure to preserve the X rays.

Rodgers further argues the circuit court erred in holding his failure to appeal the judgment entered on the verdict in the radiologists’ favor defeated and barred his spoliation of evidence suit. Rodgers points out that in the present case, the predicate claim was not against the spoliator of the evidence, but rather was directed to a third party (the radiologists) who did not have a duty to preserve the X rays. Rodgers observes an appeal of the verdict in favor of the radiologists could not have resulted in introduction into evidence of the missing X rays. Thus, argues Rodgers, an appeal of the judgment in the radiologists’ favor would have served no purpose and would simply have wasted this court’s time.

St. Mary’s contends since Rodgers did not appeal or contest the adverse judgment entered on his claims against the radiologists, he cannot now argue he was damaged by a loss of evidence relevant to those claims. St. Mary’s maintains if the absence of an X ray were a crucial factor in Rodgers losing his case against the radiologists, he should have raised the issue in a cross-appeal directed to the radiologists and raised this as an issue in response to the obstetricians’ appeal.

Whether to appeal an adverse judicial decision — and whether an appeal has a reasonable chance of success — is a matter committed to the professional judgment of the losing party’s attorney. As noted by Rodgers, an appeal of the judgment in the radiologists’ favor could not have recreated lost or destroyed X rays. Requiring all rights of appeal in the predicate action to be exhausted before a spoliation of evidence action may proceed would, in at least some cases, require the filing of frivolous appeals for the sole purpose of preserving spoliation of evidence actions. This requirement would result in a needless waste of judicial resources, and we decline to adopt it.

We must finally decide whether Rodgers’ spoliation of evidence action is barred by the doctrine of res judicata. St. Mary’s notes the issue of the missing X rays was extensively discussed in the proceedings which resulted in the circuit court entering summary judgment in its favor on Rodgers’ medical malpractice claims against the hospital. St. Mary’s also asserts (1) the same parties are involved in this suit as were involved in Rodgers’ malpractice suit against it; (2) the damages sought in this suit are identical to the damages sought in Rodgers’ malpractice action against the hospital; (3) the same evidence necessary to sustain a judgment for Rodgers in his malpractice action is necessary to sustain a judgment in his favor in this action; and (4) Rodgers’ claim in this suit is derivative of his claims in the malpractice action. St. Mary’s argues that in view of these asserted facts, the present suit is barred by the res judicata effect of the summary judgment entered in its favor with respect to Rodgers’ malpractice claims.

Rodgers responds the doctrine of res judicata is inapplicable to this case, because the evidence necessary to establish St. Mary’s breached its duty to preserve the X rays would not have sustained his healing art malpractice claims against the hospital. Rodgers states a post-death loss of X rays could not have caused Brenda Rodgers’ death, and thus, the claim asserted in his malpractice action is not the same claim asserted against the hospital in the present action. Furthermore, Rodgers argues he could not have stated a spoliation of evidence action against St. Mary’s before a judgment was entered in favor of the radiologists, since prior to that time he suffered no harm attributable to St. Mary’s failure to preserve the X rays.

The doctrine of res judicata provides a prior judgment serves as an absolute bar to a subsequent action involving the same claim, demand, or cause of action between the same parties or their privies. For res judicata purposes, claims are the same when the facts and relief sought in both actions are substantially the same (Housing Authority v. Young Men’s Christian Association (1984), 101 Ill. 2d 246, 461 N.E.2d 959), and the evidence necessary to sustain a second verdict would sustain the first verdict the plaintiff requested. In other words, claims are the same for res judicata purposes when they are based on a common core of operative facts. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 444 N.E.2d 205.

We find St. Mary’s res judicata argument totally untenable. In order to prevail on his spoliation of evidence claim against St. Mary’s, Rodgers will have to prove, inter alia, St. Mary’s breached its duty to preserve the X rays of Brenda Rodgers and this, in turn, caused him to lose his lawsuit requesting damages on the basis of negligence on the part of the radiologists. Negligence on the part of St. Mary’s in treating Brenda Rodgers will not, however, be a crucial element which Rodgers will have to establish in his spoliation of evidence action against St. Mary’s. Thus, the evidence crucial to Rodgers prevailing in his spoliation of evidence action against St. Mary’s would not have sustained a verdict in his favor in his medical malpractice action against the hospital. Ergo, these two actions are not based on a common core of operative facts.

For the reasons stated, we reverse the circuit court order dismissing Rodgers’ amended complaint seeking damages based on St. Mary’s alleged failure to preserve X rays, and remand this cause to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    MT. ZION STATE BANK AND TRUST, as Guardian of the Estates of Joe Brion et al., Minors, Plaintiff-Appellee and Cross-Appellant, v. THE CENTRAL ILLINOIS ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH (United Methodist Church for the Illinois Area), Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—89—0890
    Opinion filed June 28, 1990.
    Rehearing denied July 30, 1990.

      George B. Gillespie and William P. Hardy, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellant.
    Thomas F. Londrigan and Gary L. Cline, both' of Londrigan, Potter & Randle, P.C., of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On March 19, 1984, Judy and Lee Brion, as parents of Joel Brion, Jeremy Brion, and Michael Butler Brion, minors, brought suit in the circuit court of Sangamon County against defendants the Central Illinois Annual Conference of the United Methodist Church (Conference), the United Methodist Church of Macon (Church), William Wayne Fyffe, Charles Smith, and others who were later dismissed from the case. After a second-amended complaint was filed, the circuit court entered an order on August 26, 1987, granting summary judgment to the Church and Smith. Subsequently, plaintiffs “dismissed” their cause as to those defendants. On August 1, 1989, the circuit court granted summary judgment to defendant, the Conference, as to two counts charging the Conference with liability on a respondeat superior theory.

On August 10, 1989, the circuit court permitted the Mt. Zion State Bank and Trust, as guardian of the minors, to be substituted for the minors’ parents, as plaintiff. During the course of a jury trial, plaintiff settled with Fyffe. The circuit court entered judgment on jury verdicts in favor of plaintiff and against the Conference awarding damages in the sum of $150,000 as to each of plaintiff’s three minor wards, thus making the total sum of the judgment $450,000.

The Conference has appealed, contending (1) the jury verdict against it was inconsistent with answers given by the jury to an interrogatory, and (2) reversible error resulted from (a) Fyffe’s testimony that his attorney was provided by the Conference’s insurer, (b) introduction into evidence of the loan agreement which constituted the settlement between the plaintiff and Fyffe, and (c) the court’s instructing the jury in regard to the loan agreement. Plaintiff has cross-appealed the summary judgment in favor of the Conference as to two counts. It maintains summary judgment should not have been entered, because the evidence before the court at the time of the hearing on the motion for summary judgment showed the existence of a factual dispute as to whether judgment should be issued on those two counts.

The thrust of plaintiff’s case was that Fyffe was a Methodist pastor at the Church, which was a part of the Conference, and, while serving in that capacity in 1982, he had homosexually molested the minor boys, who are plaintiff’s wards, thereby causing them serious emotional damage. The second-amended complaint alleged that the Conference negligently assigned Fyffe to be pastor at the Church, knowing of a prior act of homosexual assault which he had made, but not informing the Church of this fact. Plaintiff also alleged the Church and Smith, president of the board of trustees of the Church, were liable for Fyffe’s acts under the doctrine of respondeat superior. Plaintiff relies on the respondeat superior doctrine in contending the summary judgment in favor of the Conference on that issue was entered in error.

The substance of the evidence of negligence by the Conference presented at trial showed that in 1975, while a probationary pastor, Fyffe had attempted to fondle a 10-year-old boy he was caring for. This information was given to the Methodist bishop and district superintendent who were assured by Fyffe and his wife the fondling was an isolated incident. The evidence at trial indicated that although the bishop and other church officials were not aware of it, Fyffe had been continually molesting his stepson from 1972 through 1978.

Prior to retiring, the jury was submitted three interrogatories by the court at the request of the Conference. The interrogatories and the answers given by the jury were as follows:

“Interrogatory No. 1: Was the defendant church guilty of any negligence in retaining its employee Fyffe? Answer: Yes.
Interrogatory No. 2: Should the defendant church have reasonably foreseen a sexual assault on a minor child by Wayne Fyffe? Answer: Yes.
Interrogatory No. 3: Was the sole proximate cause of the injuries to the plaintiffs minor sons [sic] the assault on them by Wayne Fyffe? Answer: Yes.”

The words “defendant church” obviously referred to the Conference, which was the only remaining defendant when the case was submitted to the jury. The reference to the “plaintiff’s minor sons” overlooked the substitution of plaintiff which had been made.

Section 2—1108 of the Code of Civil Procedure (Code) provides, in part, that “[w]hen the special finding of fact [answer to an interrogatory] is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1108.) Here, the answer to the third interrogatory, finding that Fyffe’s assault was the sole proximate cause of the injury to the minors, was inconsistent with the general verdict finding the Conference liable for the minors’ injuries. In order for any negligence upon the part of an employer, such as the Conference, in the hiring or retention of an employee, such as Fyffe, to result in liability for the employer, the negligence must have been a proximate cause of the injuries for which damages are claimed. (Bates v. Doria (1986), 150 Ill. App. 3d 1025, 1031, 502 N.E.2d 454, 458-59.) If Fyffe’s conduct was the sole proximate cause of the minors’ injuries, negligence by the Conference could not have been a proximate cause.

Under the terms of section 2—1108 of the Code, the answer to the third interrogatory would appear to control the verdict and require entry of judgment for the Conference. However, special factors are involved here. The jury found, in answer to interrogatory No. 1, that the Conference was guilty of negligence in retaining Fyffe, and in answer to interrogatory No. 2, that the Conference should have foreseen Fyffe would commit a sexual assault on a minor. The finding that Fyffe’s conduct was the sole proximate cause of the minors’ injuries was not contrary to the manifest weight of the evidence, because the jury could well have determined the Conference took adequate precaution in having Fyffe counseled and should not have been held to have reasonably foreseen that Fyffe would be likely to commit the acts of sexual assault. However, if the retention of Fyffe was negligence, as found by the answer to interrogatory No. 1, and the Conference should have foreseen subsequent sexual assaults by Fyffe, as found by the answer to interrogatory No. 2, a determination that the Conference’s conduct in retaining Fyffe was not a proximate cause of the minors’ injuries would be contrary to the manifest weight of the evidence.

In Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191, an answer to an interrogatory found the defendant not negligent in a tort action based on negligence, but a general verdict found for the plaintiff and awarded damages. The finding of the interrogatory answer was contrary to the manifest weight of the evidence. The supreme court noted that the record indicated the jury was confused and held the proper procedure was to award the defendant a new trial. The Freeman decision is to be contrasted with the situations in Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 226 N.E.2d 16, where contention was made that the jury was confused when the general verdict was inconsistent with the answer to an interrogatory and that answer was supported by the evidence. The supreme court held that under those circumstances, final judgment should be entered in accordance with the answer to the interrogatory.

We deem the instant case to be more analogous to Freeman than to Z. Frank, Inc. As we have indicated, under the evidence here, the answers to the interrogatories were logically inconsistent. Moreover, here defense counsel had argued the parents of the minors were responsible for their injuries and the jury could well have thought the purpose of the interrogatory in regard to sole proximate cause concerned the question of causation as between Fyffe and the parents. The subject of causation is a tricky one which even those in the legal profession have difficulty understanding. When one defendant is charged with the direct commission of a tort, and another defendant is charged with negligence in hiring, retaining, or entrusting the person directly causing the injury, the concept of causation becomes most easily confused. In addition, we note that interrogatory No. 3 was imperfect in form. The ultimate issue was whether the conduct of the Conference in retaining Fyffe was a proximate cause of the injuries and not whether some other cause was the sole proximate cause. For all of these reasons, we deem the appropriate procedure here is not to have judgment entered for the Conference but to merely grant the Conference a new trial.

At the hearing on the post-trial motion, plaintiff presented affidavits of 10 jurors which stated they answered “yes” to the third interrogatory because they determined the minors’ injuries were not caused by their parents, their school, or the prior existing disabilities of the minors. The circuit court properly refused to consider these affidavits, as they attempted to impeach the jury’s answer to the interrogatory. Chalmers v. City of Chicago (1982), 88 Ill. 2d 532, 431 N.E.2d 361.

As the Conference’s other contentions concern whether the Conference should be granted a new trial, which we have already determined to be required, we consider these points only to the extent necessary to avoid confusion at the retrial.

The plaintiff called Fyffe as an adverse witness and questioned him partially as follows:

“Q. [Plaintiffs Counsel]: Your counsel is being provided to you by the Methodist Church, is it not?
A. Yes.
Q. And you aren’t paying him?
A. By the insurance company for the Church.
Q. The Church paid for your attorney while you were defending these criminal charges over in Macon County, did he not?
A. Yes.
Q. They posted your bond.
A. Yes.
Q. And you used the bond money that was posted by the Church to pay your attorney over in Macon County then?
A. I think that’s what happened.”

The Conference moved for a mistrial because of the interjection of insurance. The circuit court instructed the jury to disregard the answer to the question as to how Fyffe came to be represented by an attorney, but denied the request for a mistrial.

We conclude the circuit court did not err in its denial of the mistrial. The fact Fyffe’s attorney was furnished by a defendant tended to show a bias on Fyffe’s part in favor of the defendant. That part of the inquiry was permissible. The court was in a better position than we are to determine whether the plaintiff intended to indicate to the jury that the Conference had liability insurance. Care should be taken to avoid a repeat of this on retrial.

For some unexplained reason, while cross-examining Fyffe, defense counsel introduced evidence that Fyffe had settled with plaintiff for a total sum of $225,000. The settlement had been in the form of a loan agreement whereby the guardian had to repay the loan only to the extent that payments were received from other tortfeasors. After the parties had rested, the court admitted the loan agreement into evidence over the objection of the Conference. Then, over objection by the Conference, but without request by the plaintiff, the court gave the following instruction.

“The evidence of a loan settlement agreement is to be considered by you as it relates to the motive and credibility of witnesses. Amounts retained pursuant to the loan settlement agreement will be credited towards any verdict returned against the United Methodist Church by the Court after your verdict.”

Ordinarily, the only materiality or relevance of a loan agreement concerning a party to a case is the tendency of the document to show bias of that party if that party or someone in alliance with that party testifies in favor of the plaintiff. The bias arises if that party will receive a benefit by repayment of all or part of the loan if the plaintiff wins. (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 226, 412 N.E.2d 959, 966.) Here, the Conference could have demanded the admission of the loan agreement to impeach Fyffe but did not do so. The Conference had no reason to do so, because Fyffe’s testimony was favorable to the Conference.

Ordinarily, the plaintiff would have had no right to have the loan agreement before this jury. Here, however, when the Conference had elicited that plaintiff had received a $225,000 settlement, the plaintiff was entitled to have the jury know that any sums plaintiff received from them up to the sum of $225,000 had to be returned to Fyffe. Otherwise, the jury might have concluded that any money they awarded would be added to the $225,000 already received. (See Webb v. Toncray (1981), 102 Ill. App. 3d 78, 429 N.E.2d 874.) Thus, the jury, if finding for the plaintiff, would have been likely to have awarded only minimal damages unless they determined the plaintiff was entitled to an award in excess of $225,000. Accordingly, after the Conference introduced evidence of settlement, the court did not commit reversible error in having the loan agreement submitted to the jury. However, the loan agreement contained various statements which were prejudicial to the Conference. A preferable method of proceeding would have been to redact those portions of the agreement.

No purpose was served by the instruction given concerning the loan settlement agreement. The only witness subject to impeachment for bias because of the agreement was Fyffe, and the Conference, the only party who would be damaged by bias of Fyffe toward the plaintiff, did not attempt to impeach Fyffe. The Conference maintains the instruction assumed a verdict would be rendered for the plaintiff. We do not agree. The only portion of the instruction referring to a verdict was that portion which referred to “any verdict returned against the [Conference].” By speaking of “any verdict,” the instruction properly recognized that a verdict for plaintiff was not certain. Furthermore, immediately preceding the reading of this instruction, the court instructed the jury that if the jury found for the defendant, the jury would not be concerned with awarding damages.

When a loan settlement agreement is admitted into evidence, the jury should be informed as to the setoff against the verdict that will result if the loan agreement does not require the plaintiff to repay the loan from the proceeds of any judgment obtained on a dollar-for-dollar basis. (See and compare Palmer, 82 Ill. 2d 211, 412 N.E.2d 959, with Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382.) Here, repayment was on a dollar-for-dollar basis, as was clearly evident from the loan agreement. The jury had no concern with the concept of setoff.

Finally, we consider the plaintiff’s contention the court erred in allowing the motion of the Conference for summary judgment on the counts based on respondeat superior. The Conference maintains any error was waived because plaintiff filed no post-judgment motion seeking to set aside the summary judgment. Section 2—1202(e) of the Code provides that, in a jury case, any party seeking a new trial must make such a request in a post-trial motion, unless the prior trial was aborted because of a failure of the jury to agree. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1202(e).) Supreme Court Rule 366(b)(2)(iii) states that in a jury case “[a] party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (107 Ill. 2d R. 366(b)(2)(iii).) Citing Flynn v. Cusentino (1978), 59 Ill. App. 3d 262, 375 N.E.2d 433, the Conference maintains the foregoing rules bar plaintiff from raising any issue on cross-appeal.

In Cusentino, the cross-appellant, as well as the appellant, claimed error in the judgment entered on a jury verdict. The appellate court held error was waived for lack of a post-trial motion by the cross-appellant. Here, plaintiff claims error not in the judgment on the jury verdict, but in the prior entry of the summary judgment. Supreme Court Rule 366(b)(3)(ii) makes clear that in “nonjury cases,” “[njeither the filing of nor the failure to file a post-trial motion limits the scope of review.” (107 Ill. 2d R. 366(b)(3)(ii).) No case has been called to our attention which rules directly upon the requirement for a post-trial motion to preserve error for review under the circumstances here, where the summary judgment contested was entered before a jury trial, on other issues, resulting in a judgment also being appealed. Somewhat analogous to the situation here is that in cases where a court directs a verdict for a defendant at the close of the plaintiff’s case. No post-trial motion is necessary to preserve error for review from such a judgment. (Keen v. Davis (1967), 38 Ill. 2d 280, 230 N.E.2d 859.) We hold no post-trial judgment motion by plaintiff was necessary to preserve error in its cross-appeal.

The Conference maintains assaults by Fyffe on the minors constituted a deviation from the scope of any employment he had with the Conference, thus relieving the Conference from vicarious liability. The Conference cites Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 524 N.E.2d 966. There, an assault and sexual molestation by a teacher’s aide on a three-year-old child was held, as a matter of law, to have occurred while the teacher’s aide had deviated from the scope of her employment.

Plaintiff counters Randi F. with the decision in Kigin v. Woodmen of the World Insurance Co. (1989), 185 Ill. App. 3d 400, 541 N.E.2d 735. There, a camp counselor, while in charge of several campers and while intoxicated, allegedly gave alcohol to a 15-year-old female camper and then sexually molested her. The Fifth District Appellate Court held the allegations stated a cause of action for liability against the camp operator on a respondeat superior theory even if the counselor had acted outside the scope of his employment. That court relied upon, and plaintiff here relies upon, section 317 of the Restatement (Second) of Torts, which states a master is under a duty “to exercise reasonable care so to control his servant while acting outside the scope of his employment” from intentionally hurting others if:

“(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and (b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts §317, at 125 (1965).

The express language of the foregoing rule and the reporter’s notes affixed thereto (Restatement (Second) of Torts §317, Reporter’s Notes, comment a, at 125 (1965)) make clear that section 317 speaks not to vicarious liability or the doctrine of respondeat superior, but to a duty on the part of the master to exercise care under certain circumstances. Here, the charge against the Conference was stated merely in terms of a vicarious liability arising from the existence of the master-servant relationship. The charge upon which summary judgment was entered attempted to hold the Conference responsible merely because Fyffe was its servant. The evidence defeated that charge, because it showed Fyffe acted beyond the scope of his employment. Summary judgment was proper.

We affirm the summary judgment in favor of defendant, the Conference. We reverse the judgment entered on the verdict after the jury trial and remand that portion of the cause to the circuit court of Sangamon County for retrial.

Affirmed in part; reversed in part and remanded.

KNECHT, P.J., and SPITZ, J., concur.


author: JUSTICE MURRAY

text:
    HERCHELLA ROBERTS, a Minor, by her Parents and Next Friends, Harry Roberts et al., Plaintiffs-Appellants, v. SISTERS OF SAINT FRANCIS HEALTH SERVICES, INC., d/b/a St. James Hospital, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—86—0664
    Opinion filed May 11, 1990.

      Schwartzberg, Barnett & Cohen, Heller & Morris & Associates, Ltd., and Leonard Arnold, P.C., all of Chicago, for appellants.
    Neil K. Quinn, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Randall C. Monroe, of counsel), for appellee Viktor Gottlieb.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard, and Luke L. Dauchot, of counsel), for appellee Sisters of Saint Francis Health Services, Inc.
    O’Brien, Redding & Hyde, of Chicago (Donald J. O’Brien and Michael W. Rathsack, of counsel), for appellee Doctors Emergency Care Association Service Corporation.
   JUSTICE MURRAY

delivered the opinion of the court:

This action was brought on behalf of Herchella Roberts (Herchella), by her parents and next friends, Harry and Henrietta Roberts, and the guardian of her estate, American National Bank & Trust Company (American National), to recover for injuries sustained by Herchella as a result of alleged medical malpractice. Specifically, the complaint charged that Dr. Viktor Gottlieb (Dr. Gottlieb) was negligent because he failed to diagnose and treat Herchella’s meningitis and that St. James Hospital (Hospital) and Doctors Emergency Care Association (DECA) were both primarily and vicariously liable for the negligent care and treatment that Herchella received.

At the close of the plaintiffs’ case in chief, the trial court directed verdicts in favor of the hospital and DECA, finding that Dr. Gottlieb had been employed as an independent contractor and that neither the hospital nor DECA had been primarily negligent. The jury trial proceeded on the issue of Dr. Gottlieb’s negligence, and the jury returned a verdict in favor of Dr. Gottlieb. Plaintiffs’ post-trial motions were denied, and this timely appeal followed.

Upon review this court concludes that it must affirm the orders of the circuit court granting the motions for directed verdict in favor of the hospital and DECA, as well as the jury verdict entered in favor of Dr. Gottlieb. Although the evidence pertinent to the various issues raised on appeal will be set forth in greater detail in our discussion of the issues, the basic facts are as follows.

St. James Hospital, located in Chicago Heights, was a not-for-profit corporation. It contained upon its premises an emergency department which was managed by DECA, a professional corporation, pursuant to a contract entered into in March 1972. In accordance with this contract, the hospital provided the facilities, the nurses, the aides, and the orderlies, as well as the forms, papers and equipment used by the emergency department. Additionally, the hospital took responsibility for billing patients who received services through the emergency department. DECA was required to provide physicians to staff the emergency department. To this end, DECA employed four physicians full time and contracted with other physicians to work on a part-time basis to meet the needs of the emergency department. The part-time physicians were not committed to any regular schedule. They were paid an hourly wage, they received no benefits, and no taxes were deducted or social security withheld.

At about 11:30 p.m. on December 30, 1974, Henrietta Roberts took her three-month-old daughter to the emergency department at St. James Hospital, where she was seen by Dr. Gottlieb, a physician who worked in the emergency department on a part-time basis. Following a medical examination, X rays and blood tests, Herchella was diagnosed as having an upper respiratory infection. She was released to her mother, who was given both verbal and written after-care instructions.

Herchella’s condition worsened, and on January 1, 1975, at 2 a.m. she was returned to the emergency room of St. James Hospital, at which time she was diagnosed as having pneumococcal meningitis. She was later transferred to Wyler Children’s Hospital. Subsequent treatment of the meningitis was unsuccessful, and Herchella remains permanently and irreversibly retarded, both physically and mentally.

Plaintiffs filed their action against the various defendants, and a jury trial commenced in 1983. As stated earlier, the trial court granted motions by the hospital and DECA for directed verdicts and the jury returned a verdict in favor of Dr. Gottlieb. Plaintiffs now bring this appeal.

In their first issue, plaintiffs contend that the hospital should not have been granted a directed verdict because there was sufficient evidence for a jury to have concluded that the hospital was primarily negligent, i.e., negligent independently from any negligence by Dr. Gottlieb. This negligence, plaintiffs argue, stems from the failure of hospital personnel to provide Mrs. Roberts with written instructions directing her to take Herchella to her private physician the following day and to look for specific symptoms consistent with the onset of meningitis.

A directed verdict should be granted only in those cases where all of the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) At the same time, in order to recover, a plaintiff in a case of this type must establish that there existed a particular standard of care against which defendant’s actions may be measured, that defendant breached this standard of care, and that the breach proximately caused the injury to the plaintiff. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301; Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 54.) Generally, expert testimony is necessary to establish the appropriate standard of care that is to be applied. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279, 282; Gasbarra v. St. James Hospital, 85 Ill. App. 3d at 36.

Our review of the record indicates that plaintiffs failed to provide any evidence that a standard of care existed applicable to hospitals which required them to provide patients with written instruction on suggested follow-up treatment when seen in the emergency department. Plaintiffs argue that the testimony of their expert, Dr. Battle, indicated that the hospital failed to conform to the standard for providing instruction regarding a sick child. But a reading of Dr. Battle’s testimony discloses that she was referring to the duty owed by a doctor, not a hospital. Additionally, we note that upon the motion of defendants, much of Dr. Battle’s testimony regarding the hospital was stricken and plaintiffs have not appealed this decision by the trial court.

Furthermore, even if we were to assume that plaintiffs did establish, by inference, that a hospital owed a duty to its patients to provide written after-care instructions, plaintiffs failed to show that the hospital breached this duty or that the breach proximately caused the injury to Herchella. The hospital provided Mrs. Roberts with a written “After-Care Instruction Sheet” which instructed her on the treatment of fever. There was no evidence adduced at trial, expert or otherwise, to indicate that the use of this preprinted form was incorrect, inappropriate, or that it violated a standard of care for hospitals. Nor was there evidence that plaintiffs’ failure to seek follow-up care was due to an omission of such instruction on the hospital’s after-care instruction sheet. Thus, there was no evidence that the omission proximately caused injury to Herchella.

We further reject plaintiffs’ assertions, made without reference to supporting case law, that the hospital should be held to some undefined higher standard of care by virtue of its accreditation by the Joint Commission on Accreditation of Hospitals (JCAH). While it is true that hospital licensing regulations, accreditation standards, and hospital bylaws are admissible as evidence of the standard of care by which the conduct of the defendant hospital may be judged (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279), this does not relieve the plaintiff of the burden of establishing, by expert testimony, that the defendant’s conduct breached the standard of care, as indicated by such regulations, standards, or bylaws. Thus, the standard of care to be applied is still that which is established by a competent expert familiar with the methods, procedures, and treatment ordinarily followed in a similar situation. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) As stated earlier, plaintiffs provided no expert testimony which would support a finding that the hospital breached the standard of care attributable to a community hospital, accredited or otherwise.

Plaintiffs next contend that the trial court erred by holding that, as a matter of law, Dr. Gottlieb was an independent contractor and by granting the hospital and DEC A directed verdicts on that basis. This court need not address these issues unless we overturn the jury verdict which exonerated Dr. Gottlieb, since it is well established that a principal cannot be held liable where the purported agent of that principal has been absolved from liability. (Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 438 N.E.2d 620.) Consequently, we shall first consider the other claims of error, but for which, plaintiffs allege, the jury would have found Dr. Gottlieb negligent.

The first claim of error concerns the medical records of the Wyler Children’s Hospital. Plaintiffs contend that the trial court erred by allowing defendants to cross-examine their medical experts regarding specific information contained within these records when the records themselves were inadmissible. Alternatively, plaintiffs argue that, if it was proper for defendants to cross-examine the experts regarding specific matters contained within the Wyler medical records, then it was error for the trial court to have limited plaintiffs’ redirect examination of these same witnesses with regard to other matters found within the Wyler medical records.

Initially we note that plaintiffs failed to object when defendants cross-examined their expert witnesses using the Wyler medical records and, therefore, plaintiffs have waived this issue on appeal. (Department of Public Works & Buildings v. Klehm (1973), 56 Ill. 2d 121, 306 N.E.2d 1.) However, even if this issue was not waived, we would find it to be meritless.

In Wilson v. Clark (1981), 84 Ill. 2d 186, 194, 417 N.E.2d 1322, our Illinois Supreme Court determined that it was proper to allow experts to render opinions based upon facts not in evidence and without disclosing the facts underlying their opinion. The Wilson court went on to state that it was the burden of the adverse party to elicit, on cross-examination, the facts or data that led to the expert opinion.

In the present case plaintiffs’ experts, Dr. Battle and Dr. Zimmerly, stated on direct examination that they relied, in part, on the information contained within the medical records of the Wyler Children’s Hospital to arrive at their opinion that Dr. Gottlieb negligently diagnosed and treated Herchella Roberts. Consequently, it was proper for defendants to cross-examine these experts on the data contained within the medical records, even though the records themselves were inadmissible.

We recognize that the rule enunciated in Wilson is limited and that cross-examination should be confined to the medical aspects of the hospital record. (Guerrero v. City of Chicago (1983), 117 Ill. App. 3d 348, 453 N.E.2d 767.) However, we find that the cross-examination of the experts in this case concerning Wyler’s documentation of the medical history of the case did not violate this restriction. The information given to Wyler Hospital by Herchella’s parents concerning Herchella’s condition just prior to her first visit to St. James’ emergency department became a medical aspect of the case. Dr. Battle testified that it was her opinion that Dr. Gottlieb had been negligent based, in part, upon Dr. Gottlieb’s alleged failure to obtain a proper history of Herchella’s condition upon her admission to the emergency department and his failure to properly diagnose Herchella’s illness based upon the information he allegedly received. Thus, it was proper for defendants to cross-examine plaintiffs’ experts concerning the entries in the Wyler record pertaining to Herchella’s medical history when these entries did not support the experts’ conclusions.

With regard to the alternative aspect of plaintiffs’ claim, we do not believe that the trial court unduly restricted plaintiffs by denying them the opportunity to question the experts during redirect examination concerning data contained within the Wyler records which was not touched upon in direct or cross-examination. Generally, redirect examination is limited to matters which were raised on cross-examination and should not cover matters which could have been raised on direct examination. (Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E.2d 316.) The scope of any further examination rests within the sound discretion of the trial court. (Johns-Mansville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 399 N.E.2d 606.) Furthermore, a jury verdict will not be reversed due to an error in the admission of evidence unless there is a showing of real prejudice. Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 519 N.E.2d 1073.

Here, plaintiffs cite a certain “admission note” as the essential evidence omitted by the court’s ruling. However, this notation does not substantially differ from the other Wyler medical histories used by defendants in their cross-examinations of the experts. Additionally, the notation does nothing to “rehabilitate” the testimony of the parents since the conflict centered around the symptoms of convulsion and drooping eye, which were not mentioned in the admission note cited by plaintiffs. Consequently, there is no basis for finding that the trial court abused its discretion by precluding plaintiffs’ redirect examination. Furthermore, plaintiffs have made no showing of prejudice since it does not appear that the evidence, which would have been elicited had they been allowed to question the experts further, would have altered the verdict rendered by the jury.

Plaintiffs next contend that the trial court erred by allowing potential jurors to view a film depicting a day in the life of Herchella Roberts. The record shows that prior to trial defendants brought a motion in limine to bar plaintiffs from introducing a day-in-the-life film that plaintiffs had prepared. The trial court denied defendants’ motion but granted their request to allow the panel of potential jurors to view the film prior to voir dire. Accordingly, potential jurors were shown a 20-minute film depicting Herchella, who was then a nine-year-old spastic quadriplegic. After the film was shown, the court asked whether anyone felt that what they saw in the film would cause them to be biased or prejudiced in such a way that they would be unable to render a verdict based upon the evidence. Four persons indicated that the film had aroused such strong feelings that they felt that they could not be fair and impartial. These four veniremen were released and jury selection proceeded with the remainder of the group of potential jurors.

We find that under these circumstances there is no basis for plaintiffs’ claim that the trial court abused its discretion by allowing the film to be shown prior to voir dire or that they were prejudiced by its use in this manner. Whether a party may use a day-in-the-life film as an aid to assist in the jury selection process appears to be a question of first impression. However, applying the basic law applicable to jury selection and given the current status of Illinois law with regard to the use of such films, we now determine that such use need not be prohibited.

It has been only recently that day-in-the-life films have been utilized as demonstrative evidence. However, it is now established law in Illinois that such films, when properly authenticated and relevant, are admissible into evidence if their probative value is not outweighed by their inflammatory effect. (Barenbrugge v. Rich (1986), 141 Ill. App. 3d 1046, 490 N.E.2d 1368; Georgacopoulos v. University of Chicago Hospitals & Clinics (1987), 152 Ill. App. 3d 596, 504 N.E.2d 830; Cisarik v. Palos Community Hospital (1989), 193 Ill. App. 3d 41, 549 N.E.2d 840.) Certainly such films are able to inform and promote a better understanding of the extent of injury or circumstances of the condition involved in the litigation, as no other evidence can do. For this same reason such films also carry a high potential for arousing sympathy, passion and prejudice for the injured plaintiff. Thus, because litigants have a right to examine prospective jurors to enable them to select a jury that is qualified and competent to determine the facts in issue without bias, prejudice, or partiality (Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 410 N.E.2d 249), it seems only fair that defendants should be allowed to make prospective jurors aware of the condition or injury which may be graphically exposed to them during the course of trial. This affords them a meaningful opportunity to “probe an important area of potential bias and prejudice” during voir dire. Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 991, 365 N.E.2d 43.

This is not to say that once the film is presented that defendants should be given free reign to question prospective jurors about the material found within the film. As is always the case, the trial court must exercise its discretion by curtailing voir dire which becomes an attempt to indoctrinate jurors or when the questioning seeks to determine how that juror would decide an issue under a given set of facts. (Gasiorowski, 47 Ill. App. 3d at 991-92.) But this was not the case here.

The film was used by defendants to expose the veniremen to a potential source of bias in the case that would be before them. Plaintiffs point to no subsequent reference to the film during the examination of the prospective jurors which would indicate that the film was used improperly to ascertain whether someone would favor a certain position, nor do we find any evidence that the film was used to “systematically screen” potential jurors or “psychologically manipulate” them, as plaintiffs now suggest. Consequently, we find that plaintiffs were not prejudiced by the trial court’s decision to allow the veniremen to view the day-in-the-life film prior to voir dire and that the trial court properly exercised its discretion by allowing the defendants to use the film at this stage of the proceedings.

We now turn our attention to various trial court rulings, which plaintiffs now claim as error. The first of these involves the trial court’s determination that the notation “4DPTA,” which was contained within the Wyler records, referred to December 30, 1974. That the term means “four days prior to admission” seems undisputed. What plaintiffs argue is that the note should not have been admitted without the testimony of the author and that the determination of the date to which it referred should have been left as a question of fact to be decided by the jury. We disagree.

Whether the notation “4DPTA” meant December 30, 1974, was properly decided by the court. Judicial notice may be taken of matters of common knowledge. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 394, 469 N.E.2d 1085.) Calendar dates and corresponding days of the week fall within the category of matters of common knowledge. See, e.g., Norfleet v. Safeway Insurance Co. (1986), 144 Ill. App. 3d 838, 494 N.E.2d 720; Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 397 N.E.2d 194.

In this case the notation was included in the admission notes taken at Wyler when Herchella was admitted to that hospital on the evening of January 2, 1975. The complete entry stated, “4DPTA: Normal child in a.m., went to bed 8:00 p.m. normal, 9:00 [woke] with whining and fever. 10:00 p.m. taken to St. James E.R.” Based on all the other evidence presented at trial, it was undisputed that Mrs. Roberts took Herchella to the St. James emergency department at 10 p.m. on December 30, 1974. Accordingly, we find that it was entirely consistent for the court to have taken judicial notice that “4DPTA” referred to December 30, 1974.

Plaintiffs next complain that it was error for the trial court to have barred the testimony of Dr. Graham concerning the standards of the Joint Commission on Accreditation of Hospitals (JCAH). The record reveals that Dr. Graham’s testimony was excluded because plaintiffs failed to disclose him as an expert witness prior to trial. This form of sanction is within the discretion of the trial court and will not be overturned unless it appears that the trial court abused its discretion. (In re Henry (1988), 175 Ill. App. 3d 778, 530 N.E.2d 571; Ferenbach v. DeSyllas (1977), 45 Ill. App. 3d 599, 359 N.E.2d 1214.) This court concludes that the preclusion of Dr. Graham’s testimony was, if anything, harmless error, since his testimony would have been cumulative. Testimony on the agreements and bylaws of the hospital and the standards of the JCAH was presented during the examination of Dr. Green, the president of DECA. A decision to preclude cumulative evidence will not be overturned absent a clear abuse of discretion. (Simmons v. City of Chicago (1983), 118 Ill. App. 3d 676, 455 N.E.2d 232; Christopherson v. Hyster Co. (1978), 58 Ill. App. 3d 791, 374 N.E.2d 858.) Consequently, we find that no abuse of discretion was shown here.

Plaintiffs also charge that the trial court erred in refusing to permit the jury to take into the jury room during deliberations those portions of the JCAH standards which had been read into evidence by Dr. Green. We find no error since it appears that these standards were only relevant to the alleged negligence of the hospital and DECA, for whom the court had already directed verdicts. Further, neither of plaintiffs’ experts relied upon these standards in formulating his opinion concerning the negligence of Dr. Gottlieb, which was the issue before the jury.

Plaintiffs’ final charges of error concern certain instructions which were tendered by plaintiffs and which the trial court refused to present to the jury. The first of these instructions is Illinois Pattern Jury Instructions, Civil, No. 12.04 (2d ed. 1971) (hereinafter IPI Civil 2d). The “Notes on Use” connected to this instruction state:

“This instruction should be used only where negligence of a person who is not a party to the suit may have concurred or contributed to cause the occurrence.” (IPI Civil 20 No. 12.04, Notes on Use at 75.)

The note also cautions that the instruction should not be used where two or more defendants are sued and one or more may be liable but not others. Since in this case there were three named defendants and two defendants, namely the hospital and DECA, were dismissed from the suit by directed verdicts in their favor, we find no error in the trial court’s refusal to use this instruction. In fact, had this instruction been given, it could have misled the jury into believing that the alleged negligence of the hospital or DECA caused or contributed to Herchella’s injury since they were charged parties until the trial court directed them out.

Plaintiffs also charge error to the trial court’s refusal to submit to the jury IPI Civil 2d No. 10.01, which defines the term “negligence”; IPI Civil 2d No. 10.02, which defines the term “ordinary care” and IPI Civil No. 2d 10.04, which states that “[i]t was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff.” The trial court properly refused to use these instructions because they misstate the standard of care applicable to a physician in a malpractice suit. Malpractice by a physician is a failure to possess and apply the knowledge and use the skill and care that is ordinarily used by a reasonably well-qualified doctor in the locality in which he practices or in a similar locality and under similar circumstances. (IPI Civil 2d No. 105.01.) The duty which a physician owes his patient must be established by a competent expert witness. The refused instruction would have erroneously led the jury to believe that malpractice by a physician could be equated to negligence by a lay person, which would have been improper. See Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544.

Finally, with regard to jury instructions, plaintiffs contend that it was error to have refused a modified IPI Civil 2d No. 60.01 instruction, which would have informed the jury that Dr. Gottlieb had an obligation to conform to the rules and standards of the JCAH. As previously stated, the JCAH standards were applicable to the hospital and DECA, but not to Dr. Gottlieb, who was the only party still before the jury. Furthermore, as previously noted, the standard of care applicable to a physician must be established by expert testimony and neither of plaintiffs’ experts relied on the JCAH standards in arriving at the opinion that Dr. Gottlieb had been negligent in his care and treatment of Herchella.

Lastly, we find no merit in plaintiffs’ final issue on appeal, that the trial court erred by refusing to allow Herchella’s parents to waive their claim for medical expenses. It is well-established Illinois law that the parents of a minor are responsible for the child’s medical expenses. (Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App. 3d 158, 389 N.E.2d 211.) Any cause of action for medical expenses lies in the parents, and if the parents are not entitled to recover, the child may not. (Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 412 N.E.2d 624.) Consequently, if Herchella’s parents had waived their right to recover Herchella’s medical expenses, she would not have been entitled to recover her medical expenses unless her parents assigned their claim to her. While parents may assign their cause of action to recover medical expenses to a child, that child must prove that the parents had a cause of action and be subject to any defense which might have been raised against the parents. (Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 412 N.E.2d 624.) In this case, had the parents chosen to assign their cause of action to Herchella, the issue of contributory negligence would have been injected into the case. It seems obvious that the parents elected not to assign their right to recover medical expenses to avoid having to prove that they were free from contributory negligence.

After reviewing the entire record and after addressing the claims of error cited by plaintiffs, we are compelled to conclude that there is no basis for reversing the jury verdict in favor of Dr. Gottlieb. While during the course of this lengthy trial some technical errors or incorrect evidentiary rulings may have occurred, any possible prejudice that might have inured to plaintiffs is insufficient to warrant reversal and a new trial. We cannot insure that a record is free from error. Our duty is only to determine whether any error unduly prejudiced the losing party or worked to affect the outcome. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581.) Neither a trial court nor an appellate court should sit as a second jury, and it would be an abuse of discretion to grant a new trial when there is evidence to support the jury verdict and it appears that the losing party received a fair trial. (Brendel v. Hustava (1981), 97 Ill. App. 3d 792, 423 N.E.2d 503.) Since it does not appear that a different result would probably be reached upon a retrial, we affirm the jury verdict. Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 444 N.E.2d 1113.

Having affirmed the jury verdict in favor of Dr. Gottlieb, we affirm the directed verdicts entered in favor of Dr. Gottlieb, we affirm the directed verdicts entered in favor of the St. James Hospital and DEC A and find it unnecessary to determine whether Dr. Gottlieb was acting as an independent contractor.

For all the foregoing reasons, we affirm the judgments entered by the circuit court.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.

       Prior to his resignation Justice R. Eugene Pinchara was assigned to and heard oral arguments in the above case. Since Justice Pinchara's resignation, the case was reassigned to Justice Murray, who has listened to the tapes and read the briefs.

       Justice Coccia was the other member of the panel, but recused himself from participating in same. Justice O’Connor was assigned in his stead and has listened to the tapes and read the briefs.


author: JUSTICE GORDON

text:
    SAMUEL SHUSTER, Plaintiff-Appellant, v. ROBERT M. BRANTLEY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—2366
    Opinion filed May 11, 1990.

      Herbert F. Stride, Ltd., and William J. Harte, Ltd., both of Chicago (William J. Harte and Herbert Stride, of counsel), for appellant.
    Orner & Wasserman, of Chicago (Esther Joy Schwartz and Mary A. Mazurk, of counsel), for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, Samuel Shuster, appeals from a judgment entered on a jury verdict awarding $72,000 to him for injuries sustained when he was hit by an automobile. He contends that the jury’s determination that he was 92% negligent was against the manifest weight of the evidence. We affirm.

The accident involved in this appeal occurred on Solidarity Drive, an east-west road which runs between Lake Shore Drive on the west to Adler Planetarium on the east in Chicago. The road has four eastbound lanes and four westbound lanes divided by a large, grassy, median strip. The four lanes on either side of the median strip consist of a parking lane north and south of two traffic lanes. There are “breaks” at various points in the median strip to allow traffic to cross over from either the eastbound to the westbound or the westbound to the eastbound lanes. Plaintiff was struck by an automobile driven by defendant Robert Brantley and owned by defendants James and Diane Newman in the vicinity of the first such break east of Lake Shore Drive.

Plaintiff testified that he arrived in the area of Solidarity Drive at about 11:30 a.m. on June 14, 1984, to act with his friend, Timothy Furgeson, in a short video which was being directed by Michael Dawson. At about 12:30 p.m., after completing a scene of the video, plaintiff and Furgeson left a taxicab in the area of the first break in the median strip and headed towards the north side of the westbound lanes to begin shooting again. At the time, pedestrian traffic was heavy and vehicle traffic light. Furgeson proceeded ahead of plaintiff and had already crossed the westbound lanes when plaintiff turned northbound on a sidewalk in the median strip and began walking in the direction of the four westbound lanes.

As plaintiff approached the south parking lane of the westbound lanes, he looked in all directions and saw light traffic going westbound on Solidarity Drive. When he arrived at the point where the sidewalk met the south parking lane, he again looked in all directions and could not see any traffic which would create a hazard. Plaintiff proceeded into the parking lane, again looking in both directions, and began crossing that lane. Although there was a solid line of parked cars to his right, the closest being between one and five feet away from him, the cars did not obstruct his vision of the road as he proceeded through the parking lane.

Plaintiff took two or three uninterrupted, long strides through the parking lane with the last stride taking him into the southernmost traffic lane. Though he was familiar with the westbound flow of the traffic lanes, he first looked to his left as he stepped into the traffic lane. After doing this, he then looked to his right, the direction from which traffic was coming, and saw a car approximately 5 to 10 feet from him travelling in his direction. He tried to pull back but the car’s left front bumper hit his right ankle. As a result of the impact, plaintiff was twirled around counterclockwise and thrown over the left front fender of the car. As he was spinning over the side of the car, his elbow broke the driver’s side window. When the car passed, he landed on the ground.

Plaintiff testified that he did not know how fast the car was travelling at the time of the impact. Additionally, he did not recall seeing his director, Michael Dawson, from the time he began proceeding to cross the westbound lanes to the time of the accident.

Timothy Furgeson, who was plaintiff’s good friend, testified that when he crossed the westbound traffic lanes, he first looked to his right to see if any traffic was coming. He only saw a mail truck about three quarters of a block away and, after signaling the truck and getting approval to cross, he proceeded to jog across the street. At the time, plaintiff was behind him and Furgeson did not know whether Michael Dawson had joined plaintiff. When Furgeson arrived on the north side of Solidarity Drive, he heard a thud and then turned and saw plaintiff on the ground, screaming in pain, and a dark-colored station wagon parked on an angle close to the middle of the two westbound traffic lanes.

Michael Dawson testified that after shooting a scene of his video, he joined plaintiff and Furgeson in the area of the first break in the median strip and there directed the taxi driver back to the starting point of the scene. He then directed plaintiff and Furgeson to come with him back to their starting point on the north side of the westbound lanes of Solidarity Drive. Furgeson proceeded across the street first and then Dawson began to cross. He recalled turning back and seeing plaintiff about 6 to 12 feet away and then turning back to continue across the street. When he got a couple of feet into the southernmost traffic lane, he looked to his right, saw a station wagon coming his way and stopped suddenly. He estimated the speed of the car at 30 miles per hour. Shortly after the car passed him, he heard a thud and then looked to his left and saw plaintiff spinning toward him.

Robert Brantley testified that on June 14 he drove Diane Newman to a doctor’s appointment downtown and then drove out to Solidarity Drive to spend some time while waiting for her. At approximately 12:45 p.m., he left the area around Adler Planetarium and drove in the southern' westbound traffic lane towards Lake Shore Drive. Traffic was fairly heavy at the time and there were a lot of adults and children in the area. He was driving at a rate of speed of about 20 to 25 miles per hour. When he was in the area of the first break in the median strip, he suddenly struck an object. He did not actually see the impact, but recalled that he was looking around at the time. At the time of the accident, he did not have his foot on the brake and could not recall if his foot was on the accelerator but did know that he was decreasing the speed of the vehicle because he was coming to a stop sign at Lake Shore Drive. He might have been looking to his right to get to the right-hand lane because he knew he was going to have to make a right-hand turn onto Lake Shore Drive. After the impact, he stopped the vehicle and learned that he had hit plaintiff.

Plaintiff contends that it is clearly evident that the jury’s finding that he was 92% negligent was against the manifest weight of the evidence. He argues that the evidence proves that he was exercising reasonable care at all times prior to the accident but that Brantley failed to exercise reasonable care when operating his automobile. He seeks a new trial solely on the question of the proportion of negligence attributable to the conduct of the parties. On balance, we find no merit to this issue.

A jury verdict should be reversed and a new trial ordered only where the verdict is against the manifest weight of evidence. (Baumgartner v. Ziessow (1988), 169 Ill. App. 3d 647, 661, 523 N.E.2d 1010, 1019.) A verdict is against the manifest weight of the evidence when a contrary verdict is clearly evident. (Parsons v. Winter (1986), 142 Ill. App. 3d 354, 358, 491 N.E.2d 1236, 1239.) A reviewing court should not reverse the verdict of a jury simply because different inferences or conclusions could be drawn from the evidence. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412-13, 476 N.E.2d 1232, 1236.

The jury’s verdict, based on an apportionment of negligence of 92% to plaintiff and 8% to Brantley, was not against the manifest weight of the evidence. The evidence is sufficient for the jury to conclude that plaintiff was not in the exercise of reasonable care when he entered the westbound traffic flow lanes. Plaintiff’s own testimony indicates that he walked into the traffic lane without hesitation. He said that he took two or three long strides to cross the parking lane and his last stride brought him into the traffic lane. Additionally, he testified that although he was familiar with the flow of traffic in the westbound lanes, he first looked to his left upon entering the traffic lane. Only after first looking to his left did he then look to his right, the direction from which traffic was coming, and see Brantley’s car 5 to 10 feet away and coming right at him. Though it is true that he also testified that he was looking both to his left and right as he approached the westbound lanes and crossed the parking lane, the crucial moment for him to be looking to his right was as he was entering and crossing the traffic lanes. His testimony shows that he did not do so until he was no more than 10 feet from an oncoming vehicle. The jury reasonably could have concluded that this was negligence on his part.

Though Brantley’s testimony could support a conclusion that he was not exercising reasonable care when he was driving in the westbound lanes, we cannot say that such conclusion is clearly evident. Brantley’s testimony does show that he was aware of heavy pedestrian traffic in the area, including children, that he did not see his car hit plaintiff and that he may have been looking to his right at the moment of impact to switch lanes to get ready to turn right onto Lake Shore Drive. But, a jury could also have concluded that he was exercising reasonable care, travelling at a rate of speed of 20 to 25 miles per hour, but hit plaintiff when plaintiff unexpectedly and suddenly walked into the path of his vehicle.

On the evidence in this case, a jury could have concluded that here, as in more conventional “dart out” cases, the driver of the vehicle had very little, if any, opportunity to avoid hitting the pedestrian. Such a conclusion is reasonable when one takes a look at the evidence from the perspective of the driver of the vehicle. According to the undisputed evidence, Brantley was travelling in the westbound traffic lane closest to the south parking lane, which was filled with a solid line of parked cars. Plaintiff entered the traffic lane suddenly and without first looking to his right, the direction from which Brantley was coming. Brantley did not see plaintiff before he hit him. Considering these undisputed facts, it was not against the manifest weight of the evidence for the jury to conclude that Brantley did not see plaintiff because he suddenly appeared from the parked cars and was immediately struck. If in fact Dawson was present at the time and was nearly hit by the car, it is possible that his presence blocked out Brantley’s vision of plaintiff. Also, though plaintiff testified that when he first looked to his right after entering the traffic lanes he saw the car 5 to 10 feet away, the jury could have concluded that even that distance was too short for the driver of any car, even at the rate of speed of 20 to 25 miles per hour, to stop. Considering all of this evidence together with the evidence of plaintiff’s lack of care, we find insufficient basis for a reversal.

A case somewhat similar to the present case is Baumgartner v. Ziessow (1988), 169 Ill. App. 3d 647, 523 N.E.2d 1010. There, plaintiff was injured when a minibike he was riding was struck by defendant’s vehicle. The proof showed that plaintiff was riding the minibike in the right shoulder of the roadway in full view of defendant prior to the accident. The proof showed a dispute in the evidence, however, as to whether plaintiff suddenly and without warning turned his minibike into the path of defendant’s vehicle when defendant’s vehicle was only 10 feet away. On this proof, the jury returned a verdict in plaintiff’s favor but reduced the amount of his damages by 95%, the amount of negligence it allocated to him. On appeal, the Baumgartner court affirmed the jury verdict, finding that it was not against the manifest weight of evidence. In the present case, the same sort of factual situation is present and the jury chose a similar allocation of negligence. There is evidence sufficient to support a conclusion that plaintiff suddenly and without warning walked into defendant’s path when he was a short distance away, and the jury allocated 92% of the negligence to him. As in Baumgartner, we find that the jury’s verdict was not against the manifest weight of the evidence.

Plaintiff argues that Junker v. Ziegler (1986), 113 Ill. 2d 332, 498 N.E.2d 1135, supports his position that the jury’s verdict was against the manifest weight of the evidence. In Junker, plaintiff was injured when a hunter fired a shot into a duck blind where he knew plaintiff was standing and struck him in the eye. The evidence showed that the owner of the duck blind knew from experience that someone shooting from the hunter’s duck blind could hit someone in plaintiff’s duck blind. The jury returned a verdict in plaintiff’s favor but reduced the damages awarded by 65% based on his negligence. The trial court ordered a new trial, but the appellate court reversed. Our supreme court then reversed the appellate court and directed that a new trial be held on the issue of damages, finding that a verdict attributing 65% of the fault to plaintiff was against the manifest weight of evidence. Junker, 113 Ill. 2d at 340, 498 N.E.2d at 1138-39.

The Junker case is factually distinguishable from the present case because in Junker the defendant knew that plaintiff was present in the duck blind and yet fired in his direction. Furthermore, the defendant owner of the duck blind was well aware that a person in the duck blind where the defendant shooter was standing could hit a person in the blind where plaintiff was standing. The jury in the present case, however, reasonably could have concluded that Brantley did not know that plaintiff would suddenly walk into his path and thus he had virtually no opportunity to avoid hitting him.

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

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


text:
    GEORGE VLAHOS, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—2100
    Opinion filed May 11, 1990.

      James E. Ocasek, of Cooney & Conway, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, George Vlahos, brought this action against defendant, City of Chicago, to recover for injuries he sustained when he stepped into the street and fell. Plaintiff was not walking within a crosswalk when he fell. Plaintiff alleged that defendant had torn up the street to repair water pipes and completed those repairs three months earlier, but neglected to finish the street repairs, leaving a large hole. As plaintiff stepped off the curb onto the street to proceed to the driver’s side of his truck, which was double-parked, he was injured.

Defendant moved for summary judgment on the grounds that a municipality owes no duty to a pedestrian walking upon a public street outside of a crosswalk. Defendant claimed that plaintiff’s traversing the street to return to his double-parked truck did not make him an intended and permitted user within the purview of section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (hereafter Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3—102(a)).

The circuit court granted summary judgment, finding that defendant had no duty to maintain its streets for pedestrians whether they were going across the street, off the curb, or to get into their cars, even though the defendant had created the problem itself.

Plaintiff appeals, contending (1) defendant had a duty to maintain its property in reasonably safe condition for its intended, expected, and foreseeable uses, including all areas intended and expected to be used by pedestrians, and (2) since defendant intended and permitted the area where plaintiff fell to be used for parking, plaintiff’s return to his parked vehicle from the nearest curb was an action both intended and expected by defendant.

Plaintiff maintains that his utilization of the immediate area around his vehicle for ingress and egress was both foreseeable and intended since defendant allowed and provided for parking on both sides of the street. He contends under Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, that since defendant permitted curbside parking, it must have recognized the necessity of pedestrians walking in the street and using a portion of it as a pathway to and from their vehicles. Therefore, plaintiff claims that defendant had a duty to make the parking area reasonably safe for those attempting to leave or return to their parked vehicles as he was.

Defendant relies on the well-settled principle stated in Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 332, 527 N.E.2d 572, that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. Defendant urges that the court in Di Domenico confused foreseeability and duty and that it is the only decision imposing liability on a municipality where a pedestrian has walked in a street outside of a crosswalk. Defendant also attempts to distinguish Di Domenico because plaintiff’s truck in this case was double-parked illegally.

The only issue presented by the summary judgment proceeding was whether defendant owed a duty to plaintiff. The question of the existence of a duty is one of law, to be decided by the court, and if, based upon the pleadings and accompanying affidavits, it appears that no duty is owed plaintiff, summary judgment for defendant is proper. Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 1094, 545 N.E.2d 961.

The well-established principle of law governing a municipality’s duty to a pedestrian on its street is set forth in Mason v. City of Chicago, where plaintiff was crossing the street in the middle of the block to reach her car parked across the street and fell into a hole in the street:

“[T]he City owes no duty to warn pedestrians not using the crosswalk of any hazard outside of the crosswalk. The law imposes no general duty on municipalities for the safeguarding of pedestrians when they are using the public streets as walkways. *** The law is well settled, therefore, that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk.” (173 Ill. App. 3d at 332.)

The Mason court concluded:

“We are not persuaded by plaintiff’s argument that the City should have foreseen that a pedestrian might walk on the street because parking was allowed on the street. It is reasonable for the City to foresee that only vehicle traffic would use the streets, while pedestrians would use crosswalks to cross to the opposite side of the street, whether to reach a parked car or for some other purpose. [Citation.] Plaintiff was not an intended or permitted user of the street, and thus the City need not have foreseen her injury.” (173 Ill. App. 3d at 332.)

Plaintiff’s argument that, because parking was allowed at this location, defendant owed him a duty must be rejected based on Mason. In Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357, plaintiff was struck by a Chicago Transit Authority bus as he stepped off a sidewalk curb and attempted to cross the street in the middle of the block where there were no crosswalk lines or other traffic regulation signals. Plaintiff charged defendant with negligence in creating a dangerous condition — creating a “control flow” lane or bus traffic — failing to remedy it after having actual notice of its existence, and failing to warn. Plaintiff argued that he was a foreseeable user of the street and defendant owed him a duty to maintain its street in a reasonably safe condition. The court concluded that there was no case or statutory law to support the argument that a municipality owed a duty to a pedestrian crossing a public street at a location other than a crosswalk. Risner, 150 Ill. App. 3d at 831.

We conclude that Mason and Risner are controlling and that defendant had no duty to a pedestrian such as plaintiff, who stepped off the curb into a hole in the street, despite the holding in Di Domenico v. Village of Romeoville. In Di Domenico the appellate court reasoned that since defendant permitted curbside parking, it must have recognized the necessity of pedestrians walking in the street and using a portion of it as a pathway to and from their vehicles. The court said it was not aware of any case presenting a similar factual situation, but we find the reasoning set forth in Mason, which did present a similar factual situation, to be more persuasive.

Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

COCCIA, P.J, and LORENZ, J., concur.