author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BEVIEL, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—1800
    Opinion filed June 30, 1992.

      Rita A. Fry, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendant James Beviel was convicted of aggravated battery and armed violence and sentenced to eight years in prison. On appeal, defendant argues that he was denied a proper Batson hearing where he made a prima facie showing of racial discrimination in the State’s use of peremptory challenges during jury selection.

Defendant is a 40-year-old African-American convicted for striking an acquaintance with a brick, which resulted in the loss of an eye. During voir dire, the prosecution exercised three of its seven peremptory challenges against African-American men and three against white men. Four African-Americans, one man and three women, were eventually impaneled on the jury, along with an African-American alternate. Subsequently, defendant requested a Batson hearing and the trial court heard argument from both parties.

At the hearing, defense counsel argued that three of the State’s six peremptory challenges were used to exclude African-American men, and only one African-American man was left on the jury. The State countered that it had only used six of its seven challenges; that three challenges were for white men and three were for African-American men; that there were four African-Americans on the jury; and that one of the two alternates was African-American. The trial court analyzed the composition of the jury and determined that defendant had not established a prima facie showing of purposeful racial discrimination. We affirm that finding.

Under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the State may not use peremptory challenges in jury selection for purposeful racial discrimination. Defendant must first demonstrate a prima facie case before the burden shifts to the State to supply race-neutral reasons for excluding the venirépersons. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723; People v. Coleman (1991), 223 Ill. App. 3d 975, 996, 586 N.E.2d 270.

To make a prima facie showing of a Batson claim, it must be demonstrated that members of a racial group were removed from the venire by peremptory challenges and that the removal, in addition to other relevant circumstances, raises an inference of purposeful discrimination by the State in the selection of defendant’s jury. People v. Andrews (1992), 146 Ill. 2d 413, 424, 588 N.E.2d 1126.

While a defendant is no longer required to show that he is a member of a cognizable racial group whose members have been excluded in order to have standing to pursue a Batson claim (Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364; People v. Edwards (1991), 144 Ill. 2d 108, 579 N.E.2d 336), the racial identity between the defendant and the excluded venireperson remains a relevant factor in determining if a prima facie case of discrimination has been established. Andrews, 146 Ill. 2d at 425.

In addition to shared race, a number of other factors relevant in determining whether a prima facie case of discriminatory jury selection has been established include: (1) a pattern of strikes against African-American veniremembers; (2) a disproportionate use of strikes against such members; (3) whether the excluded African-Americans were a heterogeneous group sharing race as their only common characteristic; (4) the level of African-American representation in the venire as compared to the jury; (5) prosecutorial questions and statements during voir dire and while exercising challenges; and (6) the races of defendant and victim or of defendant and witnesses. People v. Jackson (1991), 145 Ill. 2d 43, 99, 582 N.E.2d 125; People v. Garrett (1990), 139 Ill. 2d 189, 203, 564 N.E.2d 784.

None of the above-cited relevant circumstances are present in this case. Defendant’s brief suggests that defendant is a young African-American male and that the State has “excluded every young black male.” The record is contrary to this observation. None of the three excluded black males could be described as “young”: all had work records extending back more than 20 years, and all were seemingly in their early or mid-40s. In any event, no suggestion is made that age is a suspect classification under Batson and this court is not prepared to enter those murky waters.

A trial court’s determination that a defendant has failed to establish a prima facie case of purposeful discrimination is a finding of fact and will not be overturned on review unless it is found to be against the manifest weight of the evidence. Garrett, 139 Ill. 2d at 200-01; Coleman, 223 Ill. App. 3d at 996.

In this case, when defense counsel argued his Batson motion, he simply stated that of the six challenges that the State used, three of them were for African-American males and three were for white males. As a general rule, the mere number of African-American veniremembers peremptorily challenged, without more, will not establish a prima facie showing of discrimination. Garrett, 139 Ill. 2d at 203; People v. Mahaffey (1989), 128 Ill. 2d 388, 413-14, 539 N.E.2d 1172.

While defense counsel has shown that three African-American members of the venire were removed by peremptory challenges, it failed to establish what has been called the “critical” element of a prima facie case: whether the fact of removal “and any other relevant circumstances” raise an inference of purposeful discrimination. Garrett, 139 Ill. 2d at 203.

In Garrett, the supreme court found that defense counsel failed to establish other relevant circumstances leading to the inference of purposeful discrimination required for a prima facie showing. Elaborating, the court explained the basis for its finding: (1) the mere fact that some African-American veniremembers are challenged and others accepted by the State, without more, cannot be said to constitute even a pattern of such challenges; (2) defense offered no evidence that the State challenged African-American veniremembers disproportionately as compared to white members, or that the level of African-American representation in the venire exceeded that in the jury; (3) no prosecutorial statements or questions during voir dire were cited which would imply purposeful racial discrimination, and the supreme court found none from the record; (4) defendant, victim and witnesses were African-American; and (5) the trial judge relied partly on his own observation as to the number of African-American jurors, the number of African-American veniremembers challenged by the defense and by the prosecution, and the characteristics of those members challenged by the State. Garrett, 139 Ill. 2d at 204-05.

Here, we likewise find that defendant failed to offer any relevant evidence other than the fact that three African-Americans were challenged and only one African-American male remained on the jury. This information, without more, fails to establish a prima facie case of racial discrimination. Also, defense counsel challenged an equal number of white and African-American venire members (three) and, as in Garrett, the defendant, the victim, and the witnesses are all African-American. See People v. Green (1992), 228 Ill. App. 3d 849 (which held that to determine whether a prima facie showing exists, the trial court should consider the race of both the defendant and the victim, and should take into account the number of African-Americans seated as jurors).

Further, defense counsel cites no prosecutorial statements or questions during voir dire that imply purposeful racial discrimination. The trial judge, present at voir dire and privy to the record, had a right to rely, at least in part, on his own observations as to the composition of the jury. See People v. Ramirez (1992), 230 Ill. App. 3d 231.

Finally, we agree with defendant that the Batson sword has two edges — one that ensures that defendant will be tried by a jury impaneled without discrimination against people of the same race and the other that no citizen will be denied his right to be a part of the justice system because of race.

Accordingly, striking a black juror could constitute a prima facie case even where African-Americans ultimately sit on the panel. United States v. Clemons (3d Cir. 1988), 843 F.2d 741, 747; Andrews, 146 Ill. 2d at 433.

However, defendant has relied upon cases which are inapposite: People v. Williams (1987), 156 Ill. App. 3d 560, 509 N.E.2d 782 (all three of the State’s challenges were used against African-Americans); and People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107 (challenges against six African-Americans, three whites, and one Hispanic (one African-American remained on the jury) established a disproportionate use of the peremptory challenge). We also distinguish two recent cases, People v. Gaston (1992), 227 Ill. App. 3d 486 (four of five challenges used against African-Americans constituted a pattern and disproportionate use of challenges, and those excluded shared race as their only common characteristic); and Ramirez (230 Ill. App. 3d 231) (four of four challenges used against African-Americans constituted a pattern and disproportionate use, and Hispanic defendant had standing to pursue a Batson claim regarding the exclusion of African-American veniremembers).

Because we affirm the trial court’s determination that defendant failed to establish a prima facie case of purposeful racial discrimination when given full opportunity to do so, we need not consider any explanations for the State’s challenges. Garrett, 139 Ill. 2d at 205.

The trial court’s determination is not against the manifest weight of the evidence and its finding is affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAHILL

license: Public Domain

text:
    JULIA D. BISHOP, a Minor, by her Father and Next Friend, Mark Bishop, Plaintiff-Appellant, v. ELIZABETH MORICH, a Minor, et al., DefendantsAppellees.
    First District (4th Division)
    No. 1 — 92—1453
    Opinion filed July 8, 1993.
    — Rehearing denied August 6, 1993.

      Kevin W. Horan, of Rock, Fusco, Reynolds & Garvey, of Chicago, for appellant.
    Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Thomas J. Pontikis, and Lloyd E. Williams, Jr., of counsel), for appellees.
   JUSTICE CAHILL

delivered the opinion of the court:

While driving her parents’ car without express permission or a driver’s license, Elizabeth Morich struck and injured plaintiff Julia Bishop in the Moriches’ driveway. The plaintiff sued Elizabeth Morich on a theory of negligence and Donald and Margaret Morich on a theory of negligent entrustment and supervision. The trial court granted summary judgment for the defendants on the negligent entrustment and supervision count. The trial court later denied the plaintiff’s motion for a rehearing and reconsideration based on newly discovered evidence. We affirm.

On appeal, the plaintiff makes two arguments: (1) the trial court erred in its grant of summary judgment because alternative inferences can be drawp- from the facts; and (2) the trial court abused its discretion when it denied the motion for rehearing and reconsideration because the plaintiff was denied an opportunity to present newly discovered evidence.

On July 2, 1988, Donald and Margaret Morich left their home to attend a wedding. Their 15-year-old daughter, Elizabeth, and their 22-year-old son, Peter, stayed at home. Elizabeth did not have a driver’s license at the time, nor had she begun driving instruction. By 9 p.m., at least seven of Elizabeth’s friends were visiting the Morich home. Elizabeth took her mother’s keys to the family Chevy Blazer from a shelf behind the stove in the kitchen, started the vehicle, and drove forward and backward in the driveway. She then drove onto the city streets, first around the block and then to a friend’s house to get a jacket. Next, she drove to the drugstore to buy a soft drink. The store was roughly IV2 miles from the Morich home.

She returned from the store and pulled into the driveway. While doing so, she noticed her friend Julia Bishop sitting next to the driveway with her back to the family storage shed. Elizabeth’s foot slipped off the brake and onto the accelerator. The vehicle struck Julia Bishop, pushing her through the wall of the storage shed. She was severely injured in the accident.

The following undisputed facts are of record: (1) Elizabeth, Donald, and Margaret Morich testified that Elizabeth was not given permission to drive any of the Moriches’ cars on the day of the accident; (2) they each testified that Elizabeth had never before that day been given permission to drive the Moriches’ cars on the city streets; (3) Donald Morich testified that Elizabeth had not been told that she could not drive the car on the night of the accident; (4) Elizabeth and Margaret Morich testified that Elizabeth previously may have started and moved the car in the driveway in order to wash it; (5) Margaret Morich testified that on occasion Elizabeth would start the car on cold mornings to warm it up; and (6) keys to the car were regularly left on an open shelf behind the stove in the Moriches’ kitchen.

Summary judgment is justified when there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ralls v. Village of Glendale Heights (1992), 233 Ill. App. 3d 147, 598 N.E.2d 337; Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c) (now codified as 735 ILCS 5/2 — 1005(c) (West 1992)).) Appellate review of an order granting summary judgment is de novo. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 607 N.E.2d 1204.) Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Outboard Marine Corp., 154 Ill. 2d at 102.

“A person may be liable for negligent entrustment of an automobile where that person entrusts an automobile to one whose incompetency, inexperience or recklessness is known or should have been known by the owner or entrustor of the automobile.” (Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 783, 544 N.E.2d 804, 807.) Like the court in Kosrow, we believe the negligent entrustment alleged in this case can be equated with permission. Kosrow, 188 Ill. App. 3d at 784; see Restatement (Second) of Torts §308 (1965); Bensman v. Reed (1939), 299 Ill. App. 531, 533, 20 N.E.2d 910 (“The permission of the owner sets in motion one of the agencies which makes possible the commission of the negligent act”).

Permission may be either express or implied. (See, e.g., Lumbermen’s Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 243 N.E.2d 40.) Because the parties agree the Moriches did not give Elizabeth Morich express permission to drive their car on the day of the accident, the plaintiff’s case rests on the allegation of implied permission. A definition of implied permission is difficult to fashion. (See Standard Mutual Insurance Co. v. Sentry Insurance of Illinois, Inc. (1986), 146 Ill. App. 3d 905, 909, 497 N.E.2d 476, 479 (“Implied permission exists where there is an inference or circumstances arising out of a course of conduct or a relationship between the parties whereby there is mutual acquiescence or lack of objection under circumstances that generally would indicate permission”).) Generally, implied permission can be inferred from a course of conduct of the parties, their relationship, or from the behavior of the parties in specific circumstances. Examples of where courts have found implied permission help to flesh out the concept: Great Central Insurance Co. v. Harris (1977), 46 Ill. App. 3d 542, 360 N.E.2d 1151 (inference of implied permission for mechanic to drive gas station customer’s car because of the mechanic/customer relationship); Country Mutual Insurance Co. v. Bowe (1973), 13 Ill. App. 3d 386, 300 N.E.2d 274 (implied permission for college roommate to use car where it was previously used without permission); and Casey v. Fortune (1947), 78 Cal. App. 2d 922, 179 P.2d 99 (implied permission for son to drive mother’s car where evidence showed it was driven before and where keys were left easily obtainable).

We believe no reasonable person could infer from the undisputed facts here that Elizabeth Morich had implied permission to drive her parents’ car on the day of the accident. This is not a case where Elizabeth had previously been given express permission to drive the car on the streets, or where the Moriches knew she would drive and failed to object. As for Elizabeth’s other uses of the car, we cannot conclude that to allow an underage daughter to start the car on cold mornings or move the car in the driveway in order to wash it implies permission to drive on the streets on some later date when her parents are not home. Similarly, under the circumstances of this case, leaving car keys where a teenager can get them does not imply permission to use them.

The general rule in Illinois is that parents are not liable for the torts of their minor children merely because of the parent-child relationship. (Allstate Insurance Co. v. Pruitt (1988), 177 Ill. App. 3d 407, 532 N.E.2d 401.) Parents may be found liable, however, if they fail to adequately control or supervise their children. (See Restatement (Second) of Torts §316 (1965).) To establish negligent parental supervision, the plaintiff must show: (1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur, and (2) the parents had the opportunity to control the child. Barth v. Massa (1990), 201 Ill. App. 3d 19, 558 N.E.2d 528.

The record reveals no specific instances of prior conduct on the part of Elizabeth Morich sufficient to put her parents on notice that Elizabeth was likely to drive their car on the night of the accident. She had limited access to the car on previous occasions, had never driven on the street before, and had never indicated that she had an interest in driving on the street.

We turn to the second issue: whether the trial court abused its discretion when it rejected the motion for reconsideration and rehearing based on newly discovered evidence. The plaintiff alleged the defendants wrongfully withheld information when they failed to inform the plaintiff in the course of discovery of statements made by Margaret Morich and occurrence witness Kyle Hamill to the Moriches’ automobile liability insurance carrier.

To justify a hearing based on new evidence, the plaintiff must show due diligence in discovering the evidence and demonstrate the evidence is so conclusive that it would probably change the result. (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 467 N.E.2d 962.) The plaintiff’s argument fails both tests. The plaintiff admitted in an interrogatory that she knew Kyle Hammill’s name and address as early as November 21, 1990. The plaintiff was put on notice that Margaret Morich made a statement to her auto insurance carrier in Mrs. Morich’s deposition taken on March 19, 1991. The defendants moved for summary judgment on July 26, 1991, and the motion was granted after a hearing on November 5, 1991. At no time before or during the hearing did the plaintiff file a motion to compel discovery compliance or a Rule 191(b) affidavit alleging that information relevant to the summary judgment motion existed which the plaintiff was unable to obtain. (134 Ill. 2d R. 191(b).) The plaintiff did not file a Rule 191(b) affidavit until December 4, 1991, and did not file a motion to compel production of statements made by the defendants until March 26, 1992. We find such a delay in bringing this matter before the court unwarranted and not in compliance with the due diligence requirement.

Second, the plaintiff did not show the “new” evidence to be so conclusive that it probably would change the result of the summary judgment motion. The trial judge concluded that the affidavit of Kyle Hammill added nothing to the plaintiff’s opposition to the summary judgment motion. Further, the plaintiff possessed Margaret Morich’s statement to her homeowner’s insurance carrier and her deposition. The plaintiff alluded to nothing in Morich’s statement to her automobile insurance carrier which was likely to change the result of the summary judgment motion. Thus, the standard is not met, and we defer to the discretion of the trial court.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER HAYWOOD, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—1642
    Opinion filed July 9, 1993.

      Rita A. Fry, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Jane Liechty Loeb, and Daniel M. Rabinovitz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Christopher Haywood, of the first degree murder of Dion Johnson; he was sentenced to 22 years’ imprisonment. He contends that he was denied a fair trial because of introduction of improper evidence, improper argument by the State and an improper instruction. He does not contend that the evidence failed to establish his guilt beyond a reasonable doubt.

On March 9, 1990, at 7 a.m. Guido Collona, a Chicago police officer, went to 610 North Ridgeway in Chicago in response to a call. He discovered the body of Dion Johnson lying face down in the rear of a gangway near the backyard of the building. He observed blood spots on the ground leading from the body into the backyard and a great amount of blood in the backyard. Near the high concentration of blood in the backyard, Collona observed a wooden stick, approximately two feet by four feet with blood on it and a plastic bag with several bags inside. The smaller bags contained a white powder which tests later proved to be .6 gram of cocaine. The large plastic bag had blood spots on it. The blood on the bag was never tested for comparison purposes. None of the bags was tested for fingerprints.

It appeared to Collona that Johnson had been shot in the backyard, lost a great amount of blood, and moved to the gangway, where he died. An autopsy revealed that death was caused by a gun shot; the bullet travelled through the right front of Johnson’s neck and was recovered from the back of Johnson’s spine. A blood analysis revealed the presence of cocaine in the amount of .36 microgram per milliliter of blood.

The police investigation initially focused on Cornelius Sturkey and Kevin Marshall, who led the police to the defendant.

Kevin Marshall, who was 23 years old at the time of trial, had been a friend of the defendant for eight years. On the night of March 8, 1990, he was at the Raddison playlot at Lawndale and Ohio Streets. Marshall had a conversation with someone, and then walked down Ohio Street. He saw Cornelius Sturkey, whom he had known for 15 years. Marshall also saw the defendant, a man named “Calvin,” “a dude named Pete,” and “Peanut” looking through gangways. When Marshall joined them in searching through the gangways, they all went around to an alley behind a building on North Ridgeway Street. At that time, “Randy” joined the group. After looking through about four gangways for about 5 to 10 minutes, they saw a man charging out of the gangway. Someone exclaimed, “I see him, his jacket or something.” The group was at the dead end gangway located at 610 North Ridgeway. Marshall was standing approximately 10 to 15 feet from the defendant and Cornelius Sturkey was about 10 feet from Marshall. Marshall testified that the defendant had pulled a gun from his pants and was waving it. He saw the man, later identified as Dion Johnson, whom Marshall knew, run from the gangway; he then heard two rapid shots from the defendant’s gun, which was pointed at Johnson. The defendant was about 8 to 10 feet from Johnson when he fired the shots. Before Johnson was shot, Marshall saw nothing in his hands.

After the defendant shot twice, everyone ran except “Peanut,” who was later identified as the defendant’s uncle. Peanut hit Johnson twice with a stick around the shoulder and neck area and head. Marshall did not see Johnson with any weapon. Marshall also testified that he saw the defendant one or two days after the shooting and told him, “I said I wasn’t going to take the heat. If the heat come down on me, I have to tell the truth about it.” The defendant responded, “Just don’t talk about it.”

Marshall did not speak to the police until one month after the shooting, when the police came to see him. He testified that he did not tell the police that the defendant exclaimed, “Give it up” before Johnson was shot. A police officer later testified that Marshall did make that statement.

Cornelius Sturkey, 28 years old at the time of trial, had known the defendant since he was a “young guy.” He also knew Peanut, the defendant’s uncle, and “Randy,” who he thought was the defendant’s brother or nephew. On March 8, Sturkey was walking north on Lawn-dale from his mother’s house when he met the defendant, Pete, and Calvin. (Calvin and Pete were not further identified.) The defendant told Sturkey that someone had “just stuck him up.” The group walked down Ohio Street toward Ridgeway when Sturkey saw Marshall. The entire group then began to look for the man who had robbed the defendant and began to search the alley between Ridge-way and Hamlin. While they were looking in the alley between 610 and 612 Ridgeway, someone said, “There he is. There he is.” Johnson came running out of the gangway. At this time the group was composed of the defendant, “Pete, Little Pete, Randy, Calvin, Sturkey and Marshall.” When Johnson was sighted, the defendant was in the yard of 612 North Ridgeway. Sturkey was about 10 feet from the defendant. After Sturkey heard someone say, “There he is,” Sturkey saw the defendant with a gun. He testified that the defendant shot at Johnson maybe once or twice.

On cross-examination, Sturkey testified that Johnson did not have anything in his hands and did not shoot at the defendant. He did not hear anything before the shot and was not sure whether the defendant said, “Give it up,” before he fired the shots.

The defendant testified that he was playing basketball at the Ryerson playground on March 8, 1990, at approximately 11:45 p.m. On the way to his grandmother’s house, he was approached by Johnson, who had a gun. Johnson told him to “stick it up” and demanded all of the defendant’s money. Johnson patted down the defendant and told him to pull out all his pockets. When the defendant said that he had no money, Johnson said that the defendant was lying and hit him in the head with the gun. He instructed the defendant to turn around; 10 seconds later the defendant looked over his shoulder and saw that Johnson had gone. He then ran to his grandmother’s house and retrieved a basketball and a gun from the back shed. He returned to the playground to warn his friends.

On the way to the playground, the defendant saw his brother Brandon, Willie Joiner, Sturkey, Marshall, and Kevin Grenshaw. They were searching for the “guy who had just stuck up Willie Joiner.” When the group reached 610 N. Ridgeway, the defendant saw Johnson. The defendant removed the gun from his pocket and held it as the group approached the gangway. The defendant yelled, “Give up.” Johnson came running out of the gangway. The defendant saw Johnson’s hands “coming out of his pocket,” and the defendant thought Johnson had the same gun in his hand that he used to strike the defendant earlier. The defendant testified that he fired his gun once and ran.

On cross-examination, the defendant admitted that he told an assistant State’s Attorney that he was not present when the shooting took place and learned of the shooting through the news media. He never told the police or the State’s Attorney of the version of events that he testified to at trial, nor did he ever report the earlier incident with Johnson. He disposed of the gun in a garbage can on the street and never notified the police. He did not remember whether his uncle, Peanut, was there, and he did not remember whether Peanut hit the deceased.

By stipulation it was established that Johnson was convicted in 1977 for aggravated battery and received five years’ probation and six months’ imprisonment. In 1977, he was convicted of attempted murder and received a sentence of four to eight years’ imprisonment. In 1987 he was convicted of robbery and received a sentence of three years' imprisonment.

The defendant first contends that he was denied a fair trial by the introduction of a package of cocaine found near Johnson’s body and the prosecutor’s argument that the defendant killed Johnson because Johnson had stolen the defendant’s cocaine.

Before trial, the defendant filed a motion in limine to prevent Kevin Marshall from testifying about his statement to the police that Johnson purchased cocaine from the defendant about 45 minutes before the shooting. The prosecutor agreed that Marshall would not testify about the alleged sale. The judge made remarks which we construe to mean that she would allow evidence of narcotics if the State could show that the motive for the killing involved narcotics.

During opening statement the State told the jury that Johnson robbed the defendant of his “coke,” and that the defendant “flagged down his buddies” and told them that Johnson had robbed him. He repeated that the defendant killed “that person who took his dope.”

After the State rested, the prosecutor asked that the bag of cocaine be admitted into evidence. The defendant’s attorney objected and argued that the drugs were irrelevant because the State had not made any connection between the bag of cocaine and the defendant. The defendant’s attorney also requested a mistrial because, he alleged, the State had injected evidence of other crimes into the case without any connection between the other crime and the defendant. The prosecutor argued that the drugs were proper circumstantial evidence tending to prove a motive. The defendant's attorney reminded the judge that the only reason she denied the motion in limine was because the prosecutors promised that they would make a showing that the drugs were linked to the shooting. The judge admitted the cocaine into evidence but reserved her ruling as to whether the drugs would go back to the jury room. (The record does not disclose any ruling later on whether the drugs went to the jury.)

During closing argument the prosecutor repeatedly referred to the defendant’s motive for killing Johnson:

“His life was snuffed out because he snatched a bag of coke. He was traced down and cornered into a dead end alley and shot by the defendant for six-tenths of a gram of cocaine.”

The judge sustained the defense attorney’s objection. The prosecutor continued:

“The victim was a bad person. He was convicted of numerous crimes. He had been to the penitentiary and he was stealing the dope which got him into this in the first place.”

Again the judge sustained a defense objection.

In spite of those rulings, the prosecutor continued:

“We know that his motive has been established, and his motive was explained by circumstantial evidence. *** What is the circumstantial evidence in this case? Well, the victim died clutching a bag of cocaine, and the blood was on the bag. And when the defendant then said, ‘Give it up,’ what do think the defendant was referring to? Surrender. Here we are the police force. ‘Give it up. Come out with your hands up. Give it up.’ Refers to the cocaine that the victim died for. That is what the circumstantial evidence is in this case, and that is why the defendant chased the victim into the gangway.
* * *
What did he die with? The cocaine in his hands. That is why the victim was killed.”

In rebuttal the prosecutor again explained the cocaine’s significance to the jury:

“[U]se your common sense. *** How often do you think people flag down a police officer and tell him the proceeds of an armed robbery or they were robbed of cocaine? [Objection overruled.]
* * *
You think that packet of cocaine would still be sitting there if somebody rifled the gun? Of course not. That cocaine is left there, ladies and gentlemen, to tell you what happened. ***
We know the kind proceeds that were supposedly taken in this supposed robbery. But he didn’t take something like cash, like a watch.”

We note first that there was no evidence to support the prosecutor’s argument that Johnson was “clutching” a bag of cocaine or that the “cocaine was in [Johnson’s] hands.” But we need not make an issue of those misstatements, because whether the circumstantial evidence is sufficient to connect Johnson and the cocaine, which the State argues at considerable length, is not the issue. The issue is whether the evidence establishes a connection between the cocaine and the defendant. The issue refined, therefore, is whether the evidence establishes that the defendant at one time possessed the cocaine and that Johnson robbed him of it. Proof that the defendant possessed cocaine, of course, is proof of another crime, and proof that a defendant committed another crime is always admissible if it establishes a motive for the crime for which the defendant is being tried. Proof of another crime need not be beyond a reasonable doubt, but it must be more than such that creates mere suspicion. People v. Nearn (1988), 178 Ill. App. 3d 480, 533 N.E.2d 509.

The State maintains that it has established that the defendant possessed the cocaine and that Johnson robbed him of it by circumstantial evidence. That circumstantial evidence is (1) the defendant told Sturkey that someone had robbed him; (2) Johnson was seen and identified as the robber; (3) cocaine was found near Johnson’s body; and (4) the defendant told Johnson, “Give it up.” The State stresses this last circumstance and maintains that when the defendant yelled, “Give it up,” the “it” was the “cocaine.”

At this point it is necessary to clarify the record. In its brief the State makes the following statement:

“On cross-examination, Detective Keane testified that after defendant was given his Miranda rights, defendant admitted that he shot the victim twice with a handgun, and that immediately prior to the shooting defendant yelled, ‘Give it up.’ ”

That statement is incorrect; the defendant made no such statement to Keane. The part of the record to which the State refers reflects the following in the cross-examination of Officer Keane:

“Q. And isn’t it a fact Kevin Marshall told you that immediately prior to the shooting Christopher Haywood yelled, ‘Give it up’ and then, Chris fired at the victim twice with a handgun just as the victim reached the northwest comer of the building?
A. If I recall correctly, yeah, that’s what he said.” (Emphasis added.)

Marshall denied ever making that statement to the police. Sturkey testified that he did not hear anything before the shot and was not sure whether the defendant said, “Give it up,” before he fired the shots.

But even if we accept the State’s contention that the defendant had said, “Give it up,” before he fired the shots, we judge that the State’s circumstantial evidence falls far short of that required to establish that the defendant possessed the cocaine and that Johnson stole cocaine from the defendant. We further judge, therefore, that it was error to introduce the cocaine found near Johnson’s body, but it was a more serious error for the State to argue that Johnson had robbed the defendant of the cocaine and that the robbery by Johnson was the motive for the killing. The State’s evidence was “simply too slim a thread upon which to tie the State’s theory of motive.” People v. Smith (1990), 141 Ill. 2d 40, 59, 565 N.E.2d 900.

We agree with the defendant that the judge’s rulings were inconsistent. We see nothing wrong with the judge’s pronouncement before she heard the evidence that she would permit a reference to narcotics, if the State could prove that narcotics formed part of the motive. After she made that ruling, we can understand why the defendant’s attorneys did not object to the prosecutor’s remarks in opening statement. They properly assumed that the State would connect the defendant to the narcotics. But we do not understand why the judge permitted the cocaine to be introduced into evidence after the State rested and failed to establish a motive. However, if she felt that the State had properly proved motive, we do not understand why she twice sustained defense objections to the prosecutor’s arguments that the defendant killed Johnson because Johnson had robbed him of cocaine. Those rulings were correct. The prosecutor, nothing daunted, ignored those rulings and persisted in what we now know to be an improper argument.

We further judge, contrary to the State’s argument, that the error was not harmless beyond a reasonable doubt. One part of the State’s closing argument could be construed to be a suggestion that the defendant was a drug trafficker. We believe that the evidence of narcotics and the State’s erroneous theory based on that improper evidence was so inflammatory that it deprived the defendant of a fair trial. Consequently, we must reverse this conviction and remand the case for a new trial. It is unfortunate that we must do so, because the evidence, although not overwhelming on the issue of self-defense, concededly was sufficient to convict and it was unnecessary for the State to introduce the evidence and argue the theory that it did. The State could justifiably have argued that the motive for the killing, based on what the defendant told Sturkey, was the fact that Johnson had simply robbed him. There was no necessity to bring in narcotics.

We need not address other allegedly improper arguments by the prosecution in determining whether the defendant is entitled to a new trial. Suffice it to say that we expect that when this case is retried the prosecutor will not misstate the evidence as to the extent of Johnson’s injuries. He told the jury that Johnson’s brains were “crushed.” The evidence was that there were two abrasions on Johnson’s forehead. We also expect that the prosecutor will refrain from statements like the ones in which he told the jury that after hearing the defense attorney's argument he "could puke” and that the jury must tell the defendant, “[Y]ou can’t pull that kind of crap in this city.” Such remarks have no place in any trial.

The defendant also contends that the judge improperly instructed the jury on an aggressor’s limited right of self-defense. We have considered the authorities cited by both sides and have determined that no error occurred in the court’s instructions.

For these reasons, the judgment of the circuit court is reversed and the case remanded for a new trial.

Reversed and remanded.

McNAMARA, P.J., and GIANNIS, J., concur.


text:
    JOHN CANNON et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 91—3861
    Opinion filed July 9, 1993.

      Alexander, Fennerty & Green and Michael R. Panter & Associates, both of Chicago, for appellants.
    Lord, Bissell & Brook (Hugh C. Griffin and Sandra K. Macauley, of counsel) and Hoffman, Burke & Bozick (Gary W. Bozick and David L. King, of counsel), both of Chicago, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, John Cannon and Viola Cannon, appeal from an order dismissing their complaint for personal injury against the defendant, Commonwealth Edison Company (Edison). The issue is whether the plaintiffs pleaded facts which establish that the defendant’s acts were the proximate cause of the plaintiffs’ injuries.

According to the five-count complaint, on December 20, 1990, there was an electrical power outage in the residential area where the plaintiffs resided. The plaintiffs’ home was without electricity from 2:14 p.m. to 3:05 p.m. It was alleged on information and belief that the cause of the “blackout” was “a lightning arrester which malfunctioned in an unknown manner.” Edison owned the lightning arrester and provided the electricity to the plaintiffs’ home.

The blackout “caused [John Cannon] to descend to his basement in an attempt to ascertain the cause of loss of electrical power to his dwelling.” While Cannon was “descending to his basement,” he fell down a flight of steps and was seriously injured. John Cannon is a quadriplegic because of the fall.

The first count of the complaint is labeled “negligence,” and alleges that by failing to fulfill its duty to maintain the lightning arrester, Edison directly and proximately caused Cannon’s injuries. Count II, titled “breach of statutory duties,” alleges that Edison negligently failed to comply with sections 8 — 101 and 8 — 401 of the Public Utilities Act. (Ill. Rev. Stat. 1989, ch. 111zk, pars. 8 — 101, 8 — 401.) The third count is titled “res ipsa loquitur” and alleges that when the doctrine of res ipsa loquitur is applied, it is clear that Edison’s actions proximately caused the plaintiffs’ injuries. Count IV is labeled “product liability” and alleges that Edison’s provision of “the product of electricity” was defective, unreasonably dangerous, and the proximate cause of the plaintiffs’ injuries. Count V alleges that Viola Cannon was and will be damaged by Edison’s actions through a loss of consortium.

Edison’s motion to dismiss, brought under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), alleged that all five counts of the complaint should be dismissed because there was no factual assertion in any of the counts that would establish a proximate cause between Edison’s actions and the plaintiffs’ injuries. Edison also contended that counts III and IV should be dismissed on alternative grounds. The judge dismissed all five counts of the complaint with prejudice.

We agree with the defendant that if count I should be dismissed on the ground advanced by the defendant, all the counts should be dismissed on the same ground. Consequently, we will first consider count I. Count I is a general negligence claim. To state a cause of action for negligence, “a complaint must allege facts sufficient to show the existence of a duty, a breach of that duty, and injury to the plaintiff which is proximately caused by that breach.” (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108.) Although the parties’ arguments and the cases cited tend to blur the distinctions between duty and proximate cause, we judge that the focus of the arguments has been on proximate cause.

Proximate cause “is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause.” (Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 1078, 537 N.E.2d 1146.) To establish proximate cause, a “plaintiff must demonstrate with reasonable certainty that defendant’s negligent acts caused his injuries.” (Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 152, 509 N.E.2d 1295.) Proximate cause generally is a question of fact, but “where the facts alleged indicate that a party would never be entitled to recover” (Mohrdieck v. Village of Morton Grove (1981), 94 Ill. App. 3d 1021, 1023, 419 N.E.2d 517), proximate cause “can *** become a question of law” (Johanek, 157 Ill. App. 3d at 152). See also Bogovich v. Nalco Chemical Co. (1991), 213 Ill. App. 3d 439, 572 N.E.2d 1043.

Edison relies on several cases that stem from a 1942 Illinois Supreme Court case, Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665. In Merlo the supreme court explained that “if the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury.” (Merlo, 381 Ill. at 316.) This expression of the law has been identified as a “ ‘cause vs. condition’ analysis.” Novander, 181 Ill. App. 3d at 1078.

Merlo has been applied in a long line of cases, e.g., Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662, 288 N.E.2d 233; Ferguson v. Southwestern Bell Telephone Co. (1972), 8 Ill. App. 3d 890, 290 N.E.2d 429; Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 493 N.E.2d 372; Bogovich v. Nalco Chemical Co. (1991), 213 Ill. App. 3d 439, 572 N.E.2d 1043; and Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 583 N.E.2d 561.

The plaintiffs contended in their briefs that Merlo is outdated because it was decided during the time of contributory negligence in Illinois, that it has been rejected by some appellate districts, and, therefore, should be rejected by this court. For reasons we will explain later, we are not certain whether the plaintiffs have abandoned their criticism of Merlo. Consequently, we will consider the argument raised in their briefs.

The plaintiffs relied on DiBenedetto v. Flora Township (1991), 219 Ill. App. 3d 1091, 580 N.E.2d 647, and Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, 459 N.E.2d 1131. In DiBenedetto, the trial judge dismissed a complaint on the ground that the plaintiff failed to allege an enforceable duty on the part of the defendant and failed to allege that the acts of the defendant were the proximate cause of the plaintiffs’ injuries. The appellate court reversed and remanded for a trial. Relying on Michalak, the appellate court expressed what we construe to be views questioning the viability of the “cause vs. condition” doctrine after the adoption of the doctrine of comparative negligence in Illinois in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886:

“As pointed out (see Michalak, 121 Ill. App. 3d at 578) under the common-law doctrine of contributory negligence, the concept of remote cause or condition as part of the proximate cause analysis prevented the injustice that would result if an actor who created a condition of injury were liable for the full measure of damages even for acts remotely connected with the injury. With the adoption of comparative negligence in Illinois, the harsh effects of denying any recovery to an injured plaintiff were ameliorated when the superseding negligence of the defendant nullified the negligence of the plaintiff. Therefore, the need is diminished for a policy which protects the remotely negligent defendant from liability for the full measure of damages or for a policy that ameliorates the harsh effects of contributory negligence of the plaintiff. Cognizant of the changes wrought by the adoption of the doctrine of comparative negligence, courts have been less willing to label an actor’s conduct as a remote cause or condition of injury.” (DiBenedetto, 219 Ill. App. 3d at 1100.)

Neither DiBenedetto nor Michalak mentioned Merlo, although Michalak cited Briske v. Village of Burnham (1942), 379 Ill. 193, 39 N.E.2d 976, which was cited in Merlo.

The supreme court in DiBenedetto reversed the appellate court, holding that the facts alleged in the complaint would not support a finding that the plaintiff’s injuries were proximately caused by the actions of the defendant. (DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 605 N.E.2d 571.) The supreme court did not mention Merlo or the doubts expressed by the appellate court over the viability of the “cause vs. condition” doctrine. We note parenthetically that the majority opinion in DiBenedetto was written by Justice Heiple, who coined the expression “cause vs. condition” in Novander v. City of Morris. Justice Heiple also participated in Michalak. To us, this strongly indicates that the supreme court still adheres to the doctrine enunciated in Merlo. In addition, we believe there is ample other authority rejecting the plaintiffs’ claim that adoption of the comparative negligence doctrine has had some effect on the traditional causation doctrine in negligence cases.

In Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 144, 554 N.E.2d 223, the supreme court said: “In Dunn (v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738], we recognized that the advent of comparative negligence did not affect the basic duty a defendant owes a plaintiff in negligence cases.” Similarly, in Benner v. Bell (1992), 236 Ill. App. 3d 761, 602 N.E.2d 896, in a thorough and scholarly discussion of the applicable law and conflicting theories, the Appellate Court, Fourth District, held that the doctrine of comparative fault should not change our views of the traditional doctrine of proximate cause:

“It has been suggested that the advent of comparative fault should change our views on conduct which can only remotely be considered to have caused an injury, i.e., that a remote cause can now appropriately be charged with some slight percentage of liability. [Citations.] That suggestion seems inconsistent with the basic concept of negligence, that a person need not foresee consequences which are highly unlikely to occur, and was apparently rejected in Ward (136 Ill. 2d at 145, 554 N.E.2d at 229 (‘We hold therefore that the adoption of comparative negligence in this State has no effect on the basic duty a defendant owes to a plaintiff’)).” Benner v. Bell, 236 Ill. App. 3d at 767-68.

After the briefs were filed in the case before us but before oral argument, the supreme court reversed DiBenedetto. In oral argument, the plaintiffs’ attorney apparently abandoned the argument that we should reject Merlo. Instead, he now argues that Merlo is applicable only when there are two or more tortfeasors. He does not cite any case so holding; he does not advance any logical reason why application of Merlo should be so restricted; and the DiBenedetto case itself involved only one tortfeasor. For these reasons, we believe the doctrine is applicable to the facts of this case.

The plaintiffs argue that the determination of proximate cause in this case should be left to a jury and maintain that all of Edison’s cases are distinguishable because they were decided after trial. The plaintiffs are mistaken. The issue of “cause vs. condition” may be and has been decided as a matter of law. See, e.g., West v. Deere & Co. (1991), 145 Ill. 2d 177, 582 N.E.2d 685 (summary judgment); Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 583 N.E.2d 561 (section 2 — 619 motion); Bogovich v. Nalco Chemical Co. (1991), 213 Ill. App. 3d 439, 572 N.E.2d 1043 (summary judgment); Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 560 N.E.2d 974 (unidentified motion to dismiss); Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 537 N.E.2d 1146 (unidentified motion to dismiss); Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 493 N.E.2d 372 (summary judgment).

The elements of proximate cause and duty are separate, but it is sometimes difficult to separate the two concepts. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738.) But the issues are not completely separate, and the same policy considerations apply in determining whether a duty existed and whether proximate cause has been established. Foreseeability is a factor in determining both duty and proximate cause. (Benner v. Bell (1992), 236 Ill. App. 3d 761, 602 N.E.2d 896.) Foreseeability is an element because, if an accident is reasonably foreseeable, a party is charged with responsibility to take reasonable steps to avoid the accident. To say that Edison must foresee every accident that may arise every time electric power is lost is to impose upon it an insuperable burden. No amount of foresight would have permitted Edison to take reasonable steps to prevent what occurred in this case.

We conclude that the trial judge properly determined the proximate cause issue as a matter of law and properly held that the plaintiffs had failed to allege facts which would support a finding that the actions of Edison proximately caused the plaintiffs’ injuries. Accepting the allegations of the complaint as true, the plaintiffs have established that Edison created a condition, the blackout, that made the plaintiff’s fall possible. The complaint shows that after the power went off, John Cannon voluntarily began the descent into his basement. His own act of walking down the stairs, whether or not he used a light or a guard rail, caused his fall and injuries, not the blackout. The blackout was a condition present at the time of the injuries and might have made those injuries more possible but was not, as a matter of law, the proximate cause of the injuries where Cannon’s own actions served as a superseding cause. Because we hold that the plaintiffs have failed to plead sufficient facts to establish proximate cause in any of the counts of the complaint, we hold that the judge properly dismissed the entire complaint. In view of our holding, it is unnecessary for us to consider the other reasons the judge dismissed some of the counts of the complaint.

The judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and GIANNIS, J., concur.


author: JUSTICE O’CONNOR

text:
    JAMES McCORMICK, Plaintiff-Appellant, v. V.S. UPPULURI, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 92—1489
    Opinion filed July 12, 1993.
    Rehearing denied August 17, 1993.
    Thomas L. Trinley, of Chicago, for appellant.
    Ruff, Weidenaar & Reidy, Ltd., of Chicago (Douglas C. Rose, Paula M. Carstensen, and John J. Reidy, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff James McCormick appeals from a final order of the circuit court of Cook County which granted defendant V.S. Uppuluri’s motion for summary judgment. The sole issue on appeal is whether the circuit court properly found that plaintiff’s suit was untimely as a matter of law under the two-year medical malpractice limitation provision of the Illinois Code of Civil Procedure (the Code) (see Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). We affirm.

On September 20, 1988, plaintiff filed the instant action against defendant. Plaintiff alleged negligence in defendant’s treatment of a kidney obstruction during plaintiff’s September 30 through October 13, 1984, admittance at Ingalls Memorial Hospital (Ingalls). Plaintiff alleged that defendant’s negligence proximately caused his right kidney to become nonfunctional, which plaintiff had removed in March 1985.

Defendant denied the material allegations of plaintiff’s complaint and asserted section 13 — 212 of the Code as an affirmative defense. Defendant subsequently moved for summary judgment based on this section of the Code. Defendant predicated his motion on the fact that plaintiff had filed on August 1, 1985, a similar medical malpractice action against Northwestern Memorial Hospital; nine doctors who practiced there; Ingalls; and Drs. Shaw and Lipschutz, who treated plaintiff while at Ingalls. Defendant was not named in this prior suit.

Like plaintiff’s 1988 lawsuit, the 1985 action against Ingalls and Drs. Shaw and Lipschutz was predicated on plaintiff’s September 30 through October 13, 1984, stay at Ingalls. Both actions alleged negligence and the loss of the same right kidney. Plaintiff voluntarily dismissed the 1985 action on May 14, 1987. It has not been refiled.

Defendant argued in his motion that plaintiff, at the latest, knew of his injury and that it was wrongfully caused on August 1, 1985, the date he filed the earlier lawsuit. Accordingly, plaintiff had two years from this date in which to sue defendant. Having not so instituted suit, plaintiff’s 1988 action against defendant was time barred as a matter of law.

Defendant in his motion made the additional argument that the limitations clock began ticking against plaintiff even before he filed the 1985 action. Defendant asserted that shortly after having lost his kidney in March 1985, plaintiff knew or should have known that this loss was wrongfully caused. In his deposition, plaintiff testified that, following the loss of his kidney, he believed that something had gone wrong with his treatment at Ingalls. Plaintiff testified that he made inquiries about this prior treatment to the doctor who removed his kidney. In the summer of 1985, plaintiff even consulted with an attorney and received his medical records from Ingalls. Defendant’s name was included in these records. Plaintiff thereafter filed the 1985 action. Based on these facts, defendant asserted that the limitations clock began ticking on the date plaintiff’s kidney was removed or shortly thereafter.

In his memorandum in opposition to defendant’s motion for summary judgment, plaintiff asserted that a genuine issue of material fact existed on the issue of when he first learned, for limitation purposes, the fact that he had a cause of action against defendant. Plaintiff related the following facts in support of his claim.

In 1975, plaintiff became a quadriplegic and lost control of his bladder as a result of an automobile accident. Plaintiff is required to use a catheter at all times.

Following the accident, plaintiff received ongoing care at Northwestern Memorial Hospital. Plaintiff would submit a urine sample every six months. In 1981 and 1983, he was hospitalized at Northwestern to have bladder stones crushed. In December 1983, plaintiff was admitted a third time to Northwestern to have right kidney stones removed. Plaintiff testified that his kidneys functioned properly after his release. He was feeling pretty good.

On September 30, 1984, plaintiff was rushed to Ingalls and admitted there. A diagnosis of septic shock was made. He was released October 13,1984.

On February 14, 1985, plaintiff was admitted to University of Chicago Hospitals, where it was determined that his right kidney was nonfunctioning. The kidney was removed during this hospitalization. In his deposition, plaintiff testified that his treating physician told him, in response to plaintiff’s inquiry as to why he lost his kidney, that the kidney loss was from “a calcium build-up and these things occur.” Plaintiff still believed, however, that something perhaps had gone wrong at Ingalls which he did not know about. Plaintiff thereafter filed the earlier suit on August 2, 1985.

Plaintiff was represented by at least two different attorneys in the 1985 lawsuit: Michael McArdle and Thomas Trinley. In November 1985, McArdle wrote plaintiff, informing him that he would have to withdraw. McArdle explained in this letter that, in his opinion, “there was no clear evidence of malpractice involved in the handling of Mr. McCormick’s case, including acts or omissions at In-galls Memorial Hospital by agents of that hospital or by staff physicians.”

On February 16, 1987, Trinley filed his appearance in the 1985 lawsuit. Trinley thereafter filed a motion for a continuance or in the alternative a motion for voluntary dismissal. In this motion, Trinley explained that he was awaiting an expert medical evaluation of plaintiff’s case. On May 14, 1987, the 1985 lawsuit was voluntarily dismissed without prejudice.

On June 26, 1987, Dr. Michael Floyd opined in a written opinion that defendant “departed from good and accepted practice by failing to deal with the obstruction of [plaintiff’s] right kidney or make specific and urgent plans to do so.” Trinley attached this opinion to the September 20, 1988, lawsuit he filed on plaintiff’s behalf against defendant. In an affidavit, plaintiff asserted that “[t]his was the first time that he came into possession of the knowledge that his injuries had been wrongfully caused by the aforesaid defendant.”

Based on the facts stated above, plaintiff asserted that he did not discover the existence of an action against defendant until he received the June 26, 1987, opinion of Dr. Floyd. Thus, asserts plaintiff, he had two years from this date to file his action against defendant. Plaintiff contends that the September 20, 1988, lawsuit complied with this time requirement, as well as section 13 — 212’s requirement that his action be instituted within four years of the occurrence (plaintiff was discharged from Ingalls on October 13, 1984).

Defendant filed a reply to plaintiff’s memorandum in opposition. In this reply, defendant attached as an exhibit McArdle’s January 16, 1986, motion to withdraw from the 1985 lawsuit. In this motion, McArdle asserted that “[p]laintiff has a viable cause of action against the within named defendants and this matter should be continued to afford him an opportunity to prepare his case by appropriate representation.” Defendant argued that this statement to the court directly contradicted McArdle’s affidavit in which McArdle asserts he told plaintiff in November 1985 that “there was no clear evidence of malpractice.”

Defendant also submitted in his reply copies of interrogatory answers filed by plaintiff in the 1985 action. In response to an In-galls interrogatory, plaintiff identified on April 6, 1987, “the Medical Quality Foundation” and “Dr. Jacob” as “physicianfs] who had informed the plaintiff *** that .this defendant [Ingalls], by or through its employees or agents, negligently injured the plaintiff.” Defendant argued that this response undermined plaintiff’s claim that McArdle and his doctors somehow misled him into believing that his injury was not wrongfully caused.

On April 1, 1992, the circuit court agreed that plaintiff’s 1988 action was time barred as a matter of law. Plaintiff has pursued the instant appeal.

This case presents the issue of when plaintiff’s cause of action accrued for purposes of section 13 — 212, which provides in relevant part:

“[N]o action for damages for injury or death against any physician *** shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury ***, but in no event shall such action be brought more than 4 years after the date on which occurred the act *** alleged in such action to have been the cause of such injury or death.” Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212.

Under the “discovery rule” in medical malpractice cases, the statute of limitations begins to run “when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action.” (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869.) The term “wrongfully caused” “does not connote knowledge of negligent conduct or knowledge of the existence of a cause of action.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976.) Rather, the term refers to the point in time when “the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences.” Knox College, 88 Ill. 2d at 416.

In most cases, the question of when “an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused” is one of fact. (Witherell, 85 Ill. 2d at 156.) “Where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court.” Witherell, 85 Ill. 2d at 156.

To defeat summary judgment in this case, plaintiff in essence has advocated an interpretation of the discovery rule which has been expressly disavowed by our supreme court. This much is clear from plaintiff’s affidavit. There, in reference to Dr. Floyd’s June 26, 1987, report, plaintiff asserts: “This was the first time that he came into possession of the knowledge that his injuries had been wrongfully caused by the aforesaid defendant.”

The supreme court has clearly indicated, however, that the running of the limitations clock is not postponed until the plaintiff first obtains knowledge of defendant’s negligent conduct. Rather, and as noted, the limitations clock commences when “the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Knox College, 88 Ill. 2d at 416.) The reason for this rule was explained in Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 170-71, 421 N.E.2d 864:

“We wish to emphasize that the rule we announce is not the same as a rule which states that a cause of action accrues when a person knows or should know of both the injury and the defendants’ negligent conduct. Not only is such a standard beyond the comprehension of the ordinary lay person to recognize, but it assumes a conclusion which must properly await legal determination. [Citation.] Moreover, if knowledge of negligent conduct were the standard, a party could wait to bring an action far beyond a reasonable time when sufficient notice has been received of a possible invasion of one’s legally protected interest.” (Emphasis added.)

In this case, we need not address when the running of the limitations clock first commenced. Rather, as a matter of law, it commenced on August 1, 1985, the date plaintiff filed his first lawsuit. Plaintiff must have had sufficient information concerning his injury and its cause for plaintiff to have instituted suit. Even if plaintiff did not, we must impute it to plaintiff. To hold otherwise in this case would make a mockery of the court system.

At the time plaintiff filed his suit, the medical affidavit requirement of section 2 — 622 of the Code had yet to take effect. That section became effective August 15, 1985. (DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57, 588 N.E.2d 1139.) Despite the non-applicability of section 2 — 622, the allegations of plaintiff’s complaint were required to be supported by “reasonable cause.” (See Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.) We must assume that, at the time plaintiff filed his 1985 suit, “reasonable cause” existed to support the gravamen of the 1985 complaint, namely, that the named defendants had “wrongfully caused” the loss of his kidney. Under the supreme court’s interpretation of the discovery rule, the knowledge which plaintiff in fact possessed upon filing the suit, or the knowledge which we must impute to him due to the requirements of section 2 — 622, is sufficient to trigger the running of the limitations clock.

Significantly, this is not a case where defendant’s identity was concealed. His identity was dislosed in Ingalls’ medical records which plaintiff possessed prior to filing the 1985 action. Any reasonable discovery attempts should have included ascertaining defendant’s involvement in this case. If discovery revealed defendant to be a potentially liable party, plaintiff had two years from August 1, 1985, to file an amended complaint naming defendant. Defendant, however, was not sued until September 20, 1988, over three years from the filing of the 1985 action. The suit against defendant, therefore, was untimely.

Interestingly, plaintiff urges June 26, 1987, as the date upon which he first learned that he possessed a cause of action against defendant. Had plaintiff acted promptly, defendant could have been timely named as a defendant prior to August 1, 1987. This court has been given no reason to explain why plaintiff waited until September 20, 1988, to so name defendant.

Plaintiff has argued many cases on appeal. However, no case involves a situation where two consecutive lawsuits were filed based on the same loss and same alleged negligent conduct. Plaintiff’s cases are, therefore, factually distinguishable.

For the foregoing reasons, we affirm the April 1, 1992, order of the circuit court of Cook County granting defendant summary judgment based on section 13 — 212.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE JOHNSON

text:
    NAOMI JOHNSTON, Plaintiff-Appellee, v. ANCHOR ORGANIZATION FOR HEALTH MAINTENANCE, Defendant-Appellant.
    First District (4th Division)
    Nos. 1 — 90—3413, 1—91—0340 cons.
    Opinion filed July 29, 1993.
    William D. Frazier, of Chicago, for appellant.
    Allen W. McDowell and Thomas J. Fitzgibbons, both of McDowell, Moll, Fitzgibbons & Drew, Ltd., and James E. Nuellen, both of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Anchor Organization for Health Maintenance (hereinafter Anchor), appeals the judgment of the circuit court of Cook County which awarded plaintiff, Naomi Johnston, $6,787.40 in actual damages, $50,000 in punitive damages, $22,714.96 in attorney fees and $2,511.28 in costs arising out of claims brought under the Consumer Fraud and Deceptive Business Practices Act. Ill. Rev. Stat. 1991, ch. 121½, par. 261 et seq.

On appeal, defendant contends (1) plaintiff failed to prove public injury as required by the Consumer Fraud and Deceptive Business Practices Act when the action accrued; (2) there was no evidence that Anchor intended plaintiff to rely upon any deception and there was no proximate cause between Anchor’s actions and plaintiff’s injury; (3) the trial court erroneously awarded plaintiff punitive damages as there was no accompanying award of compensatory damages with respect to Anchor’s conduct; and (4) punitive damages were improperly awarded because plaintiff failed to demonstrate outrageous behavior or extraordinary circumstances reflecting malice on the part of Anchor.

We affirm in part and reverse in part.

Plaintiff’s husband, through his employer, was a member of Anchor and plaintiff was covered as a dependent under his plan. As an Anchor member, plaintiff was bound by the Anchor Subscription Certificate, which describes the extent of medical coverage. This certificate provided up to 45 days of inpatient hospital and physician care for mental health conditions per patient each year when authorized by an Anchor medical staff physician. It also provided up to 20 days of outpatient mental health visits per patient each year at the request of an Anchor medical staff physician.

In 1974, plaintiff fell down a flight of stairs and suffered a permanent injury resulting in her inability to work. Her condition was diagnosed as “bipolar syndrome,” which destroys the nerves and cells that control pain in the body. In 1975, plaintiff was being treated by several Anchor physicians; however, her condition necessitated treatment by a psychiatrist or a psychologist, which Anchor could not provide. In 1980, an Anchor-employed staff physician referred plaintiff to Dr. Hector Sabelli, a non-Anchor psychiatrist on staff at Rush-Presbyterian-St. Luke’s Medical Center (hereinafter Rush) who saw her as both an inpatient and an outpatient for Anchor.

In 1982, Anchor hired its own staff psychiatrist and psychologist and all of Dr. Sabelli’s Anchor referred patients were sent to staff physicians except plaintiff. On August 11, 1982, Dr. Sabelli entered into an oral agreement with Anchor’s medical director, Dr. Michael Stocker, which provided that Dr. Sabelli would continue to treat plaintiff because she was a “difficult” case.

This expansion in coverage, beyond the Anchor Subscription Certificate, was initially disputed by Drs. Sabelli and Stocker in terms of its extent. Dr. Sabelli believed that the oral agreement included both plaintiff’s inpatient and outpatient care, while Dr. Stocker believed the extension was confined to 20 additional outpatient visits. A plethora of correspondence between the doctors resulted from the mutual misinterpretation of this oral agreement which was never resolved.

Under the care of Dr. Sabelli, plaintiff was admitted to Rush for psychiatric treatment from November 4, 1983, through February 24, 1984. Relative to this care, she accrued both hospitalization and physician bills. On November 6, 1983, when Anchor was informed of plaintiff’s hospitalization, it notified plaintiff and Rush that coverage for her inpatient care was denied. The next day, Rush sent a claim form to Anchor and plaintiff’s eligibility for coverage was confirmed by an Anchor employee. This confirmation was never conveyed to plaintiff.

On February 6, 1984, plaintiff received a letter from Dr. Stocker which denied coverage for the Rush bill because plaintiff was being treated by a non-Anchor physician. Upon receipt of Dr. Stocker’s letter, and in accordance with Anchor’s appeals process, plaintiff’s husband wrote Anchor on March 5, 1984, and enumerated reasons why the denial of coverage should be reversed. The appeal was rejected.

Documentation dated April 18, 1984, evidences Anchor’s agreement to pay plaintiff’s hospitalization bill of $7,965.49 and additionally authorizes payment of Dr. Sabelli’s bills. The Rush bill was paid about May 15, 1984. Plaintiff was never informed of this payment. Plaintiff’s husband paid three bills totalling $6,787.40 to the Midwest Neurologic Psychiatric Associates, Inc., with which Dr. Sabelli is connected. Anchor admits it failed to notify plaintiff of its prior authorization of payment of Dr. Sabelli’s bills.

On April 4, 1985, plaintiff filed an action against Anchor claiming a breach of insurance agreement in failing to pay plaintiff’s hospitalization and physician bills from November 4, 1983, to February 24, 1984. Plaintiff alleged a breach of implied covenant of good faith and fair dealing stemming from Anchor’s refusal to provide her with continued coverage under Dr. Sabelli’s care.

On August 22, 1988, after a settlement regarding the above action had been reached, plaintiff learned that Anchor paid the disputed hospitalization bill and authorized Dr. Sabelli’s bills for payment in May 1984. Plaintiff subsequently moved to vacate the settlement and dismissal and filed a separate action.

In this action, plaintiff claimed Anchor violated the Consumer Fraud and Deceptive Business Practices Act (hereinafter the Act) by concealing both its payment of the Rush bill and its authorization of payment of Dr. Sabelli’s bills, and by misrepresenting that she still owed Rush and Dr. Sabelli for the bills previously paid and authorized for payment by Anchor.

On November 1, 1990, following a bench trial, judgment was entered for plaintiff against Anchor for violations of the Act. Plaintiff was awarded $6,787.40 in actual damages for the bills of Dr. Sabelli, and $50,000 in punitive damages for Anchor’s willful violation of the Act. On December 27, 1990, plaintiff was additionally awarded $22,714.96 in attorney fees and $2,511.28 in costs. Anchor appeals.

Initially on appeal, Anchor asserts that because plaintiff failed to prove the public injury element of the Act as required when the action accrued, prior to its amendment in 1990 which abolished the public injury element, judgment was improperly entered against it in violation of the Act. Anchor urges us to accept the myth that the legislative history of this amendment mandates that it only be applied prospectively.

“The purpose of the Illinois Consumer Fraud and Deceptive Business Practices Act is to protect consumers *** against fraud and unfair or deceptive acts and practices in the conduct of trade or commerce.” (Ill. Ann. Stat., ch. 121½, par. 262, Notes of Decisions, at 201 (Smith-Hurd Supp. 1992).) We remain acutely mindful of the Act’s broad, remedial nature and accordingly afford it liberal construction to effectuate its intended purposes. (Ill. Rev. Stat. 1991, ch. 121½, par. 271a.) Our thorough review of the legislative history of the amendment fails to elucidate the parameters of its application.

The spirit of eradicating fraud, which animates the Act, is truly an expansive concept. In accordance with the liberal character of the Act, therefore, we construe the amendment abolishing the public injury requirement to have retroactive effect since there is no legislative evidence to prohibit such an interpretation. We find that plaintiff’s failure to prove public injury does not bar recovery.

Next, Anchor argues that plaintiff did not prove either Anchor’s intention that she rely upon any deception, or the existence of proximate cause between Anchor’s actions and plaintiff’s injury. We disagree.

The record unequivocally and plentifully evinces Anchor’s repeated misrepresentations to plaintiff with respect to the payment of her bills. They need not be revisited in detail here. For our purposes, it is sufficient to note that Anchor sent plaintiff denial of coverage letters both before and after it paid the Rush bill. Further, plaintiff’s husband appealed the coverage denial to Anchor’s review committee and Anchor representatives told plaintiff’s husband that the denial would not be reversed even after the Rush bill had been paid. Additionally, plaintiff filed several amended complaints to which Anchor responded by admitting its denial of coverage for both the Rush bill and for Dr. Sabelli’s inpatient charges. All of these admissions were subsequent to the payment of the Rush bill and the authorization of payment of Dr. Sabelli’s bills.

Anchor, then, continuously denied coverage of plaintiff’s bills, although it both paid the Rush bill and authorized payment of Dr. Sabelli’s bills about May 15, 1984. In fact, the Rush bill’s eligibility for coverage was confirmed as early as November 7, 1983. Entirely due to Anchor’s concealment, plaintiff did not learn that her bills had been paid and authorized for payment until August 22, 1988, more than four years later.

Anchor’s express refusal of coverage, after coverage had been approved, was decéptive and misleading. We reject Anchor’s position that it did not intend plaintiff to rely on its repeated denials and further believe that plaintiff’s reliance on such denials must have surely been anticipated by Anchor. We conclude it absolutely reasonable for plaintiff to have relied upon Anchor’s actions.

Relatedly, Anchor maintains that there was no proximate cause between its actions and plaintiff’s injury. This assertion is difficult to comprehend. For instance, plaintiff’s husband testified that, in reliance on written and verbal coverage denials by Anchor, he paid Dr. Sabelli’s bills totalling $6,787.40. This reliance thus directly resulted in plaintiff’s injury, the payment of Dr. Sabelli’s bills.

Moreover, plaintiff’s reliance on Anchor’s misrepresentations that it would not pay either the Rush bill or Dr. Sabelli’s bills caused plaintiff to accrue legal fees in her attempt to secure payment of bills Anchor had already paid and authorized for payment. We find Anchor's position, that there was no proximate cause, without merit.

Finally, Anchor argues that the trial court improperly assessed punitive damages against it. The purpose of punitive damages is not to compensate the plaintiff, but to punish the defendant and to deter similar offenses in the future. Such damages can consequently be awarded only for conduct involving an element of outrage similar to that normally found in crime. The conduct must be outrageous, i.e., defendant’s acts are done with an “evil motive” or with “reckless indifference to the rights of others.” (Restatement (Second) of Torts §908, Comment b, at 464-65 (1979).) It is entirely within the province of the trier of fact to determine whether an award of punitive damages is appropriate and this determination will not be disturbed absent an abuse of discretion. Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 846.

In Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, our supreme court, in keeping with the Restatement, described the necessary degree of culpability which triggers the imposition of punitive damages. The court characterized acts warranting these damages as “willful and wanton misconduct ‘approaching] the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it.’ ” Loitz, 138 Ill. 2d at 416, quoting Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457; see also Spires v. Mooney Motors, Inc. (1992), 229 Ill. App. 3d 917.

Anchor’s misrepresentations to plaintiff are well documented and a repeated recitation of them is unnecessary. Its conduct, leading plaintiff to believe it would not pay bills it had already agreed to cover, undoubtedly caused plaintiff great hardship and distress. Even with this in mind, however, we do not believe that Anchor’s actions, although accurately characterized as misleading and deceptive, constitute “willful and wanton misconduct” rising to “the degree of moral blame attached to intentional harm.”

Anchor’s failure to communicate the coverage approval for her bills to plaintiff more reasonably implies negligence. “A state of mind different from that needed in ordinary and gross negligence is required” to justify an award of punitive damages. (Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 458.) We find compensatory damages to be sufficient in this instance and accordingly conclude the aggravated circumstances essential to support plaintiff’s supplemental recovery absent. The trial court’s grant of punitive damages is reversed.

For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

JIGANTI, P.J., and HOFFMAN, J., concur.


author: JUSTICE HOFFMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRIMO ARROYO FLORES, Defendant-Appellant.
    First District (4th Division)
    Nos. 1 — 91—3223, 1—91—3302 cons.
    Opinion filed July 29, 1993.
    Gerda N. Barker, Mitchell D. Kreiter, and Thomas A. Gibbons & Associates, all of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Michelle R. Martone, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Following a bench trial, defendant, Primo Arroyo Flores, was convicted of three counts of delivery of controlled substances (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)) and sentenced to six years’ imprisonment. He now appeals his conviction, claiming that the trial court erred in allowing the State, during its rebuttal argument, to amend one count of the indictment to specify the controlled substance as cocaine instead of heroin.

Defendant was charged by indictment with two counts of delivery of cocaine and one count of delivery of heroin. He proceeded to a bench trial along with two codefendants. We summarize the relevant evidence below.

Officer James Kizart testified that on November 16, 1989, during a narcotics investigation for the Illinois State Police, he met defendant at the tavern where defendant worked and purchased two packets of cocaine from him in exchange for $150. On December 13, 1989, Kizart returned to the tavern with another officer and purchased six more packets of cocaine from defendant at a price of $300. On January 10, 1990, Kizart returned a third time intending to purchase more cocaine from defendant, but when he learned defendant was not present, he purchased six packets of the substance from codefendants, who were also employed there. Kizart testified that later that evening he received a call from defendant and made arrangements to purchase more cocaine from him. Kizart subsequently returned to the tavern on January 16, 1990, to effectuate this purchase and met defendant in the parking lot. Defendant entered Kizart’s car and directed him to another location where defendant gave Kizart two ounces of cocaine in exchange for $2,200 from Kizart. Defendant was then arrested and advised of his Miranda rights.

The parties stipulated that if called to testify police department crime laboratory chemists would state that the substance defendant sold to Kizart on November 16, 1989, was one gram of cocaine; the substance defendant sold on December 13, 1989, was three grams of cocaine; and the substance sold on January 16, 1990, was 55.9 grams of cocaine.

During closing arguments, defendant requested a finding of not guilty as to the third count of the indictment because it charged that the substance delivered on January 16, 1990, was heroin, whereas the proof at trial indicated it was cocaine. The court denied defendant’s request and granted the State leave to amend the indictment to substitute cocaine for heroin. The court then entered a finding of guilty as to each charge.

Defendant subsequently argued a motion in arrest of judgment in which he contended that the amendment prejudiced him because, had he known the third count against him was delivery of cocaine rather than heroin, he would have raised an entrapment defense. The court denied this motion, and defendant now appeals from this ruling.

Defendant’s sole contention on appeal is that the trial court committed reversible error in allowing the indictment to be amended because the revision was a substantive one which resulted in a charge of a completely new offense. The original indictment charged that defendant “delivered *** 15 grams or more but less than 100 grams of a substance containing a certain controlled substance, to wit: heroin,” in violation of section 401(a)(l) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(l)) (the Act). The State sought to substitute the controlled substance “heroin” with “cocaine” under section 401(a)(2) of the Act. Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2).

Section 111 — 5 of the Code of Criminal Procedure of 1963 permits the amendment of an indictment at any time on motion by defendant or the State to correct formal defects, including a miswriting. (Ill. Rev. Stat. 1989, ch. 38, par. 111-5; People v. Wallace (1991), 210 Ill. App. 3d 325, 335, 568 N.E.2d 1332.) Such amendment is permissible if the change is not material or does not alter the nature and elements of the offense charged. (People v. Hirsch (1991), 221 Ill. App. 3d 772, 777, 582 N.E.2d 1228.) Formal amendment is warranted especially where there is no resulting surprise or prejudice to the defendant or where the record clearly shows that he was otherwise aware of the actual charge against him. People v. Jones (1973), 53 Ill. 2d 460, 292 N.E.2d 361; Wallace, 210 Ill. App. 3d 325; People v. Wise (1984), 128 Ill. App. 3d 330, 470 N.E.2d 1155.

This court has repeatedly held that an error in the citation of the statute giving rise to a charge is a mere technical defect which is subject to amendment (People v. House (1990), 202 Ill. App. 3d 893, 560 N.E.2d 1224; People v. McBrien (1986), 144 Ill. App. 3d 489, 494 N.E.2d 732), particularly where the sections involved are not separate and distinct offenses but are simply different ways in which the same offense may be committed. (People v. Castro (1983), 113 Ill. App. 3d 265, 446 N.E.2d 1267.) Additionally, in People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590, the court upheld an amendment at the close of the State’s case to correct a charge of a certain substance as a non-narcotic, Class 3 felony, when it had been erroneously charged under a section encompassing narcotic drugs, which was a Class 2 felony.

Where the victim of a crime has been misidentified, it is permissible to revise the indictment to reflect the correct person. In People v. Jones (53 Ill. 2d 460, 292 N.E.2d 361) the State sought to amend an armed robbery indictment on the morning of trial to substitute the name of the correct victim. The supreme court upheld the indictment even though it determined that the victim’s identity in armed robbery cases was an essential element that needed to be pleaded and proved. (Jones, 58 Ill. 2d at 463.) Noting the trend away from the formalism of past criminal pleading, the court stated:

“The liberalization of criminal pleading *** reflects a lessening in importance of the indictment’s secondary functions. The indictment as a means of informing defendants of particulars concerning the case is now far overshadowed by the array of discovery procedures available to the defense. Similarly, the time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record. [Citation.] The primary safeguard of indictment by grand jury, which remains secured to criminal defendants, is to protect individuals from the caprice of the public prosecutor.” (Jones, 53 Ill. 2d at 464.)

Thus, the court found that because the correct victim was readily discernible from the record, the amendment to reflect that fact was permissible.

Section 401(a) of the Act, under which defendant was charged here, precludes the delivery or manufacture of numerous specific controlled substances, including more than 15 but less than 100 grams of heroin or cocaine. The section classifies the delivery of both substances as a Class X felony. Although the indictment in this case technically specified the substance as heroin, the testimony before the grand jury as to the January 16 delivery established unequivocally that it was cocaine, not heroin. Similarly, all of the evidence at trial pertained exclusively to cocaine. As a result, defendant was not surprised by the amendment. Further, although defendant suggests he was prejudiced because he was not aware that the January 16 charge was for cocaine, he agreed to a stipulation that the substance he sold to Kizart on that date was cocaine. Moreover, when the court ruled that it would allow the amendment, defendant made no request to reopen the proofs to assert his entrapment defense.

Defendant relies on People v. Betts (1979), 78 Ill. App. 3d 200, 397 N.E.2d 106, and People v. Troutt (1977), 51 Ill. App. 3d 656, 366 N.E.2d 370, which we find distinguishable.

In Betts (78 Ill. App. 3d at 201), the indictment charged delivery of “Dexedrine, a controlled substance *** which is a narcotic” (emphasis omitted) under .section 401(b), which was subsequently amended to charge delivery of dexedrine, “a controlled substance *** which is not a narcotic,” under section 401(c). (See Ill. Rev. Stat. 1973, ch. 56½, pars. 1401(b), (c).) The appellate court found that the amendment was improper because the grand jury intended to charge defendant with delivery of a narcotic and because the offense was changed from a Class 2 felony to a Class 3 felony with different penalties. In this case, however, the grand jury intended to charge defendant with delivery of cocaine and after the amendment, the nature of the offense remained a Class X felony with the same penalty.

In Troutt, defendant was arrested and charged by information with possession of amphetamine based on a field test. The information was later amended to charge possession of phencyclidine based on the results of a laboratory test. The appellate court found that the amendment materially changed the nature and elements of the offense even though it did not change the statutory section or the possible penalty. In this case, the amendment to the indictment similarly did not change the statutory section or the possible penalty. However, unlike Troutt, where the State intended to charge defendant with possession of amphetamine, the amendment in this case changed the type of controlled substance to reflect what the grand jury intended to charge, which was delivery of cocaine.

Under these circumstances, we conclude that the amendment was formal and that there was no hint of surprise or prejudice to defendant by its allowance. For the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.