author: JUSTICE STEIGMANN PRESIDING JUSTICE LUND,

text:
    LARRY JOHNSON, Adm’r of the Estate of Cory Johnson, Deceased, et al., Plaintiffs-Appellants, v. DAN O’NEAL, Special Adm’r of the Estate of Michael O’Neal, Deceased, et al., Defendants-Appellees (The County of McLean, Defendant).
    Fourth District
    No. 4 — 90—0617
    Opinion filed July 25,1991.

      LUND, P.J., specially concurring.
    Eileen O’Sullivan, of Jerome Mirza & Associates, of Bloomington, for appellants.
    Guy C. Fraker and John T. Echols, both of Costigan & Wollrab, EC., of Bloomington, for appellee Dan O’Neal.
    W. Thomas Johnston and Paul P. Gilfillan, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellee Lexington Township.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Larry Johnson, as administrator of the estate of Cory Johnson, deceased (decedent), and Larry Johnson and Patricia Johnson, in their individual capacities, appeal a judgment entered in an action for wrongful death (Ill. Rev. Stat. 1985, ch. 70, pars. 1 through 2.2), survival (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1008(b); ch. IIOV2, par. 27 — 6), and family expense (Ill. Rev. Stat. 1985, ch. 40, par. 1015), arguing that the damages awarded them are inadequate. The principal issues on appeal are (1) should computational verdict forms be provided to the jury in all comparative negligence cases, and (2) does the prayer for relief contained in a notice of appeal control the issues which may be adjudicated in a new trial.

I. Procedural History

In November 1986, this action commenced when plaintiffs filed a complaint against the special administrator of the estate of decedent Michael O’Neal (O’Neal’s estate), the County of McLean, and Lexington Township (the township). On November 4, 1988, summary judgment was entered in favor of the County of McLean, and it is not a party to this appeal.

Amended complaints were filed, and trial ultimately was held on plaintiffs’ fourth-amended complaint, filed in December 1989. Common to all counts of that complaint are allegations that on December 13, 1985, decedent was a passenger in a car driven by Michael O’Neal, and decedent sustained injuries when the car went off the road in the area of a curve, rolled over, and came to rest in a field. The complaint alleged that the injuries caused by this crash ultimately resulted in decedent’s death. The first three counts of the complaint alleged that O’Neal was negligent because he (1) drove his car too fast for conditions, and (2) failed to keep his automobile under proper control. These counts alleged that O’Neal’s negligence proximately caused the decedent’s injuries and death. Count I sought damages on a wrongful death theory; count II requested compensation for decedent’s medical, hospital, and funeral expenses (under the family expense theory of recovery); and count III sought damages for decedent’s pain and suffering prior to his death.

Counts IV through VI were directed against the township. These counts alleged the township owned or maintained the road on which the fatal accident occurred. These counts further alleged that because of the number and severity of curves in the road in the area of the accident, the road was dangerous for travel at the posted or permitted speed, and that the number and severity of the curves was not readily apparent to a motorist traveling the road. Plaintiff alleged the township negligently breached its duty to exercise due care in erecting and posting signs and in warning motorists of hazards on the road in that the township (1) failed to correctly identify the number of curves in the road, (2) failed to post a safe speed or reduce the speed limit on the road in the area where the accident occurred, and (3) failed to advise motorists of the severity of curves in the road and the speed at which the curves could be safely traveled. Plaintiffs alleged this negligence proximately caused decedent’s injuries and death. Count IV sought damages on a wrongful death theory; count V requested reimbursement for decedent’s medical, hospital, and funeral expenses; and count VI requested damages for decedent’s pain and suffering prior to death.

On February 19, 1990, plaintiffs and O’Neal’s estate entered into an agreement under which the estate agreed to pay plaintiffs $600,000. The first $300,000 of this amount was a loan, repayable only to the extent plaintiff recovered that amount or a lesser sum from the township. This agreement did not preclude plaintiffs’ claims against O’Neal’s estate from proceeding to trial, and it provided that if plaintiffs obtained a judgment against O’Neal’s estate in an amount in excess of $600,000, O’Neal’s estate was to pay the excess amount to the extent it did not exceed $50,000. Otherwise, O’Neal’s estate was not required to make any further payments to plaintiffs.

On February 22, 1990, O’Neal’s estate moved for (1) a finding of good faith as to the loan receipt agreement, (2) dismissal of the township’s counterclaim against O’Neal’s estate, (3) dismissal of O’Neal’s estate’s counterclaim against the township, and (4) O’Neal’s estate’s discharge from any liability for contribution to the township. On February 23, 1990, the circuit court entered an order granting the relief requested in this motion, and the two counterclaims involving O’Neal’s estate and the township were dismissed with prejudice.

In March 1990, the township filed an affirmative defense to the plaintiffs’ complaint, alleging that decedent was guilty of negligence which proximately caused his injuries and death in that he negligently and carelessly (1) stayed in a vehicle being operated by a person whom he knew or should have known was driving at dangerous and excessive speeds; (2) encouraged the driver to operate the vehicle at such speeds; and (3) failed to remove himself from a vehicle being operated at dangerous and excessive speeds, although there were opportunities to do so.

II. The Trial

The jury trial of this cause was held in March 1990. The plaintiffs’ first witness was Richard Freed, who was a police officer with the City of Lexington at the time of the fatal accident. Freed testified that on the evening of December 13, 1985, he received a citizen’s band radio report of an accident on a county or township road south of Lexington. At a curve in the road, he discovered a car lying in a field. He found four victims at the accident scene. One boy in the car was alive, and there was another boy on the ground who was also alive, with a dead boy on top of him. Subsequently, Freed discovered a dead girl at the accident scene. Freed further testified that a driver traveling south on the road on which the accident occurred (in the direction of the place of the accident) would come upon the crest of a hill and see one curve, but would not be able to see a second curve which follows. The accident occurred at the second curve.

Also testifying on behalf of plaintiffs was Chris Juvenal. Juvenal stated that on the evening of the accident, decedent and O’Neal picked him up at his residence. At that time, Juvenal was 15 years old. Juvenal testified that O’Neal had a new car and had obtained his driver’s license the day before. Juvenal, O’Neal, and decedent then picked up Cathy Quinn and “just drove around.” Eventually, the group wound up in the country and saw the lights from a town, which turned out to be Lexington. After arriving in Lexington, the passengers changed positions in the car, with Juvenal moving from the back seat to the front seat and decedent moving from the front seat to the back seat. The group then drove around Lexington to “kind of get our bearings” and subsequently drove out of town. Juvenal recalled few details of the accident; he remembered seeing some grain bins, “coming to in the car for a brief period of time,” and seeing the ambulance arrive.

On cross-examination by counsel for the township, Juvenal testified that during the evening in question, O’Neal was driving at “[mjaybe between 70 and 80,” but then stated, “I really don’t know.” Juvenal also testified that while the car was stopped in Lexington, no one said anything about O’Neal’s driving. Juvenal acknowledged that six days after the accident, he signed a voluntary statement in which he said that he and the three other youths entered Lexington on the same road on which the accident occurred. However, at trial, Juvenal testified that the accident did not occur on the same road. Juvenal stated that he signed the voluntary statement before he returned to the scene of the accident “to see how curvey the actual road was.”

Rhonda Bennett testified on behalf of plaintiffs that in August 1980, when she was 16 years old, and shortly after she obtained her driver’s license, she was involved in an accident at the same location as the accident in which decedent was killed. She stated the car that she was driving went out of control on a curve, became airborne, and went into a bean field.

Also testifying on behalf of plaintiffs was Jeff Elston, an officer with the McLean County sheriff’s department assigned to the detective division. Elston testified that on November 23, 1985, another one-car accident occurred at virtually the same location as the accident in which decedent was killed. The November 1985 accident occurred when the driver lost control on the curve. The car skidded into a ditch and subsequently vaulted into a field, where it rolled over twice before coming to a stop.

Both Patricia and Larry Johnson testified concerning their relationship with decedent, decedent’s character and school record, and their presence at the hospital with decedent after the accident. Larry Johnson stated that decedent died on February 1, 1986. Plaintiffs also presented medical testimony relevant to the survival claims for damages for decedent’s pain and suffering after the accident and prior to his death.

The trial court denied motions for directed verdicts by both the township and O’Neal’s estate at the close of plaintiffs’ case.

Bonnie Serone, a McLean County sheriff’s deputy, testified on behalf of the township. Serone stated that based on her investigation of the accident scene, the vehicle in which decedent was riding was traveling at 65 miles per hour when it left the road.

The township also presented medical testimony relevant to the survival claims.

No evidence was presented on behalf of O’Neal’s estate.

At the conclusion of the evidence, the trial court denied (1) a motion by plaintiffs for a directed verdict finding that decedent was not guilty of contributory negligence, (2) a motion for a directed verdict in favor of O’Neal’s estate, and (3) a motion for a directed verdict in favor of the township.

At the jury instructions conference, the circuit court refused a jury instruction which consisted of a computational verdict form on which the jury could have indicated the percentage by which it found decedent guilty of comparative negligence. The court refused this instruction because it did not contain signature lines for the jurors. Counsel for the township indicated he would retender this instruction, but the record contains no indication that he did so. The jury was nevertheless instructed, in part, as follows:

“It was the duty of the plaintiff [sic], before and at the time of the occurrence, to use ordinary care for his own safety. The failure of a person to use ordinary care for his own safety is known as contributory negligence.
Plaintiff’s [sic] contributory negligence, if any, does not bar his recovery. However, the total amount of damages to which he would otherwise be entitled is reduced in proportion to the amount of his negligence. This is known as comparative negligence.” O’Neal’s Estate’s instruction No. 2.
“Involved in this lawsuit are three distinct claims against each defendant; one by the estate of Cory Johnson which seeks damages for his claimed conscious pain and suffering, one by his father and mother who seek compensation for money spent or amounts for which they have become liable for reasonably necessary doctor bills and hospital bills, and the other by the estate of Cory Johnson [sic] which seeks damages for loss of society.
If you should find that the plaintiffs’ decedent’s conduct amounted to contributory negligence, then the amount of money damages to which the estate or the parents would otherwise be entitled must be reduced in proportion to the amount of negligence attributable to the plaintiffs’ decedent.” Township’s instruction No. 6.

At the conclusion of the trial, the jury returned a verdict in favor of plaintiffs and against both defendants as to counts I and IV (wrongful death) in the amount of $200,000, as to counts II and V (hospital, medical, and funeral expenses) in the amount of $50,000, and as to counts III and VI (conscious pain and suffering prior to death) in the amount of $0.

On April 18, 1990, plaintiffs filed a post-trial motion requesting (1) entry of a judgment n.o.v. in their favor on the issue of decedent’s comparative fault, (2) a new trial as to damages only, or, alternatively, (3) entry of an additur in the amount of $132,334.49. The additur which plaintiffs requested is the difference between the jury’s award for decedent’s hospital, medical, and funeral expenses ($50,000) and the undisputed amount of those expenses established at trial ($182,334.49).

On April 23, 1990, the township filed post-trial motions requesting (1) entry of a judgment n.o.v. in its favor, (2) that the unconditional portion of the payment to plaintiffs by O’Neal’s estate pursuant to the loan agreement be set off against the judgment entered against it, and (3) in the event of entry of an additur against the township, a setoff against the additur of the remaining amount of the unconditional payment to plaintiffs by O’Neal’s estate plus the forgiven portion of the loan which O’Neal’s estate made to plaintiffs.

At the hearing on the post-trial motions, the trial court indicated that decedent’s conscious pain and suffering after the accident was “clearly a fact issue” to be determined by the jury. With respect to the issue of decedent’s comparative fault, the trial court stated:

“At any rate, the verdict form does not contain the special interrogatories for finding what the verdict would have been had there been no contribuotry [sic] negligence, and then the percentage of contributory negligence of Plaintiffs’ Decedent, and then the reduced net verdict amount. That was not an option which was given to the Jury in this case, and I think that at this stage in the trial that all intendments have to go in favor of the Jury’s verdict, and that the Court must presume that they acted upon the evidence which they heard in returning the verdict that they did.
So while I concede that there are uncontested medical bills and funeral bills in excess of $50,000, there is the possibility that the Jury found an element of contributory negligence on the part of the Plaintiffs’ Decedent.”

In an order entered July 27, 1990, the trial court (1) denied plaintiffs’ post-trial motions, (2) denied the township’s post-trial motion for judgment n.o.v., and (3) allowed the township’s post-trial motion for a setoff against the verdict returned against it in the amount of the unconditional portion of the payment which O’Neal’s estate made to plaintiffs. The trial court further ruled that the township’s post-trial motion requesting a setoff against any additur entered against it was moot.

On August 23, 1990, plaintiffs filed a notice of appeal from the judgment entered on the jury’s verdict and from the order which denied their post-trial motion. In their notice of appeal, plaintiffs request (1) entry of a judgment n.o.v. on the issue of decedent’s comparative fault, (2) a new trial on the issue of damages only, or, alternatively (3) entry of an additur with respect to medical and funeral expenses in the amount of $132,334.49.

III. Judgment A. O.F — Decedent’s Comparative Fault

Plaintiffs first argue that the trial court erred in denying them a judgment n.o.v. on the issue of decedent’s comparative fault. Plaintiffs contend that, viewed in a light most favorable to defendants, the evidence so overwhelmingly favors plaintiffs that no finding of comparative fault on the part of decedent could ever stand. In support of this argument, plaintiffs contend that evidence as to the unsafe speed of the vehicle in which decedent was riding prior to its arrival in Lexington was too remote and speculative to serve as a basis for imposing a duty on decedent to remove himself from the vehicle. Furthermore, plaintiffs argue that even if the evidence establishes the car was being driven at an excessive speed, it was not reasonable to expect decedent, who was only 15 years old and did not have a driver’s license, to remove himself from the car when he was some distance from his home in Bloomington.

The township asserts there is ample evidence of decedent’s comparative negligence to create a jury question on that issue. The township argues that Illinois law recognizes (1) a passenger in an automobile may be guilty of contributory negligence in failing to exercise due care for his or her own safety, and (2) events occurring hours before an accident may be relevant to the issue of the comparative fault attributable to a party.

In their reply argument, plaintiffs contend that Deputy Serene’s testimony pertaining to vehicular speed is irrelevant to the issue of decedent’s comparative fault.

Judgments n.o.v. should be entered only in those cases in which all of the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) We agree with the township that evidence that a party rode for a fairly lengthy period of time in a speeding vehicle creates a jury question as to whether that party exercised due care for his own safety. Moreover, when a jury has evidence that a vehicle was speeding just before an accident, the jury may infer that the speeding had been continuous. See Hayes v. Alsburg (1978), 72 Ill. 2d 560, 566-67, 382 N.E.2d 239, 242.

Deputy Serone testified that the vehicle in which decedent was riding was traveling at 65 miles per hour when it left the road. Contrary to plaintiff’s contention, this testimony is relevant to the issue of the decedent’s comparative fault. The jury was instructed:

“Defendant Lexington Township claims that the plaintiff [sic] decedent was contributorily negligent in failing to remove himself from a vehicle which the driver was operating at excessive and dangerous rates of speed.
Defendant Lexington Township further claims that the foregoing was a proximate cause of the plaintiff [sic] decedent’s injury and death.” (Plaintiffs’ instruction No. 8.)

Deputy Serone’s testimony was probative as to the issue of whether O’Neal was speeding on previous occasions during the evening of the accident, and this in turn was relevant to whether decedent was guilty of comparative negligence because he failed to remove himself from a speeding vehicle.

Given the inferences which the jury could reasonably have drawn from Deputy Serone’s testimony, the evidence is sufficient to permit a jury to find some comparative fault on the part of decedent. From this testimony, the jurors could properly have inferred that the vehicle in which decedent was a passenger had been speeding prior to its arrival in Lexington. The jurors could have further concluded that decedent should have removed himself from the vehicle during its stop in Lexington, telephoned his parents or someone else in Bloomington, and requested that they pick him up. Thus, as to the issue of decedent’s comparative fault, the evidence, viewed in a light most favorable to defendants, does not so overwhelmingly favor plaintiffs that no finding of comparative fault on decedent’s part could ever stand.

IV. New Trial — Additur

Plaintiffs maintain they are entitled to a new trial as to damages only because (1) the damages awarded in this case are manifestly inadequate, (2) proved elements of damages were ignored, and (3) the amount of the damages award bears no reasonable relationship to the loss which plaintiffs suffered. Plaintiffs note that the jury awarded only $50,000 for hospital, medical, and funeral expenses, when uncontroverted evidence established that the total expenses which they incurred for these items was $182,334.49. Moreover, plaintiffs contend the award of no damages on the survival counts for decedent’s pain and suffering after the accident is contrary to the manifest weight of the evidence, in view of testimony that after the accident and before his death, decedent responded to oral commands and to painful stimuli and showed signs of purposeful activity.

Plaintiffs alternatively argue that given the alleged inadequacy of the jury’s damages award, the circuit court should have entered an additur in their favor. Plaintiffs assert that the premise on which the circuit court essentially relied in denying their request for an additw — that plaintiffs’ decedent was 72.6% at fault — is irrational and impermissible as a matter of law.

The township contends the evidence is generally sufficient to support the jury’s awards of damages, and the $50,000 award for hospital, medical, and funeral expenses reflects a reduction in damages to account for decedent’s comparative negligence. The township also asserts that because there is a close question as to its liability, a new trial as to damages only would be grossly unfair.

A. Computational Verdict Forms

In considering the adequacy of the damages awards, we must first determine whether the evidence suffices to support a finding of 72.6% comparative fault on decedent’s part, which the circuit court apparently concluded was implicit in the jury’s verdict. Our review of this question is made difficult by the trial court’s failure to provide the jury with a computational verdict form on which it could have entered a finding as to the percentage of fault attributable to decedent. Absent such a verdict form, there must necessarily be some speculation as to the amount of negligence which the jury attributed to the parties.

Some prior decisions of this court and the appellate courts of other districts hold that failure to provide the jury with computational verdict forms in comparative negligence cases is not reversible error. (E.g., Harris v. Day (4th Dist. 1983), 115 Ill. App. 3d 762, 773, 451 N.E.2d 262, 268; Hazelwood v. Illinois Central Gulf R.R. (4th Dist. 1983), 114 Ill. App. 3d 703, 709, 450 N.E.2d 1199, 1204-05; see also Stromquist v. Burlington Northern, Inc. (3d Dist. 1983), 112 Ill. App. 3d 37, 45, 444 N.E.2d 1113, 1118-19.) However, in Harris, Justice Trapp, writing for this court, stated, “This writer would require the computational verdict forms in all [comparative negligence jury] cases for the reasons listed in the Lawrence opinion [(Lawrence v. Florida East Coast Ry. Co. (Fla. 1977), 346 So. 2d 1012)] of the Florida Supreme Court ***.” (Harris, 115 Ill. App. 3d at 773, 451 N.E.2d at 268.) As noted in the appellate decision which the Lawrence court affirmed, the use of computational verdict forms permits a determination of whether comparative negligence is actually being applied. (Florida East Coast Ry. Co. v. Lawrence (Fla. App. 1976), 328 So. 2d 249, 253-54.) Also, computational verdict forms insure that comparative negligence achieves its desired goal of apportioning damages on the basis of fault. (Florida East Coast Ry., 328 So. 2d at 255.) The use of such verdict forms allows for the correction of jury errors, forces detailed consideration of the case by the jury, and enables the trial court to avoid using long, complicated jury instructions which would invite reversible error. (Florida East Coast Ry., 328 So. 2d at 255, citing Timmons & Silvis, Pure Comparative Negligence in Florida: A New Adventure in the Common Law, 28 U. Miami L. Rev. 737, 802 (1974).) In at least 13 States, the use of computational verdict forms is now required in all comparative negligence jury cases by either statute or judicial decision. See V. Schwartz, Comparative Negligence §17.4 (2d ed. 1986 & Supp. 1990).

The present case provides a perfect illustration of the desirability of requiring the use of computational verdict forms in all comparative negligence jury cases, and of having computational findings in comparative negligence cases which are tried in bench trials. The award of only $50,000 for decedent’s hospital, medical, and funeral expenses, considered in view of the proved amount of these expenses ($182,334.49) may, as the trial court concluded, signify a reduction in damages to account for decedent’s comparative fault. If this is so, it is questionable whether the $200,000 wrongful death award reflects a reduction in plaintiffs’ wrongful death damages in the same percentage as does the award for hospital, medical, and funeral expenses. In other words, the jurors could have simply picked two figures for these damage awards which they felt were somewhat lower than those which would have been appropriate if no comparative negligence were chargeable to plaintiffs. The jurors may not have first determined the plaintiffs’ total damages for wrongful death and for hospital, medical, and funeral expenses, and then reduced each of these figures by a uniform percentage, as they would have had to do if they had been provided with a computational verdict form. On the other hand, the small amount of damages awarded for hospital, medical, and funeral expenses could simply reflect the jury’s inadvertent omission of various elements of damages from the amount of this damages award.

The speculation which arises when computational forms are not used seriously impedes effective review of the jury’s apportionment of comparative fault. For all of the above reasons, it would be better practice to provide computational verdict forms to the jury in all cases where comparative fault is an issue. Where, as in this case, counsel fail to tender proper computational verdict forms, the court should direct counsel to do so; if the court finds their product to be unsatisfactory, then it is the duty of the court sua sponte to provide the jury with such verdict forms. Further, in bench trials, we suggest that the trial court make the same findings on the record which are required by computational verdict forms. See Lawrence, 346 So. 2d at 1017.

In suggesting the use of computational verdict forms in all jury cases where comparative fault is an issue, we are mindful that it generally is not incumbent upon the trial court to give jury instructions on its own motion. (Chicago Land Clearance Convm’n v. Darrow (1957), 12 Ill. 2d 365, 375, 146 N.E.2d 1, 7.) The Illinois Supreme Court has, however, recognized that there may be exceptions to this rule where “special circumstances” exist. (Chicago Land Clearance Comm’n, 12 Ill. 2d at 375, 146 N.E.2d at 7.) The necessity of safeguarding the process of effective review of apportionment of fault is the type of “special circumstance” which justifies a departure from the principle that courts generally have no duty to instruct the jury in a manner not requested by any of the parties; this is likewise the basis of our suggestion that in bench trials comparable findings be made of record.

B. Jury’s Apportionment of Comparative Fault

Because a computational verdict form was not provided the jury in the present case, we must attempt to deduce from the record before us whether the jury’s implicit apportionment of fault — on which the trial court premised its denial of plaintiffs’ request for an additur for hospital, medical, and funeral expenses — is contrary to the manifest weight of the evidence. As pointed out by counsel, the best indication in the record of the jury’s apportionment of comparative fault is the award of only $50,000 for hospital, medical, and funeral expenses, when the proved and undisputed amount of damages for these items was $182,334.49. If the jury reduced the amount of these damages to account for decedent’s comparative fault, it means that the jury found that 72.6% of the total negligence was attributable to decedent.

While the record supports a finding of some comparative fault on decedent’s part, a finding that decedent was guilty of 72.6% comparative fault would be against the manifest weight of the evidence (Junker v. Ziegler (1986), 113 Ill. 2d 332, 339, 498 N.E.2d 1135, 1138) on the basis of the record before us. Decedent’s negligence in failing to remove himself from a speeding vehicle was far outweighed by O’Neal’s negligence in failing to operate the vehicle in a safe manner and by the township’s negligence in failing to warn of the danger which the curve in the road posed to motorists. In Junker, the plaintiff, who was an adult, placed himself in a hunting blind which was within firing range of another occupied blind, and did not take sufficient precautions to avoid being hit by fire from the other blind. The supreme court nevertheless affirmed the trial court decision that the jury’s assessment of 65% fault against the plaintiff was contrary to the manifest weight of the evidence in view of the negligence of the owner of the hunting park in which the accident occurred in arranging the blinds and in view of the negligence of the hunter who fired the pellet which struck plaintiff. In the present case, there was arguably less evidence of comparative negligence attributable to decedent than in Junker, and yet, the jury probably attributed an even greater percentage of the total fault to decedent.

Ordinarily, a holding that the jury’s apportionment of fault is contrary to the manifest weight of the evidence requires a new trial as to the apportionment of fault issue. (See Bofman v. Material Service Corp. (1984), 125 Ill. App. 3d 1053, 1062, 466 N.E.2d 1064, 1070.) If the record establishes that the assessed damages are manifestly inadequate or that proved elements of damages were ignored, or if the damage assessments bear no rational relationship to plaintiff’s losses, the issue of damages must also be adjudicated for a second time at the new trial. (See Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407, 485 N.E.2d 4, 6.) This brings us to the next issue raised by this appeal.

V. Notice Of Appeal

In this case, despite the general principles discussed above, we conclude that plaintiffs’ notice of appeal precludes us from granting a new trial as to the comparative fault issue because plaintiffs did not request this relief. Further, the relationship between the degree of fault of each party and the amount of recoverable damages prohibits a new trial as to damages only or entry of an additur as to the hospital, medical, and funeral expenses.

Plaintiffs’ notice of appeal states, in part, the following:

“Plaintiffs-Appellants pray that the Appellate Court reverse said judgement [sic] and enter a judgement [sic] notwithstanding the verdict of the jury with respect to the issue of comparative fault of the Plaintiffs-Appellants [sic] decedent, CORY JOHNSON, order a new trial on the issue of damages only or, in the alternative, that this Court enter an additur with respect to the medical and funeral expenses in the amount of $132,334.49.”

In McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 178 N.E.2d 144, the defendant-appellant complained of an error in the admission of evidence. The appellate court held that the erroneous admission of the evidence ordinarily would have entitled defendant to a new trial. However, in his notice of appeal, defendant requested only outright reversal of the judgment entered against him. Defendant explicitly stated that he did not wish that the cause be remanded for further proceedings. Relying on (1) the release of errors doctrine (2 Ill. L. & Prac. Appeal and Error §71, at 168 (1953)), and (2) the principle that the right to a new trial may be abandoned by (a) failure to argue a motion for a new trial in the trial court (Berg v. New York Central R.R. Co. (1944), 323 Ill. App. 221, 223-24, 55 N.E.2d 394, 396, aff’d (1945), 391 Ill. 52, 62 N.E.2d 676), or (b) the failure of the trial court to rule on such a motion (Fulford v. O’Connor (1954), 3 Ill. 2d 490, 501-02, 121 N.E.2d 767, 773), the court held that an appellant who specifically states he does not want a cause remanded for a new trial circumscribes the relief which he seeks in the reviewing court. (McCottrell, 32 Ill. App. 2d at 370-71, 178 N.E.2d at 145-46.) Because the defendant-appellant was not entitled to outright reversal, the appellate court affirmed the judgment against him. McCottrell, 32 Ill. App. 2d at 373, 178 N.E.2d at 147.

Here, plaintiffs’ counsel was asked at oral argument about the relief requested, and responded that plaintiffs did not want a new trial on the issue of the apportionment of fault as to all parties. We con-elude that this brings the plaintiffs into the position of the appellant in McCottrell, and we will not grant relief not only not requested, but specifically disclaimed. In our judgment, the issue of apportionment of fault in this case is so intertwined with the issue of damages that a new trial on damages only cannot fairly be granted; nor would the other relief requested by plaintiffs be appropriate.

By providing that a notice of appeal shall “specify *** the relief sought from the reviewing court” (134 Ill. 2d R. 303(c)(2)), Supreme Court Rule 303 contemplates that a notice of appeal limit to some extent the relief which the reviewing court may grant. Although some decisions hold the prayer for relief portion of a notice of appeal does not limit the relief which may be granted by the reviewing court (e.g., Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill. App. 3d 690, 693, 413 N.E.2d 106, 108-09; Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 850-51, 365 N.E.2d 390, 397), these decisions involved situations where the appellee argued that the appellant’s prayer for relief prevented the reviewing court from granting the relief requested in the appellant’s arguments on appeal. By contrast, we are here confronted with the question of whether a reviewing court may sua sponte grant a type of relief requested by neither the appellant nor the appellee. Respect for the rights of litigants to control the course of their litigation requires that we answer this question in the negative.

Because we do not order a new trial as to comparative fault, we cannot order a new trial as to damages in this case, even were we to hold that the damage awards are manifestly inadequate. In cases where comparative negligence is an issue, the proper amount of a damage award is a function of the percentage of fault attributable to the party in whose favor the damage award is entered. Although the total amount of plaintiff’s damages remains the same, the amount of damages which the plaintiff may recover depends on the percentage of negligence attributable to the plaintiff. Where, as here, the assessment of comparative fault is contrary to the manifest weight of the evidence, but we are precluded from granting a new trial as to that issue, a new trial as to damages only, or the entry of an additur would not be appropriate. (Cf. 2 Comparative Negligence (MB) §15.20[3][b], at 15 — 35 (1991) (suggesting that if apportionment of negligence is part of damages issue, new trial limited to negligence apportionment and damages may be appropriate).) Therefore, we need not consider plaintiffs’ contentions that the damages awarded on the survival and family expense counts are inadequate.

Because we are precluded from entering an additur, we also need not consider the township’s argument that it is entitled to a set off against any additur which we may enter.

Affirmed.

KNECHT, J., concurs.

PRESIDING JUSTICE LUND,

specially concurring:

I concur with Justice Steigmann’s opinion. Hereafter, I will be inclined to reverse, based on the failure to give a computational verdict form when there is a comparative negligence issue.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    BOARD OF EDUCATION OF SCHOOL DISTRICT U-46, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4 — 90—0739
    Opinion filed July 25,1991.

      Fay Hartog-Rapp and Gerald D. Skoning, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Michael H. Slutsky, of Cotton, Watt, Jones & King, of Chicago, for respondent District U-46 Transportation Union, IEA-NEA.
    Melinda L. Selbee, of Illinois Association of School Boards, of Lombard, for amicus curiae Illinois Association of School Boards.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Cindy Wortham (grievant) was terminated in May 1988 by the Board of Education of School District U-46 (District) from her position as a school bus driver. This termination was challenged by the District U-46 Transportation Union (Union) and in July 1989 an arbitrator determined Wortham should be reinstated, without loss of seniority, but with no back pay. (District U-J+6 Transportation Union and Elgin School District No. 4-6 (July 20, 1989), AAA 51 — 390—0434— 88 — S (McAllister, Arb.).) The District refused to comply with the arbitrator’s award believing it was contrary to public policy. The hearing officer for the Illinois Educational Labor Relations Board (Board) found the District had committed unfair labor practices in refusing to comply with the terms of the arbitrator’s award (Board of Education School District U-U6, 6 Pub. Employee Rep. (Ill.) par. 1085, No. 90— CA — 0020—C (Illinois Educational Labor Relations Board, Hearing Officer’s Recommended Decision and Order, June 1, 1990)) and the Board affirmed the hearing officer and adopted his decision and order (Board of Education of School District U-46, 6 Pub. Employee Rep. (Ill.) par. 1138, No. 90 — CA—0020—C (Illinois Educational Labor Relations Board, Nov. 5, 1990)). The District appeals. (Ill. Rev. Stat. 1989, ch. 48, par. 1716.) We reverse, as we hold the arbitrator’s award reinstating the grievant violated public policy; so the failure to comply with it does not give rise to unfair labor practices.

The grievant was hired by the District in August 1979. During the course of her employment, she has received safety awards from the Secretary of State, but has also been the subject of complaints and disciplinary action about her poor driving habits. The grievant received a D/2-day suspension without pay on April 18, 1988, for an altercation with another bus driver. The arbitrator and the Board found this suspension was issued without just cause and it is not an issue on appeal. On May 2, 1988, grievant was issued a disciplinary suspension pending an investigation by the District over a series of complaints concerning her driving. On May 9, 1988, the grievant was informed of the District’s recommendation that she be terminated from employment effective May 3, 1988. Four reasons were given for her dismissal: (1) harassment of others; (2) lying to the director of transportation; (3) inappropriate driving tactics; and (4) unsafe and unlawful driving practices.

The District and the Union have been parties to collective-bargaining agreements since 1974. The present case arose under their agreement covering the period of September 1, 1987, through August 25, 1988 (Agreement). Section 16.1 of the Agreement provided:

“The Board of Education will not discharge or discipline any employee without just cause and will use a progressive discipline procedure. This, however, will not prevent the Board from taking immediate action for unusual or severe circumstances. This procedure does not apply to those who have had their school bus drivers permit revoked by the State of Illinois and it does not cover probationary employees.”

Article V of the Agreement provided for a grievance procedure, and section 5.82 of that article stated that the last step of the grievance procedure is final and binding arbitration.

The District relied on seven incidents to discharge the grievant. The arbitrator found the evidence supported only three of those incidents.

APRIL 7,1988

The first incident involved the grievant’s driving of a high-school track team to a track meet. Two coaches, Scott Witt and Bob Arnett, submitted a written complaint to the District, signed by both of them, alleging the grievant drove at a speed of 40 to 50 miles per hour on side streets on the way to the track meet. This excessive rate of speed caused the students on the bus to raise their arms as if on a roller coaster ride. The complaint further stated the grievant, finding this behavior amusing, placed her head between her legs as she drove and was laughing.

The grievant submitted a written response to this allegation. She asserted that the area in which she was driving required her to build up her speed because of the steep hills. She denied placing her head between her legs while driving and asserted she could not even get into that position if she tried. Furthermore, the grievant claimed she drove the speed limit on the side streets and, while climbing a hill, noticed the students raising their arms. She admitted laughing and responded to the coach’s inquiry about the conduct of the students. Finally, the grievant questioned one of the coaches’ actions in allowing his small child to return home on the bus thereafter when the coach was so concerned with her driving.

At the hearing, on direct examination, Coach Witt indicated the poor driving occurred on the way back from the track meet. However, on cross-examination, he stated the “roller coaster” incident happened on the way to the track meet. Assistant Coach Jamie Castellano testified he thought the grievant was driving “a little fast considering the way the streets go up and down and curve.” Coach Castellano testified he believed the roller coaster incident occurred on the way to the track meet. Coach Arnett testified the grievant placed her head six inches from her knees, at the lower end of the steering wheel, and that there was no way she could be looking at the windshield from that position. He also testified the roller coaster incident happened on the way back from the track meet.

APRIL 22,1988

On April 22, 1988, the grievant drove in an erratic behavior and made an abrupt stop as she approached an intersection. She then drove in an erratic manner by speeding up, slowing down, and speeding up again. This complaint came from a written statement of Joan Waterman, another bus driver, who witnessed this incident. A written statement submitted by Jim Shumaker, who was behind the grievant when she came to the abrupt stop, alleged her actions caused him to slam on his brakes and come within five feet of rear-ending her bus.

Joan Waterman testified at the hearing that both the grievant and Shumaker were driving the speed limit (40 miles per hour) before turning onto Willard Street. Waterman testified that after the grievant turned onto Willard Street, three cars turned in between the grievant’s bus and the bus driven by Shumaker and two cars were between Shumaker’s bus and Waterman’s bus. The grievant allegedly drove in a manner where she would speed up and then slow down, which caused the cars and the buses to apply their brakes in a random fashion. Waterman further testified the grievant would check her rearview mirror to see what, if any, effect her driving was having on the cars behind her. Waterman testified the grievant made an abrupt turn onto Willard Street. Waterman also testified the grievant used her right-turn signal to make this turn.

In her written statement, Waterman estimated the grievant’s top speed on Willard to be 20 to 30 miles per hour and her low speed to be 10 to 15 miles per hour. She also wrote there were three or four cars between the three buses. Waterman placed Shumaker a bus-length behind the grievant when she made the abrupt stop. In Shumaker’s written statement, he estimated the grievant’s speed to be 12 to 15 miles per hour on Willard. However, his testimony at the hearing was that the grievant would proceed at 5 to 10 miles per hour, then speed up to 12 to 15 miles per hour, then slow down to 5 to 10 miles per hour. Shumaker further testified the grievant did not use her right-turn signal when turning onto Willard until after the abrupt stop. He estimated he came within three or four feet from hitting grievant’s bus.

When asked about this incident at the May 5, 1990, meeting, the grievant did not recall making an abrupt stop at the intersection. She also stated she may have driven at varying speeds as a reaction to the road conditions.

APRIL 29, 1988

The final incident regarding the grievant’s driving involved another trip to a track meet on April 29, 1988. The same three coaches that previously complained about the grievant filed another complaint with the District.

Coach Arnett sent a letter to the director of transportation describing the grievant’s driving on a trip to Mt. Prospect High School. That letter stated the grievant made an unnecessary left-hand lane change just prior to the tollway entrance, which in turn caused her to have to force her way back into the right lane to exit onto the tollway. A car behind her bus had to slam on its brakes to let the grievant into the right-hand lane. Coach Arnett also alleged the grievant exceeded the speed limit on the tollway. He was driving his own car at approximately 58 to 59 miles per hour and could not catch up with the bus. Finally, Coach Arnett alleged the grievant, after stopping in the left-hand lane at a set of railroad tracks, abruptly swerved into the right-hand lane, causing him to take evasive action to avoid a collision with the bus. Coach Arnett’s testimony at the hearing paralleled his allegations in his written statement.

Coach Witt also submitted a written statement regarding the grievant’s driving on April 29, 1988. Coach Witt alleged the grievant passed cars on her right-hand side, which caused her to cut them off when she changed lanes. He further alleged she always seemed to be in too much of a hurry. Witt alleged that at one point, rather than making a complete stop at the stop sign, the grievant rolled through a four-way intersection, which caused her to slam on her brakes to avoid broadsiding another car in the intersection. Finally, Witt wrote, in his opinion, “the woman should not be driving a school bus. *** I would not want any of my kids riding with her. She is a time-bomb waiting to go off.”

Furthermore, Coach Witt’s testimony at the hearing corresponded with the allegations in his written complaint. However, he added the fact that at one point when the grievant was in the left-hand lane with her right-turn signal on, he noticed a car to the bus’ right waiting for the bus to change into that lane. Just as the car began to pass the bus, the bus moved into the right-hand lane and almost ran the car off the road. Finally, Coach Witt testified he believed the grievant was speeding on the tollway because, although he could not see the speedometer clearly, he could see the 60 or 65 mark and the needle was past that mark.

Assistant Coach Castellano testified he rode the bus on April 29, 1988. He recalled the grievant speeding that day as well as rolling through the stop sign and barely missing the car in the intersection. Furthermore, he testified that immediately after the grievant rolled through the stop sign, he made a comment out loud to the other coach on the bus. He said, “Whoa, did you see that? She went through the stop sign.” Coach Castellano testified Coach Witt told him to remain quiet.

The grievant maintained she made a complete stop at the four-way intersection. She acknowledged having to quickly stop for the car in the intersection, but attempted to explain this by stating the car was in her blind spot. Finally, the grievant generally denied the rest of the allegations of misconduct on that day.

The arbitrator found the testimony concerning grievant’s driving on April 5, 1988, and the two incidents on April 18, 1988 (one involving driving), did not prove the grievant improperly operated her bus. The arbitrator concluded the preponderance of the evidence established the grievant did improperly operate her bus on April 7, 22, and 29, 1988, so that the District had good and sufficient reason to be concerned with her driving. However, the District’s disciplinary rules and regulations for bus drivers required progressive discipline (written warning, suspension or second warning, termination) for its drivers, and the grievant did not receive this.

The arbitrator rejected the District’s assertion that even without considering the April 18 suspension, previous warnings from S eptember and October 1986 served to satisfy the progressive disciplinary policy. The arbitrator found the District’s actions to be contrary to this policy because, when the grievant was suspended indefinitely on May 2, two incidents were cited which were known to the District prior to the April 18 suspension but which were previously unknown to the grievant. The arbitrator stated “[sjaving up alleged rule violations without attempting to correct an employee’s conduct is the antithesis of progressive discipline.” Furthermore, none of the incidents which were supported by substantial evidence alone warranted termination. Therefore, the arbitrator concluded the District’s failure to follow the progressive disciplinary policy required a finding of no just cause to terminate the grievant.

The arbitrator acknowledged that students are an “invaluable commodity” and some disciplinary action needed to be taken. (District U-46 Transportation Union and Elgin School District No. 46 (July 20, 1989), AAA No. 51-390-0434-88-S (McAllister, Arb.) (slip op. at 38).) Specifically, he found any contemplation of back pay was outweighed by the District’s concern for its school children. Noting that the grievant’s driving habits needed correction, the arbitrator stated granting no back pay would make the grievant understand that she must in the future be a safety-conscious driver and ignore the hostility and pettiness of her fellow drivers. Finally, the arbitrator criticized the District for its inability to distinguish from petty, biased concerns and legitimate complaints which obscured the basic issue of safety. The arbitrator concluded there was no just cause for termination and that the grievant should be reinstated without back pay. The District was ordered to make the grievant whole for the D/a-day suspension of April 18, 1988, which, as heretofore stated, is not an issue on appeal.

The District, on August 21, 1989, adopted a resolution stating that the reinstatement of the grievant would be contrary to public policy because of her unsafe driving practices. Therefore, the District determined it would not comply with the arbitration award, and it thereafter declined to do so.

On September 26, 1989, the Union filed an unfair labor practice charge against the District alleging its refusal to comply with the arbitration award violated sections 14(a)(1), (a)(5), and (a)(8) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(1), (a)(5), (a)(8)). The Union subsequently withdrew its section 14(a)(5) claim. A hearing was held and on June 1, 1990, the hearing officer issued a recommended decision and order. (Board of Education School District U-46, 6 Pub. Employee Rep. (Ill.) par. 1085, No. 90 — CA—0020—C (Illinois Educational Labor Relations Board, Hearing Officer’s Recommended Decision and Order, June 1, 1990).) He determined that a public policy exception to the enforcement of arbitration awards did apply under the Act. The hearing officer further concluded, however, that in the present case no explicit, well-defined and dominant public policy existed to preclude reinstatement of the grievant. Therefore, the hearing officer found the District violated the Act by not reinstating the grievant.

On September 28, 1990, the Board issued a final order adopting the hearing officer’s recommended decision and order. (Board of Education of School District U-46, 6 Pub. Employee Rep. (Ill.) par. 1138, No. 90 — CA—0020—C (Illinois Educational Labor Relations Board, Nov. 5, 1990).) The District filed this petition for review of the order of the Board on October 26, 1990, pursuant to section 16(a) of the Act. Ill. Rev. Stat. 1989, ch. 48, par. 1716(a).

The law is clear in Illinois that where a grievance proceeds to arbitration, the parties must accept the facts as found by the arbitrator. “ ‘[B]ecause the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.’ ” American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 255, 529 N.E.2d 534, 538 (AFSCME), quoting United Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 37-38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 370.

A court’s review of an arbitrator’s award is extremely limited. (AFSCME, 124 Ill. 2d at 254, 529 N.E.2d at 537.) Courts may not interfere with the discretionary authority vested in an administrative body unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is contrary to the manifest weight of the evidence. (Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board (1990), 202 Ill. App. 3d 559, 560 N.E.2d 627.) A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 505 N.E.2d 418.

As a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737.) An administrative agency’s interpretation is not binding, however, and it will be rejected when it is erroneous. Hardin, 174 Ill. App. 3d at 174, 528 N.E.2d at 740.

A court’s refusal to enforce an arbitrator’s award under a collective-bargaining agreement because it is contrary to public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy. (Misco, 484 U.S. at 42, 98 L. Ed. 2d at 301, 108 S. Ct. at 373.) The question of public policy is ultimately one for resolution by the courts. If the contract as interpreted by the arbitrator violates some explicit public policy, courts are obliged to refrain from enforcing it. (W.R. Grace & Co. v. Local Union 759 (1983), 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183.) Such a public policy, however, must be well defined and dominant, and is to be ascertained “ ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” (W.R. Grace & Co., 461 U.S. at 766, 76 L. Ed. 2d at 307, 103 S. Ct. at 2183, quoting Muschany v. United States (1945), 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65 S. Ct. 442, 451.) The public policy of a State or nation must be determined by its constitution, laws, and judicial decisions — not by the varying opinions of laymen, lawyers, or judges as to the demands of the interests of the public. AFSCME, 124 Ill. 2d at 260, 529 N.E.2d at 540.

The District contends there is a public policy in favor of the safe transportation of school children. In support of this assertion, the District relies upon the stringent requirements imposed upon those persons seeking a school bus driver’s permit as stated in section 6— 106.1 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 106.1). The District also refers to the Illinois State Board of Education’s rules and regulations embodied in its manual entitled “Basic Competencies for School Bus Drivers,” as well as those stated in the Illinois Rules of the Road (Rules of the Road) (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 100 et seq.), which are incorporated by reference into the Board of Education’s rules. Finally, the District relies on its own manual, “Professional Driver’s Handbook,” which expressly requires the bus drivers to “[t]ake necessary safety precautions to protect passengers and/or equipment at all times.”

While there is no precise definition of public policy, it is to be found in the Constitution, in statutes, and in judicial decisions. An examination of these three sources leads to the conclusion that there is a public policy favoring the safe transportation of school children.

I. CONSTITUTION

Article X, section 1, of the Illinois Constitution states a fundamental goal of the people of this State is to provide for the educational development of all persons to the limits of their capabilities. (Ill. Const. 1970, art. X, §1.) The purpose of section 1 of article VIII of the 1870 Constitution (Ill. Const. 1870, art. VIII, §1 (now article X, section 1, of the 1970 Constitution)) was to compel the General Assembly to retain and perpetuate, as a minimum, the system of free schools that had already been developed. (Hamer v. Board of Education of School District No. 109 (1970), 47 Ill. 2d 480, 265 N.E.2d 616.) This State’s policy in favoring a system of free schools began in 1825 when “An Act providing for the Establishment of Free Schools” (1825 Ill. Laws 121) was passed. Hamer, 47 Ill. 2d at 487, 265 N.E.2d at 620.

It is unquestionable that a public policy exists in this State favoring the education of children. The primary purpose of the maintenance of the common school system is the promotion of the general intelligence of the people constituting a body politic, and thereby to increase the usefulness and the efficiency of the citizens. (Lee v. Board of Education, Marshall Township High School District No. 200 (1924), 234 Ill. App. 141.) Clearly, this policy is well defined, explicit, and dominant. Furthermore, although alone it does not establish a public policy favoring the safe transportation of school children, it is an integral part of that public policy.

II. STATUTES

Several statutes enacted by the legislature indicate there is a public policy favoring the safe transportation of school children. First, section 29 — 1 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 29 — 1) states that school boards may provide free transportation for their pupils. Furthermore, other sections of the School Code permit such boards to provide for transportation to and from any school-related activities. (Ill. Rev. Stat. 1989, ch. 122, pars. 29 — 3.1 through 29 — 3.4.) The legislative determination that school boards may provide transportation for children to school and school-related activities suggests a corollary desire to ensure the students reach their destinations. At the very least, these statutes indicate a public policy favoring the transportation of school children and undoubtedly this would include the safe transportation of those students.

Section 27 — 26 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 27 — 26) provides the curriculum in all public schools which provide instruction to students in grades kindergarten through 12th shall include instruction in safe bus-riding practices for all children who are transported by bus. This must be done at least twice during the school year and must include emergency evacuation drills. This, too, demonstrates the legislature’s desire to ensure safety in the transportation of school children. The students themselves are taught that bus safety is important and surely the conduct of the bus drivers is as important, if not more important, than the conduct of the students riding the bus.

Finally, several sections of the Vehicle Code evince a public policy favoring the safe transportation of school children. The clearest evidence of this public policy is found in section 6 — 106.1 of the Vehicle Code, which lists the necessary requirements for a school bus driver permit. Among other things, an applicant for such a permit must be at least 21 years old; must pass a written test on school bus operation, school bus safety and special traffic laws relating to school buses; and must submit to a medical examination, which includes testing for drug and alcohol use. An applicant cannot have been convicted of reckless driving, driving while intoxicated, or reckless homicide resulting from the operation of a motor vehicle within three years of the date of application.

School bus driver permits are only valid for one year. A permit can be revoked whenever the Secretary of State has revoked or suspended the holder’s driver’s license or when the regional superintendent receives notice that the holder of the permit has been convicted of a crime under section 6 — 106.1(a)(10) or (a)(ll) of the Vehicle Code. (Ill. Rev. Stat. 1989, ch. 951/2, pars. 6 — 106.1(a)(10), (a)(11).) The fact that the Secretary of State has not revoked the grievant’s school bus driver’s license does not foreclose reference to section 6 — 106.1 of the Vehicle Code in determining the public policy.

Section 6 — 106.1(a)(5) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 106.1(a)(5)) states that an applicant seeking a school bus driver permit must have “demonstrated ability to exercise reasonable care in the operation of school buses in accordance with such standards as the State Superintendent of Education prescribes.” Pursuant to this statutory mandate, the Illinois State Board of Education set forth its rules and regulations in a manual entitled “Basic Competencies for School Bus Drivers.” In the opening pages of that manual, the following language appears:

“Perhaps in no other area of education does a local board of education or school administrative staff accept more responsibility for student life and welfare than during the mass movement of children in school transportation vehicles on the public highway, streets and roads of your State. Therefore, as a member of the ‘safety team’, we must not only provide adequate equipment but constantly strive to improve operational safety and efficiency.”

Clearly the Illinois State Board of Education believes there is a public policy favoring the safe transportation of school children. Moreover, the District’s own rules and regulations indicate that a public policy in favor of the safe transportation of school children exists. For example, in the District’s “Professional Driver’s Handbook,” the introduction and forward emphasize the responsibility placed on school bus drivers for the safety of their students. Finally, in the school district’s disciplinary rules and regulations for bus drivers, employees are made aware that disciplinary action will be taken “to ensure the safety of the pupils of the school district and to bring the employee’s general conduct and actions which are considered unsafe into compliance with accepted standards.”

All of these statutes demonstrate the legislature’s intent that any transportation authorized by school boards for school children be safe. Furthermore, it is obvious that the District is concerned with the safe transportation of its school children since its regulations require bus drivers to operate their buses safely.

III. JUDICIAL DECISIONS

Finally, support for a determination that a public policy in favor of the safe transportation of school children exists can be found in judicial decisions. Initially, there is a general public policy of protecting the public welfare through the enactment of laws regulating highways. The Illinois Supreme Court stated:

“No reasonable person would question not only the right but the absolute duty of the legislature to impose[ ] these regulations [the various legislative acts making up the motor vehicle law] upon those who use the streets and roads of the State. All these regulations, including even prohibitions which stand in substantial relationship to the public welfare, must be presumed by the courts to be necessary for the purpose of protecting public health, safety and morals, and must be sustained under the police power of the State.” People v. Warren (1957), 11 Ill. 2d 420, 425-26, 143 N.E.2d 28, 32.

Moreover, courts have specifically recognized a desire to transport children to school safely. In Van Cleave v. Mini Coach Co. (1951), 344 Ill. App. 127, 129, 100 N.E.2d 398, 399, the court, in adopting the standard of care required in the operation of a school bus, stated: “[T]hose engaged in the transportation of school children should be held to exercise the highest degree of care.” Likewise, in People v. Davis (1980), 88 Ill. App. 3d 728, 732, 410 N.E.2d 673, 676, the court explicitly stated:

“School bus drivers are required to transport children safely between the school and home, and it is a necessary corollary to this duty that they be accorded the concomitant authority to maintain safety on the school bus.”

After thoroughly examining the Constitution, the laws and judicial decisions of this State, as well as the regulations promulgated by the District and the State Board of Education, the inevitable conclusion is that a public policy favoring the safe transportation of school children exists. The purposes and policies of the School Code, the Vehicle Code, the Illinois Rules of the Road, along with the Constitution and the decisions of our courts, combine to support this public policy.

Since we have determined this public policy exists, the question then becomes whether the arbitrator’s award violates this public policy. The Union argues the AFSCME decision stands for the proposition that an award may be vacated on public policy grounds only when the award requires or sanctions a violation of law. The Union further argues that the reinstatement of the grievant rather than her past conduct must be contrary to public policy.

The Board, also relying on AFSCME, contends by brief that the public policy must “mandate[ ] the discharge” of the employee under the facts as found by the arbitrator. Since the arbitrator found only that the grievant improperly operated her bus, but she was never convicted or arrested for any offense, the award must be upheld.

The District responds that the grievant need not have been convicted of a crime, nor is the application of the public policy exception limited to situations wherein public policy created by a law mandates the discharge. Rather, it is permissible to look at the past conduct of the grievant to determine whether public policy is offended by reinstatement. Thus, since the arbitrator found the grievant improperly operated her bus on numerous occasions, her past conduct in doing so violates the public policy favoring the safe transportation of school children.

This court recently addressed this public policy issue in Department of Central Management Services v. American Federation of State, County & Municipal Employees (1990), 197 Ill. App. 3d 503, 554 N.E.2d 759 (hereinafter CMS). There, five correctional officers were discharged because of various regulation violations. Debra San-tel (Santel) used illicit drugs with a former inmate and failed to make various reports about her contact with this former inmate. Two other officers were discharged for using excessive force on a prisoner and failing to report the incident. The final two officers were also discharged for failing to report that incident and conduct unbecoming an officer. All of these discharges were the subject of arbitration and the arbitrator reinstated all five correctional officers.

This court first stated that a clear public policy existed against battering prisoners. (CMS, 197 Ill. App. 3d at 514, 554 N.E.2d at 766.) As such, the reinstatement of the two officers who battered the prisoner was against public policy. Likewise, this court held reinstating the correctional officer who used illicit drugs with a former inmate violated the public policy against the use of such drugs. This court noted Santel did not commit a crime when she was under investigation for allegedly agreeing to smuggle drugs into the prison and, thus, if the discharge only concerned that period of time, her reinstatement would not have been against public policy. However, this court looked at her misconduct prior to that point in time; namely, when she used illegal drugs with the former inmate. “[Wjhen employees in sensitive positions commit such serious offenses as violating drug laws, public policy requires the employer to have the ability to discharge them.” CMS, 197 Ill. App. 3d at 515, 554 N.E.2d at 767.

Finally, with respect to the two officers discharged because of a failure to report the incidents, this court stated:

“[T]he mere violation of regulations requiring the reporting of misconduct by other employees, however serious, has an insufficient nexus to any public policy expressed in the constitution, laws, or court decisions to require employers to have a right to discharge for said conduct.” CMS, 197 Ill. App. 3d at 515, 554 N.E.2d at 767.

We agree with the District that the grievant’s past conduct can be examined to determine whether the award violates public policy. In CMS, this court stated, with respect to Santel’s discharge, that the laws against the use of illegal drugs created the public policy which was contravened by the award insofar as it granted reinstatement. Therefore, the illegal conduct of Santel, within the context of the duty imposed on a correctional officer, could be considered. (CMS, 197 Ill. App. 3d at 515, 554 N.E.2d at 767.) We consider the grievant’s conduct within the context of the duty imposed upon her as a school bus driver. That duty requires the grievant to operate her bus in a safe and reasonable manner to protect the safety of the children on the bus as well as the general public on the road. The arbitrator specifically found that the preponderance of the evidence established the grievant improperly operated her bus on three occasions. Thus, reinstating the grievant would violate public policy. There is clearly a nexus between grievant’s driving and the “safe transportation of children.”

Both the Union and the Board contend AFSCME is controlling. We disagree. In that case, two employees of a State mental health facility made an unauthorized trip to a flea market. While they were gone, a resident who had been left unattended died. The employees were not responsible for that particular resident and the arbitrator specifically found there was no nexus between their unauthorized trip and the death. In fact, the employees had exemplary records.

Nevertheless, both employees were discharged for the mistreatment of a service recipient. They challenged their terminations and eventually an arbitrator ordered them reinstated with a four-month suspension without pay. The appellate court upheld this award, and the supreme court affirmed, holding there was no violation of any public policy.

The court’s decision in AFSCME was premised on the arbitrator’s finding that the grievants were exemplary employees, that punishment had been imposed upon them, and that no nexus existed between their conduct and the patient’s death. The patient who died was a resident of the male wing of the hospital, and the employees were assigned to the female wing of the hospital. The arbitrator found no direct link between their unauthorized absence and the resident’s death. On the other hand, here, the grievant is not an exemplary employee. Her personnel file reveals several instances of misconduct, disciplinary action, and unprofessional conduct. Furthermore, a direct nexus exists between her conduct of improperly driving her school bus and the potential injury to either the school children or other motorists on the road. Therefore, we find AFSCME distinguishable.

Although not binding, we find the Eleventh Circuit’s decision in Delta Air Lines, Inc. v. Air Line Pilots Association, International (11th Cir. 1988), 861 F.2d 665, persuasive. There, an airline pilot was discharged after he flew his aircraft while drunk. An arbitration award ordered the pilot reinstated without back pay. The System Board of Adjustment found no just cause for the discharge and concluded the pilot should have been offered the option of entering Delta’s alcohol rehabilitation program. The district court set aside the award, finding it clearly violated a public policy against allowing pilots to fly aircraft while intoxicated. (Delta Air Lines, Inc. v. Airline Pilots Association (N.D. Ga. 1987), 686 F. Supp. 1573.) Both parties cross-appealed.

The court of appeals first stated:

“The public policy of which the Supreme Court speaks in Misco seems to be a public policy not addressing the disfavored conduct, in the abstract, but disfavored conduct which is integral to the performance of employment duties. The question we are instructed, by Misco, to ask is not, ‘Is there a public policy against the employee’s conduct?’, but, rather, ‘Does an established public policy condemn the performance of employment activities in the manner engaged in by the employee?’ ” (Emphasis in original.) (Delta Air Lines, 861 F.2d at 671.)

In holding the award of reinstatement violated public policy, the court then stated:

“When public policy is offended by what a person does, unrelated to the performance of his employment duties, an employer may well conclude that he should discharge that person as an expression of disapproval, though there be no public policy one way or the other. Where the person performs his employment duties and, in doing so, violates standards, restraints and restrictions on conduct, clearly and explicitly established by the people in their laws, a requirement that the employer suffer that malperformance and not discharge the offender does itself violate the same well established public policy.” (Emphasis in original.) (Delta Air Lines, 861 F.2d at 674.)

Therefore, the court concluded, because what the employee did in the performance of his employment was the very thing which offended the public policy, his reinstatement would violate public policy.

We find the instant case analogous to Delta Air Lines. The fact that the pilot flew the plane while under the influence of alcohol expressly conflicted with the public policy against flying airplanes while intoxicated. Likewise, the grievant drove her bus recklessly thereby endangering the children on her bus, which expressly conflicts with a public policy favoring the safe transportation of school children. As in Delta Air Lines, it was the conduct of the employee in the course of employment which violated public policy; and her reinstatement would contravene that public policy.

The arbitrator found the grievant was not afforded progressive discipline, as provided in section 16.1 of the Agreement. However, that section also stated the progressive discipline requirement would not prevent the school board from taking immediate action for unusual or severe circumstances. We find the grievant’s driving habits both severe and unusual. Therefore, the District was not required to utilize the progressive discipline policy.

We hold the arbitrator’s award, reinstating the grievant to her position as a school bus driver, is contrary to the public policy favoring the safe transportation of school children. The grievant has a complete disregard for the safety of the children on her school bus. Her driving tactics are inexcusable. Allowing her to continue driving would only put the lives of those children at stake. The decision of the Board is reversed.

Reversed.

LUND, P.J., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE CHARLES McCLELLAN, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0816
    Opinion filed July 25,1991.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial, defendant George McClellan was convicted of the offense of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1)). Defendant was sentenced to a term of eight years’ imprisonment with credit for time served, and appeals the conviction and sentence imposed. Defendant alleges the trial court improperly permitted (1) reference to the fact that defendant took a polygraph examination, (2) a police officer’s opinion testimony that the officer believed defendant forced complainant to engage in an act of sexual intercourse, and (3) certain aggravating factors in determining defendant’s sentence. We reverse and remand.

Defendant was charged with one count of aggravated criminal sexual assault, alleging defendant committed an act of sexual penetration with complainant by the use of force. The State presented three witnesses: (1) complainant, (2) Sergeant Gregory Fillmore, and (3) Ellen Schroeder, a polygraph examiner.

At the time of trial, complainant testified she was 26 years old. On the afternoon of May 22, 1987, she and a friend went to defendant’s apartment to visit. Complainant testified she had known defendant a number of years, that they were friends, and they had had sexual intercourse about four times in the middle of 1986. After some small talk, complainant and her friend left on foot. About five blocks from complainant’s apartment, complainant and her friend parted company. At this point, complainant testified it began to rain. Defendant pulled up in his car, and asked her if she wanted a ride. She testified she initially said no, but when defendant urged her to accept a ride, she agreed. Complainant stated that defendant eventually drove her to an abandoned farmhouse where he began fondling her, and eventually forced her to engage in an act of sexual intercourse.

Afterward, defendant asked complainant if there were any hard feelings, or if she was mad at him, and she gave no response. She testified she told him “Just please take me home.” Defendant then drove complainant home. Complainant went to the hospital and underwent a physical examination, a pap smear, and a urinalysis.

Sergeant Gregory Fillmore, of the McLean County sheriff’s department, testified that on May 27, 1987, he and Detective Bailey spoke with complainant and some of the doctors and nurses treating her at St. Joseph’s Hospital. Fillmore testified that complainant told him where the sexual assault occurred, and that she knew the perpetrator. After complainant was finished at the hospital, Fillmore and Bailey drove her into the country and found the deserted house where complainant stated the sexual assault occurred.

Fillmore testified he and Bailey then spoke with defendant. Fillmore testified defendant told him that he had spotted complainant walking down Grove Street, and that he and complainant went for a drive. Defendant denied stopping the vehicle at any time, stopping at a farmhouse, or engaging in sexual intercourse with complainant.

Ellen Schroeder testified that she interviewed defendant about the sexual assault. Initially, defendant denied taking complainant to an abandoned farmhouse, and denied having sexual intercourse with her. She testified that later defendant did admit he drove out to a farmhouse and had intercourse with complainant, but denied any force was used. As agreed by the parties, no mention was made during Schroeder’s testimony that she conducted a polygraph examination of defendant, but only that she had “interviewed” him.

Defendant testified that on the day in question, while driving his car after complainant and her friend left his apartment, he saw complainant walking and offered her a ride, which she accepted. Defendant testified they stopped at an old abandoned farmhouse, and that he asked her if she wanted to go in and see the inside. Complainant did not respond, but she got out of the car and they went into the house. Defendant testified they engaged in an act of sexual intercourse at the farmhouse, but he claimed complainant consented.

Defendant admitted on direct examination that he lied in the interview with Ellen Schroeder (the polygraph examiner) by denying that he had engaged in sexual intercourse with complainant. He explained that he denied his actions because he was afraid his girlfriend would find out he had sex with complainant. He stated that later in that interview he admitted to having intercourse with complainant because his girlfriend already knew about the sexual activity, and it needed to be “cleared up with the police.” On cross-examination, the prosecutor asked why he initially lied to Schroeder if he had already cleared things up with his girlfriend. Defendant did not answer this question. On redirect examination, defense counsel asked defendant why he denied telling Schroeder that he had intercourse with complainant, if he had already talked to his girlfriend. Defendant answered “well, I just — I don’t know.” Defense counsel asked, “You then realized it was time to tell the truth?” Defendant answered, “Right. It was time to ’fess up to it, that I actually did have sex with [complainant].” A side bar was then held and the prosecutor argued that defense counsel had opened the door about evidence regarding defendant’s polygraph examination because he had offered an explanation about why he changed his story to Ellen Schroeder. The court then allowed cross-examination of defendant on his explanation for changing his story to Schroeder:

“Q. [Prosecutor:] Mr. McClellan, you have now stated that you decided to tell the truth to Ellen Schroeder because you wanted to get it out in the open, you had previously told your girlfriend Ruth Bond about it ***?
A. [Defendant:] Yes, sir.
Q. [Prosecutor:] Isn’t in fact the truth of the matter that you were hooked up to a lie detector box when Ellen Schroeder was asking you the truthfulness of whether or not you forced intercourse upon [complainant], and she told you that she did not believe you were being truthful. Isn’t that in fact what caused you to come out and tell the truth about what happened?
A. [Defendant:] Yes, sir, I was hooked to a box. I was taking a lie detector test.
Q. [Prosecutor:] And then you told her *** after she first indicated to you that she did not believe you were being truthful, and isn’t it at that point that you said that you did take her out to an abandoned farmhouse on that night, and you did have sex with her. Isn’t it also at that point that you did not — didn’t you tell her that you did not use any force and you believed that she was a willing participant ***?
A. [Defendant:] I don’t know, sir, because that’s been— 1987.1 believe so.
Q. [Prosecutor:] At that point isn’t it again true that Ellen Schroeder retested you and told you that she still did not believe you were being honest, and isn’t it at that point that you told her tha,t [complainant], *** did say no prior to sex, but that she did not fight you off?
A. [Defendant:] She said no, but she didn’t — after I rubbed on her for a while she more or less willingly give in.
Q. [Prosecutor:] Well, the question is, it was after Miss Schroeder told you that you were not being truthful the second time that you told her that [complainant] did say no prior to the sex act but that she did not fight you off, isn’t that correct?
A. [Defendant:] Yes, sir.” (Emphasis added.)

Immediately after this testimony, the court instructed the jury that the evidence regarding defendant’s polygraph examination was introduced only to explain why defendant changed his story, and not to suggest what the polygraph machine showed in response to defendant’s answers. The court further instructed the jury that the results of a polygraph exam are inadmissible because of their unreliability.

The jury returned a verdict of guilty. After the sentencing hearing, the trial court imposed a term of eight years’ imprisonment. This appeal followed.

The results of a polygraph examination, as proof of guilt or innocence, are clearly inadmissible. (People v. Baynes (1981), 88 Ill. 2d 225, 240, 430 N.E.2d 1070, 1077.) The results of polygraph examinations are inadmissible because they are not sufficiently reliable as proof of guilt or innocence, yet because of their quasi-scientific appearance, jurors may give them undue weight and believe the results are conclusive. (People v. Taylor (1984), 101 Ill. 2d 377, 391-92, 462 N.E.2d 478, 485.) Polygraph evidence is inadmissible in any manner and at any stage of a defendant’s criminal trial. Baynes, 88 Ill. 2d at 240, 430 N.E.2d at 1077; Taylor, 101 Ill. 2d at 391-92, 462 N.E.2d at 485.

In Baynes, the result of defendant’s polygraph test was introduced pursuant to a stipulation, as substantive evidence of defendant’s guilt, and the supreme court found the introduction of this evidence rose to the level of plain error. (Baynes, 88 Ill. 2d at 244, 430 N.E.2d at 1079.) In People v. Yarbrough (1982), 93 Ill. 2d 421, 429, 444 N.E.2d 493, 497, the trial court requested defendant take a polygraph exam before he ruled on defendant’s motion for a new trial, suggesting that if the State felt the results were conclusive, it could then move to vacate the defendant’s conviction. The supreme court ruled that the trial court was precluded from considering the results of the polygraph test in deciding a motion for a new trial. In Taylor, the supreme court reversed defendant’s conviction where the trial court refused the defendant’s request for a change of venue because of excessive pretrial publicity, including the fact that potential jurors heard on the radio that a codefendant was released after he passed a lie detector test. The supreme court reasoned that potential jurors could infer that since defendant was not released he had failed the polygraph test, and therefore must be guilty. Taylor, 101 Ill. 2d at 388, 462 N.E.2d at 483.

The State acknowledges that the results of polygraph examinations are inadmissible. However, the State claims it did not introduce the results of the test, but rather with the fact that defendant changed his story after the interviewer told him she did not believe defendant, and not because he wanted the truth “out in the open.” Thus, the State argues the reference to defendant’s polygraph examination was permissible because it was introduced not to show guilt, but for the limited purpose of rebutting defendant’s explanation of why he changed his story. The State further argues defendant invited this reference by his testimony on direct examination about why he initially lied to Schroeder, and the court clearly instructed the jury that the evidence was only introduced to explain why defendant changed his story and to judge his credibility.

While the results of defendant’s polygraph examination were not expressly mentioned, the prosecutor referred to the fact that Schroeder did not believe defendant after administering a polygraph examination, and again after retesting him. The inescapable inference is that defendant failed the polygraph test, and we conclude that this line of questioning resulted in reversible error.

Our supreme court has made it abundantly clear, through its trilogy of Baynes, Yarbrough, and Taylor, that polygraph evidence is strictly inadmissible, and its admission is so prejudicial as to require reversal. That the State injected the polygraph reference for a limited purpose (to explain why defendant changed his story) is of no significance. All the negative and prejudicial inferences flowing from the mention that defendant took a polygraph exam remained. The State strenuously argues that defendant opened the door to the polygraph reference by claiming that he changed his story because he wanted to clear things up with the police. However, the prosecutor could have rebutted defendant’s assertion without ever referring to defendant’s polygraph examination, by stating that defendant changed his story only after Schroeder told him she did not believe him. In addition, exclusion of polygraph evidence in this case is required not only to prevent unfair prejudice to the defendant, but also to protect the integrity of the judicial process. Baynes, 88 Ill. 2d at 244, 430 N.E.2d at 1079.

Finally, although the trial court instructed the jury of the limited purpose for which the polygraph evidence was introduced, and warned the jury of the polygraph’s unreliability, it is unlikely the “jury would follow limiting instructions because the polygraph evidence '*** is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi. ***.’ ” Baynes, 88 Ill. 2d at 244, 430 N.E.2d at 1079, quoting State v. Dean (1981), 103 Wis. 2d 228, 277, 307 N.W.2d 628, 652.

The State cites People v. Jackson (1990), 198 Ill. App. 3d 831, 556 N.E.2d 619, appeal denied (1990), 133 Ill. 2d 565, 561 N.E.2d 700, in support of its argument that the polygraph evidence in this case is admissible. In Jackson, the defendant testified that his confession was coerced by threats of physical violence. In rebuttal to defendant’s assertion, the State introduced testimony that defendant confessed after he was told he had failed a polygraph examination. The court gave the jury a limiting instruction, stating that it should not use the testimony about the polygraph examination as evidence that defendant lied, but only to determine whether the confession was voluntarily given. (Jackson, 198 Ill. App. 3d at 845, 556 N.E.2d at 628.) The court upheld the use of the polygraph evidence with this limiting instruction, stating, “We believe that the evidence showing that the defendant failed the polygraph examination was admissible for the limited purpose of showing that it was his failure to pass the test, rather than the alleged threats of violence by the police, which motivated the defendant to confess.” (Jackson, 198 Ill. App. 3d at 846, 556 N.E.2d at 629.) Initially, we find Jackson distinguishable because there polygraph evidence was introduced on the issue of voluntariness of a defendant’s confession, and here it was ostensibly introduced to explain why defendant changed his story. However, because of the damage inherent in the admission of unreliable polygraph evidence, and the futility of a limiting instruction, we decline to follow Jackson.

Defendant next argues that the trial court improperly permitted Sergeant Fillmore to testify as to his opinion that defendant used force to compel complainant to engage in sexual intercourse. Whether defendant used force was a question of fact for the jury and an essential element of the offense of criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1).) Since defendant admitted to engaging in intercourse with complainant, the only remaining question for the jury was whether he used force.

Sergeant Fillmore interviewed defendant on the night of the incident. Fillmore testified that defendant repeatedly denied going out to the farmhouse, or engaging in any sexual contact with complainant. At this point, Fillmore explained his interview technique:

“[Sergeant Fillmore:] *** I asked him whether he had had any type of sexual contact with [complainant]. Absolutely not. At this time I began to use a theme that a lot of investigators use when you’re investigating a case like this. My knowledge or my belief at that point was that he had forced her to have sex with him.”

Over defense counsel’s objection, Fillmore continued:

“[Sergeant Fillmore:] It was my belief at that time from the information that I had that this had been a forced sex type situation.”

A lay witness is permitted to testify only as to statements of fact about which the witness has personal knowledge. (People v. Brown (1990), 200 Ill. App. 3d 566, 578, 558 N.E.2d 309, 316.) Opinion testimony from a lay witness is especially improper and prejudicial when it goes to an ultimate question of fact to be decided by the jury. (Brown, 200 Ill. App. 3d at 579, 558 N.E.2d at 317.) Here, whether defendant used force was the only question for the jury to decide, and Fillmore’s opinion on this was improperly introduced as evidence.

In light of our decision to reverse defendant’s conviction because of the improper introduction of the polygraph evidence, we need not address defendant’s arguments regarding his sentence. We note, however, that we have reviewed the record and find the admissible evidence was sufficient to permit the finder of fact to conclude that defendant was proved guilty beyond a reasonable doubt. Thus, double jeopardy does not bar his retrial, although our holding in no way implies that we have made a finding as to defendant’s guilt that would be binding on the court on retrial. People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375.

Accordingly, for the reasons herein stated the judgment of the circuit court of McLean County is reversed and the cause remanded.

Reversed and remanded.

LUND, P.J., and SPITZ, J., concur.